EXHIBIT 4.1
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
VOID AFTER 5:00 P.M. EASTERN TIME ON JUNE 28, 2006 ("EXPIRATION DATE").
ORIGINALLY ISSUED ON JUNE 29, 2001
VISIONICS CORPORATION
WARRANT TO PURCHASE 15,634 SHARES OF COMMON STOCK, $.01 PAR
VALUE PER SHARE ("COMMON STOCK")
For VALUE RECEIVED, Xxxxxx Xxxxxx, Inc. ("Warrantholder"), is entitled
to purchase, subject to the provisions of this Warrant, from Visionics
Corporation, a Delaware corporation ("Company"), at any time not later than 5:00
P.M., Eastern time, on the Expiration Date, at an exercise price per share equal
to $7.81 (the exercise price in effect being herein called the "Warrant Price"),
15,634 shares ("Warrant Shares") of Common Stock. The number of Warrant Shares
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as described herein.
Section 1. Registration. The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance of the
Warrant, the Company shall issue and register the Warrant in the name of the
Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be
transferred only pursuant to a registration statement filed under the Securities
Act of 1933, as amended ("Securities Act") or an exemption from such
registration. Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the Company for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instructions for transfer and such other documents as
may be reasonably required by the Company to establish that such transfer is
being made in accordance with the terms hereof, and a new Warrant shall be
issued to the transferee and the surrendered Warrant shall be canceled by the
Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise Bann attached hereto as Appendix A (the "Exercise Agreement") and
payment by cash, certified check or wire transfer of funds (or by cashless
exercise as provided below) for
the Warrant Price for that number of Warrant Shares then being purchased, to the
Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof). The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered (or evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company shall
have been provided to the Company), the Warrant Price shall have been paid and
the completed Exercise Agreement shall have been delivered. Certificates for the
Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding seven (7) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in
such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be designated
by such holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised.
Section 4. Compliance with the Securities Act of 1933. The Company may
cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant, and in such case,
the Company shall not be required to issue or deliver any certificate for
Warrant Shares or any Warrant until the person requesting the same has paid to
the Company the amount of such tax or has established to the Company's
reasonable satisfaction that such tax has been paid. The holder shall be
responsible for income taxes due under federal, state or other law, if any such
tax is due.
Section 6. Mutilated or Missing Warrant. In case this Warrant shall be
mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost,
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stolen or destroyed Warrant, reasonable indemnity or bond with respect thereto,
if requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents
and warrants that there have been reserved, and the Company shall at all
applicable times keep reserved until issued (if necessary) as contemplated by
this Section 7, out of the authorized and unissued Common Stock, sufficient
shares to provide for the exercise of the rights of purchase represented by the
Warrant. The Company agrees that all Warrant Shares issued upon exercise of the
Warrant shall be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time while
the Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares or issue by reclassification of its
outstanding shares of Common Stock any shares of its capital stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event upon payment of a Warrant
Price that has been adjusted to reflect a fair allocation of the economics of
such event to the Warrantholder. Such adjustments shall be made successively
whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with
another corporation in which the Company is not the survivor, or sale, transfer
or other disposition of all or substantially all of the Company's assets to
another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition, lawful and adequate provision shall be made whereby each
Warrantholder shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions herein specified and in lieu of the
Warrant Shares immediately theretofore issuable upon exercise of the Warrant,
such shares of stock, securities or assets as would have been issuable or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon exercise of
the Warrant, had such reorganization, reclassification, consolidation, merger,
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sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of
each Warrantholder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Warrant Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock, securities or properties thereafter deliverable upon the exercise
thereof The Company shall not effect any such consolidation, merger, sale,
transfer or other disposition unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing or
otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the holder of the Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase, and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the making
