Contract
Exhibit 99.3
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
WARRANT
| Warrant No. [ ] | Date of Original Issuance: January 8, 2007; |
ProLink Holdings Corp., a Delaware corporation (the “Company”), hereby certifies that, for
value received, [___] or its registered assigns (the “Holder”), is entitled to purchase
from the Company up to a total of [ ] shares of common stock, par value $.0001 per share (the
“Common Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the
“Warrant Shares”) at an exercise price equal to $1.40 per share (as adjusted from time to time as
provided in Section 9, the “Exercise Price”), at any time and from time to time from and after the
date hereof and through and including January 8, 2012 (the “Expiration Date”), and subject to
the following terms and conditions:
1. Definitions. In addition to the terms defined elsewhere in this Warrant,
capitalized terms that are not otherwise defined herein shall have the meanings given to such terms
in the Securities Purchase Agreement of even date herewith to which the Company and the original
Holder are parties (the “Purchase Agreement”).
2. Registration of Warrant. The Company shall register this Warrant, upon records to
be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record
Holder hereof from time to time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the transfer of any portion
of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the Company at its address specified
herein. Upon any such registration or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a “New Warrant”), evidencing the
portion of this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed
the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.
4. Exercise and Duration of Warrants. This Warrant shall be exercisable by the
registered Holder at any time and from time to time on or after the date hereof to and including
the Expiration Date. At 6:30 p.m., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value, provided,
that if the closing sales price of the Common Stock on the Expiration Date is greater than 102% of
the Exercise Price on the Expiration Date, then this Warrant shall be deemed to have been exercised
in full (to the extent not previously exercised) on a “cashless exercise” basis at 6:30 P.M. New
York City time on the Expiration Date. The Company may not call or redeem all or any portion of
this Warrant without the prior written consent of the Holder.
5. Delivery of Warrant Shares.
(a) To effect exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant is being exercised.
Upon delivery of the Exercise Notice to the Company (with the attached Warrant Shares Exercise Log)
at its address for notice set forth herein and upon payment of the Exercise Price multiplied by the
number of Warrant Shares that the Holder intends to purchase hereunder, the Company shall promptly
(but in no event later than three Trading Days after the Date of Exercise (as defined herein))
issue and deliver to the Holder, a certificate for the Warrant Shares issuable upon such exercise,
which, unless otherwise required by the Purchase Agreement, shall be free of restrictive legends.
A “Date of Exercise” means the date on which the Holder shall have delivered to Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately completed and duly
signed and (ii) if such Holder is not utilizing the cashless exercise provisions set forth in this
Warrant, payment of the Exercise Price for the number of Warrant Shares so indicated by the Holder
to be purchased.
(b) If by the third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section 5(a), then the Holder
will have the right to rescind such exercise.
(c) If by the third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section 5(a), and if after
such third Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale
by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall (1) pay in cash to the Holder the
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amount by which (x) the Holder’s total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A)
the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue by (B) the exercise price of the Common Stock at the time of the
obligation giving rise to such purchase obligation and (2) reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not honored. The Holder shall
provide the Company written notice indicating the amounts payable to the Holder in respect of the
Buy-In.
(d) The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law
or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver certificates representing shares of
Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
6. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue
or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect
of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company;
provided, however, that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for Warrant Shares or
Warrants in a name other than that of the Holder. The Holder shall be responsible for all other
tax liability that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity (which shall not include a surety bond), if requested.
Applicants for a New Warrant under such circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the
Company’s obligation to issue the New Warrant.
