EXHIBIT 10.12
2002-A WARRANT AGREEMENT
THIS 2002-A WARRANT AGREEMENT, made this 25th day of March, 2002, by and
between:
Concentrax, Inc., a Nevada corporation with its principal office located
at 000 Xxx Xxxx, Xxxxxxx, Xxxxx 00000 (hereinafter referred to as the
"COMPANY")
AND
All Investors in the 2002 Regulation D, Rule 506 Offering (the
"2002-A Offering")(and the registered assigns of those investors), from time
to time, from the date of original issue of such Warrants to the expiration
date thereof (hereinafter referred to as the "HOLDER" and/or "HOLDERS" as the
context may require).
WITNESSETH THAT:
WHEREAS, as part of the 2002-A Offering, the Company has issued Units,
the constituent securities of which consist of Common Stock and Common Stock
Purchase Warrants, with such warrants being exercisable at a price of the
higher of Thirty Five Cents ($.35) per share or the 20 average bid and ask
price on the OTC Bulletin Board, and the COMPANY has delivered Common Stock
Purchase Warrants (hereinafter called the "2002-A WARRANTS") to certain
parties entitling the HOLDERS thereof to purchase up to an aggregate of
526,000 shares of the Common Stock of the COMPANY (hereinafter called the
"Shares"); and
WHEREAS, the COMPANY desires to provide for the form and provisions of
the 2002-A Warrants, the terms upon which they shall be issued and exercised,
and the respective rights, limitation of rights, and immunities of the COMPANY
and the HOLDERS; and
WHEREAS, all acts and things necessary to make the 2002-A WARRANTS, when
executed on behalf of the COMPANY, the valid, binding, and legal obligations
of the COMPANY, have been done and performed; and
WHEREAS, all acts and things necessary to authorize the execution and
delivery of this Warrant Agreement, and to execute and deliver the 2002-A
WARRANTS to the original registered HOLDERS, have been done and performed;
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NOW, THEREFORE, intending to be legally bound hereby, and intending the
original registered HOLDERS and their successors and assigns to rely hereon,
the COMPANY hereby represents and agrees, and the HOLDERS by acceptance of the
2002-A WARRANTS impliedly agree, as follows:
1. 2002-A WARRANTS AUTHORIZED. COMPANY hereby authorizes the issuance
of Five Hundred Twenty Thousand, Six Hundred (520,600) 2002-A WARRANTS upon
the terms and conditions of this Warrant Agreement.
2. FORM AND EXECUTION. Each 2002-A WARRANT, whenever issued: (a)
shall be in substantially the form attached hereto as Exhibit A; (b) shall be
dated as of the date of issuance, which shall be the date of this Warrant
Agreement; (c) shall entitle the HOLDER to purchase the number of Shares
stated thereon; (d) shall be signed by the President or Vice President and the
Secretary or Treasurer of the COMPANY; and (e) shall have the COMPANY'S seal
impressed thereon. The COMPANY may adopt and use the facsimile signature of
any person who is a requisite officer of the COMPANY at the time such 2002-A
WARRANTS are executed, or of any person now or hereafter holding such office,
notwithstanding the fact that at the time a WARRANT is issued he had ceased to
be such officer of the COMPANY.
3. WARRANT ISSUANCE AND ISSUANCE CONSIDERATION. These 2002-A WARRANTS
are being issued to the COMPANY's 2002-A as compensation for their
pre-incorporation services and the consideration for the issuance of the
2002-A WARRANTS shall be the agreement of the 2002-A to accept such 2002-A
WARRANTS in full payment for such services and to waive any further claim.
4. WARRANT EXERCISE PRICE. Each 2002-A WARRANT shall entitle the
registered HOLDER thereof, subject to the provisions thereof and of this
Warrant Agreement, to purchase from the COMPANY the number of Shares of the
COMPANY's Common Stock as stated thereon, at the exercise price of the higher
of $0.35 per share, or the 30 day average bid and ask price on the OTC
Bulletin Board, both the number of Shares and the price being subject to the
anti-dilution adjustments provided in Paragraph 8 hereof. The term "Warrant
Exercise Price" as used in this Warrant Agreement refers to the price per
Share at which Common Stock may be purchased at the time a designated 2002-A
WARRANT is exercised.
5. DURATION (Term). 2002-A WARRANTS may be exercised at any time
between the date of issuance and the close of business (5:00 P.M. Central
Daylight Time) on August 31, 2004, such date being hereafter called the
"Expiration Date". Each 2002-A WARRANT not exercised on or before its
Expiration Date shall become void, and all rights thereunder and all rights in
respect thereof under this Warrant Agreement shall cease at the close of
business on the respective Expiration Date.
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The COMPANY reserves the right to extend the Expiration Date, from time to
time, any number of times, but shall be under no obligation to do so.
