Attached files
Exhibit
10.14
THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND
ANY APPLICABLE STATE SECURITES LAWS, OR (C) IF REGISTERED UNDER THE 1933 ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
MICROHELIX,
INC.
WARRANT
TO PURCHASE
SHARES OF
CLASS B COMMON
STOCK
Expires
December 30, 2014
Portland, Oregon
Issue
Date: December 30, 2009
IN
CONSIDERATION OF the representations and covenants set forth herein, and other
good and valuable consideration received, and subject to the provisions
hereinafter set forth, microHelix, Inc., an Oregon
corporation (the "Company"), hereby certifies
that WS Technologies
LLC, or its registered assigns (the "Warrant Holder") is entitled to subscribe
for and purchase, during the period specified in this Warrant, up to 65,100,917
shares ("Warrant
Shares") (subject to adjustment as hereinafter provided) of the duly
authorized, validly issued, fully paid and non-assessable Class B Common Stock of the
Company, at an exercise price per share equal to $0.001 per share (subject to
adjustment as hereinafter provided, the "Exercise Price") subject,
however, to the provisions and upon the terms and conditions hereinafter set
forth. The right to purchase Warrant Shares will expire at 12:01
a.m., Pacific Time, on December 30, 2014.
1. Registration of
Warrant. The Company will register this Warrant upon records
to be maintained by the Company for that purpose (the "Warrant Register"), in the
name of the record Warrant Holder hereof from time to time. The
Company may deem and treat the registered Warrant Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Warrant Holder, and for all other purposes, and the Company will not be
affected by notice to the contrary.
2. Representations and Covenants of the
Warrant Holder. This Warrant has been entered into by the
Company in reliance upon the following representations and covenants of the
Warrant Holder:
(a) The
Warrant Holder by accepting this Warrant represents that the Warrant Holder is
acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant or
the underlying Warrant Shares in violation of applicable securities
laws.
(b) The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the "1933 Act"), and may not be
sold by the Warrant Holder except pursuant to an effective registration
statement or pursuant to an exemption from registration requirements of the 1933
Act and in accordance with federal and state securities laws.
(c) In
no event will the Warrant Holder make a disposition of any of its rights to
acquire Common Stock or Common Stock issuable upon exercise of such rights
unless and until (i) it has notified the Company of the proposed
disposition, and (ii) if requested by the Company, it has furnished
the Company with an opinion of counsel satisfactory to the Company and its
counsel to the effect that (A) appropriate action necessary for compliance with
the 1933 Act has been taken, or (B) an exemption from the registration
requirements of the 1933 Act is available. Notwithstanding the
foregoing, the restrictions on the transferability of any security will
terminate when such security is effectively registered under the 1933 Act and
sold by the holder thereof in accordance with such registration, or such
security is sold without registration in compliance with Rule 144 under the 1933
Act. Whenever the restrictions imposed under this section terminate,
the Warrant Holder or holder of a share of Common Stock then outstanding as to
which such restrictions have terminated will be entitled to receive from the
Company one or more new certificates for the Warrant or for such shares of
Common Stock not bearing any restrictive legend.
(d) The
Warrant Holder is an "accredited investor" within the meaning of Rule 501(a) of
Regulation D promulgated under the 1933 Act.
(e) The
Warrant Holder 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.
(f) The
Warrant Holder understands that if a registration statement covering this
Warrant or the Common Stock is not in effect when it desires to sell this
Warrant or the Common Stock, it may be required to hold such securities for an
indefinite period. The Warrant Holder also understands that any sale
of this Warrant or the Common Stock purchased under this Warrant which might be
made by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
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3. Validity of Warrant and Issue of
Shares.
(a) Subject
to Section
3.1(b), the Company represents and warrants that this Warrant has been
duly authorized and validly issued and warrants and agrees that all shares of
Class B Common
Stock that may be issued upon the exercise of the rights represented by this
Warrant will, when issued upon such exercise, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof. Subject to Section 3.1(b), the
Company further warrants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of Class B Common Stock to provide
for the exercise of the rights represented by this Warrant.
