EXHIBIT 4.7
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WARRANT NO. W-B______
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER
THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE
APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on February 28, 2012
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
LOCATEPLUS HOLDINGS CORPORATION
FOR VALUE RECEIVED, LOCATEPLUS HOLDINGS CORPORATION (the "Company"),
a Delaware corporation, hereby certifies that [__________] or his permitted
assigns, is entitled to purchase from the Company, at any time or from time to
time commencing on the date hereof, and prior to 5:00 P.M., Eastern Standard
Time, on February 28, 2012 a total of [__________] fully paid and non-assessable
shares of the Class B Non-voting Common Stock, par value $.01 per share, of the
Company for an aggregate purchase price of $[________]. Such warrants will be
exercisable for a period of ten years at an exercise price of $0.15 per share.
(Hereinafter, (I) said Class B Non-voting Common Stock, together with any other
equity securities which may be issued by the Company with respect thereto or in
substitution therefore, is referred to as the "Common Stock", (II) the shares of
the Common Stock purchasable hereunder are referred to as the "Warrant Shares",
(III) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price", (IV) the price payable hereunder
for each of the Warrant Shares is referred to as the "Per Share Warrant Price",
(V) this Warrant, and all warrants hereafter issued in exchange or substitution
for this Warrant are referred to as the "Warrant" and (VI) the holder of this
Warrant is referred to as the "Holder".) The Per Share Warrant Price is subject
to adjustment as hereinafter provided.
1. EXERCISE OF WARRANT.
(A) CASH EXERCISE. This Warrant may be exercised, in whole
at any time or in part from time to time, commencing on the date hereof and
prior to 5:00 P.M., Eastern Standard Time, on [_____________] (the "Expiration
Date"), by the Holder of this Warrant by the surrender of this Warrant (with the
subscription form at the end hereof duly executed) at the address set forth in
Subsection 9(a) hereof, together with proper payment of the Aggregate Warrant
Price, or the proportionate part thereof if this Warrant is exercised in part.
Payment for Warrant Shares shall be made by certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, this
Warrant must be exercised for a minimum of 100 shares of the Common Stock, and
the Holder is entitled to receive a new Warrant covering
the number of Warrant Shares in respect of which this Warrant has not been
exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such surrender of this Warrant,
the Company will (I) issue a certificate or certificates in the name of the
Holder for the largest number of whole shares of the Common Stock to which the
Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of
any fractional share of the Common Stock to which the Holder shall be entitled,
cash equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(II) deliver the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of the Warrant.
(B) NET ISSUANCE. In addition to the rights set forth in
Section 1(a) hereof, the Holder shall have the right (the "Conversion Right") to
require the Company to convert this Warrant, in whole or in part, at any time
prior to the Expiration Date into shares of Common Stock as provided for in this
Section 1(b). At the sole option of the Holder, upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
any Purchase Price) that number of shares of Common Stock equal to the quotient
obtained by dividing (X) the difference between (I) the Fair Market Value of the
number of shares of Common Stock for which this Warrant may be exercised, minus
(II) the Aggregate Warrant Price; by (Y) the Fair Market Value of one share of
Common Stock immediately prior to the exercise of the Conversion Right. This
warrant shall automatically be deemed to be exercised in full pursuant to the
provisions of this Section 1(b) hereof, without any further action on behalf of
the Holder immediately prior to the Expiration Date if not exercised before such
date.
(C) FAIR MARKET VALUE. For the purpose of this Section 1,
the "Fair Market Value" a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(I) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ")
National Market System, then Fair Market Value shall mean
the closing or last sale price, respectively, reported for
the last business day immediately preceding the
Determination Date;
(II) If the Company's Common Stock is not traded
on an exchange or on the NASDAQ National Market System but
is traded in the over-the-counter market, then Fair Market
Value shall mean the closing bid and asked prices reported
for the last business day immediately preceding the
Determination Date;
(III) If the Determination Date is the date on
which the Company's Common Stock is first sold to the
public by the Company is a firm commitment public offering
under the Securities Act of 1933, as amended (the "1933
Act"), then Fair Market Value shall mean the initial public
offering price (before deducting commissions, discounts or
expenses) at which the Common Stock is sold in such
offering; and
(IV) If the Determination Date is none of the
foregoing clauses (i), (ii), and (iii), then Fair Market
Value will be determined by the Company's Board of
Directors, acting in good faith.
