Contract
Exhibit 4.1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON, INCLUDING A
PLEDGEE, UNLESS (i) EITHER (A) A REGISTRATION STATEMENT WITH RESPECT THERETO SHALL BE EFFECTIVE
UNDER THE SECURITIES ACT, OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IS AVAILABLE, AND (ii)
THERE SHALL HAVE BEEN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES OR “BLUE-SKY” LAWS.
| No. ___ | For the Purchase of up to ___shares of Common Stock |
ProLink Holding Corp., a Delaware corporation (the “Company”), for value received, the
sufficiency of which is hereby acknowledged, certifies that ___, or his, her
or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time at or before the earlier of 5:00 p.m.
New York City local time on ___(the “Expiration Date”) and the termination of
this Warrant as provided in Section 6 hereof, up to ___shares of common stock, par
value $0.0001 per share, of the Company (“Common Stock”), at a purchase price per share equal to
$ ___per share (the “Base Price”), as adjusted upon the occurrence of certain events as set
forth in Section 2 of this Warrant. The shares of Common Stock issuable upon exercise of this
Warrant, and the purchase price per share, are hereinafter referred to as “Warrant Stock” and the
“Purchase Price,” respectively.
1. Exercise.
1.1 Manner of Exercise; Payment in Cash. This Warrant may be exercised by the
Holder, in whole or in part, by surrendering this Warrant, with the purchase form appended
hereto as Exhibit A duly executed by the Holder, at the principal office of the
Company, or at such other place as the Company may designate, accompanied by payment in full
of the Purchase Price payable in respect of the number of shares of Warrant Stock purchased
upon such exercise, subject to the terms of Section 1.6 hereof Payment of the Purchase
Price shall be in cash or by certified or official bank check payable to the order of the
Company.
1.2 Effectiveness. 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 Section 1.1 above. At such time, the
person or persons in whose name or names any certificates for Warrant Stock shall be
issuable upon such exercise as provided in Section 1.3 below shall be deemed to have become
the holder or holders of record of the Warrant Stock represented by such certificates.
1.3. Delivery of Certificate(s). As soon as practicable after the exercise of
this Warrant in full or in part, and in any event within ten (10) business days thereafter,
the Company at its sole expense will cause to be issued in the name of, and delivered to,
the Holder, or, subject to the terms and conditions hereof, as such Holder (upon payment by
such Holder of any applicable transfer taxes) may direct:
(a) A certificate or certificates for the number of full shares of Warrant
Stock to which such Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which such Holder would otherwise be entitled, cash in an amount
determined pursuant to Section 1.4 hereof, and
(b) 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 shares of Warrant Stock (without giving effect to any adjustment
therein) equal to the number of such shares called for on the face of this Warrant
minus the number of such shares purchased by the Holder upon such exercise as
provided in Section 1.1 above.
1.4. Fractional Shares. The Company shall not be required upon the exercise of
this Warrant to issue any fractional shares, but shall make an adjustment therefor in cash
on the basis of the fair market value of the Warrant Stock reasonably determined by the
Board of Directors of the Company (and, in the case of a conversion of this Warrant, in
accordance with Section 1.5(c)).
1.5 Right to Convert Warrant into Stock; Net Issuance.
(a) Right to Convert. Subject to Sections 1.6 and 6, in addition to and
without limiting the rights of the Holder under the terms of this Warrant, the Holder shall
have the right to convert this Warrant or any portion thereof (the “Conversion Right”) into
shares of Warrant Stock as provided in this Section 1.5 at any time or from time to time
during the term of this Warrant. Upon exercise of the Conversion Right with respect to a
particular number of shares subject to this Warrant (the “Converted Warrant Shares”), the
Company shall deliver to the Holder (without payment by the Holder of any Purchase Price or
any cash or other consideration) that number of shares of fully paid and nonassessable
Warrant Stock equal to the quotient obtained by dividing (X) the value of this Warrant (or
the specified portion hereof) on the Conversion Date (as defined in subsection (b) hereof),
which value shall be determined by subtracting (A) the aggregate Purchase Price of the
Converted Warrant Shares immediately prior to the exercise of the Conversion Right from (B)
the aggregate fair market value of the Converted Warrant
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Shares issuable upon exercise of this Warrant (or the specified portion hereof) on the
Conversion Date (as herein defined) by (Y) the fair market value of one share of Warrant
Stock on the Conversion Date (as herein defined).
