Exhibit
10.33


 


 


THIS WARRANT AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED OR EXERCISED UNLESS AND UNTIL SUCH WARRANT
AND/OR SHARES OF COMMON STOCK IS REGISTERED UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.  THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTIONS 4 AND 10 OF
THIS WARRANT.


 


	
  Warrant No. 45

  	
   

  	
  Number of
  Shares: 11,938

  
	
   

  	
   

  	
  (subject to
  adjustment)

  



 


Date of Issuance: October
15, 2001


 


MICROVISION, INC.


 


Common Stock Purchase
Warrant


 


(Void after October 15,
2004)


 


Microvision, Inc., a Washington corporation (the “Company”), for value
received, hereby certifies that Ladenburg Thalmann & Co. Inc., or its
registered assigns (the “Registered Holder”), is entitled, subject to the terms
and conditions set forth below, to purchase from the Company, at any time or
from time to time on or after the date of issuance and on or before
5:00 p.m. (Eastern time) on October 15, 2004, 11,938 shares of Common Stock,
of the Company, at a purchase price of $14.62 per share.  The shares purchasable upon exercise of this
Warrant, and the purchase price per share, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as the
“Warrant Shares” and the “Purchase Price,” respectively.


 


1.  Exercise.


 


(a) This Warrant
may be exercised by the Registered Holder, in whole or in part, by surrendering
this Warrant, with the purchase form appended hereto as Exhibit I duly
executed by the Registered Holder or by the Registered Holder’s duly authorized
attorney, at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full by wire
transfer of immediately available funds, in lawful money of the United States,
of the Purchase Price payable in respect of the number of Warrant Shares
purchased upon such exercise.


 

















 


(b) If the resale
of the Warrant Shares has not been registered previously in accordance with
Section 4(d) or 4(e) hereof, as of and from the first anniversary of the Date
of Issuance hereof, the Registered Holder may, at its option, elect to pay some
or all of the Purchase Price payable upon an exercise of this Warrant by
canceling all or a portion of this Warrant. If the Registered Holder wishes to
exercise this Warrant by this method, the number of Warrant Shares purchasable
(which shall in no event exceed the total number of Warrant Shares purchasable
under this Warrant as set forth above), subject to adjustment under Section 2
of this Warrant) shall be determined as follows:


 


X=Y[(A-B)/A];
where


 


X= the number of Warrant Shares to be issued to the Holder.


 


Y= the number of Warrant Shares with respect to which this Warrant is
being exercised.


 


A= the Fair Market Value of one share of Common Stock.


 


B= the Purchase Price of one share of Common Stock.


 


The Fair Market
Value per share of Common Stock shall be determined as follows:


 


(i) If the Common Stock
is listed on a national securities exchange, the Nasdaq National Market or
another nationally recognized trading system (including, without limitation,
the OTC Bulletin Board and, if the average daily trading volume for the
preceding 10 days has been at least 100,000 shares, the Pink Sheets) as of the
Exercise Date, the Fair Market Value per share of Common Stock shall be deemed
to be the average of the high and low reported sale prices per share of Common
Stock thereon on the trading day immediately preceding the Exercise Date
(provided that if no such price is reported on such day, the Fair Market Value
per share of Common Stock shall be determined pursuant to clause (ii)).


 


(ii) If the Common Stock
is not listed on a national securities exchange, the Nasdaq National Market or
another nationally recognized trading system as of the Exercise Date, the Fair
Market Value per share of Common Stock shall be deemed to be the amount most
recently determined by the Board of Directors to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under an employee benefit plan of the Company); and, upon request of the
Registered Holder, the Board of Directors (or a representative thereof) shall
promptly notify the Registered Holder of the Fair Market Value per share of
Common Stock.  Notwithstanding the
foregoing, if the Board of Directors has not made such a determination within
the three-month period prior to the Exercise Date, then (A) the Board of
Directors shall make a determination of the Fair Market Value per share of the
Common Stock within 15


 


2

















 


days of a request by the Registered Holder that it do
so, and (B) the exercise of this Warrant pursuant to this subsection 1(b)
shall be delayed until such determination is made.


 


(c) Each exercise
of this Warrant shall be deemed to have been effected immediately prior to the
close of business on the day on which this Warrant shall have been surrendered
to the Company as provided in subsection 1(a) above accompanied by payment in
full of the Purchase Price (the “Exercise Date”).  At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as
provided in subsection 1(d) below shall be deemed to have become the holder or
holders of record of the Warrant Shares represented by such certificates.