8. Reservation of Warrant Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon
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exercise of this Warrant as herein provided, the number of Warrant Shares which are then
issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or
any other contingent purchase rights of persons other than the Holder (taking into account the
adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares
so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price
in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this
Section 9.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
clause (i) of this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination. If any event requiring an adjustment under this
paragraph occurs during the period that an Exercise Price is calculated hereunder, then the
calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Fundamental Transactions. If, at any time while this Warrant is outstanding, (1)
the Company effects any merger or consolidation of the Company with or into another Person, (2) the
Company effects any sale of all or substantially all of its assets in one or a series of related
transactions, (3) any tender offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to tender or exchange their
shares for other securities, cash or property, or (4) the Company effects any reclassification of
the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (in any such case, a
“Fundamental Transaction”), then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the same amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such Fundamental Transaction if it had been,
immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the “Alternate Consideration”). For purposes of
any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. If holders of Common Stock are
given any choice as to the
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securities, cash or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it receives upon any exercise of
this Warrant following such Fundamental Transaction. At the Holder’s option and request, any
successor to the Company or surviving entity in such Fundamental Transaction shall, either (1)
issue to the Holder a new warrant substantially in the form of this Warrant and consistent with the
foregoing provisions and evidencing the Holder’s right to purchase the Alternate Consideration for
the aggregate Exercise Price upon exercise thereof, or (2) purchase the Warrant from the Holder for
a purchase price, payable in cash within five Trading Days after such request (or, if later, on the
effective date of the Fundamental Transaction), equal to the Black Scholes value of the remaining
unexercised portion of this Warrant on the date of such request. The terms of any agreement
pursuant to which a Fundamental Transaction is effected shall include terms requiring any such
successor or surviving entity to comply with the provisions of this paragraph (c) and insuring that
the Warrant (or any such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
(c) Certain Diluting Issuances. (i) If the Company shall, at any time or from time
to time, issue or distribute any shares of Common Stock, or be deemed to have issued shares of
Common Stock as provided herein, other than Excluded Stock (as defined in Section 9(c)(iv) below)
(each such event, including any event described in paragraphs (ii)(C) and (ii)(D) below, being
herein called a “Common Stock Distribution”), without consideration or for a consideration per
share less than the Exercise Price on the date of such Common Stock Distribution or on the first
date of the announcement of such Common Stock Distribution, whichever is greater, then, effective
immediately after the open of business on the day following such Common Stock Distribution, the
Exercise Price as in effect immediately prior to such Common Stock Distribution shall forthwith be
lowered to a price equal to the amount determined by multiplying the Exercise Price by a fraction:
(A) the numerator of which shall be (x) the total number of shares of Common Stock outstanding
(including shares of Common Stock issuable upon exercise or conversion of outstanding options,
warrants and convertible securities) immediately prior to such Common Stock Distribution, plus (y)
the number of shares of Common Stock which the net aggregate consideration, if any, received by the
Company upon such Common Stock Distribution would purchase at the Exercise Price in effect
immediately prior to such Common Stock Distribution; and (B) the denominator of which shall be (x)
total number of shares of Common Stock outstanding (including shares of Common Stock issuable upon
exercise or conversion of outstanding options, warrants and convertible securities) immediately
prior to such Common Stock Distribution, plus (y) the number of additional shares of Common Stock
issued as part of such Common Stock Distribution. In the event of any such adjustment, the number
of shares of Common Stock purchasable upon exercise of this Warrant shall forthwith be increased by
multiplying the number of shares of Common Stock subject to purchase upon exercise of this Warrant
by a fraction, the numerator of which shall be the total number of shares of Common Stock
outstanding (including shares of Common Stock issuable upon exercise or conversion of outstanding
options, warrants and convertible securities immediately after such Common Stock Distribution), and
the denominator of which shall be an amount equal to the sum of (i) the number of shares of Common
Stock outstanding immediately prior to such Common Stock Distribution, plus (ii) the number of
shares of Common Stock which the aggregate consideration, if any, received by the Company
(determined as provided below) for such Common Stock Distribution would buy at the Exercise Price
thereof as of the
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date immediately prior to such Common Stock Distribution or as of the date immediately prior
to the date of announcement of such Common Stock Distribution (whichever is greater).
The provisions of this paragraph (c), including by operation of subsections (C) or (D) of
paragraph (ii) below, shall not operate to increase the Exercise Price or to reduce the number of
shares of Common Stock subject to purchase upon exercise of this Warrant.
