helix_8k-ex1005.htm


    
      
        

      
Exhibit 10.5

    
 

    THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT AND
THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SUCH ACT AND ANY APPLICABLE
STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO HELIX
WIND, CORP. THAT SUCH REGISTRATION IS NOT REQUIRED.

    


    HELIX
WIND, CORP.

    


    WARRANT
TO PURCHASE SHARES OF COMMON STOCK

    


    1.            Issuance. In
consideration of good and valuable consideration as set forth in the Purchase
Agreement (defined below), including without limitation the applicable
Additional Net Purchase Price (as defined in the Purchase Agreement), the
receipt and sufficiency of which is hereby acknowledged by Helix Wind, Corp., a
Nevada corporation (the “Company”),
St. George Investments, LLC, an Illinois limited liability company, its
successors or registered assigns (the “Holder”),
is hereby granted the right to purchase at any time on or after the Issue Date
(as defined below) until the date which is the last calendar day of the month in
which the fifth anniversary of the Issue Date occurs (the “Expiration
Date”), up to 250,000 fully paid and nonassessable shares of the
Company’s common stock, par value $0.0001 per share (the “Common
Stock”) at the Exercise Price (as defined below). This Warrant to
Purchase Shares of Common Stock (this “Warrant”)
is being issued pursuant to the terms of that certain Note and Warrant Purchase
Agreement dated as of March 30, 2010 (the “Purchase
Agreement”), to which the Company and the Holder (or the Holder’s
predecessor in interest) are parties.

    


    Unless
otherwise indicated herein, capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement.

    


    This
Warrant was originally issued to the Holder or the Holder’s predecessor in
interest on May 1, 2010 (the “Issue
Date”).

    


    2.           Exercise of
Warrants.

    


    2.1           General.

    


    (a) This Warrant is exercisable in
whole or in part at any time and from time to time commencing on the Issue Date.
Such exercise shall be effectuated by submitting to the Company (either by
delivery to the Company or by email or facsimile transmission) a completed and
duly executed Notice of Exercise (substantially in the form attached to this
Warrant as Exhibit
A). The date such Notice of Exercise is either faxed, emailed or
delivered to the Company shall be the “Exercise
Date,” provided that, if such exercise represents the full exercise of
the outstanding balance of the Warrant, the Holder of this Warrant shall tender
this Warrant to the Company within five (5) Trading Days (as defined below)
thereafter. The Notice of Exercise shall be executed by the Holder of this
Warrant and shall indicate (i) the number of shares then being purchased
pursuant to such exercise, and (ii) if applicable (as provided below), whether
the exercise is a cashless exercise.

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    For
purposes of this Warrant, the term “Trading
Day” means any day during which the Principal Market (as defined below)
shall be open for business.

    


    (b)
Notwithstanding any other provision contained herein to the contrary, at any
time prior to the Expiration Date, the Holder may elect a “cashless” exercise of
this Warrant for any Warrant Shares whereby the Holder shall be entitled to
receive a number of shares of Common Stock equal to (i) the excess of the
Current Market Value (as defined below) over the aggregate Exercise Price of the
portion of the Warrant then being exercised, divided by (ii) the Adjusted Price
of the Common Stock (as defined below).

    


    For the purposes of this Warrant, the
following terms shall have the following meanings:

    


    “Adjusted Price of
the Common Stock” shall mean the Conversion Price, as defined in that
certain Convertible Promissory Note issued by the Company in favor of the Holder
on even date herewith, in effect on any relevant Exercise Date.

    


    “Current Market
Value” shall mean an amount equal to the Market Price of the Common Stock
(as defined below), multiplied by the number of shares of Common Stock specified
in the applicable Notice of Exercise.

    


    “Closing
Price” means the 4:00 P.M. last sale price of the Common Stock on the
Principal Market on the relevant Trading Day(s), as reported by Bloomberg, LP
(or if that service is not then reporting the relevant information regarding the
Common Stock, a comparable reporting service of national reputation selected by
the Holder and reasonably acceptable to the Company) (“Bloomberg”)
for the relevant date.

    


    “Exercise
Price” shall mean $0.75 per share of Common Stock.