 


(d) As soon as
practicable after the exercise of this Warrant in full or in part in accordance
with , and in any event within 5 business days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:


 


(i) a certificate or
certificates for the number of full Warrant Shares to which the Registered
Holder shall be entitled upon such exercise plus, in lieu of any fractional
share to which the Registered Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 3 hereof; and


 


(ii) in case such
exercise is in part only, a new warrant or warrants (dated the date hereof) of
like tenor, calling in the aggregate on the face or faces thereof for the
number of remaining Warrant Shares.


 


2.  Adjustments.


 


(a) Adjustment
for Stock Splits and Combinations.  If
the Company shall at any time or from time to time after the date on which this
Warrant was first issued (the “Original Issue Date”) effect a subdivision of
the outstanding Common Stock, the Purchase Price then in effect immediately
before that subdivision shall be proportionately decreased.  If the Company shall at any time or from
time to time after the Original Issue Date combine the outstanding shares of
Common Stock, the Purchase Price then in effect immediately before the
combination shall be proportionately increased.  Any adjustment under this paragraph shall become effective at the
close of business on the date the subdivision or combination becomes effective.


 


(b) Adjustment for
Certain Dividends and Distributions.  In
the event the Company at any time, or from time to time after the Original
Issue Date shall make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event the
Purchase Price then in effect immediately before such event shall be decreased
as of the time of such issuance or, in the event such a record


 


3

















 


date shall have been fixed, as of the
close of business on such record date, by multiplying the Purchase Price then
in effect by a fraction:


 


(1)  the numerator of which
shall be the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date, and


 


(2)           the denominator of
which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;


 


provided, however, if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the
date fixed therefor, the Purchase Price shall be recomputed accordingly as of
the close of business on such record date and thereafter the Purchase Price
shall be adjusted pursuant to this paragraph as of the time of actual payment
of such dividends or distributions.


 


(c) Adjustment in
Number of Warrant Shares.  When any
adjustment is required to be made in the Purchase Price pursuant to
subsections 2(a) or 2(b), the number of Warrant Shares purchasable upon
the exercise of this Warrant shall be changed to the number determined by
dividing (i) an amount equal to the number of shares issuable upon the
exercise of this Warrant immediately prior to such adjustment, multiplied by
the Purchase Price in effect immediately prior to such adjustment, by
(ii) the Purchase Price in effect immediately after such adjustment.


 


(d) Adjustment
for Mergers or Reorganizations, etc.  If
there shall occur any reorganization, recapitalization, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)), then, following any such reorganization,
recapitalization, consolidation or merger, the Registered Holder shall receive
upon exercise hereof the kind and amount of securities, cash or other property
which the Registered Holder would have been entitled to receive if, immediately
prior to such reorganization, recapitalization, consolidation or merger, the
Registered Holder had held the number of shares of Common Stock subject to this
Warrant.  Notwithstanding the foregoing
sentence, if (x) there shall occur any reorganization, recapitalization,
consolidation or merger involving the Company in which the Common Stock is
converted into or exchanged for anything other than solely equity securities,
and (y) the common stock of the acquiring or surviving company is publicly
traded, then, as part of any such reorganization, recapitalization, consolidation
or merger, (i) the Registered Holder shall have the right thereafter to
receive upon the exercise hereof such number of shares of common stock of the
acquiring or surviving company as is determined by multiplying (A) the
number of shares of Common Stock then subject to this Warrant by (B) a
fraction, the numerator of which is the Fair Market Value per share of Common
Stock as of the effective date of such transaction, as determined pursuant to
subsection 1(b), and the denominator of which is the fair market


 


4

















 


value per share of common stock of the
acquiring or surviving company as of the effective date of such transaction, as
determined in good faith by the Board of Directors of the Company (using the
principles set forth in subsection 1(b) to the extent applicable), and
(ii) the exercise price per share of common stock of the acquiring or
surviving company shall be the Purchase Price divided by the fraction referred
to in clause (B) above.  In any
such case, appropriate adjustment (as determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the
Registered Holder, to the end that the provisions set forth in this
Section 2 (including provisions with respect to changes in and other
adjustments of the Purchase Price) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities, cash or other property
thereafter deliverable upon the exercise of this Warrant.


 


(e) Certificate
as to Adjustments.  Upon the occurrence
of each adjustment or readjustment of the Purchase Price pursuant to this
Section 2, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
the Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Purchase Price)
and showing in detail the facts upon which such adjustment or readjustment is
based.  The Company shall, upon the
written request at any time of the Registered Holder, furnish or cause to be
furnished to the Registered Holder a certificate setting forth (i) the
Purchase Price then in effect and (ii) the number of shares of Common
Stock and the amount, if any, of other securities, cash or property which then
would be received upon the exercise of this Warrant.