(ii) For the purposes of any adjustment of the Exercise Price pursuant to paragraph (a)
above, the following provisions shall be applicable:
| (A) | In the case of the issuance, sale or distribution of Common Stock for cash in a public offering or private placement, the consideration received therefor shall be deemed to be the amount received by the Company therefor before deducting therefrom any discounts, commissions or placement fees payable by the Company to any underwriter or placement agent in connection therewith; | ||
| (B) | In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash received by the Company shall be deemed to be the fair market value of such consideration, as determined in good faith by the Board of Directors of the Company, irrespective of any accounting treatment; | ||
| (C) | In the case of the issuance, sale, distribution or granting (whether directly or by assumption in a merger or otherwise) of any rights to subscribe for or to purchase, or any warrants or options for the purchase of, Common Stock or any stock or securities convertible into or exchangeable for Common Stock (such rights, warrants or options being herein called “Options” and such convertible or exchangeable stock or securities being herein called “Convertible Securities”), whether or not such Options or the rights to convert or exchange any such Convertible Securities are immediately exercisable, then, for purposes of paragraph (a) above, the aggregate maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of such Convertible Securities and subsequent conversion or exchange thereof shall be deemed to have been issued as of the date of issuance of such Options, Convertible Securities or rights and thereafter shall be deemed to be outstanding; and the Company shall be deemed to have received as consideration the amount equal to the consideration, if any, received by the Company upon the issuance of such options or rights plus the minimum additional consideration, if any, to be received by the Corporation upon the conversion or exchange of such Convertible Securities or the exercise of Options or rights (such consideration in each case to be |
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| determined in the manner provided in Sections 9(ii)(A) and 9(ii)(B)); | |||
| (D) | If the purchase price provided for in any Option referred to in paragraph (i) above, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities referred to in subsection (C) above, or the rate at which any Convertible Securities referred to in subsection (C) above are convertible into or exchangeable for Common Stock shall change at any time (other than under or by reason of provisions designed to protect against, and having the effect of protecting against, dilution upon an event which results in a related adjustment pursuant to this Section 9), then, the number of shares of Common Stock purchasable upon exercise of this Warrant and the Exercise Price then in effect shall forthwith be readjusted (effective only with respect to any exercise of this Warrant after such readjustment) to the number of shares of Common Stock purchasable upon exercise of this Warrant and the Exercise Price which would then be in effect had the adjustment made upon the issue, sale, distribution or grant of such Options or Convertible Securities been made based upon such changed purchase price, additional consideration or conversion rate, as the case may be; provided, however, that such readjustment shall give effect to such change only with respect to such Options and Convertible Securities as then remain outstanding; | ||
| (E) | Upon the expiration of any such Options or the termination of any rights, Convertible Securities or exchangeable securities, the applicable Exercise Price shall forthwith be readjusted to such Exercise Price as would have been in effect at the time of such expiration or termination had such Options, rights, Convertible Securities or exchangeable securities, to the extent outstanding immediately prior to such expiration or termination, never been issued; | ||
| (F) | If the Company shall pay a dividend or make any other distribution upon any capital stock of the Company payable in Common Stock, Options or Convertible Securities, then, for purposes of paragraph (i) above, such Common Stock, Options or Convertible Securities, as the case may be, shall be deemed to have been issued or sold without consideration; and | ||
| (G) | If the Company shall declare a record date for the holders of the Common Stock for the purpose of entitling them to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date |
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| shall be deemed to be the date of the issue, sale, distribution or grant of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. |
(iii) For purposes of determining whether any adjustment is required pursuant to this
Section 9(c), any security of the Company having rights substantially equivalent to the
Common Stock as to dividends or upon liquidation, dissolution or winding up of the Company
shall be treated as if such security were Common Stock. No further adjustment of the
Exercise Price adjusted upon the issuance of any such options, rights, convertible
securities or exchangeable securities shall be made as a result of the actual issuance of
Common Stock on the exercise of any such rights or options or any conversion or exchange of
any such securities.
