Filed by Bowne Pure Compliance





Exhibit 10.6




THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER HEREOF FOR ITS OWN ACCOUNT FOR
INVESTMENT WITH NO INTENTION OF MAKING OR CAUSING TO BE MADE A PUBLIC DISTRIBUTION OF ALL OR ANY
PORTION THEREOF. SUCH SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
IRVINE SENSORS CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.



			
	 	 	 
	No.      
	 	                                        , 20     






IRVINE SENSORS CORPORATION

WARRANT TO PURCHASE COMMON STOCK




Void after                                         , 20     




IRVINE SENSORS CORPORATION, a Delaware corporation (the “Company”), hereby
certifies that, for value received, J.P. Turner Partners, LP (including any permitted successors
and assigns, “Holder”), is entitled, subject to the terms set forth below, to purchase from
the Company at any time or from time to time during the Exercise Period, defined below, and prior
to 5:00 PM Central time, on                                         , 20      (the “Expiration Date”), fully paid and
nonassessable shares of Common Stock (the “Warrant Shares”) under the terms set forth
herein.



1. Number of Warrant Shares; Exercise Price. This Warrant shall evidence the right of
the Holder to purchase up to                      Warrant Shares at an exercise price per Warrant Share of
$      per share, subject to adjustment as provided in Section 6 below (the “Exercise
Price”).



2. Definitions. As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:



(a) The term “Common Stock” shall mean the common stock, $0.01 par value per share, of
the Company.



(b) The term “Company” shall include any company which shall succeed to or assume the
obligations of the Company hereunder.



(c) The term “Corporate Transaction” shall mean (i) a sale, transfer or conveyance of
all or substantially all of the assets of the Company; (ii) a consolidation of the Company with, or
merger of the Company with or into, another corporation or other business entity in which the
stockholders of the Company immediately prior to such consolidation or merger own less than 50% of
the voting power of the surviving entity immediately after such
consolidation or merger; or (iii) any transaction or series of related transactions to which
the Company is a party in which in excess of 50% of the Company’s voting power is transferred,
excluding any consolidation or merger effected exclusively to change the domicile of the Company
and excluding any transaction for the primary purpose of raising capital or acquiring another
corporation or business entity.


 


 









 





(d) The term “Stock” shall mean (i) Common Stock or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par value to par value.



3. Exercise Date; Expiration. Subject to the terms hereof, this Warrant may be
exercised by the Holder at any time or from time to time before the Expiration Date (the
“Exercise Period”).



4. Exercise of Warrant; Partial Exercise. This Warrant may be exercised in full by
the Holder by surrender of this Warrant, together with the Holder’s duly executed form of
subscription attached hereto as Exhibit A, to the Company at its principal office,
accompanied by payment, in cash or by certified or official bank check payable to the order of the
Company, of the aggregate exercise price (as determined above) of the number of Warrant Shares to
be purchased hereunder. The exercise of this Warrant pursuant to this Section 4 shall be deemed to
have been effected immediately prior to the close of business on the business day on which this
Warrant is surrendered to the Company as provided in this Section 4, and at such time the person in
whose name any certificate for Warrant Shares shall be issuable upon such exercise shall be deemed
to be the record holder of such Warrant Shares for all purposes. No later than seven (7) business
days after the exercise of this Warrant, the Company at its expense will cause to be issued in the
name of and delivered to the Holder, or as the Holder may direct, a certificate or certificates for
the number of fully paid and nonassessable full shares of Warrant Shares to which the Holder shall
be entitled on such exercise, together with cash, in lieu of any fraction of a share, equal to such
fraction of the fair market value (as defined in Section 5(c) below) of one full Warrant Share as
of the close of business on the business day on which this Warrant is surrendered, and, if
applicable, a new warrant evidencing the balance of the shares remaining subject to the Warrant.