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2. RESERVATION OF WARRANT SHARES. The Company agrees that, prior to
the expiration of this Warrant, the Company will at all times have authorized
and in reserve, and will keep available, solely for issuance or delivery upon
the exercise of this Warrant, the shares of the Common Stock as from time to
time shall be receivable upon the exercise of this Warrant.
3. FULLY PAID STOCK; TAXES. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive rights, and the Company will take all such actions as may
be necessary to assure that the par value or stated value, if any, per share of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all Federal and state stamp, original issue or similar
taxes that may be payable in respect of the issue of any Warrant Share or
certificate therefore.
4. TRANSFER.
(A) SECURITIES LAWS. Neither this Warrant nor the Warrant
Shares issuable upon the exercise hereof have been registered under the
Securities Act of 1933, as amended (the "Securities Act") or under any state
securities laws and unless so registered may not be transferred, sold, pledged,
hypothecated or otherwise disposed of unless an exemption from such registration
is available. In the event Holder desires to transfer this Warrant or any of the
Warrant Shares issued, the Holder must give the Company prior written notice of
such proposed transfer including the name and address of the proposed
transferee. Such transfer may be made only either (I) upon publication by the
Securities and Exchange Commission (the "Commission") of a ruling,
interpretation, opinion or "no action letter" based upon facts presented to said
Commission, or (II) upon receipt by the Company of an opinion of counsel to the
Company in either case to the effect that the proposed transfer will not violate
the provisions of the Securities Act, the Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated under either such act, or in
the case of clause (ii) above, to the effect that the Warrant or Warrant Shares
to be sold or transferred has been registered under the Securities Act of 1933,
as amended, and that there is in effect a current prospectus meeting the
requirements of Subsection 10(a) of the Securities Act, which is being or will
be delivered to the purchaser or transferee at or prior to the time of delivery
of the certificates evidencing the Warrant or Warrant Stock to be sold or
transferred.
(B) CONDITIONS TO TRANSFER. Prior to any such proposed
transfer, and as a condition thereto, if such transfer is not made pursuant to
an effective registration statement under the Securities Act, the Holder will,
if requested by the Company, deliver to the Company (I) an investment covenant
signed by the proposed transferee, (II) an agreement by such transferee to the
impression of the restrictive investment legend set forth herein on the
certificate or certificates representing the securities acquired by such
transferee, (III) an agreement by such transferee that the Company may place a
"stop transfer order" with its transfer agent or registrar, and (IV) an
agreement by the transferee to indemnify the Company to the same extent as set
forth in the next succeeding paragraph.
(C) INDEMNITY. The Holder acknowledges that the Holder
understands the meaning and legal consequences of this Section 5, and the Holder
hereby agrees to indemnify and hold harmless the Company, its representatives
and each officer and director thereof from and against any and all loss, damage
or liability (including all attorneys' fees and costs incurred in enforcing this
indemnity provision) due to or arising out of (A) the inaccuracy of any
representation or the breach of any warranty of the Holder contained in, or any
other breach of,
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this Warrant, (B) any transfer of the Warrant or any of the Warrant Shares in
violation of the Securities Act, the Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated under either of such acts, (C)
any transfer of the Warrant or any of the Warrant Shares not in accordance with
this Warrant or (D) any untrue statement or omission to state any material fact
in connection with the investment representations or with respect to the facts
and representations supplied by the Holder to counsel to the Company upon which
its opinion as to a proposed transfer shall have been based.
(D) TRANSFER. Except as restricted hereby, this Warrant and
the Warrant Shares issued may be transferred by the Holder in whole or in part
at any time or from time to time. Upon surrender of this Warrant to the Company
or at the office of its stock transfer agent, if any, with assignment
documentation duly executed and funds sufficient to pay any transfer tax, and
upon compliance with the foregoing provisions, the Company shall, without
charge, execute and deliver a new Warrant in the name of the assignee named in
such instrument of assignment, and this Warrant shall promptly be cancelled. Any
assignment, transfer, pledge, hypothecation or other disposition of this Warrant
attempted contrary to the provisions of this Warrant, or any levy of execution,
attachment or other process attempted upon the Warrant, shall be null and void
and without effect.