(iv) “Excluded Stock” shall mean (A) shares of Common Stock issued (or issuable upon
exercise of rights, options or warrants outstanding from time to time) granted or issued to
officers, directors or employees of, or consultants to, the Company pursuant to a stock
grant, stock option plan, employee stock purchase plan, restricted stock plan or other
similar plan or agreement or otherwise, in each case as approved by the Board of Directors,
(B) up to 2,570,495 shares of Common Stock issued (or issuable upon exercise of rights,
options or warrants outstanding from time to time) granted or issued to financial
institutions, equipment lessors, brokers or similar persons in connection with commercial
credit arrangements, equipment financings, commercial property lease transactions or similar
transactions, (C) securities issued in connection with a strategic alliance or similar
transaction, (D) up to 2,570,495 shares of Common Stock issued (or issuable upon exercise of
rights, options or warrants outstanding from time to time) for bona fide services, (E)
shares issued or issuable as a result of any stock split, combination, dividend,
distribution, reclassification, exchange or substitution, and (F) shares of Common Stock
issuable upon exercise of rights, options, warrants, notes or other rights to acquire
securities of the Corporation outstanding as of the date hereof.
(d) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise
Price pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased
upon exercise of this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
(e) Calculations. All calculations under this Section 9 shall be made to the
nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of
Common Stock outstanding at any given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares shall be considered an issue or sale
of Common Stock.
(f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will promptly compute such adjustment in
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accordance with the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of
Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable),
describing the transactions giving rise to such adjustments and showing in detail the facts upon
which such adjustment is based. Upon written request, the Company will promptly deliver a copy of
each such certificate to the Holder and to the Company’s Transfer Agent.
(g) Notice of Corporate Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common Stock, including
without limitation any granting of rights or warrants to subscribe for or purchase any capital
stock of the Company or any Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes
the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the
Company shall deliver to the Holder a notice describing the material terms and conditions of such
transaction, at least 20 calendar days prior to the applicable record or effective date on which a
Person would need to hold Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order to insure that the
Holder is given the practical opportunity to exercise this Warrant prior to such time so as to
participate in or vote with respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the corporate action
required to be described in such notice.
10. Payment of Exercise Price. The Holder may pay the Exercise Price in one of the
following manners:
(a) Cash Exercise. The Holder may deliver immediately available funds; or
(b) Cashless Exercise. The Holder may notify the Company in an Exercise Notice of its
election to utilize cashless exercise, in which event the Company shall issue to the Holder the
number of Warrant Shares 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 average of the closing prices for the five Trading Days
immediately prior to (but not including) the Exercise Date.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to
have been acquired by the Holder, and the holding period for the Warrant Shares shall be
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deemed to have commenced, on the date this Warrant was originally issued, subject to any change of
law after the date hereof.
11. Limitations on Exercise. Notwithstanding anything to the contrary contained
herein, the number of shares of Common Stock that may be acquired by the Holder upon any exercise
of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to insure
that, following such exercise (or other issuance), the total number of shares of Common Stock then
beneficially owned by such Holder and its Affiliates and any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of
the Exchange Act, does not exceed 9.999% of the total number of issued and outstanding shares of
Common Stock (including for such purpose the shares of Common Stock issuable upon such exercise).
For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. This provision shall not
restrict the number of shares of Common Stock which a Holder may receive or beneficially own in
order to determine the amount of securities or other consideration that such Holder may receive in
the event of a Fundamental Transaction as contemplated in Section 9 of this Warrant. The
provisions of this Section 11 may be waived by such Holder, at the election of such Holder, upon
not less than 61 days’ prior notice to the Company, and the provisions of this Section 11 shall
continue to apply until such 61st day (or such later date, as determined by such Holder, as may be
specified in such notice of waiver).
12. No Fractional Shares. No fractional shares of Warrant Shares will be issued in
connection with any exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied
by the closing price of one Warrant Share as reported by the applicable Trading Market on the date
of exercise.
13. Notices. Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in this Section prior to 6:30 p.m. (New
York City time) on a Trading Day, (ii) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number specified in this
Section on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any
Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required
to be given. The addresses for such communications shall be: (i) if to the Company, to ProLink
Holdings Corp., Attn: Chief Financial Officer, Facsimile No.:
(000) 000-0000, or (ii) if to the
Holder, to the address or facsimile number appearing on the Warrant Register or such other address
or facsimile number as the Holder may provide to the Company in accordance with this Section.
14. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon
30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers
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substantially all of its corporate trust or shareholders services business shall be a
successor warrant agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.
15. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant
shall be construed to give to any Person other than the Company and the Holder any legal or
equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in
writing signed by the Company and the Holder and their successors and assigns.
(b) All questions concerning the construction, validity, enforcement and interpretation of
this Warrant shall be governed by and construed and enforced in accordance with the internal laws
of the State of New York, without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations, enforcement and defense of this
Warrant and the transactions herein contemplated (“Proceedings”) (whether brought against a party
hereto or its respective Affiliates, employees or agents) may be commenced non-exclusively in the
state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York
Courts”). Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the
New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any
New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices
to it under this Warrant and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Warrant or the transactions contemplated
hereby. If either party shall commence a Proceeding to enforce any provisions of this Warrant,
then the prevailing party in such Proceeding shall be reimbursed by the other party for its
attorney’s fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(c) The headings herein are for convenience only, do not constitute a part of this Warrant and
shall not be deemed to limit or affect any of the provisions hereof.
(d) In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be a
-11-
commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE FOLLOWS]
-12-
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.
| PROLINK HOLDINGS CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: |
-13-
WARRANT ORIGINALLY ISSUED January 8, 2007
WARRANT NO. [ ]
EXERCISE NOTICE
The
undersigned hereby irrevocably elects to purchase ___ shares of Common Stock
pursuant to the above captioned Warrant, and, if such Holder is not utilizing the cashless exercise
provisions set forth in the Warrant, encloses herewith
$___ in cash, certified or official
bank check or checks or other immediately available funds, which sum represents the aggregate
Exercise Price (as defined in the Warrant) for the number of shares of Common Stock to which this
Exercise Notice relates, together with any applicable taxes payable by the undersigned pursuant to
the Warrant.
By its delivery of this Exercise Notice, the undersigned represents and warrants to the
Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own
in excess of the number of shares of Common Stock (determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934) permitted to be owned under Section 11 of this Warrant to
which this notice relates.
By its delivery of this Exercise Notice, the undersigned represents and warrants to the
Company that:
(a) Investment Intent. The undersigned is acquiring the Common Stock as principal for
its own account for investment purposes only and not with a view to or for distributing or
reselling such Common Stock or any part thereof, without prejudice, however, to such undersigned’s
right at all times to sell or otherwise dispose of all or any part of such Common Stock in
compliance with applicable federal and state securities laws. Subject to the immediately preceding
sentence, nothing contained herein shall be deemed a representation or warranty by the undersigned
to hold the Common Stock for any period of time. The undersigned is acquiring the Common Stock
hereunder in the ordinary course of its business. The undersigned does not have any agreement or
understanding, directly or indirectly, with any person to distribute any of the Common Stock.
Notwithstanding the foregoing, nothing herein shall prevent the undersigned from transferring the
Common Stock issuable upon exercise of this Warrant.
(b) Investor Status. At the date hereof the undersigned is, an “accredited investor”
as defined in Rule 501(a) under the Securities Act. The undersigned is not a registered
broker-dealer under Section 15 of the Exchange Act.
The undersigned requests that certificates for the shares of Common Stock issuable upon this
exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
TAX IDENTIFICATION NUMBER
(Please print name and address)
Warrant Shares Exercise Log
| Number of | ||||||
| Number of Warrant | Warrant Shares | |||||
| Shares Available to be | Number of Warrant Shares | Remaining to | ||||
| Date | Exercised | Exercised | be Exercised | |||
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___ the right represented by the above-captioned Warrant to purchase
___ shares of Common Stock to which such Warrant relates and appoints ___
attorney to transfer said right on the books of the Company with full power of substitution in the
premises.
Dated: _______________, ____
| (Signature must conform in all respects to name of holder as specified on the face of the Warrant) | ||||
| Address of Transferee | ||||
In the presence of: |
||||