of a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in Section
8(a)), or subscription rights or warrants, the Warrant Price to be in effect
after such payment date shall be determined by multiplying the Warrant Price in
effect immediately prior to such payment date by a fraction, the numerator of
which shall be the total number of shares of Common Stock outstanding multiplied
by the Market Price per share of Common Stock (as defined below), less the fair
market value (as determined by the Company's Board of Directors in good faith)
of said assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such Market Price per
share of Common Stock. "Market Price" as of a particular date (the "Valuation
Date") shall mean the following: (a) if the Common Stock is then listed on a
national stock exchange, the closing sale price of one share of Common Stock on
such exchange on the last trading day prior to the Valuation Date; (b) if the
Common Stock is then quoted on Nasdaq, the closing sale price of one share of
Common Stock on Nasdaq on the last trading day prior to the Valuation Date or,
if no such closing sale price is available, the average of the high bid and the
low sales price quoted on Nasdaq on the last trading day prior to the Valuation
Date; or (c) if the Common Stock is not then listed on a national stock exchange
or quoted on Nasdaq, the Fair Market Value of one share of Common Stock as of
the Valuation Date, shall be determined in good faith by the Board of Directors
of the Company and the Warrantholder. The Board of Directors of the Company
shall respond promptly, in writing, to an inquiry by the Warrantholder prior to
the exercise hereunder as to the Market Value of a share of Common Stock as
determined by the Board of Directors of
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the Company. In the event that the Board of Directors of the Company and the
Warrantholder are unable to agree upon the Market Value in respect of subpart
(c) hereof, the Company and the Warrantholder shall jointly select an appraisor,
who is experienced in such matters. The decision of such appraiser shall be
final and conclusive, and the cost of such appraiser shall be borne evenly by
the Company and the Warrantholder. Such adjustment shall be made successively
whenever such a payment date is fixed.
(d) In the event that, as a result of an adjustment made
pursuant. to Section 8(a), the holder of this Warrant shall become entitled to
receive any shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so receivable upon exercise of this
Warrant shall be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Warrant Shares contained in this Warrant.
Section 9. Fractional Interest. The Company shall not be required to
issue fractions of Warrant Shares upon the exercise of the Warrant. If any
fractional share of Common Stock would, except for the provisions of the first
sentence of this Section 9, be delivered upon such exercise, the Company, in
lieu of delivering such fractional share, shall pay to the exercising holder of
this Warrant an amount in cash equal to the current Fair Market Value of such
fractional share of Common Stock.
Section 10. Benefits. Nothing in this Warrant shall be construed to give
any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 11. Notices to Warrantholder. Upon the happening of any event
requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment.
Section 12. Identity of Transfer Agent. The Transfer Agent for the
Common Stock is Xxxxx Fargo Shareowner Services. Upon the appointment of any
subsequent transfer agent for the Common Stock or other shares of the Company's
capital stock issuable upon the exercise of the rights of purchase represented
by the Warrant, the Company will mail to the Warrantholder a statement setting
forth the name and address of such transfer agent.
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Section 13. Notices. Any notice pursuant hereto to be given or made by
the Warrantholder to or on the Company shall be sufficiently given or made if
sent by certified mail, return receipt requested, postage prepaid, addressed as
follows:
Visionics Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Fax:(000) 000-0000
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 13.
Any notice pursuant hereto to be given or made by the Company to or on
the Warrantholder shall be sufficiently given or made if personally delivered or
if sent by an internationally recognized courier services by overnight service,
to the address set forth on the books of the Company or, as to each of the
Company and the Warrantholder, at such other address as shall be designated by
such party by written notice to the other party complying as to delivery with
the terms of this Section 13. All such notices, requests, demands, directions
and other communications shall, when sent by courier be effective one (1) day
after delivery to such courier as provided and addressed as aforesaid.
Section 14. Successors. All the covenants and provisions hereof by or
for the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
Section 15. Governing Law. This Warrant shall be deemed to be a contract
made under the laws of the State of New York, without giving effect to its
conflict of law principles, and for all purposes shall be construed in
accordance with the laws of said State; provided, however, that, insofar as the
Company is incorporated under the laws of the State of Delaware, the General
Corporation Law of the State of Delaware (or any successor statute) shall govern
those matters that apply to the internal governance of the Company.
Section 16. Cashless Exercise.