5. Net Issuance.



(a) Cashless Exercise. In the event that the Company has not registered the Warrant
Shares issued or issuable upon the exercise of this Warrant for resale under the Securities Act of
1933, as amended, on or prior to the anniversary (the “Net Issuance Date”) of the issuance
date of this Warrant (it being understood that the Company is under no obligation to effect such
registration), the Holder shall have the right to convert this Warrant (the “Conversion
Right”) into Warrant Shares as provided in this Section 5 from time to time after the Net
Issuance Date until the Expiration Date. Upon exercise of the Conversion Right with respect to
shares subject to the Warrant (the “Converted Warrant Shares”), the Company shall deliver
to the Holder (without payment by the Holder of any exercise price or any cash or other
consideration) that number of fully paid and nonassessable Warrant Shares computed using the
following formula:


 


2









 






X = Y (A — B)
             A




			
	Where:	 	X = the number of Warrant Shares to be delivered to the Holder;
 
Y = the number of Converted Warrant Shares;







A = the fair market value of one Warrant Share on the Conversion Date (as defined below); and




B = the Exercise Price (as adjusted on the Conversion Date).



No fractional shares shall be issuable upon exercise of the Conversion Right, and if the
number of shares to be issued (determined in accordance with the foregoing formula) is other than a
whole number, the Company shall pay to the Holder an amount in cash equal to the fair market value
of the resulting fractional share on the Conversion Date (as defined below). Shares issued
pursuant to the Conversion Right shall be treated as if they were issued upon the exercise of the
Warrant.



(b) Method of Exercise. The Conversion Right may be exercised by the Holder by the
surrender of the Warrant at the principal office of the Company together with a written statement
specifying that the Holder thereby intends to exercise the Conversion Right and indicating the
total number of shares under the Warrant that the Holder is exercising through the Conversion
Right. Such conversion shall be effective upon receipt by the Company of the Warrant together with
the aforesaid written statement, or on such later date as is specified therein (the “Conversion
Date”). Certificates for the shares issuable upon exercise of the Conversion Right shall be
delivered to the Holder within seven (7) business days following the Conversion Date and, if
applicable, a new warrant evidencing the balance of the shares remaining subject to the Warrant
shall also be delivered to the Holder.



(c) Determination of Fair Market Value. For purposes of this Section 5, fair market
value of a Warrant Share on the Conversion Date shall be determined as follows:



(i) If the Common Stock is traded on a national securities exchange or the Nasdaq Capital
Market, the fair market value of a Warrant Share shall be deemed to be the closing selling price of
the Common Stock on the stock exchange or market determined by the Board to be the primary market
for the Common Stock as of the trading day immediately prior to the Conversion Date, as such prices
are officially quoted in the composite tape of transactions on such exchange or market;



(ii) If the Common Stock is traded over-the-counter or in the “pink sheets”, the fair market
value of a Warrant Share shall be deemed to be the closing bid price (or, if such information is
available, the closing selling price, or, in the case of the “pink sheets,” the most recent bid
price) of the Common Stock as of the trading day immediately prior to the Conversion Date; and



(iii) If there is no public market for the Common Stock, then the fair market value of a
Warrant Share shall be determined by the Board of Directors of the Company
in good faith and, upon request of the Holder, the Board (or a representative thereof) shall,
as promptly as reasonably practicable, but in any event not later than 15 days after such request,
notify the Holder of the Fair Market Value per share of Common Stock.


 


3









 





6. Adjustments to Exercise Price and Number of Warrant Shares. The number and kind of
Warrant Shares (or any shares of stock or other securities which may be) issuable upon the exercise
of this Warrant and the Exercise Price hereunder shall be subject to adjustment from time to time
upon the happening of certain events, as follows:



(a) Splits and Subdivisions. In the event the Company should at any time or from time
to time fix a record date for the effectuation of a split or subdivision of the outstanding shares
of Common Stock into a greater number of shares, then, as of such record date (or the date of such
split or subdivision if no record date is fixed), the Exercise Price shall be appropriately
decreased and the number of Warrant Shares for which this Warrant is exercisable shall be
appropriately increased in accordance with Section 6(h) hereof.