    


    “Market Price of
the Common Stock” shall mean the higher of: (i) the Closing Price of the
Common Stock on the Issue Date; or (ii) the VWAP of the Common Stock for the
Trading Day that is two Trading Days prior to the Exercise Date.

    


    “VWAP”
shall mean the volume-weighted average price of the Common Stock on the
Principal Trading Market for a particular Trading Day or set of Trading Days, as
the case may be, as reported by Bloomberg.

    


    (c) If
the Notice of Exercise form elects a “cash” exercise (or if the cashless
exercise referred to in the immediately preceding subsection (b) is not
available in accordance with the terms hereof), the Exercise Price per share of
Common Stock for the shares then being exercised shall be payable, at the
election of the Holder, in cash or by certified or official bank check or by
wire transfer in accordance with instructions provided by the Company at the
request of the Holder.

    



    
      
         


      

      
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    (d) Upon
the appropriate payment to the Company, if any, of the Exercise Price for the
shares of Common Stock purchased, together with the surrender of this Warrant
(if required), the Company shall immediately deliver the shares of Common Stock
electronically via Deposit/Withdrawal at Custodian (DWAC) to the account
designated by Holder on the Notice of Exercise.  If for any reason the
Company is not able to deliver the shares via DWAC notwithstanding its best
efforts to do so, the Company shall deliver certificates representing the
Warrant Shares to the Holder as provided in the Notice of Exercise (the
certificates delivered in such manner, the “Warrant Share
Certificates”) within three (3) Trading Days (such third Trading Day, a
“Delivery
Date”) of (i) with respect to a “cashless exercise,” the Exercise Date as
the case may be, or, (ii) with respect to a “cash” exercise, the later of the
Exercise Date or the date the payment of the Exercise Price for the relevant
Warrant Shares is received by the Company.

    


    (e) The
Company understands that a delay in the electronic delivery of shares or the
delivery of the Warrant Share Certificates, as the case may be, beyond the
Delivery Date (assuming electronic delivery is not available) could result in
economic loss to the Holder. As compensation to the Holder for such loss, the
Company agrees to pay late payment fees (as liquidated damages and not as a
penalty) to the Holder for late delivery of Warrant Share Certificates in the
amount of $100 per Trading Day after the Delivery Date for each $10,000 of the
total Exercise Price of the Warrant Shares subject to the delivery default. The
Company shall pay any payments incurred under this subsection in immediately
available funds upon demand.  Furthermore, in addition to any other
remedies which may be available to the Holder, in the event that the Company
fails for any reason to effect delivery of the Warrant Share Certificates by the
Delivery Date, the Holder may revoke all or part of the relevant Warrant
exercise by delivery of a notice to such effect to the Company, whereupon the
Company and the Holder shall each be restored to their respective positions
immediately prior to the exercise of the relevant portion of this Warrant,
except that the liquidated damages described above shall be payable through the
date notice of revocation or rescission is given to the Company.

    


    (f) The
Holder shall be deemed to be the holder of the shares issuable to it in
accordance with the provisions of this Section 2.1 on the Exercise
Date.

    


    2.2             Ownership Limitation.
Notwithstanding the provisions of this Warrant, in no event shall the this
Warrant be exercisable to the extent that the issuance of Common Stock upon the
exercise thereof, after taking into account the Common Stock then owned by the
Holder and its affiliates, would result in the beneficial ownership by the
Holder and its affiliates of more than 9.99% of the outstanding Common Stock of
the Company (the “9.99%
Cap”); provided
that such restriction shall apply only for so long as the 9.99% Cap would
be exceeded by an exercise hereunder.  For purposes of this Section,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended.

    


    3.             
 Mutilation or
Loss of Warrant. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant; and in the
case of loss, theft or destruction, receipt of reasonably satisfactory
indemnification; and in the case of mutilation, upon surrender and cancellation
of this Warrant, the Company will execute and deliver a new Warrant of like
tenor and date and any such lost, stolen, destroyed or mutilated Warrant shall
thereupon become void.

    



    
      
         


      

      
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    4.        
    Rights of the Holder.
The Holder shall not, by virtue of this Warrant alone, be entitled to any rights
of a stockholder in the Company, either at law or in equity, and the rights of
the Holder are limited to those expressed in this Warrant and are not
enforceable against the Company except to the extent set forth
herein.