Expressed as a formula, such conversion shall be computed as follows:
N =
|
B-A | |
| Y |
| where: | N = the number of shares of Warrant Stock that may be issued to Holder | ||
| Y = the fair market value (FMV) of one share of Warrant Stock | |||
| A = the aggregate Warrant Price (Converted Warrant Shares x Purchase Price) | |||
| B = the aggregate FMV (i.e., FMV x Converted Warrant Shares) |
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 of the Conversation Date (as herein defined).
(b) Method of Exercise. The Conversion Right may be exercised by the Holder by
the surrender of this Warrant at the principal office of the Company together with the
Subscription Form in the form attached hereto duly completed and executed and indicating the
number of shares subject to this Warrant which are being surrendered (referred to in Section
1.5(a) hereof as the Converted Warrant Shares) in exercise of the Conversion Right. Such
conversion shall be effective upon receipt by the Company of this Warrant together with the
aforesaid written statement, or on such later date as is specified therein (the “Conversion
Date”), and, at the election of the Holder hereof, may be made contingent upon the
occurrence of any of the events specified in Section 6. Certificates for the shares
issuable upon exercise of the Conversion Right and, if applicable, a new warrant (date the
date hereof) evidencing the balance of the shares remaining subject to this Warrant, shall
be issued as of the Conversion Date and shall be delivered to the Holder within thirty (30)
days following the Conversion Date.
(c) Determination of Fair Market Value. For purposes of this Section 1.5,
“fair market value” of a share of Warrant Stock as of a particular date (the “Determination
Date”) shall mean:
(1) If the Company’s Common Stock is traded on an exchange or is quoted
on the Nasdaq National or Small Cap Market, then the closing price on the
day before the Determination Date;
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(2) If the Company’s Common Stock is not traded on an exchange or on
the Nasdaq National or Small Cap Market but is traded in the
over-the-counter market, then the closing price on the day before the
Determination Date;
(3) In the event that the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up with respect to the Warrant Stock
under the Company’s Certificate of Incorporation, then the fair market value
per share of the Warrant Stock shall be determined by aggregating all
amounts to be payable per share to holders of the Warrant Stock in the event
of such liquidation, dissolution or winding up; or
(4) In all other cases, the fair market value per share of the Warrant
Stock shall be determined in good faith by the Company’s Board of Directors
upon review of relevant factors.
1.6 Vesting of Warrant Stock. The Warrant Stock, and the Holder’s right to
exercise this Warrant or to exercise its Conversion Right with respect to the Warrant Stock,
shall vest as follows: _______________. In the event the Warrant is
terminated pursuant to the terms of Section 6 hereof, then the unvested balance of such
Warrant Stock shall immediately vest as of the Termination Date (as defined in Section 6
below).
2. Certain Adjustments. The Purchase Price and the number of shares of Warrant Stock
deliverable upon exercise of the Warrant shall be subject to adjustment from time to time as
follows:
2.1 Subdivision, Reclassification or Change in Common Stock. In the event of
any subdivision, reclassification or change of the Common Stock into a greater number or
different class or classes of stock, the number of shares of Warrant Stock deliverable upon
exercise of this Warrant shall be determined in accordance with the terms of the Certificate
of Incorporation, and the Purchase Price for such Warrant Stock shall be proportionately
reduced.
2.2 Consolidation, Reclassification or Change in Common Stock. In the event of
any consolidation, reclassification or change of the Common Stock into a lesser number or
different class or classes of stock, the number of shares of Warrant Stock deliverable upon
exercise of this Warrant shall be determined in accordance with the terms of the Certificate
of Incorporation, and the Purchase Price for such Warrant Stock shall be proportionately
increased.
2.3 Reorganizations. If there shall occur any capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification or change in par
value), then, as part of any such reorganization, lawful provision shall be made so that the
Holder shall have the right thereafter to receive upon the exercise of this Warrant the kind
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and amount of shares of stock or other securities or property which such Holder would have
been entitled to receive if, immediately prior to any such reorganization, such Holder had
held the number of shares of Common Stock which were then purchasable upon the exercise of
this Warrant. In any such case, appropriate adjustment (as reasonably determined 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 Holder such that the
provisions set forth in this Section 2 (including provisions with respect to adjustment of
the Purchase Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter deliverable
upon the exercise of this Warrant.