6. TRANSFER AND/OR EXCHANGE OF 2002-A WARRANTS. On or after the date
of issuance and prior to the Expiration Date, any HOLDER of any 2002-A
WARRANT, subject to the transfer restrictions of federal and state securities
laws, at any time prior to the exercise thereof, may transfer all or any
portion of the stock purchase rights provided in the 2002-A WARRANT. Upon
presentation and surrender to the Warrant Agent of the 2002-A WARRANT,
properly assigned, accompanied by appropriate transfer instructions from the
HOLDER, the Warrant Agent shall issue a 2002-A WARRANT for the assigned number
of shares to the assignee as the new registered HOLDER and shall issue a
2002-A WARRANT for the unassigned balance of the shares to the assigning (old)
registered HOLDER. Any HOLDER of any 2002-A WARRANT, at any time prior to the
exercise thereof, may exchange such 2002-A WARRANT for a 2002-A WARRANTS of
like tenor exercisable for the same aggregate number of Common Shares as the
2002-A WARRANT surrendered. The Warrant Agent is the COMPANY's Treasurer,
Xxxx Xxxxx, at Concentrax, Inc., 000 Xxx Xxxx, Xxxxxxx, Xxxxx, 00000. The
COMPANY shall give notice to the registered HOLDERS of 2002-A WARRANTS of any
change in the address of, or in the designation of, its Warrant Agent.
7. EXERCISE. (a) A 2002-A WARRANT shall be exercisable only by the
registered HOLDER surrendering it, together with the subscription form set
forth in the 2002-A WARRANT duly executed, accompanied by payment, in full, in
lawful money of the United States, of the Warrant Exercise Price for each full
Share as to which the 2002-A WARRANT is exercised, to the Warrant Agent. The
Company shall act as its own Warrant Agent, and can be reached by phone at
(000) 000-0000 or by mail at 000 Xxx Xxxx, Xxxxxxx, Xxxxx, 00000. The COMPANY
shall give notice to the registered HOLDERS of 2002-A WARRANTS of any change
in the address of, or in the designation of, its Warrant Agent.
(b) A 2002-A WARRANT may be exercised wholly or in part. If a 2002-A
WARRANT is only exercised in part, a new WARRANT for the number of Shares as
to which the 2002-A WARRANT shall not have been exercised shall be issued to
the registered HOLDER.
(c) As soon as practicable after the exercise of any 2002-A WARRANT,
the COMPANY shall issue to or upon the order of the registered HOLDER a
certificate or certificates for the number of full Shares which he is
entitled, registered in such name or names as may be directed by him.
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(d) All Shares issued upon exercise of a 2002-A WARRANT shall be
validly issued, fully paid, and non-assessable. The COMPANY shall pay all
taxes in respect of the issue thereof and all costs of issuance. However, the
registered HOLDER shall pay all taxes imposed in connection with any transfer,
even if involved in an issue of a certificate, and the COMPANY shall not be
required to issue or deliver any stock certificate in such case until the tax
shall have been paid.
(e) Each person in whose name any such certificate for Shares is issued
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the 2002-A WARRANT was surrendered and payment of
the Warrant Exercise Price and applicable taxes was made, irrespective of the
date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the COMPANY
are closed, the person or persons entitled to receive Shares upon such
exercise shall be considered the record holder or holders of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open and shall be entitled to receive only dividends or
distributions which are payable to holders of record after that date.
8. SHARE DIVIDENDS, RECLASSIFICATION, REORGANIZATION, ANTI-DILUTION
PROVISIONS. Each 2002-A WARRANT is subject to the following further
provisions: (a) In case, prior to the expiration of a 2002-A WARRANT by
exercise or by its terms, the COMPANY shall issue any of its Common Stock as a
share dividend or subdivide the number of outstanding shares of Common Stock
into a greater number of shares, then, in either of such cases, the Purchase
Price per share of the Shares purchasable pursuant to a 2002-A WARRANT in
effect at the time of such action shall be proportionately reduced and the
number of Shares at the time purchasable pursuant to a 2002-A WARRANT shall be
proportionately increased; and conversely, in the event the COMPANY shall
contract the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, then, in such case, the Purchase Price
per share of the Shares purchasable pursuant to a 2002-A WARRANT in effect at
the time of such action shall be proportionately increased and the number of
Shares at the time purchasable pursuant to a 2002-A WARRANT shall be
proportionately decreased. If the COMPANY shall, at any time during the life
of a 2002-A WARRANT, declare a dividend payable in cash on its Common Stock
and shall, at substantially the same time, offer to its stockholders a right
to purchase new Common Stock from the proceeds of such dividend or for an
amount substantially equal to the dividend, all shares of Common Stock so
issued shall, for the purpose of a 2002-A WARRANT, be deemed to have been
issued as a share dividend. Any dividend paid or distributed upon the Common
Stock in shares of any other class or securities convertible into Common Stock
shall be treated as a dividend paid in shares of Common Stock to the extent
that shares of Common Stock are issuable upon the conversion thereof.
