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EXHIBIT 10.49
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE
SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. THESE SECURITIES AND THE SECURITIES
ISSUABLE UPON
EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE
MARGIN ACCOUNT.
MICROISLET, INC.
WARRANT
Warrant No. [ ]
Date of Original Issuance: November [ ], 2007
MicroIslet, Inc., a Nevada corporation (the "COMPANY"), hereby
certifies that, for value received, [?] or its registered assigns
(the
"HOLDER"), is entitled to purchase from the Company up to a total
of [__](1)
shares of common stock, par value $.001 per share (the "COMMON
STOCK"), of the
Company (each such share, a "WARRANT Share" and all such shares,
the "WARRANT
SHARES") at an exercise price equal to $0.60 per share (as adjusted
from time to
time as provided in Section 9, the "EXERCISE PRICE"), at any time
and from time
to time from and after the earlier of November [ ], 2008 and the
occurrence of a
Fundamental Transaction (if any), through and including November [
], 2013 (the
"EXPIRATION DATE"), and subject to the following terms and
conditions:
1. DEFINITIONS; CONSTRUCTION. In addition to the terms defined
elsewhere in this Warrant, capitalized terms that are not otherwise
defined
herein shall have the meanings given to such terms in that certain
Securities
Purchase Agreement, dated as of November 16, 2007, to which the
Company and the
original Holder are parties (the "PURCHASE AGREEMENT"). The rules
of
construction set forth in Section 5.5 of the Purchase Agreement
shall apply
MUTATIS MUTANDIS to this Warrant.
2. REGISTRATION OF WARRANT. The Company shall register this
Warrant,
upon records to be maintained by the Company for that purpose (the
"WARRANT
REGISTER"), in the name of the record Holder hereof from time to
time. The
Company may deem and treat the registered Holder of this Warrant as
the absolute
owner hereof for the purpose of any exercise hereof or any
distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
3. REGISTRATION OF TRANSFERS. Subject to the Holder's
appropriate
compliance with the restrictive legend on this Warrant, the Company
shall
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 at its address specified
herein. Upon any
such registration or transfer, a new Warrant to purchase Common
Stock, in
_________________
(1) The number of
shares of Common Stock equal to 55% of the quotient obtained
by
dividing the Investment Amount of such Purchaser by $0.425.
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substantially the form of this Warrant (any such new Warrant, a
"NEW WARRANT"),
evidencing the portion of this Warrant so transferred shall be
issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant
not so transferred, if any, shall be issued to the transferring
Holder. The
acceptance of the New Warrant by the transferee thereof shall be
deemed the
acceptance by such transferee of all of the rights and obligations
of a holder
of a Warrant.
4. EXERCISE AND DURATION OF WARRANTS. This Warrant shall be
exercisable
by the registered Holder at any time and from time to time on or
after the date
hereof to and including the Expiration Date, but not for less than
15,000
Warrant Shares at a time (or such lesser number of Warrant Shares
that may then
constitute the maximum number purchasable; such number being
subject to
adjustment as provided in Section 9). At 6:30 p.m., New York City
time on the
Expiration Date, the portion of this Warrant not exercised prior
thereto shall
be and become void and of no value. The Company may not call or
redeem all or
any portion of this Warrant without the prior written consent of
the Holder.
5. DELIVERY OF WARRANT SHARES.
(a) To effect conversions hereunder, the Holder shall not be
required to physically surrender this Warrant unless the aggregate
number of
Warrant Shares represented by this Warrant is being exercised. Upon
delivery of
the Exercise Notice to the Company at its address for notice set
forth herein
and upon payment of the Exercise Price multiplied by the number of
Warrant
Shares that the Holder intends to purchase hereunder, the Company
shall promptly
(but in no event later than five Trading Days after the Date of
Exercise (as
defined herein)) issue and deliver to the Holder, a certificate for
the Warrant
Shares issuable upon such exercise, which shall be free of
restrictive legends
in the circumstances specified in the Purchase Agreement. The
Company shall,
upon request of the Holder, use its best efforts to deliver Warrant
Shares
hereunder electronically through the Depository Trust Corporation
or another
established clearing corporation performing similar functions, if
available,
provided, that, the Company may, but will not be required to change
its transfer
agent if its current transfer agent cannot deliver Warrant Shares
electronically
through the Depository Trust Corporation. A "DATE OF EXERCISE"
means the date on
which the Holder shall have delivered to Company: (i) the Exercise
Notice,
appropriately completed and duly signed and (ii) payment of the
Exercise Price
for the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Warrant Shares in
the manner
required pursuant to Section 5(a), then the Holder will have the
right to
rescind such exercise.
(c) If by the third Trading Day after a Date of Exercise the
Company fails to deliver the required number of Warrant Shares in
the manner
required pursuant to Section 5(a) and if after such third Trading
Day and prior
to the receipt of such Warrant Shares, the Holder purchases (in an
open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a
sale by the Holder of the Warrant Shares which the Holder
anticipated receiving
upon such exercise (a "BUY-IN"), then the Company shall (i) pay in
cash to the
Holder the amount by which (A) the Holder's total purchase price
(including
brokerage commissions, if any) for the shares of Common Stock so
purchased
exceeds (B) the amount obtained by multiplying (1) the number of
Warrant Shares
that the Company was required to deliver to the Holder in
connection with the
exercise at issue by (2) the closing price of the Common Stock on
the date of
the obligation giving rise to such purchase obligation and (ii) at
the option of
the Holder, either reinstate the portion of the Warrant and
equivalent number of
Warrant Shares for which such exercise was not honored or deliver
to the Holder
the number of shares of Common Stock that would have been issued
had the Company
timely complied with its exercise and delivery obligations
hereunder. The Holder
shall provide the Company written notice indicating the amounts
payable to the
Holder in respect of the Buy-In.
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(d) The Company's obligations to issue and deliver Warrant
Shares in accordance with the terms hereof are absolute and
unconditional,
irrespective of any action or inaction by the Holder to enforce the
same, any
waiver or consent with respect to any provision hereof, the
recovery of any
judgment against any Person or any action to enforce the same, or
any setoff,
counterclaim, recoupment, limitation or termination, or any breach
or alleged
breach by the Holder or any other Person of any obligation to the
Company or any
violation or alleged violation of law by the Holder or any other
Person, and
irrespective of any other circumstance which might otherwise limit
such
obligation of the Company to the Holder in connection with the
issuance of
Warrant Shares. Nothing herein shall limit a Holder's right to
pursue any other
remedies available to it hereunder, at law or in equity including a
decree of
specific performance and/or injunctive relief with respect to the
Company's
failure to timely deliver certificates representing shares of
Common Stock upon
exercise of the Warrant as required pursuant to the terms
hereof.
6. CHARGES, TAXES AND EXPENSES. Issuance and delivery of
certificates
for shares of Common Stock upon exercise of this Warrant shall be
made without
charge to the Holder for any issue or transfer tax, withholding
tax, transfer
agent fee or other incidental tax or expense in respect of the
issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company;
PROVIDED, HOWEVER, that the Company shall not be required to pay
any tax which
may be payable in respect of any transfer involved in the
registration of any
certificates for Warrant Shares or Warrants in a name other than
that of the
Holder. The Holder shall be responsible for all other tax liability
that may
arise as a result of holding or transferring this Warrant or
receiving Warrant
Shares upon exercise hereof.
7. REPLACEMENT OF WARRANT. If this Warrant is mutilated, lost,
stolen
or destroyed, the Company shall issue or cause to be issued in
exchange and
substitution for and upon cancellation hereof, or in lieu of and
substitution
for this Warrant, a New Warrant, but only upon receipt of evidence
reasonably
satisfactory to the Company of such loss, theft or destruction and
customary and
reasonable indemnity (which shall not include a surety bond), if
requested.
Applicants for a New Warrant under such circumstances shall also
comply with
such other reasonable regulations and procedures and pay such other
reasonable
third-party costs as the Company may prescribe. If a New Warrant is
requested as
a result of a mutilation of this Warrant, then the Holder shall
deliver such
mutilated Warrant to the Company as a condition precedent to the
Company's
obligation to issue the New Warrant.
8. RESERVATION OF WARRANT SHARES. The Company covenants that it
will at
all times reserve and keep available out of the aggregate of its
authorized but
unissued and otherwise unreserved Common Stock, solely for the
purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant
as herein
provided, the number of Warrant Shares which are then issuable and
deliverable
upon the exercise of this entire Warrant, free from preemptive
rights or any
other contingent purchase rights of persons other than the Holder
(taking into
account the adjustments and restrictions of Section 9). The Company
covenants
that all Warrant Shares so issuable and deliverable shall, upon
issuance and the
payment of the applicable Exercise Price in accordance with the
terms hereof, be
duly and validly authorized, issued and fully paid and
nonassessable.
9. CERTAIN ADJUSTMENTS. The Exercise Price and number of Warrant
Shares
issuable upon exercise of this Warrant are subject to adjustment
from time to
time as set forth in this Section 9.
(a)
STOCK DIVIDENDS AND SPLITS. If the Company, at any time
while this Warrant is outstanding, (i) pays a stock dividend on its
Common Stock
or otherwise makes a distribution on any class of capital stock
that is payable
in shares of Common Stock, (ii) subdivides outstanding shares of
Common Stock
into a larger number of shares, or (iii) combines outstanding
shares of Common
Stock into a smaller number of shares, then in each such case the
Exercise Price
shall be multiplied by a fraction of which the numerator shall be
the number of
shares of Common Stock outstanding immediately before such event
and of which
the denominator shall be the number of shares of Common Stock
outstanding
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immediately after such event. Any adjustment made pursuant to
clause (i) of this
Section 9(a) shall become effective immediately after the record
date for the
determination of stockholders entitled to receive such dividend or
distribution,
and any adjustment pursuant to clause (ii) or (iii) of this Section
9(a) shall
become effective immediately after the effective date of such
subdivision or
combination. If any event requiring an adjustment under this
Section 9(a) occurs
during the period that an Exercise Price is calculated hereunder,
then the
calculation of such Exercise Price shall be adjusted appropriately
to reflect
such event.
(b) FUNDAMENTAL TRANSACTIONS. If, at any time while t