Exhibit 10.26
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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.
MEDICAL ADVISORY BOARD WARRANT
AGREEMENT
This
Advisory Board Warrant Agreement is made and entered as of the 7th
day of December, 2006 (the Agreement Date”) by and between
BioDrain Medical, Inc., a Minnesota corporation
(“Company”) and Medical Advisory Board member Karen A.
Ventura (the “ Warrantee ”) as consideration for
Board membership.
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 up to 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 a Medical Advisory Board member
of 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
(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
1
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. Medical Advisory
Board Resignation. If Warrantee ceases to be a
Medical Advisory Board member for any reason other than that
described in this Section 9, Warrantee will have the right, subject
to the other provisions of this Agreement, to exercise the Warrant
for up to ninety (90) days following the date of termination, but
only to the extent that on the date of termination the
Warrantee’s right to exercise such Warrant had vested, and at
the end of such period the Warrant will expire, and all rights to
exercise it will terminate.
(a)
If Warrantee dies while a Medical Advisory Board member, or after
ceasing to be a Medical Advisory Board member but during the period
while he or she could have exercised an 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