(b) Combination of Shares. If the number of shares of Common Stock outstanding at any
time after the date hereof is decreased by a combination of the outstanding shares of Common Stock,
the Exercise Price shall be appropriately increased and the number of Warrant Shares for which this
Warrant is exercisable shall be appropriately decreased in accordance with Section 6(h) hereof.



(c) Dividends in Common Stock or Common Stock Equivalents. In the event the Company
should at any time or from time to time fix a record date for the determination of the holders of
Common Stock entitled to receive a dividend or other distribution payable in additional shares of
Common Stock or other securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter referred to as the
“Common Stock Equivalents”) without payment of any consideration by such holder for the
additional shares of Common Stock or Common Stock Equivalents, then, as of such record date (or the
date of such distribution if no record date is fixed), the Holder hereof shall, upon the exercise
of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock
receivable thereupon, and without payment of any additional consideration therefor, the amount of
Common Stock and Common Stock Equivalents which such Holder would hold on the date of such exercise
had such Holder been the holder of record of such Common Stock as of the date on which holders of
Common Stock received or became entitled to receive such shares of Common Stock or Common Stock
Equivalents.



(d) Reclassification or Reorganization. If the Warrant Shares issuable upon the
exercise of this Warrant shall be changed into the same or different number of shares of any class
or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a
split or subdivision provided for in Section 6(a) above or stock dividend provided for in Section
6(b) above or a combination of shares provided for in Section 6(c) above, or a reorganization,
merger or consolidation provided for in Section 6(e) below), then and in each such event the Holder
shall be entitled to receive upon the exercise of this Warrant the kind and amount of shares of
stock and other securities and property receivable upon such reorganization, reclassification or
other change, to which a holder of the number of Warrant Shares issuable upon the exercise of this
Warrant would have received if this Warrant had been exercised
immediately prior to such reorganization, reclassification or other change, all subject to
further adjustment as provided herein.


 


4









 





(e) Merger or Consolidation. If at any time there shall be a capital reclassification
or reorganization of the Warrant Shares or a Corporate Transaction (other than a subdivision,
combination, reclassification or exchange of shares provided for elsewhere in this Section 6) of
the Company, then as a part of such reorganization or Corporate Transaction, lawful and adequate
provision shall be made so that the Holder shall thereafter be entitled to receive upon the
exercise of this Warrant, the number of shares of stock or other securities or property of the
Company, resulting from such reorganization, recapitalization or Corporate Transaction to which a
holder of the number of Warrant Shares issuable upon the exercise of this Warrant would have
received if this Warrant had been exercised immediately prior to such reorganization or Corporate
Transaction. In any such case, the Company will make lawful and appropriate provision to insure
that the provisions of this Section 6(e) hereof will thereafter be applicable as nearly as may be
in relation to any shares of stock or securities thereafter deliverable upon the exercise of this
Warrant. The Company shall not effect any such Corporate Transaction unless prior to or
simultaneously with the consummation thereof the successor corporation (if other than the Company)
resulting from such Corporate Transaction or the corporation purchasing or acquiring such assets or
other appropriate corporation or entity shall assume the obligation to deliver to the Holder, at
the last address of the Holder appearing on the books of the Company, such shares of stock,
securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to
purchase, and the other obligations under this Warrant. The provisions of this Section 6(e) shall
similarly apply to successive reorganizations, reclassifications, or Corporate Transactions.



(f) Adjustment in Number of Warrant Shares. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 6, the number of Warrant Shares issuable upon the
exercise of this Warrant shall be adjusted to the nearest full amount by multiplying a number equal
to the Exercise Price in effect immediately prior to such adjustment by the number of Warrant
Shares issuable upon exercise of the Warrants immediately prior to such adjustment and dividing the
product so obtained by the adjusted Exercise Price.



(g) Notice of Record Dates; Adjustments. In the event of a Corporate Transaction, the
Company shall provide to the Holder ten (10) days advance written notice of such Corporate
Transaction. The Company shall promptly notify the Holder in writing of each adjustment or
readjustment of the Exercise Price and the number of Warrant Shares issuable upon the exercise of
this Warrant. Such notice shall state the adjustment or readjustment and show in reasonable detail
the facts on which that adjustment or readjustment is based.