(b) Warrant
Holder acknowledges that as of the date of this Warrant the Company has not
authorized any shares of Class B Common Stock and the Company does not have
sufficient authorized but unissued shares of Common Stock to permit exercise of
this Warrant. Therefore, this Warrant cannot be exercised until such
conditions are corrected. The Company covenants to use commercially
reasonable efforts to call as soon as possible a shareholders meeting for the
purpose of amending its Articles of Incorporation to include enough authorized
shares of Common Stock to permit exercise in full of this Warrant, or to take
such other action as may be necessary to permit such exercise in full (including
authorizing a reverse stock split) (the "Required
Action"). The exercise of this Warrant into shares of Class
B Common Stock as
provided herein shall be contingent upon the completion of the Required
Action. Warrant Holder further acknowledges that, until such the
Required Action shall be completed, Warrant Holder's rights under this Warrant
may not be exercised. Warrant Holder further acknowledges that if,
for any reason, the Company does not authorize Class B Common Stock, then this
Warrant shall be exercisable for shares of Common Stock, subject to the
limitations on exercisability in this Section.
4. Registration of Transfers of
Warrant. Subject to compliance with the legend set forth on
the face of this Warrant and Section 2(c), the Company
will register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant with the Form of Assignment attached
hereto duly completed and signed, to the Company. Upon any such
registration or transfer, a new warrant to purchase Class B Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"), evidencing the
portion of this Warrant so transferred will be issued to the transferee and a
New Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, will be issued to the transferring Warrant Holder. The
acceptance of the New Warrant by the transferee thereof will be deemed the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
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5. Exercise of
Warrants.
(a) Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
duly completed and signed to the Company, and upon payment and delivery of the
Exercise Price per Warrant Share multiplied by the number of Warrant Shares that
the Warrant Holder intends to purchase hereunder, in lawful money of the United
States of America, in cash or by certified or official bank check or checks, to
the Company, all as specified by the Warrant Holder in the Form of Election to
Purchase, the Company will promptly issue or cause to be issued and
cause to be delivered to or upon the written order of the Warrant Holder and in
such name or names as the Warrant Holder may designate (subject to the
restrictions on transfer described in Section 2(c) and in the
legend set forth on the face of this Warrant), a certificate for the Warrant
Shares issuable upon such exercise, with such restrictive legend as required by
the 1933 Act. Any person so designated by the Holder to receive
Warrant Shares will be deemed to have become the holder of record of such
Warrant Shares as of the Date of Exercise of this Warrant.
(b) A
"Date of Exercise" means
the date on which the Company will have received (i) this Warrant (or any New
Warrant, as applicable), with the Form of Election to Purchase attached hereto
(or attached to such New Warrant) appropriately completed and duly signed, and
(ii) payment of the Exercise Price for the number of Warrant Shares indicated by
the Warrant Holder to be purchased.
(c) If
less than all of the Warrant Shares which may be purchased under this Warrant
are exercised at any time, the Company will issue or cause to be issued a New
Warrant evidencing the right to purchase the remaining number of Warrant
Shares.
(d) The
holder of this Warrant may, at its election, exercise this Warrant in whole or
in part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the aggregate Exercise
Price, elect instead to receive upon such exercise the "Net Number" of shares of Class
B Common Stock
determined according to the following formula (a "Cashless
Exercise"):
Net
Number = (A x (B - C))/B
(ii) For purposes of the
foregoing formula:
A = the
total number of shares with respect to which this Warrant is then being
exercised.
B = the
average Market Price (as defined below) over a twenty-one (21) day period ending
three trading days before the effective date of the Exercise
Notice.
C = the
Warrant Exercise Price then in effect at the time of such exercise.
"Market Price" means, with
respect to Warrant Shares, if (i) the shares are listed or admitted for listing
on any national securities exchange or included in The Nasdaq Global Market or
the Nasdaq Capital Market, the last reported sales price as reported on such
exchange or market; (ii) if the shares are not so listed or admitted for
trading, the average of the last reported closing bid and asked quotation for
the shares as reported on the National Association of Securities Dealers
Automated Quotation System ("Nasdaq") or a similar service if Nasdaq is not
reporting such information; or (iii) if the shares are not so listed or admitted
for trading or quoted by Nasdaq or a similar service, the average of the last
reported bid and asked quotation for the shares as quoted by a market maker in
the shares (or if there is more than one market maker, then the average of the
lowest bid and highest asked quotation). In the absence of any
available public quotations for the shares, the Board of Directors of the
Company will determine in good faith the fair market value of the shares, which
determination will be set forth in a certificate signed by the Secretary of the
Company.