2.4 Merger, Consolidation or Sale of Assets. Subject to the provisions of
Section 6, if there shall be a merger or consolidation of the Company with or into another
corporation (other than a merger or reorganization involving only a change in the state of
incorporation of the Company or the acquisition by the Company of other businesses where the
Company survives as a going concern), or the sale of all or substantially all of the
Company’s capital stock or assets to any other person, then as a part of such transaction,
provision shall be made so that the Holder shall thereafter be entitled to receive the
number of shares of stock or other securities or property of the Company, or of the
successor corporation resulting from the merger, consolidation or sale, to which the Holder
would have been entitled if the Holder had exercised its rights pursuant to this Warrant
immediately prior thereto. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 2 to the end that the provisions of this
Section 2 shall be applicable after that event in as nearly equivalent a manner as may be
practicable.
2.5 Certificate of Adjustment. When any adjustment is required to be made in
the Purchase Price, the Company shall promptly mail to the Holder a certificate setting
forth the Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Delivery of such certificate shall be deemed to be a final
and binding determination with respect to such adjustment unless challenged by the Holder
within ten (10) days of receipt thereof. Such certificate shall also set forth the kind and
amount of stock or other securities or property into which this Warrant shall be exercisable
following the occurrence of any of the events specified in this Section 2.
3. Compliance with Securities Act.
3.1 Unregistered Securities. The Holder acknowledges that this Warrant and the
Warrant Stock have not been registered under the Securities Act, and agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any
Warrant Stock in the absence of (i) an effective registration statement under the Securities
Act covering this Warrant or such Warrant Stock and registration or qualification of this
Warrant or such Warrant Stock under any applicable “blue-sky” or state securities law then
in effect, or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required. The Company may delay issuance of the
Warrant Stock until completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation state securities or
“blue-sky” laws).
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3.2 Legend. Certificates delivered to the Holder pursuant to Section 1.3 shall
bear the following legend or a legend in substantially similar form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR (B) AN OPINION OF COUNSEL, IN A REASONABLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS, OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID
ACT.”
4. Reservation of Stock. The Company agrees that, prior to the expiration of this
Warrant, the Company will at all times have authorized and in reserve, and will keep available,
solely for issuance or delivery upon the exercise of this Warrant, the shares of Common Stock and
other securities and properties as from time to time shall be receivable upon the exercise of this
Warrant, free and clear of all restrictions on sale or transfer and free and clear of all
preemptive rights and rights of first refusal.
5. 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 reasonably 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.
6. Termination Upon Certain Events. If there shall be a merger or consolidation of the
Company with or into another corporation (other than a merger or reorganization involving only a
change in the state of incorporation of the Company or the acquisition by the Company of other
businesses where the Company survives as a going concern), or the sale of all or substantially all
of the Company’s capital stock or assets to any other person, or the liquidation or dissolution of
the Company, then as a part of such transaction, at the Company’s option, either:
(a) provision shall be made so that the Holder shall thereafter be entitled to receive
the number of shares of stock or other securities or property of the Company, or of the
successor corporation resulting from the merger, consolidation or sale, to which the Holder
would have been entitled if the Holder had exercised its rights pursuant to this Warrant
immediately prior thereto (and, in such case, appropriate adjustment shall be made in the
application of the provisions of this Section 6(a) to the end that the provisions of Section
2 shall be applicable after that event in as nearly equivalent a manner as may be
practicable); or
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(b) this Warrant shall terminate on the effective date of such merger, consolidation or
sale (the “Termination Date”) and become null and void, provided that if this Warrant shall
not have otherwise terminated or expired, (i) the Company shall have given the Holder
written notice of such Termination Date at least twenty (20) business days prior to the
occurrence thereof and (ii) the Holder shall have the right until 5:00 p.m., New York City
local time, on the day immediately prior to the Termination Date to exercise its rights
hereunder to the extent not previously exercised.
7. Transferability. Without the prior written consent of the Company, this Warrant
shall not be assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process. Any attempted
transfer, assignment, pledge, hypothecation or other disposition of this Warrant or of any rights
granted hereunder contrary to the provisions of this Section 7, or the levy of any attachment or
similar process upon this Warrant or such rights, shall be null and void.