    


    5.           
 Protection
Against Dilution and Other Adjustments.

    


    5.1           Capital
Adjustments.  If the Company shall at any time prior to the
expiration of this Warrant subdivide the Common Stock, by split-up or stock
split, or otherwise, or combine its Common Stock, or issue additional shares of
its Common Stock as a dividend, the number of Warrant Shares issuable on the
exercise of this Warrant shall forthwith be automatically increased
proportionately in the case of a subdivision, split or stock dividend, or
proportionately decreased in the case of a combination.  Appropriate
adjustments shall also be made to the purchase price payable per Warrant Share,
but the aggregate purchase price payable for the total number of Warrant Shares
purchasable under this Warrant (as adjusted) shall remain the
same.  Any adjustment under this Section 5.1 shall become
effective automatically at the close of business on the date the subdivision or
combination becomes effective, or as of the record date of such dividend, or in
the event that no record date is fixed, upon the making of such
dividend.

    


    5.2           Reclassification,
Reorganization and Consolidation.  In case of any
reclassification, capital reorganization, or change in the capital stock of the
Company (other than as a result of a subdivision, combination, or stock dividend
provided for in Section 5.1 above), then the Company shall make appropriate
provision so that the Holder shall have the right at any time prior to the
expiration of this Warrant to purchase, at a total price equal to that payable
upon the exercise of this Warrant, the kind and amount of shares of stock and
other securities and property receivable in connection with such
reclassification, reorganization, or change by a holder of the same number of
shares of Common Stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change.  In any such case
appropriate provisions shall be made with respect to the rights and interest of
the Holder so that the provisions hereof shall thereafter be applicable with
respect to any shares of stock or other securities and property deliverable upon
exercise hereof, and appropriate adjustments shall be made to the purchase price
per Warrant Share payable hereunder, provided the aggregate purchase price shall
remain the same.

    


    5.3           Notice of Adjustment.
When any adjustment is required to be made in the number or kind of shares
purchasable upon exercise of this Warrant, or in the Exercise Price, pursuant to
the terms hereof, the Company shall promptly notify the Holder of such event and
of the number of Shares or other securities or property thereafter purchasable
upon exercise of this Warrant.

    



    
      
         


      

      
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    5.4           Computation of Adjusted
Exercise Price. Commencing on the Issue Date and continuing until this
Warrant is either exercised in full or expires, in case the Company shall at any
time after the date hereof issue or sell any (a) shares of Common Stock or
preferred shares convertible into Common Stock, or (b) debt, warrants, options
or other instruments or securities which are convertible into or exercisable for
shares of Common Stock (together herein referred to as “Equity
Securities”), in each case for consideration (or with a conversion price)
per common share less than the Exercise Price in effect immediately prior to the
issuance or sale of such securities or instruments, or without consideration,
then forthwith upon such issuance or sale, the Exercise Price shall (until
another such issuance or sale) be automatically reduced to the price (calculated
to the nearest full cent) equal to the price (or conversion price) of any such
securities or instruments. For the purposes of this Section 5.4, the term
Exercise Price shall mean the Exercise Price per share set forth in Section 1
hereof, as adjusted from time to time pursuant to the provisions of this
Section. Promptly upon the occurrence of such an event, and in any event not
less than ten (10) business days after such an occurrence, the Company shall
notify the Holder in writing of the event, disclose to the Holder the new
Exercise Price, and provide to the Holder copies of all relevant documents
related to such event, even if the event was or should be disclosed
publicly.

     

    6.         
   Certificate as to
Adjustments. In each case of any adjustment or readjustment in the shares
of Common Stock issuable on the exercise of the Warrants, the Company at its
expense will promptly cause its Chief Financial Officer or other appropriate
designee to compute such adjustment or readjustment in accordance with the terms
of the Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued or
sold or deemed to have been issued or sold, (b) the number of shares of Common
Stock outstanding or deemed to be outstanding, and (c) the Exercise Price and
the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment and as
adjusted or readjusted as provided in this Warrant. The Company will forthwith
mail a copy of each such certificate to the Holder of the Warrant and any
Warrant Agent of the Company (appointed pursuant to Section 8
hereof).

