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Exhibit 10.6(d)
THIS WARRANT AND THE SECURITIES PURCHASABLE UPON EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT COVERING
SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES (REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL), OR AN
OPINION OF THE COMPANY'S COUNSEL, STATING THAT SUCH SALE, ASSIGNMENT OR TRANSFER
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
CENTRACK INTERNATIONAL, INC.
COMMON STOCK PURCHASE WARRANT
FOR VALUE RECEIVED, KJO Trust, a New York trust or its successors or
permitted assigns (the "Holder"), is entitled to purchase, from CENTRACK
INTERNATIONAL, INC., a Delaware corporation (the "Company"), subject to the
provisions hereof, (1) Three hundred seventy-eight thousand two hundred fifty
(378,250) shares of fully paid, validly issued and non-assessable shares
("Shares") of common stock, par value $0.0001 per share ("Common Stock"), of the
Company at an exercise price ("Exercise Price") of $1.6525 per share if this
Warrant is exercised on or before the close of business on September 29, 2001
except as otherwise provided in Section 2.8 hereof ("Xxxxxxx 0"), and, provided
that Tranche 1 is exercised in full, (2) Three hundred seventy-eight thousand
two hundred fifty (378,250) Shares of Common Stock of the Company at an Exercise
Price of $ 2.1525 per share ("Xxxxxxx 0"), (subject to adjustment as provided
below.) The right to purchase Shares under this Warrant is exercisable, in whole
or in part, as more specifically set forth below. This Warrant shall terminate
if not exercised by the close of business two (2) years from the exercise date
of Tranche 1, except as may otherwise be provided in Section 2.8 hereof.
ARTICLE 1
DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms have the following meanings:
1.1 "Common Stock" means the Company's authorized common stock, par
value $0.0001 per share.
1.2 "Company" means Centrack International, Inc., a corporation
organized and existing under the laws of the State of Delaware, and any
successor corporation.
1.3 "Exercise Price" means the price with respect to each Tranche
referred to above.
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1.4 "Warrant" means this Warrant and any warrants issued on or in
substitution for this Warrant including warrants issued in exchange for this
Warrant pursuant to Article 2.
1.5 "Warrant Stock" means the shares of Common Stock or other
securities acquired or to be acquired upon the exercise of this Warrant.
ARTICLE 2
GRANT AND EXERCISE OF WARRANT
2.1 GRANT AND EXERCISE. This Warrant may be exercised by the Holder, at
the Holder's election at any time prior to the Warrant's expiration under
Section 2.8 hereof.
2.2 HOLDER'S PROCEDURE. To exercise this Warrant and purchase the
Warrant Stock, the Holder shall deliver to the Company at its principal office:
(a) a written notice, in substantially the form of the
Exercise Notice appearing at the end of this Warrant, of the Holder's election
to exercise this Warrant;
(b) this Warrant; and
(c) a check payable to the Company in the amount of the
Exercise Price per share of Warrant Stock.
2.3 COMPANY'S PROCEDURE. The Company shall as promptly as practicable
cause the Company's transfer agent to execute and deliver one or more
certificates representing the aggregate number of shares of Warrant Stock to
which the Holder is entitled.
2.4 NAME AND EFFECTIVE DATE. The stock certificate(s) so delivered
shall be issued in the name of the Holder or such other name as shall be
designated in the Exercise Notice specified in Section 2.2. Such certificate(s)
shall be deemed to have been issued and the Holder or (subject to federal and
state securities law and any other restrictions on transfer) any other person so
designated to be named therein shall be deemed for all purposes to have become a
holder of record of such shares as of the date the Company actually receives the
notice specified in Section 2.2.
2.5 EXPENSES. The Company shall pay all expenses, taxes, and other
charges payable in connection with the preparation, issue, and delivery of such
stock certificate(s), except that, in case such stock certificate(s) shall be
registered in a name or names other than the name of the Holder of this Warrant,
stock transfer taxes that are payable upon the issuance of such stock
certificate(s) shall be paid by the Holder hereof.
2.6 LEGAL REQUIREMENTS. The Warrant Stock issued upon the exercise of
this Warrant shall be validly issued, fully paid, and nonassessable.
2.7 REGISTRATION. The Company will keep at its principal office a
register that will
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provide for the registration and transfer of the Warrant.
2.8 EXPIRATION. The right to exercise Tranche 1 will expire at the
close of business on September 29, 2001 or the first business day thereafter if
such date is not a business day, or such other date as may be established by
mutual agreement of the parties hereto, and, provided that Tranche 1 is
exercised in full, the right to exercise Tranche 2 will expire at the close of
business two (2) years from the exercise date of Tranche 1, or the first
business day thereafter if such date is not a business day, or such other date
as may be established by mutual agreement of the parties hereto.
2.9 INVESTMENT INTENT. Neither the Company nor any person acting on its
behalf has offered this Warrant to Holder by means of any general solicitation
or general advertising. Holder is acquiring this Warrant and the Warrant Stock
for its own account and not on behalf of other persons. The securities are being
acquired with the intent of holding them for investment and without the intent
of participating, directly or indirectly, in a distribution thereof. Holder
understands that this investment involves a high degree of risk.