 


3.  Fractional Shares.  The Company
shall not be required upon the exercise of this Warrant to issue any fractional
shares, but shall make a payment therefor in cash on the basis of the Fair
Market Value per share of Common Stock, as determined pursuant to subsection
1(b) above.


 


4.  Requirements for Transfer.


 


(a) This Warrant and the Warrant Shares shall not be
sold or transferred unless either (i) they first shall have been
registered under the Securities Act of 1933, as amended (the “Act”), or (ii) the
Company first shall have been furnished with an opinion of legal counsel,
satisfactory to the Company, to the effect that such sale or transfer is exempt
from the registration requirements of the Act.


 


(b)
Notwithstanding the foregoing, no registration or opinion of counsel shall be
required for (i) a transfer by a Registered Holder which is a corporation
to a wholly owned subsidiary of such corporation, a transfer by a Registered
Holder which is a partnership to a partner of such partnership or a retired
partner of such partnership or to the estate of any such partner or retired
partner, a transfer by a Registered Holder which is a limited liability company
to a member of such limited liability company or a


 


5

















 


retired member or to the estate of any
such member or retired member, or a transfer by a Registered Holder which is a
member of the National Association of Securities Dealers (the “NASD”) to an
officer or employee of the Registered Holder as permitted by NASD rules,
provided that the transferee in each case agrees in writing to be subject to
the terms of this Section 4, or (ii) a transfer made in accordance
with Rule 144 under the Act.


 


(c) Each
certificate representing Warrant Shares shall bear a legend substantially in
the following form:


 


“The securities represented by this certificate have
not been registered under the Securities Act of 1933, as amended, and may not
be offered, sold or otherwise transferred, pledged or hypothecated unless and
until such securities are registered under such Act or an opinion of counsel
satisfactory to the Company is obtained to the effect that such registration is
not required.”


 


(d) The Registered Holder shall have “piggyback”
registration rights to have the Warrant Shares (but not the Warrants)
registered for resale on any registration statement which the Company files for
any purpose (other than registrations relating solely to Company stock or
option plans or with respect to corporate reorganizations or other transactions
under Rule 145 under the Act) on a form available for such registration, after
the Original Issue Date. Such registration shall be subject to customary terms
and conditions, including obligations by the Registered Holder to provide
information to the Company and by the Company to indemnify the Registered
Holder against Securities Act liabilities.


 


(e)           The
Company shall file a registration statement on Form S-3 covering the Warrant
Shares as soon as practicable six months after the Original Issue Date, and
shall use commercially reasonable efforts to have such registration statement
declared effective by the SEC prior to the first anniversary of the Original
Issue Date; provided, however, that the Company shall not be obligated to
effect any such registration (i) if Form S-3 is not available for an offering
by the Registered Holder, (ii) if the Registered Holder fails to provide such
information about the Registered Holder and its plan of distribution as may be
required to be disclosed in the registration statement, or (iii) if the Company
furnishes to the Registered Holder a certificate signed by the President of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 registration to be effected at such time. The
Company shall pay all expenses incurred in connection with such registration,
including (without limitation) all registration, filing, qualification,
printer’s and accounting fees, fees and disbursements of counsel for the
Company, but excluding underwriting discounts and commissions relating to the
sale of the Warrant Shares.


 


5.  No Impairment.  The Company
will not, by amendment of its charter or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or


 


6

















 


performance of any of the terms of
this Warrant, but will at all times in good faith assist in the carrying out of
all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant
against impairment.


 


6.  Notices of Record Date, etc.  In the
event:


 


(a) the Company
shall take a record of the holders of its Common Stock (or other stock or
securities at the time deliverable upon the exercise of this Warrant) for the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of stock of any class or any other securities, or to receive any other right;
or


of any capital reorganization of the
Company, any reclassification of the Common Stock of the Company, any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the surviving entity and
its Common Stock is not converted into or exchanged for any other securities or
property), or any transfer of all or substantially all of the assets of the
Company; or


 


(b) of the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,


 


then, and in each such
case, the Company will mail or cause to be mailed to the Registered Holder a
notice specifying, as the case may be, (i) the record date for such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up.  Such notice shall be mailed
at least ten days prior to the record date or effective date for the event
specified in such notice.


 


7.  Reservation of Stock.  The Company
will at all times reserve and keep available, solely for issuance and delivery
upon the exercise of this Warrant, such number of Warrant Shares as from time
to time shall be issuable upon the exercise of this Warrant.


 


8.  Exchange of Warrants.  Upon the
surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of
Section 4 hereof, issue and deliver to or upon the order of such Holder, at the
Company’s expense, a new Warrant or Warrants of like tenor, in the name of the
Registered Holder or as the Registered Holder (upon payment by the Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on the face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this Warrant.


 


7

















 


9.  Replacement of Warrants.  Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount satisfactory to the Company, or (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.


 


10.  Transfers, etc.


 


(a) The Company will maintain a register containing
the name and address of the Registered Holder of this Warrant.  The Registered Holder may change its or his
address as shown on the warrant register by written notice to the Company
requesting such change.


 


(b) Subject to
the provisions of Section 4 hereof, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of Exhibit II hereto) at the
principal office of the Company.


 


(c) Until any
transfer of this Warrant is made in the warrant register, the Company may treat
the Registered Holder as the absolute owner hereof for all purposes; provided,
however, that if and when this Warrant is properly assigned in blank, the
Company may (but shall not be obligated to) treat the bearer hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.


 


11.  Representations of the Registered
Holder.  The Registered Holder of this Warrant represents and
warrants to the Company as follows:


 


(a) Investment.  The
Registered Holder is acquiring this Warrant and the Warrant Shares issuable
upon the exercise of this Warrant, for its own account for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the same, except as
otherwise may be permitted under applicable securities laws.


 


(b) Authority.  The
Registered Holder has full power and authority to enter into and to perform
this Warrant in accordance with its terms. 
The Registered Holder has not been organized specifically for the purpose
of investing in the Company.


 


(c) Accredited Investor. 
The Registered Holder is an Accredited Investor within the definition
set forth in Rule 501(a) promulgated under the Securities Act.


 


12.  Mailing of Notices, etc.  All notices
and other communications from the Company to the Registered Holder shall be
mailed by first-class certified or registered mail, postage prepaid, to the
address last furnished to the Company in writing by the Registered Holder.  All notices and other communications from
the Registered Holder or


 


8

















 


in connection herewith to the
Company shall be mailed by first-class certified or registered mail, postage
prepaid, to the Company at its principal office set forth below.  If the Company should at any time change the
location of its principal office to a place other than as set forth below, it
shall give prompt written notice to the Registered Holder and thereafter all
references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.


 


13.  No Rights as Stockholder.  Until the
exercise of this Warrant, the Registered Holder shall not have or exercise any
rights by virtue hereof as a stockholder of the Company.


 


14.  Change or Waiver.  Any term of
this Warrant may be changed or waived only by an instrument in writing signed
by the party against which enforcement of the change or waiver is sought.


 


15.  Section Headings.  The section
headings in this Warrant are for the convenience of the parties and in no way
alter, modify, amend, limit or restrict the contractual obligations of the
parties.


 


16.  Governing Law.  This Warrant
will be governed by and construed in accordance with the internal laws of the
State of New York (without reference to the conflicts of law provisions
thereof).


 


EXECUTED as of the Date of Issuance indicated above.


 


	
   

  	
  MICROVISION, INC.

  	
   

  
	
   

  	
  19910 North Creek Parkway

  	
   

  
	
   

  	
  Bothell, WA 98011

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


9

















 


EXHIBIT I


 


PURCHASE FORM


 


	
  To:                          

  	
   

  	
  Dated:                        

  



 


 


The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. 45), hereby irrevocably elects to purchase (check
applicable box):


 


•                      
shares of the Common Stock covered by such Warrant; or


 


•                                          the
maximum number of shares of Common Stock covered by such Warrant pursuant to
the cashless exercise procedure set forth in Section 1(b).


 


The undersigned herewith makes payment of the full purchase price for
such shares at the price per share provided for in such Warrant, which is
$              .  Such payment takes the form of (check
applicable box or boxes):


 


•                                          $          
in lawful money of the United States, payable by wire transfer of immediately
available funds in accordance with the wire transfer instructions provided to
the undersigned by the Company; and/or


 


•                                          the
cancellation of such portion of the attached Warrant as is exercisable for a
total of            Warrant Shares
(using a Fair Market Value of
$           per share for
purposes of this calculation); and/or


 


•                                          the
cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in Section 1(b), to exercise this Warrant with
respect to the maximum number of Warrant Shares purchasable pursuant to the
cashless exercise procedure set forth in Section 1(b).


 


	
   

  	
   

  	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


10

















 


EXHIBIT II


 


ASSIGNMENT FORM


 


FOR VALUE RECEIVED,
                                                                       
hereby sells, assigns and transfers all of the rights of the undersigned under
the attached Warrant (No. 45) with respect to the number of shares of Common
Stock covered thereby set forth below, unto:


 


	
  Name of Assignee

  	
   

  	
  Address

  	
   

  	
  No. of Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
						



 


The signature should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.


 


11