Net Issue Election. Notwithstanding any other provision contained
herein to the contrary, the Warrantholder may elect to receive, without the
payment by the Warrantholder of the aggregate Warrant Price in respect of the
shares of Common Stock to be acquired, shares of Common Stock equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant (or such
portion of this Warrant being so exercised) together with the Net Issue Election
Notice annexed hereto as Appendix B duly executed, at the office of the Company.
Thereupon, the Company shall issue to the
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Warrantholder such number of fully paid, validly issued and nonassessable shares
of Common Stock as is computed using the following formula:
X=Y(A-B)
------
A
where
X = the number of shares of Common Stock which the Warrantholder
has then requested be issued to the Warrantholder
Y= the total number of shares of Common Stock covered by this
Warrant which the Warrantholder has surrendered at such time for cashless
exercise
A = the "Fair Market Value" of one share of Common Stock as at
the time the net issue election is made
B = the Warrant Price in effect under this Warrant at the time
the net issue election is made.
Section 17. Call Provision. Notwithstanding any other provision
contained herein to the contrary, in the event that the closing bid price of a
share of Common Stock as traded on the Nasdaq National Market (or such other
exchange as the Common Stock may then be listed) exceeds 150% of the Warrant
Price for twenty (20) consecutive trading sessions and all of the Warrant Shares
issuable hereunder are registered pursuant to an effective Registration
Statement (as defined in the Registration Rights Agreement), the Company, upon
ten (10) business days prior written notice (the "Notice Period"), following
such twenty (20) day period, to the Warrantholder, may demand that the
Warrantholder exercise its rights with regard to all Warrant Shares and the
Warrantholder must exercise its rights prior to the expiration of the Notice
Period or if such exercise is not made or if only a partial exercise is made,
any and all rights to further exercise rights to acquire Warrant Shares
hereunder shall cease upon the expiration of the Notice Period.
Section 18. Amendments and Waivers. This Warrant may be amended only by
a writing signed by the Company and the Warrantholder.
IN WITNESS WHEREOF, Visionics Corporation has caused this Warrant to be
duly executed this 27th day of December 2001.
VISIONICS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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APPENDIX A
VISIONICS CORPORATION
WARRANT EXERCISE FORM
To: Visionics Corporation
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant ("Warrant") for, and to purchase
thereunder by the payment of the Warrant Price and surrender of the Warrant,
_____________ shares of Common Stock ("Warrant Shares") provided for therein,
and requests that certificates for the Warrant Shares be issued as follows:
----------------------------------------------------------
Name
----------------------------------------------------------
Address
----------------------------------------------------------
----------------------------------------------------------
Federal Tax ID or Social Security No.
and delivered by - certified mail to the above address, or
- electronically (provide DWAC Instructions: ), or
---------
- other (specify: ).
------------------------------------
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
By exercising the rights represented by this Warrant, the undersigned
hereby certifies that, as of the date of exercise of this Warrant, the
representations and warranties contained in Section 5 of the Purchase Agreement
are true and correct in all material respects with respect to the undersigned.
--------------------------------------------------------------------------------
Dated: ,
----------------------- -------
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Note: The signature must correspond Signature:
with the name of the registered ---------------------------
holder as written on the first page
of the Warrant in every particular, ---------------------------------------
without alteration or enlargement or
any change whatever, unless
the Warrant has been assigned.
-------------------------------------
Name (please print)
---------------------------------------
-------------------------------------
-------------------------------------
Address
---------------------------------------
-------------------------------------
Federal Identification or
Social Security No.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assignee:
------------------------------------
------------------------------------
-------------------------------------------------------------------------------
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APPENDIX "B"
NET ISSUE ELECTION NOTICE
To: Visionics Corporation
Date:
The undersigned hereby elects under Section 17 of this Warrant to
surrender the right to purchase __________________ shares of Common Stock
pursuant to this Warrant and hereby requests the issuance of ______________
shares of Common Stock. The certificate(s) for the shares issuable upon such net
issue election shall be issued in the name of the undersigned or as otherwise
indicated below.
-------------------------------------------
Signature
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Name for Registration
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Mailing Address