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6. Adjustment of Exercise Price and
Number of Shares. The character of the shares of stock or
other securities at the time issuable upon exercise of this Warrant, the number
of Warrant Shares, and the Exercise Price are subject to adjustment upon the
occurrence of the following events, and all such adjustments will be
cumulative:
(a) The
Exercise Price of this Warrant and the number of shares of Class B Common Stock
or other securities at the time issuable upon exercise of this Warrant will be
appropriately adjusted to reflect any stock dividend, stock split, combination
of shares, reclassification, recapitalization or other similar event affecting
the number of outstanding shares of stock or securities.
(b) In
case of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company will not be the continuing or surviving entity of such
consolidation, merger or reorganization (any such transaction being hereinafter
referred to as a "Reorganization"), then, in
each case, the holder of this Warrant, on exercise at any time after the
consummation or effective date of such Reorganization (the "Effective Date"), will
receive, in lieu of the shares of stock or other securities at any time issuable
upon the exercise of the Warrant issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
(c) In
case of any adjustment or readjustment in the price or kind of securities
issuable on the exercise of this Warrant, the Company will promptly give written
notice thereof to the holder of this Warrant, setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based.
7. Fractional
Shares. The Company will not be required to issue or cause to
be issued fractional Warrant Shares on the exercise of this
Warrant. The number of full Warrant Shares that will be issuable upon
the exercise of this Warrant will be computed on the basis of the aggregate
number of Warrant Shares purchasable on exercise of this Warrant so
presented. If any fraction of a Warrant Share would, except for the
provisions of this Section 7, be issuable on
the exercise of this Warrant, the Company will, at its option, (i) pay an amount
in cash equal to the Exercise Price multiplied by such fraction or (ii) round
the number of Warrant Shares issuable up to the next whole number.
8. Notice of Intent to Sell or Merge the
Company. The
Company will give Warrant Holder ten (10) days notice before the event of a sale
of all or substantially all of the assets of the Company or the merger or
consolidation of the Company in a transaction in which the Company is not the
surviving entity.
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9. Registration Rights.
The Warrant Shares are subject to registration under the 1933
Act pursuant to a Registration Rights Agreement entered into concurrently with
this Warrant between the Company and the Warrant Holder.
10. Notices. All
notices and other communications hereunder will be in writing and will be deemed
to have been given (i) on the date they are delivered if delivered in person;
(ii) on the date delivered by an overnight courier service; or (iii) on the
third business day after it is mailed by registered or certified mail, return
receipt requested with postage and other fees prepaid as follows:
If to the
Company:
microHelix,
Inc.
5300 Meadows Road, Suite
400
Lake Oswego, Oregon 97035
Attention: President
If to the Warrant
Holder:
WS Technologies LLC
5300 Meadows Road, Suite
400
Lake Oswego, Oregon 97035
Attention: Legal
Department
Either
party may subsequently designate another address for notices by written notice
to the other party.
11. Miscellaneous.
(a) This
Warrant constitutes the entire agreement between the Company and Warrant Holder
with respect to the subject matter hereof, and supersedes all prior agreements
between the parties with respect to such subject matter. This Warrant
will be binding on and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Warrant may be
amended only in a writing signed by the Company and the Warrant
Holder.
(b) Nothing
in this Warrant will be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy or
cause of action under this Warrant; this Warrant will be for the sole and
exclusive benefit of the Company and the Warrant Holder.
(c) This
Warrant will be governed by, construed and enforced in accordance with the
internal laws of the State of Oregon without giving effect to principles of
conflicts of law. The parties hereto irrevocably submit to the
jurisdiction of any state or federal court sitting in Multnomah County, Oregon,
in any action or proceeding brought to enforce, or otherwise arising out of or
relating to, this Warrant, and hereby waive any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
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(d) 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 Warrant or any transaction
contemplated hereby. In the event suit or action is brought by any
party under this Warrant to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party or parties will be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
(e) The
parties agree that a breach or violation of this Warrant will result in
immediate and irreparable harm to the non-breaching party in an amount that will
be impossible to ascertain at the time of the breach or violation, and that the
award of monetary damages will not be adequate relief to the non-breaching
party. The non-breaching party will be entitled to seek equitable or
injunctive relief, in addition to other remedies to which it may be entitled at
law or equity. In any action for equitable relief, the parties agree
to waive any requirement for the posting of a bond or security.