(b) In case, prior to the expiration of a 2002-A WARRANT by exercise or
by its terms, the COMPANY shall be recapitalized, or the COMPANY or a
successor corporation shall consolidate or merge with or convey all or
substantially all of its or of any successor corporation's property and assets
to any other corporation or corporations (any such corporation being included
within the meaning of the term "successor corporation" hereinbefore used in
the event of any consolidation or merger of any such
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corporation with, or the sale of all or substantially all of the property of
any such corporation to, another corporation or corporations), the holder of a
2002-A WARRANT shall thereafter have the right to purchase, upon the basis and
on the terms and conditions and during the time specified in a 2002-A WARRANT
in lieu of the Shares of the COMPANY theretofore purchasable, upon the
exercise of a 2002-A WARRANT, such shares, securities or assets as may be
issued or payable with respect to, or in exchange for, the number of Shares of
the COMPANY theretofore purchasable upon the exercise of a 2002-A WARRANT had
such recapitalization, consolidation, merger, or conveyance not taken place;
and in any such event, the rights of the holder of a 2002-A WARRANT to an
adjustment in the number of Shares purchasable upon the exercise of a 2002-A
WARRANT as herein provided shall continue and be preserved in respect of any
shares, securities, or assets which the holder of a 2002-A WARRANT becomes
entitled to purchase.
(c) In case:
(i) the COMPANY shall take a record of the holders of its
Common Shares for the purpose of entitling them to receive
a dividend payable otherwise than in cash, or any other
distribution in respect of the Common Shares (including
cash), pursuant to, without limitation, any spin-off,
split-off, or distribution of the COMPANY's assets; or
(ii) the COMPANY shall take a record of the holders of its
Common Shares for the purpose of entitling them to
subscribe for or purchase any shares of any class or to
receive any other rights; or
(iii) of any classification, reclassification, or other
reorganization of the shares which the COMPANY is
authorized to issue, consolidation or merger of the COMPANY
with or into another corporation, or conveyance of all or
substantially all of the assets of the COMPANY; or
(iv) of the voluntary or involuntary dissolution,
liquidation, or winding up of the COMPANY;
then, and in any such case, the COMPANY shall mail to the holder of a 2002-A
WARRANT, at least 21 days prior thereto, a notice stating the date or expected
date on which a record is to be taken for the purpose of such dividend,
distribution, or rights, or the date on which such classification,
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation, or winding up is to take place, as the case may be.
Such notice shall also specify the date or expected date, if any is to be
fixed, as of which holders of Common Stock of record shall be entitled to
participate in such dividend, distribution, or rights, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such classification, reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation, or winding up, as the case may be.
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(d) In case the COMPANY at any time while a 2002-A WARRANT shall remain
unexpired and unexercised shall sell all or substantially all of its property
or dissolve, liquidate, or wind up its affairs, the holder of a 2002-A WARRANT
may thereafter receive upon exercise hereof in lieu of each Share which it
would have been entitled to receive the same kind and amount of any securities
or assets as may be issuable, distributable, or payable upon such sale,
dissolution, liquidation, or winding up with respect to each Share.
9. RESERVATION OF SHARES ISSUABLE ON EXERCISE OF 2002-A WARRANTS. The
COMPANY shall at all times reserve and keep available out of its authorized
shares, solely for issuance upon the exercise of all 2002-A WARRANTS issued
hereunder, such number of Common Shares and other shares as from time to time
shall be issuable upon the exercise of a 2002-A WARRANT and all other similar
2002-A WARRANTS at the time outstanding.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION. Upon receipt by the
COMPANY of evidence satisfactory to it, (in the exercise of its reasonable
discretion), of the ownership of and the loss, theft, destruction, or
mutilation of a 2002-A WARRANT, and (in the case of loss, theft, or
destruction) of indemnity satisfactory to it (in the case of mutilation) upon
surrender and cancellation thereof, the COMPANY will execute and deliver, in
lieu thereof, a new 2002-A WARRANT for like tenor.
11. 2002-A WARRANT HOLDER NOT A SHAREHOLDER. The HOLDER of a 2002-A
WARRANT, as such, shall not be entitled by reason of a 2002-A WARRANT to any
rights whatsoever of a stockholder of the COMPANY. No HOLDER of any 2002-A
WARRANT shall be entitled to receive any dividend or to vote with respect to
any dividend declared or the taking of a register of stockholders entitled to
vote with a Record Date prior to the date of exercise of the 2002-A WARRANTS.
12. NOTICES. All notices and other communications from the COMPANY to
the HOLDER of a 2002-A WARRANT shall be mailed by first-class registered mail,
postage prepaid, to the address furnished to the COMPANY in writing by the
HOLDER of a 2002-A WARRANT. IN WITNESS WHEREOF, intending to be legally
bound, the COMPANY has executed this Warrant Agreement:
Dated: March 25, 2002
CONCENTRAX, INC.
ATTEST:
/s/ Xxxx Xxxxxxx
By:_____________________________
Xxxx Xxxxxxx, President
/s/ R. Xxxxxxx Xxxxxx
_____________________________
Secretary
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