ARTICLE 3
TRANSFER
3.1. SECURITIES LAWS. Neither this Warrant nor the Warrant Stock shall
be transferable unless:
(a) (i) either a registration statement under the
Securities Act of 1933, as amended (the "Securities
Act"), is in effect covering this Warrant or the
Warrant Stock, as the case may be, or the Company has
received an opinion from the Company's counsel to the
effect that such registration is not required, or the
Holder has furnished to the Company an opinion of the
Holder's counsel, which counsel shall be reasonably
satisfactory to the Company, to the effect that such
registration is not required;
(ii) the transfer complies with any applicable state
securities laws; and
(b) Holder consents to a legend being placed on
certificates for the Warrant
Stock stating that the securities have not been registered under the Securities
Act and referring to such restrictions on transferability and sale.
(c) The Holder is entitled to the benefits of a
Registration Rights Agreement, dated as of September
29, 1999, relating to the Warrant Stock.
3.2. PROCEDURE.
(a) The Holder of this Warrant, or of any warrant substituted
therefor pursuant to the provisions of this Section 3.3, may, subject to the
limitations set forth in Section 3.1, in person or by duly authorized attorney,
surrender the same for exchange at the principal office of the
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Company and, within a reasonable time thereafter and without expense (other than
transfer taxes, if any), receive in exchange therefor one or more duly executed
warrants each evidencing the right to receive one share of Common Stock or such
other number of shares as may be designated by the Holder at the time of
surrender.
The Company and any agent of the Company may treat the person in whose
name a Warrant is registered as the owner of the Warrant for all purposes
hereunder and neither the Company nor such agent shall be affected by notice to
the contrary. The Company covenants and agrees to take and cause to be taken all
action necessary to effect such registrations, transfers and exchanges.
(b) Subject to Section 3.1, the Holder may transfer the
Warrant on the books of the Company by surrendering to the Company:
(i) the Warrant;
(ii) a written assignment of the Warrant, in
substantially the form of the Assignment appearing at
the end of this Warrant, naming the assignee and duly
executed by the Holder; and
(iii) funds sufficient to pay any stock transfer
taxes payable upon the making of such transfer.
The Company shall thereupon execute and deliver a new Warrant in the
name of the assignee specified in such instrument of assignment. Upon issuance
of the new Warrant or Warrants, the Warrant surrendered for transfer shall be
canceled by the Company.
3.3. EXPENSES. The Company shall pay all expenses, taxes (other than
transfer taxes), and other charges payable in connection with the preparation,
issue and delivery of any new Warrant under this Article 3.
ARTICLE 4
ADJUSTMENTS
4.1 STOCK SPLITS, STOCK DIVIDENDS AND REVERSE STOCK SPLITS. If at any
time the Company shall subdivide (by reclassification, by the issuance of a
Common Stock dividend on Common Stock, or otherwise) its outstanding shares of
Common Stock into a greater number, the number of shares of Common Stock that
may be purchased hereunder shall be increased proportionately and the Exercise
Price per share of Warrant Stock shall be decreased proportionately as of the
effective date of such action. The effective date of a stock dividend shall be
the date on which the dividend is declared. Issuance of a Common Stock dividend
shall be treated as a subdivision of the whole number of shares of Common Stock
outstanding immediately before the record date for such dividend into a number
of shares equal to such whole number of shares so outstanding plus the number of
shares issued as a stock dividend. If at any time the Company shall combine (by
reclassification or otherwise) its outstanding number of shares of Common Stock
into a lesser
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number, the number of shares of Warrant Stock that may be purchased hereunder
shall be reduced proportionately and the Exercise Price per share of Warrant
Stock shall be increased proportionately as of the effective date of such
action.
4.2 REORGANIZATION AND RECLASSIFICATION. In case of any capital
reorganization or any reclassification of the capital stock of the Company or
while the Warrant remains outstanding, the Holder of the Warrant shall
thereafter be entitled to purchase pursuant to the Warrant (in lieu of the kind
and number of shares of Warrant Stock that the Holder would have been entitled
to purchase or acquire immediately before such reorganization or
reclassification) the kind and number of shares of stock of any class or classes
or other securities or property for or into which such shares of Common Stock
would have been exchanged, converted or reclassified if the Warrant Stock had
been purchased immediately before such reorganization, reclassification at a
total price not to exceed that payable upon the exercise of the unexercised
portion of this Warrant. In case of any such reorganization, reclassification,
appropriate provision (as determined by resolution of the Board of Directors of
the Company) shall be made with respect to the rights and interests thereafter
of the Holder of the Warrant, to the end that all the provisions of the Warrant
(including adjustment provisions) shall thereafter be applicable, as nearly as
reasonably practicable, in relation to such stock or other securities or
property.
4.3 STATEMENT OF ADJUSTMENT OF WARRANT STOCK. Whenever the number or
kind of shares comprising Warrant Stock or the Exercise Price is adjusted
pursuant to this Article 4, the Company shall promptly give notice to all
Holders, stating that such an adjustment has been effected and setting forth the
number and kind of shares purchasable and the amount of the then-current
Exercise Price, and stating in reasonable detail the facts requiring such
adjustment and the calculation of such adjustment.