8. No Rights as Stockholder. Until the exercise of this Warrant, the Holder shall not
have or exercise any rights by virtue hereof as a stockholder of the Company.
9. Notices. All notices, requests and other communications hereunder shall be in
writing, shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by registered mail, postage prepaid,
return receipt requested. In the case of notices from the Company to the Holder, they shall be
sent to the address furnished to the Company in writing by the last Holder who shall have furnished
an address to the Company in writing. All notices from the Holder to the Company shall be
delivered to the Company at its offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx, 00000,
Attention: Secretary, or such other address as the Company shall so notify the Holder. All
notices, requests and other communications hereunder shall be deemed to have been given (i) by
hand, at the time of the delivery thereof to the receiving party at the address of such party
described above, (ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notices is delivered to the
courier service, or (iv) if sent by registered mail, on the fifth business day following the day
such mailing is made.
10. Waivers and Modifications. Any term or provision of this Warrant may be waived
only by written document executed by the party entitled to the benefits of such terms or
provisions. The terms and provisions of this Warrant may be modified or amended only by written agreement
executed by the parties hereto.
11. Headings. The headings in this Warrant are for convenience of reference only and
shall in no way modify or affect the meaning or construction of any of the terms or provisions of
this Warrant.
12. Governing Law. This Warrant will be governed by and construed in accordance with
and governed by the laws of Delaware without giving effect to the conflict of law principles
thereof.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, by one of its
officers thereunto duly authorized.
| PROLINK HOLDING CORP. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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EXHIBIT A
PURCHASE FORM
| To: | PROLINK HOLDING CORP. |
The undersigned pursuant to the provisions set forth in the attached Warrant hereby irrevocably
elects to (check one):
___
|
(A) purchase _________ shares of Common Stock, par value $0.0001 per share, of ProLink Holding Corp. (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) convert _________ Warrant Shares into that number of shares of fully paid and nonassessable shares of Common Stock, determined pursuant to the provisions of Section 1.5 of the Warrant. |
Common Stock for which the Warrant may be exercised or converted shall be known herein as
“Warrant Stock.”
The undersigned is aware that Warrant Stock has not been and will not be registered under the
Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws. The
undersigned understands that reliance by the Company on exemptions under the Securities Act is
predicated in part upon the truth and accuracy of the statements of the undersigned in this
Purchase Form.
The undersigned represents and warrants that (i) he has been furnished with all information
which he deems necessary to evaluate the merits and risks of the purchase of Warrant Stock, (ii) he
has had the opportunity to ask questions concerning Warrant Stock and the Company and all questions
posed have been answered to his satisfaction, (iii) he has been given the opportunity to obtain any
additional information he deems necessary to verify the accuracy of any information obtained
concerning Warrant Stock and the Company and (iv) he has such knowledge and experience in financial
and business matters that he is able to evaluate the merits and risks of purchasing Warrant Stock
and to make an informed investment decision relating thereto.
The undersigned hereby represents and warrant that he is purchasing Warrant Stock for his own
account for investment and not with a view to the sale or distribution of all or any part of
Warrant Stock.
The undersigned understands that because Warrant Stock has not been registered under the
Securities Act, he must continue to bear the economic risk of the investment for an indefinite
period of time and Warrant Stock cannot be sold unless it is subsequently registered under
applicable federal and state securities laws or an exemption from such registration is available.
The undersigned agrees that he will in no event sell or distribute or otherwise dispose of all
or any part of Warrant Stock unless (i) there is an effective registration statement under the
Securities Act and applicable state securities laws covering any such transaction involving Warrant
Stock, or (ii) the Company receives an opinion legal counsel acceptable to the Company stating that
such transaction is exempt from registration. The undersigned consents to the placing of a legend
on his certificate for Warrant Stock stating: (i) that the resale or transfer of the Warrant Stock
has not been registered and setting forth the restriction on transfer contemplated hereby; and (ii)
to the placing of a stop-transfer order on the books of the Company and with any transfer agents
against Warrant Stock until Warrant Stock may be legally resold or distributed without restriction.
The undersigned has considered the federal and state income tax implications of the exercise
of the Warrant and the purchase and subsequent sale of the Warrant Stock.
| Signature | ||||
| Print Name or |
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| Entity Name:______________________________ | ||||
| By: | ||||
| Signature | ||||
| Print Name | ||||
| Title | ||||
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