Exhibit 10.8
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
THE SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
WARRANT TO PURCHASE SECURITIES
OF
ADVANCED CELL TECHNOLOGY, INC., A NEVADA
CORPORATION
FORMERLY KNOWN AS A.C.T. HOLDINGS, INC. or Successor
This certifies that
,
or his assigns (the “Holder”), for value received, is
entitled to purchase from Advanced Cell Technology, Inc., a
Nevada corporation formerly known as A.C.T. HOLDINGS, Inc., a
Nevada corporation, or its Successor, as defined herein (the
“Company”), having a place of business at 381
Plantation Street, Biotech V, Worcester, Massachusetts 01605,
( )
fully paid and nonassessable shares of common stock of the Company
(“Common Stock”) or Preferred Stock (as defined below),
or Equity Units (as defined below) as applicable, for the Warrant
Purchase Price (as defined below). For purposes of this
Warrant, the term “Preferred Stock” shall mean any
shares of preferred stock issued by the Company during the term of
this Warrant. The term “Equity Unit “ shall
include Common Stock or Preferred Stock, either alone or issued,
offered or sold together as an integrated investment unit with any
warrants or similar non-debt securities convertible or
exchangeable, directly or indirectly into Common Stock or Preferred
Stock.
For purposes of this Warrant, in the
event this Warrant is being exercised for shares of Common Stock,
the Warrant Purchase Price per share shall be equal to Two and
20/100 Dollars ($2.20). In the event this Warrant is being
exercised for shares of Preferred Stock or Equity Units, the
Warrant Purchase Price for such securities shall be equal to the
Warrant Purchase Price for Common Stock (as the same may be
adjusted) times a multiple equal to the number of common shares
into which one Preferred Share or Equity Unit may be converted in
accordance with its terms. In either case, the Warrant
Purchase Price shall be automatically adjusted to each lesser
amount, from time to time, as provided in Section 3
hereof. For example, and solely for the purposes of
illustrating the foregoing calculation, in the event a share of
Preferred Stock that is convertible into two shares of Common Stock
is sold by the Company for $4.00, and the Warrant Purchase Price
per share of Common Stock immediately prior to the sale equaled
$2.20, then the new Warrant Purchase Price per share of Common
Stock would equal $2.00 per share and the new Warrant
Purchase Price of Preferred Stock would equal $4.00 per
share.
If, at any time (and on each time)
between May 1, 2005 and January 15, 2009 (the
“Pricing Period”), after the exercise of any or all of
the Warrants hereunder, the Company issues any Equity Units other
than Excluded Units (as defined below), and the effective per share
purchase price of Common Stock represented by such Equity Units
(the
“Effective Price”) being issued is
lower than the Warrant Purchase Price paid in connection with such
prior exercise, then the Company shall issue to the Holder
sufficient additional Equity Units (of the same security(ies) that
was (were) previously issued to the Holder upon the previous
exercise of the Warrant) such that the total number of Equity Units
issued to the Holder equals the number determined by multiplying
by a fraction, the numerator of which is $2.20 and the denominator
of which is the Effective Price, as the same may be
amended.
This Warrant may be exercised at any
time or from time to time up to and including 5:00 p.m.
(Pacific Standard Time) on January 15, 2009 (the
“Expiration Date”), upon surrender to the Company at
its principal office (or at such other location as the Company may
advise the Holder in writing) of this Warrant properly endorsed,
and the payment (i) in cash or by check, or
(ii) conversion of outstanding amounts of principal and
interest under the promissory note of the Company in favor of the
Holder dated September 14, 2005 in the original principal
amount of
$ ,
of the aggregate purchase price for the number of Equity Units for
which this Warrant is being exercised determined in accordance with
the provisions hereof. The Warrant Purchase Price and the
number of Equity Units purchasable hereunder are subject to further
adjustment as provided in Section 3 of this
Warrant.
This Warrant is subject to the
following terms and conditions:
1.
EXERCISE; ISSUANCE OF CERTIFICATES;
PAYMENT FOR SHARES.