7. Replacement of Warrants. On receipt by the Company of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or destruction of this Warrant, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its expense will execute
and deliver to the Holder, in lieu thereof, a new Warrant of like tenor.


 


5









 





8. No Rights or Liability as a Stockholder. This Warrant does not entitle the Holder
to any voting rights or other rights as a stockholder of the Company. No provisions, in the
absence of affirmative action by the Holder to purchase Warrant Shares, and no enumeration of
the rights or privileges of the Holder contained herein, shall give rise to any liability of the
Holder as a stockholder of the Company.




9. Miscellaneous.



(a) Transfer of Warrant; Permitted Designees. The Holder agrees not to make any
disposition of this Warrant, the Warrant Shares or any rights hereunder without the prior written
consent of the Company. Any such permitted transfer must be made by the Holder in person or by
duly authorized attorney, upon delivery of this Warrant and the form of assignment attached hereto
as Exhibit B to any such permitted transferee. As a condition precedent to such transfer,
the transferee shall sign an investment letter in form and substance satisfactory to the Company.
Subject to the foregoing, the provisions of this Warrant shall inure to the benefit of and be
binding upon any successor to the Company and shall extend to any holder hereof. Notwithstanding
anything contained herein, the Company shall, upon written instructions to be delivered to the
Company within fifteen (15) business days following the date hereof, transfer all or a portion of
this Warrant to officers, directors, employees and other registered agents or associated persons of
the Holder (collectively, “Permitted Designees”) in accordance with this Section 9;
provided, however, the Company shall not be required to issue such Warrants to any person who is
not an “accredited investor” within the meaning of Regulation D promulgated under the Securities
Act of 1933, as amended, and provided, further, that Holder provides an opinion of counsel
reasonably satisfactory to the Company that such transfer complies with applicable Federal and
state securities laws. Each Permitted Designee shall be required to execute fully and completely
the Investor Representation Letter in the form attached hereto as Exhibit C prior to the
issuance of the Warrant to such person.



(b) Restrictive Legend. Each certificate for Warrant Shares shall bear a restrictive
legend in substantially the form as follows, together with any additional legend required by (a)
any applicable state securities laws and (b) any securities exchange upon which such Warrant Shares
may, at the time of such exercise, be listed:




“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IRVINE SENSORS CORPORATION
THAT SUCH REGISTRATION IS NOT REQUIRED.”



(c) Titles and Subtitles. The titles and subtitles used in this Warrant are for
convenience only and are not to be considered in construing or interpreting this Warrant.



(d) Notices. Any notice required or permitted to be given to a party pursuant to the
provisions of this Warrant shall be in writing and shall be effective and deemed given to such
party under this Warrant on the earliest of the following: (i) the date of personal delivery; (ii)
the date of transmission by facsimile, addressed to the other party at its facsimile number,
with confirmation of transmission; (iii) the next business day after deposit with an overnight
courier for United States deliveries; or (iv) five (5) business days after deposit in the United
States mail by registered or certified mail (return receipt requested) for United States
deliveries. All notices not delivered personally or by facsimile will be sent with postage and/or
other charges prepaid and properly addressed to such party at the address set forth on the
signature page hereto, or at such other address as such party may designate by ten (10) days
advance written notice to the other party hereto. Notices to the Company will be marked
“Attention: Chief Financial Officer.”


 


6









 





(e) Attorneys’ Fees. If any action at law or in equity is necessary to enforce or
interpret the terms of this Warrant, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be
entitled.



(f) Amendments and Waivers. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a particular instance
and either retroactively or prospectively) with the written consent of the Holder and the Company.
Any amendment or waiver effected in accordance with this Section 9(f) shall be binding upon the
Holder of this Warrant (and of any securities into which this Warrant is convertible), each future
holder of all such securities, and the Company.



(g) Severability. If one or more provisions of this Warrant are held to be
unenforceable under applicable law, such provision shall be excluded from this Warrant and the
balance of the Warrant shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.



(h) Governing Law. This Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws
principles.



(i) Counterparts. This Warrant may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




 


7









 







In Witness Whereof, the Company has caused this Warrant to be executed by its duly
authorized officer as of the date first written above.



	 	 	 	 	 
	 	IRVINE SENSORS CORPORATION

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	John C. Carson 	 
	 	 	Title:  	President & Chief Executive Officer 	 
	 






 







			
	Address:	 	3001 Red Hill Avenue

Building 4, Suite 108

Costa Mesa, CA 92626











 


8









 







EXHIBIT A




FORM OF SUBSCRIPTION




(To be signed only on exercise of Warrant)





			
	To:	 	IRVINE SENSORS CORPORATION






The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby
irrevocably elects to (a) purchase       shares of the Common Stock covered by such Warrant and
herewith makes payment of $                    , representing the full purchase price for such shares at the
price per share provided for in such Warrant, or (b) exercise such Warrant for the issuance of
      shares of Common Stock in exchange for the surrender of the right to purchase       shares
of Common Stock under the Warrant pursuant to the Net Issue Exercise provisions of Section 5
of such Warrant.



Please issue a certificate or certificates representing       shares of Common Stock in the
name of the undersigned or in such other name or names as are specified below:


 



(Name)
 
 



 



 



(Address)




The undersigned represents that the undersigned is an “accredited investor” as defined in
Regulation D promulgated under the Securities Act of 1933, as amended, and that the aforesaid
shares are being acquired for the account of the undersigned for investment and not with a view to,
or for resale in connection with, the distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares, all except as in compliance with applicable
securities laws.





 






  
(Signature must conform in all respects to name of
the Holder as specified on the face of the Warrant)



  
(Print Name)



  
  
(Address)








Dated:                                         


 


 









 





EXHIBIT B




FORM OF ASSIGNMENT




(To assign the foregoing Warrant, execute this form
and supply required information. Do not use this
form to purchase shares.)



For Value Received, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to:



	 	 	 
	Name:
	 	 
	 

	 	 
	 

	 	(Please Print)
	 
	 	 
	Address:
	 	 
	 

	 	 
	 

	 	(Please Print)






Dated:                                         , 20     




Holder’s

Signature:                                                                                 



Holder’s

Address:                                                                                 



NOTE: The signature to this Assignment must correspond with the name as it appears on the face of
the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.


 


 









 





EXHIBIT C




FORM OF INVESTOR REPRESENTATION LETTER




DATE:                                         




Irvine Sensors Corporation

3001 Red Hill Avenue

Building 4, Suite 108

Costa Mesa, CA 92626




Gentlemen:



In connection with my receipt of warrants (“Warrants”) to purchase the number of shares of
common stock referred to below, I hereby represent, warrant and covenant as follows:



1. Check each one which is applicable:




	 	 	      I am an “accredited investor” within the meaning of Regulation D promulgated
under the Securities Act of 1933 (the “Act”);

	 
	 	 	      I am able to fend for myself, can bear the economic risk of my investment and
have such knowledge and experience in financial, tax, and business matters so as to utilize
information made available to me in order to evaluate the merits and risks of an investment
decision with respect thereto, or I have a preexisting personal or business relationship with the
Company or one or more of the officers or directors of the Company;

	 
	2.	 	      I have had the opportunity to ask questions and receive and review such answers
and information concerning Irvine Sensors Corporation (the “Issuer”) as I have deemed
pertinent;

	 
	3.	 	      I am not relying on the Issuer or J.P. Turner & Company, L.L.C. respecting the
tax and other economic considerations of an investment in the Issuer;

	 
	4.	 	      I am acquiring the Warrants and the underlying securities related thereto
solely for my own account for investment and not with a view to resale or distribution. I
acknowledge that neither the Warrants nor the underlying securities have been registered under
the Act or any state securities laws and may not be resold except pursuant to an effective
registration statement thereunder or an exemption therefrom;






  
Name:



Holder of Warrants to purchase       shares of common stock of Irvine Sensors
Corporation pursuant to the terms of the Common Stock
Purchase Warrant of even date herewith