Exhibit 10.28
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THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
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BioDrain Medical, Inc.
ADVISORY WARRANT AGREEMENT
This
Warrant Agreement is made and entered as of the 20th day of
December, 2006 (the Agreement Date”) by and between BioDrain
Medical, Inc., a Minnesota corporation (“Company”) and
Kim Shelquist (the “ Warrantee ”) as
consideration for referrals and advisory work.
1. Warrant Grant. The
Company hereby grants to the Warrantee a warrant (the
“Warrant”) to purchase 5,000 shares (“Warrant
Shares”, with each being a “Warrant Share”) of
its $0.01 par value common stock (“Share”), under the
terms and conditions set forth below.
2. Nonstatutory Option.
The Warrant is granted to purchase upto the number of shares of
authorized but unissued common stock of the Company specified in
Section 1 (the “Shares”). The Warrant will expire, and
all rights to exercise it will terminate on the earliest of: (a)
the date provided below in Sections 8 and 9, and (b) the Expiration
Date.
3. Exercise Price. The
exercise price of each Warrant Share of the Company as of any
exercise date is $1.00 per Share.
4. Period of Exercise. The
Warrant will expire at 5:00 p.m. on the fifth anniversary of the
Agreement Date (“the Expiration Date”).
5. Vesting of Options.
Warrantee will have the right to exercise the Warrant in accordance
with the following schedule:
(a)
The Shares subject to Warrant will vest in 90 days from the
Agreement Date.
6. Transferability. The
Warrant is not transferable except by will or the laws of descent
and distribution and may be exercised during the lifetime of the
Warrantee only by the Warrantee, and if exercised following the
Warrantee’s death, by the Warrantee’s legal
representative upon presenting evidence of authority to act on
behalf of the Warrantee’s estate acceptable to the
Company.
7. Change In Control. If
the Company enters into a binding agreement during the time that
Warrantee is an Advisor to the Company that results in a change in
control (as defined in the following sentence), then 100% of the
Shares will vest. For purposes of this Warrant Agreement,
“change in control” means that:
(a)
any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity or person, or any
syndicate or group deemed to be a person under Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), is or becomes the “beneficial
owner” (as defined in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), directly or indirectly, of
securities of the Corporation representing fifty percent (50%) or
more of the combined voting power of the Company’s then
outstanding securities entitled to vote in the election of
directors of the Company; or
1
(b)
there occurs a reorganization, merger, consolidation or other
corporate transaction involving the Company
(“Transaction”), in each case, with respect to which
the stockholders of the Company immediately prior to such
Transaction do not, immediately after the Transaction, own more
than fifty percent (50%) of the combined voting power of the
Company or other corporation resulting from such Transaction;
or
(c)
all or substantially all of the assets of the Company are sold,
liquidated or distributed.
8. Warrant Lapse. The
Warrant will lapse and becomes unexercisable in full on the
earliest of the following events:
(a)
three (3) months following the Warrantee’s death, as provided
below in Section 9;
(b)
the date otherwise provided below in Section 9, unless the Board of
Directors otherwise extends such period before the applicable
expiration date.
9. Death of Warrantee. If
Warrantee dies during the period while he or she could have
exercised a Warrant under the preceding sub-Sections, the Warrant
granted to the Warrantee may be exercised, to the extent it has
vested at the time of death at any time within ninety (90) days
after the Warrantee’s death, by the executors or
administrators of his or her estate or by any person or persons who
acquire the Warrant by will or the laws of descent and
distribution, but not beyond the otherwise applicable term of the
Warrant.
10. Adjustment in
Capitalization. If there is any change in the outstanding
common stock of the Company by reason of a stock dividend or split,
recapitalization, reclassification, or other similar capital
change, the aggregate number of Warrant Shares subject to the
Warrant will be appropriately adjusted by the Company, as directed
by the Board of Directors of the Company whose determination is
final and conclusive, except that fractional Shares will be rounded
to the nearest whole Share. In any such case, the number and kind
of Shares that are subject to the Warrant and the Warrant exercise
price per Share will be proportionately adjusted with