1.1
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 of Common Stock and/or Preferred Stock and/or
Equity Units which may be purchased hereunder. The Company
agrees that the shares of Common Stock and/or Preferred Stock
and/or Equity Units purchased under this Warrant shall be and are
deemed to be issued to the Holder hereof as the record owner of
such Equity Units as of the close of business on the date on which
this Warrant shall have been surrendered, properly endorsed, the
completed, executed Form of Subscription (in the form attached
hereto) delivered and payment made for such Equity Units.
Certificates for the shares of Common Stock or Preferred Stock so
purchased, together with any other securities or property to which
the Holder hereof is entitled upon such exercise, shall be
delivered to the Holder hereof by the Company at the
Company’s expense within a reasonable time after the rights
represented by this Warrant have been so exercised. In case
of a purchase of less than all the Equity Units 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 Equity Units purchasable under the Warrant
surrendered upon such purchase to the Holder hereof within a
reasonable time. Each stock certificate or other evidence of
Equity Unit so delivered shall be in such denominations as may be
requested by the Holder hereof and shall be registered in the name
of such Holder.
1.2
Net Issue Exercise.
Notwithstanding any provisions herein to the contrary, if the fair
market value of one share of the Company’s Common Stock
or
Preferred Stock is greater than the Warrant
Purchase Price (at the date of calculation as set forth below), in
lieu of exercising this Warrant for cash, the Holder may elect to
receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being cancelled) by surrender of
this Warrant at the principal office of the Company together with
the properly endorsed Form of Subscription and notice of such
election in which event the Company shall issue to the Holder a
number of shares of Common Stock or Preferred Stock, as applicable,
computed using the following formula:
X = Y (A-B)/A
where
X =
the number of shares of Stock to be
issued to the Holder
Y =
the number of shares of Stock
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 Company’s Stock (at the date of such
calculation)
B =
Warrant Purchase Price (as adjusted
to the date of such calculation).
For purposes of the above calculation, in the
event that this formula is applied to the non-publicly traded
shares or Equity Units or instruments of the Company or a
successor, as defined below, the fair market value of each such
share and security of which an Equity Unit is comprised shall be
determined by the Company’s Board of Directors in good faith;
provided, that the Holders may appeal any such determination to an
Arbitrator as provided for herein. Provided further, that in
the event that this formula is applied to the publicly-traded
securities of the Company or a Successor, as defined below, the
greater of the volume-weighted trading price on public markets, as
published by Bloomberg or its successor organization, or the
average of the opening and closing public market prices on the ten
trading days preceding the date of exercise shall be the fair
market value.
Holder shall have the right to
convert on a cashless exchange basis to Equity Units on the same
terms as Holder can convert to Common Stock or Preferred Stock
under this Section.
2.
SHARES TO BE FULLY PAID; RESERVATION
OF SHARES. The Company covenants and agrees that all shares
of Common Stock and Preferred Stock and any other securities that
are components of Equity Units which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be duly authorized, validly issued, fully paid and
nonassessable and free from all preemptive rights of any
shareholder and free of all taxes, liens and charges with respect
to the issue thereof. The Company further covenants 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, for the purpose of
issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of
authorized but unissued Common Stock and Preferred Stock, or other
securities and property, when and as required to provide for the
exercise of the rights represented by this Warrant, as provided for
by relevant accounting rules and statutes, and as adjusted to
an amount, from time to time, as provided for herein. The
Company will not take any action which would result in any
adjustment of the Warrant Purchase Price (as set forth in
Section 3 hereof) if the total number of shares of Common
Stock and Preferred Stock (as applicable) issuable after such
action upon the conversion of all such shares of Common Stock and
Preferred Stock (as applicable), together with all shares of Common
Stock and Preferred Stock (as applicable) then issuable upon
exercise of all options and upon the conversion of all convertible
securities then outstanding, would exceed the total number of
shares of Common Stock and Preferred Stock (as applicable) then
authorized by the Company’s Articles of Incorporation,
provided, however that the Compan