(f) The
headings herein are for convenience only, do not constitute a part of this
Warrant and will not be deemed to limit or affect any of the provisions
hereof.
(g) In
case any one or more of the provisions of this Warrant will be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant will not in any way be affected or impaired
thereby and the parties will attempt in good faith to agree upon a valid and
enforceable provision which will be a commercially reasonably substitute
therefor, and upon so agreeing, will incorporate such substitute provision in
this Warrant.
(h) The
Warrant Holder will not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
(i) This
Warrant may be executed in one or more counterparts, each of which when executed
will be deemed to be an original, but all of which taken together will
constitute one and the same agreement. A facsimile transmission of
this signed Warrant will be legal and binding on all parties
hereto.
[Signature
page follows]
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IN
WITNESS WHEREOF, each party has caused this Warrant to be duly executed by its
authorized representative effective as of the Original Issue Date.
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COMPANY:
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WARRANT
HOLDER:
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MICROHELIX,
INC.
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WS
TECHNOLOGIES LLC
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By
microHelix, Inc., its Manager
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By:
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/s/ Brian A. Oliver
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By:
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/s/ Brian A. Oliver
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Name:
Brian A. Oliver
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Name:
Brian A. Oliver
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Title:
Secretary
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Title:
Secretary
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FORM
OF ELECTION TO PURCHASE
(To be
executed by the Warrant Holder to exercise the right to purchase shares of Class
B Common Stock under the foregoing Warrant)
To: MICROHELIX, INC.
In
accordance with the Warrant enclosed with this Form of Election to Purchase, the
undersigned hereby irrevocably elects to purchase ______________ shares of Class
B Common Stock
("Common Stock"), no par value, of microHelix, Inc. and encloses the
warrant.
Method of
Exercise (Please check one box):
¨ The undersigned elects
to exercise the attached Warrant by means of a cash payment, and tenders
herewith the Exercise Price (as defined in the Warrant, originally $__ per
Warrant Share) for each Warrant Share being purchased or an aggregate of $
_________ in cash or certified or official bank check or checks, which sum
represents the aggregate Exercise Price together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
¨ The
undersigned elects to exercise the attached Warrant by means of the net exercise
provisions of Section 5(d) of the Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
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(Please
print name and address)
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(Please
insert Social Security or Tax Identification
Number)
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If the
number of shares of Common Stock issuable upon this exercise will not be all of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
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(Please
print name and address)
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Dated:
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Name
of Warrant Holder:
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(Print)
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(By)
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(Name)
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(Title)
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Signature
must conform in all respects to name of Warrant Holder as specified
on the face of the
Warrant
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FORM
OF ASSIGNMENT
(To be
signed only on transfer of Warrant)
TO:
MICROHELIX, INC.
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FOR
VALUE RECEIVED, the undersigned Registered
Holder
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Print
Name of
Holder
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(Please
insert Social Security or Tax Identification Number of Registered
Holder)
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hereby
sells, assigns and transfers unto
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(Please
Print Name and Address including Zip Code)
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(Please
insert Social Security or Tax Identification Number of
Assignee)
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The right
to purchase ________ shares of Common Stock of microHelix, Inc., evidenced by
the attached Warrant, and irrevocably constitutes and appoints
_____________________________________ attorney to transfer this Warrant on the
books of microHelix, Inc. with the full power of substitution in the
premises.
If this
assignment is not an assignment of all of the shares of Common Stock which the
undersigned is entitled to purchase in accordance with the enclosed Warrant, the
undersigned requests that a new Warrant evidencing the right to purchase the
shares of Common Stock not assigned hereby be issued in the name of and
delivered to the Registered Holder.
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Dated:
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Signature:
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By:
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Title:
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(Signature
must conform in all respects to the name of the Registered Holder as specified
on the face of the attached Warrant in every particular, without alteration
or any change whatsoever.)