    


    7.           
 Transfer to
Comply with the Securities Act. This Warrant has not yet been registered
under the 1933 Act. Neither this Warrant nor any of the Warrant Shares or any
other security issued or issuable upon exercise of this Warrant may be sold,
transferred, pledged or hypothecated without (a) an effective registration
statement under the 1933 Act relating to such security, which the Company has
agreed to file pursuant to the terms and conditions of the Purchase Agreement,
after which all such securities may be sold in accordance with such effective
registration statement, or (b) an opinion of counsel reasonably satisfactory to
the Company that registration is not required under the Act. Until such time as
registration has occurred under the 1933 Act, each certificate for the Warrant,
the Warrant Shares and any other security issued or issuable upon exercise of
this Warrant shall contain a legend, in form and substance satisfactory to
counsel for the Company, setting forth the restrictions on transfer contained in
this Section.  Any such transfer shall be accompanied by a transferor
assignment substantially in the form of Exhibit
B (the “Transferor
Assignment”), executed by the transferor and the transferee and submitted
to the Company.  Upon receipt of the duly executed Transferor
Assignment, the Company shall register the transferee thereon as the new Holder
on the books and records of the Company and such transferee shall be deemed a
“registered holder” or “registered assign” for all purposes hereunder, and shall
have all the rights of the Holder hereof.

    



    
      
         


      

      
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    8.           Warrant Agent. The
Company may, by written notice to the Holder of the Warrant, appoint an agent (a
“Warrant
Agent”) for the purpose of issuing Common Stock on the exercise of this
Warrant pursuant hereto, exchanging this Warrant pursuant hereto, and replacing
this Warrant pursuant hereto, or any of the foregoing, and thereafter any such
issuance, exchange or replacement, as the case may be, shall be made at such
office by such Warrant Agent.

    


    9.         
  Transfer
on the Company’s Books. Until this Warrant is transferred on the books of
the Company, the Company may treat the registered holder hereof as the absolute
owner hereof for all purposes, notwithstanding any notice to the
contrary.

    


    10.           Notices.  Any
notice required or permitted hereunder shall be given in manner provided in the
subsection headed “Notices” in the Purchase Agreement, the terms of which are
incorporated herein by reference.

    


    11.      
    Supplements and Amendments;
Whole Agreement. This Warrant may be amended or supplemented only by
an instrument in writing signed by the parties hereto. This Warrant contains the
full understanding of the parties hereto with respect to the subject matter
hereof and thereof and there are no representations, warranties, agreements or
understandings other than expressly contained herein and therein.

    


    12.           Governing
Law.  This Warrant shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois, without reference
to the choice of law provisions thereof. The Company and, by accepting this
Warrant, the Holder, each irrevocably submits to the exclusive jurisdiction of
the courts of the State of Illinois located in Cook County and any United States
District Court for the Northern District of Illinois for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this Warrant
and the transactions contemplated hereby. Service of process in connection with
any such suit, action or proceeding may be served on each party hereto anywhere
in the world by the same methods as are specified for the giving of notices
under this Warrant.  The Company and, by accepting this Warrant, the
Holder, each irrevocably consents to the jurisdiction of any such court in any
such suit, action or proceeding and to the laying of venue in such court. The
Company and, by accepting this Warrant, the Holder, each irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum.

    


    13.           Remedies. The Company
stipulates that the remedies at law of the Holder of this Warrant in the event
of any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will not be
adequate and that, without limiting any other remedies available to the Holder,
to the fullest extent permitted by law, such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or
otherwise.

    



    
      
         


      

      
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    14.           Counterparts. This
Warrant may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
Signature delivered via facsimile or email shall be considered original
signatures for purposes hereof.

    


    15.           Descriptive
Headings.  Descriptive headings of the sections of this Warrant
are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.

    


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    IN WITNESS WHEREOF, the
Company has caused this Warrant to be duly executed by an officer thereunto duly
authorized.

    


    Dated:
May 1, 2010


    
       

      
        
          	 	
                  HELIX
      WIND, CORP.

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Scott
      Weinbrandt	 
	 	 	
                  Name:
      Scott Weinbrandt

                	 
	 	 	
                  Title:
      Chief Executive Officer

                	 
	 	 	 	 


        



    

    


     

     

    [Signature
page to Warrant]