(E) LEGEND AND STOP TRANSFER ORDERS. Unless the Warrant
Shares have been registered under the Securities Act, upon exercise of any part
of the Warrant and the issuance of any of the shares of Warrant Shares, the
Company shall instruct its transfer agent to enter stop transfer orders with
respect to such shares, and all certificates representing Warrant Shares shall
bear on the face thereof substantially the following legend, insofar as is
consistent with Delaware law:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THAT ACT
OR AN OPINION OF COUNSEL TO THE COMPANY IS OBTAINED STATING THAT SUCH
DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION.
5. "PIGGY-BACK" REGISTRATIONS. If at any time the Company shall
determine to register any of its securities under the Securities Act (including
pursuant to a demand of any stockholder of the Company exercising registration
rights), other than on Form S-8 or Form S-4 or their then equivalents, it shall
send to each Holder of the Common Stock or Warrant Shares (the "Registrable
Shares"), including each Holder who has the right to acquire Registerable
Shares, written notice of such determination and, if within 45 days after
receipt of such notice, such Holder shall so request in writing, the Company
shall use its best efforts to include in such registration statement all or any
part of the Registerable Shares such Holder requests to be registered therein,
except that if, in connection with any offering involving an underwriting of
Common Stock to be issued by the Company, the managing underwriter shall impose
a limitation on the number of shares of such Common Stock which may be included
in any such registration statement because, in its judgment, such limitation is
necessary to effect an orderly public distribution, and such limitation is
imposed pro rata with respect to all securities whose holders have a
contractual, incidental ("piggy-back") right to include such securities in the
registration statement and as to which inclusion has been requested pursuant to
such right, then the Company shall be obligated to include in such registration
statement only such limited portion (which may be none) of the Registerable
Shares with respect to which such Holder has requested inclusion hereunder.
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6. LOSS, ETC. OF WARRANT. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
7. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided
herein, this Warrant does not confer upon the Holder any right to vote or to
consent to or receive notice as a shareholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
8. COMMUNICATION. No notice or other communication under this Warrant
shall be effective unless the same is in writing and is mailed by first-class
mail, postage prepaid, addressed to:
(A) the Company at 000 Xxxxxxxx Xxxxxx, Xxxxx 000X,
Xxxxxxx, XX 00000 or such other address as the Company has designated in writing
to the Holder, or
(B) the Holder at 0000 Xxxxx Xxxx, Xxxxxxx, XX 00000 or
such other address as the Holder has designated in writing to the Company.
9. HEADINGS. The headings of this Warrant have been inserted as a
matter of convenience and shall not affect the construction hereof.
10. APPLICABLE LAW. This Warrant shall be governed by and construed
in accordance with the law of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, LocatePLUS Holdings Corporation, has caused this
Warrant to be signed by its Chief Financial Officer & Treasurer and its
corporate seal to be hereunto affixed and attested by its _________________ this
____ day of February, 2002.
ATTEST: __________________________________
By:_______________________________
________________________________ (name)
(name) Title:
Title:
[Corporate Seal]
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SUBSCRIPTION
The undersigned, ____________________, pursuant to the provisions of the
foregoing Warrant, hereby agrees to subscribe for the purchase of _______ shares
of the Common Stock of LocatePLUS Holdings Corporation covered by said Warrant,
and makes payment therefore in full at the price per share provided by said
Warrant.
Dated: _____________________ Signature _________________________
Address ___________________________
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ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and transfers
unto __ the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint ______________ , attorney, to transfer said
Warrant on the books of LocatePLUS Holdings Corporation.
Dated: _______________________ Signature __________________________
Address ___________________________
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ________________ hereby assigns and transfers unto ___
the right to purchase ___________ shares of the Common Stock of LocatePLUS
Holdings Corporation by the foregoing Warrant, and a proportionate part of said
Warrant and the rights evidenced hereby, and does irrevocably constitute and
appoint _____________________, attorney, to transfer that part of said Warrant
on the books of ____________________.
Dated: ___________________________ Signature __________________________
Address ____________________________
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