4.4 NO OTHER ADJUSTMENTS. No adjustments in the number or kind or price
of shares constituting Warrant Stock shall be made except as provided in this
Article 4.
ARTICLE 5
COVENANTS OF THE COMPANY
The Company covenants and agrees that:
5.1 RESERVATION OF SHARES. At all times, the Company will reserve and
set apart and have, free from pre-emptive rights, a sufficient number of shares
of authorized but unissued Common Stock or other securities, if applicable, to
enable it at any time to fulfill all of its obligations hereunder.
5.2 ADJUSTMENT OF PAR VALUE. Before taking any action that would cause
an adjustment reducing the Exercise Price per share below the then current par
value of the shares of Warrant Stock issuable upon exercise of the Warrant, the
Company will take any corporate action that may be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of
such Warrant Stock at such adjusted price.
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ARTICLE 6
LIMITATION OF LIABILITY
No provision of this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive dividends or to
receive notice as a stockholder in respect of meetings of stockholders for the
election of members of the Board of Directors of the Company or any other matter
whatsoever as stockholders of the Company. In the absence of affirmative action
by the Holder to purchase shares of Common Stock, no provision hereof shall give
rise to any liability of the Holder for the purchase price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
ARTICLE 7
MISCELLANEOUS
7.1 GOVERNING LAW. The rights of the parties arising under this Warrant
shall be construed and enforced under the laws of the State of Florida without
giving effect to any choice of law or conflict of law rules.
7.2 NOTICES. Any notice or other communication required or permitted to
be given or delivered pursuant to this Warrant shall be in writing and shall be
deemed effective as of the date of receipt if delivered personally, by facsimile
transmission (if receipt is confirmed by the facsimile operator of the
recipient), by overnight courier service or on the date of deposit in the U.S.
mail if by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address in
the United States of America for a party as shall be specified by like notice;
provided that notices of change of address be effective only upon receipt
thereof):
(i) to the Holder as follows:
KJO Trust
c/o Xxxxxxx X. Xxxx, Xx.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(ii) to the Company as follows:
Centrack International, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, President
7.3 SEVERABILITY. If any provision of this Warrant shall be held
invalid, such invalidity
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shall not affect any other provision of this Warrant that can be given effect
without the invalid provision, and to this end, the provisions hereof are
separable.
7.4 HEADINGS. The headings in this Warrant are for reference purposes
only and shall not affect in any way the meaning of interpretation of this
Warrant.
7.5 INTERNAL REFERENCES. References to an "article," "section" or a
"subsection" when used without further attribution shall refer to the particular
articles, sections or subsections of this Warrant.
7.6 AMENDMENT. This Warrant cannot be amended or modified except by a
written agreement executed by the Company and the Holder.
7.7 ASSIGNMENT. This Warrant shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns except that no party may assign or
transfer its rights or obligations under this Warrant except to the extent
explicitly permitted herein.
7.8 ENTIRE AGREEMENT. This Warrant, together with its attachments,
contains the entire understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral or
written, except as herein contained.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name by its President thereunto duly authorized.
Dated: September 29, 1999
CENTRACK INTERNATIONAL, INC.
/s/ Xxxx X. Xxxxxxxx
-------------------------
By: Xxxx X. Xxxxxxxx, President
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EXERCISE NOTICE TRANCHE 1
The undersigned, the Holder of a Common Stock Purchase Warrant issued
by Centrack International, Inc., a Delaware corporation (the "Company"), dated
as of September 29, 1999, hereby elects to purchase thereunder shares of
Common Stock, par value $.0001 per share, of the Company covered by such Warrant
and herewith makes payment in full therefor of and requests that the
certificate(s) for such shares be issued in the name of and delivered to
, whose address is and Social Security Number (individual) or Tax Identification
Number (entity) is ____________________________________________.
The undersigned hereby agrees to pay any transfer taxes on the transfer
of all or any portion of the Warrant or Common Stock requested herein.
Signature guaranteed:
Dated:
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EXERCISE NOTICE TRANCHE 2
The undersigned, the Holder of a Common Stock Purchase Warrant
issued by Centrack International, Inc., a Delaware corporation (the "Company"),
dated as of , 1999, hereby elects to purchase thereunder
shares of Common Stock, par value $.0001 per share, of the Company
covered by such Warrant and herewith makes payment in full therefor of
and requests that the certificate(s) for such shares be issued in the
name of and delivered to , whose address is_____________
________________________________________and Social Security Number (individual)
or Tax Identification Number (entity) is ______________________________________.
The undersigned hereby agrees to pay any transfer taxes on the transfer
of all or any portion of the Warrant or Common Stock requested herein.
Signature guaranteed:
Dated:
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ASSIGNMENT
FOR VALUED RECEIVED, the undersigned hereby sells, assigns and
transfers unto the rights represented by the foregoing Common
Stock Purchase Warrant of Centrack International, Inc., and appoints ___________
_________________________ its attorney to transfer said rights on the books of
said corporation, with full power of substitution in the premises.
Signature guaranteed:
Dated:
