EXHIBIT 4.3
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
CANMAX INC.
AMENDED COMMON STOCK PURCHASE WARRANT
DATED: July 1, 1997
AMENDED: July 20, 1998
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Number of Common Shares: 250,000 Holder: Xxxxx X. Xxxxxx
Purchase Price: $0.53 per share 000 Xxxxxxxxx Xxxxx Xxxx
Expiration Date: June 30, 2007 Xxxxxxx, Xxxxx 00000
For identification only. The governing terms of this Warrant are set forth
below.
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CANMAX INC., a Wyoming corporation (the "COMPANY"), hereby certifies
that, for value received, Xxxxx X. Xxxxxx (the "HOLDER"), is entitled, subject
to the terms set forth below, to purchase from the Company at any time or from
time to time prior to earlier of (a) June 30, 2007, (b) the date the termination
of the employment of Holder under the Employment Contract among Holder, the
Company and CRSI (as amended, the "EMPLOYMENT CONTRACT") for "cause" (as defined
therein), of (c) two (2) years from the date of any termination of employment
(other than "for cause") under the Employment Contract (the "EXERCISE PERIOD")
at the Purchase Price hereinafter set forth, Two Hundred Fifty Thousand
(250,000) fully paid and nonassessable shares of Common Stock (as hereinafter
defined) of the Company. The number and character of such shares of Common
Stock and the Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "PURCHASE PRICE") shall initially be $0.53; PROVIDED, HOWEVER,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "CHANGE OF CONTROL" means the occurrence of any of
the following:
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 1 (CANMAX INC.)
(i) any "Person" (as such term as defined in Section
13(d) and Section 14(d) of the Securities Act of 1934, as amended
(the "EXCHANGE ACT")), is or becomes a "beneficial owner" (as
defined in Section 13d-3 under the Exchange Act), directly or
indirectly, of securities of the CRSI or the Company representing
more than thirty percent (30%) of the combined voting power of the
outstanding securities of CRSI or the Company;
(ii) at any time during the twenty-four (24) month period
following a merger, tender offer, consolidation, sale of assets or
contested election, or any combination of such transactions, at
least a majority of the Board of Directors of the CRSI or the
Company shall cease to be "continuing directors" (meaning
directors of CRSI or the Company prior to such transaction or who
subsequently became directors and whose election or nomination for
election by the stockholders of CRSI or the Company was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office prior to such transaction); or
(iii) the stockholders approve an agreement of sale or
disposition by CRSI or the Company of all or substantially all, of
the assets of CRSI or the Company.
(b) The term "COMPANY" means Canmax Inc. and any entity that
shall succeed or assume the obligations of such corporation hereunder.
(c) The term "COMMON STOCK" means the Company's common stock,
no par value per share.
(d) The term "CRSI" means Canmax Retail Systems, Inc., a Texas
corporation and wholly owned subsidiary of the Company.
(e) The term "FAIR MARKET VALUE" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of Exercise
as reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded or, if not traded on any exchange, then the
closing bid price as of such date on the over-the-counter market or, if
not quoted on the over-the-counter market, then as determined by the
Board of Directors).
(f) The term "TAX WITHHOLDING LIABILITY" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "TRIGGER DATE" means the earlier to occur of the
following:
(i) the earnings per share (after taxes) of the Company equals
or exceeds $0.30 per share during any fiscal year calculated under
the "basic" method-
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 2 (CANMAX INC.)
(meaning based on the number of shares actually outstanding as of
the date of calculation); or
(ii) the closing price of the Common Stock as reported on the
Nasdaq SmallCap Market (or other national automated quotation
system or national stock exchange on which the Common Stock may be
listed) equals or exceeds $8.00 per share for a period of sixty-
five (65) consecutive trading days.
(h) The term "WARRANT SHARES" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
1. VESTING AND EXERCISE OF WARRANT.
1.1. VESTING. Holder's right to purchase 50% of the Warrant
Shares shall vest upon the Trigger Date, and Holder's right to purchase
the remaining 50% of the Warrant Shares shall vest one (1) year following
the Trigger Date; provided that all unvested Warrant Shares shall vest
upon a Change of Control. Holder shall not have any right to acquire any
Warrant Shares pursuant to this Warrant prior to the vesting of such
rights as set forth in this Section 1.1, and such right must vest, if at
all, on or before the earlier of (a) the expiration of the Exercise
Period or (b) the termination of Holder's employment under the Employment
Contract. The Company acknowledges that this Warrant fully vested upon
the Change of Control occurring on January 30, 1998.
1.2. METHOD OF EXERCISE. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock), at
any time and from time to time during the Exercise Period for up to, but
not more than, the number of vested Warrant Shares at such time, by
delivery to the Company at its principal office of (i) a notice of
exercise (a "NOTICE OF EXERCISE") substantially in the form attached
hereto as EXHIBIT A, (ii) evidence satisfactory to the Company of the
authority of the person executing such Notice of Exercise, (iii) this
Warrant, and (iv) payment of (A) the Purchase Price multiplied by the
number of shares of Common Stock for which this Warrant is being
exercised (the "EXERCISE PRICE") and (B) Tax Withholding Liability.
Payment of the Exercise Price shall be made by (a) check or bank
draft payable to the order of the Company or by wire transfer to the
account of the Company, (b) Holder's surrender to the Company of a
number of shares of Common Stock owned by Holder for at least six (6)
months having an aggregate Fair Market Value equal to the Exercise
Price and Tax Withholding Liability, or (c) any combination of the
foregoing; provided that the Company may, in its discretion, (i)
allow the exercise of this Warrant in a broker-assisted or similar
transaction in which the Exercise Price is not received by the
Company until promptly after exercise, and/or (ii) allow the Company
to loan the Exercise Price to the Holder, if the exercise will be
followed by a prompt sale of some or all of the underlying shares and
a portion of the sale proceeds is dedicated to full payment of the
Exercise Price and any Tax Withholding Liability. Payment of the Tax
Withholding Liability shall be made (a) check or bank
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 3 (CANMAX INC.)
draft payable to the order of the Company or by wire transfer to the
account of the Company or (b) Holder's surrender to the Company of a
number of shares of Common Stock owned by Holder having an aggregate
Fair Market Value equal to the Exercise Price (or by withholding a
portion of the shares otherwise issuable in connection with this
Warrant). The shares so purchased shall be deemed to be issued as of
the close of business on the date on which the Company shall have
received from the Holder payment in full of the Exercise Price and
Tax Withholding Liability and the other documents referred to herein
(the "EXERCISE DATE").
1.3. REGULATION D RESTRICTIONS. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon exercise
of the Warrant solely for its own account for investment purposes and not
with a view to or for distributing such securities unless such
distribution has been registered with the Securities and Exchange
Commission or an applicable exemption is available therefor. At the time
this Warrant is exercised, the Company may require the Holder to state in
the Notice of Exercise such representations concerning the Holder as are
necessary or appropriate to assure compliance by the Holder with the
Securities Act.
2. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. ADJUSTMENTS ON CERTAIN CAPITAL TRANSACTIONS. On the occurrence of
any of the following events, the following adjustments to the rights granted
under this Warrant shall be made:
3.1. In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised
shares of Common Stock covered by this Warrant shall be increased by the
amount that a like number of shares of outstanding Common Stock shall
have been increased as a result of such stock increase and the Purchase
Price (and earnings per share and closing price targets used to determine
whether a Trigger Date has occurred) shall be adjusted by multiplying the
Purchase Price (and earnings per share and closing price targets used to
determine whether a Trigger Date has occurred) in effect immediately
prior to such stock increase by a fraction, the numerator of which shall
be the number of unexercised shares covered by this Warrant immediately
prior to such stock increase and the denominator of which shall be the
number of unexercised shares of Common Stock covered by this Warrant as
adjusted for such stock increase.
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 4 (CANMAX INC.)
3.2. In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding
Common Stock shall have been reduced as a result of such stock reduction
and the Purchase Price (and earnings per share and closing price targets
used to determine whether a Trigger Date has occurred) shall be adjusted
by multiplying the Purchase Price (and earnings per share and closing
price targets used to determine whether a Trigger Date has occurred) in
effect immediately prior to such stock reduction by a fraction, the
numerator of which shall be the number of unexercised shares covered by
this Warrant immediately prior to such stock reduction and the
denominator of which shall be the number of unexercised shares covered by
this Warrant as adjusted for such stock reduction.
3.3. In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant,
the securities or property to which the holder of the number of shares of
Common Stock then deliverable upon the exercise of this Warrant would
have been entitled upon such consolidation or merger ("OTHER SECURITIES")
and the Company shall take such steps in connection with such
consolidation or merger as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to any securities or property thereafter deliverable upon the
exercise of this Warrant.
4. RIGHTS AS A SHAREHOLDER. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
5. SECURITIES LAW REQUIREMENTS; REGISTRATION OBLIGATIONS. Neither
this Warrant nor the Warrant Shares have been registered under the Securities
Act or any state securities or blue sky laws. Accordingly, upon (a) any
transfer of this Warrant, any transferee of this Warrant or (b) the exercise of
this Warrant in whole or in part, and if the Warrant Shares have not been
registered under the Securities Act, Holder or any other person exercising this
Warrant shall, as applicable, represent and agree in writing satisfactory to the
Company that Holder or such other person (a) is acquiring the shares for the
purpose of investment and not with a view to distribution thereof, (b) knows the
shares have not been registered under the Securities Act or any state securities
or blue sky laws,
6. understands that he must bear the economic risk of said investment
for an indefinite period of time until the shares are registered under the
Securities Act and applicable state securities or blue sky laws or an exemption
from such registration is available, and (d) will not solicit any offer to sell
or sell all or any portion of the shares other than pursuant to an opinion of
counsel reasonably satisfactory to the Company. The Company shall, upon written
demand by Holder, use its best efforts to cause the Warrant Shares to be
registered under the Securities Act and any state securities or blue sky laws;
provided that the Company's obligation to register the Warrant Shares under the
Securities Act shall be limited to the filing of a registration statement on
Form S-8 or, if unavailable, on Form S-3, or any successors to such
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 5 (CANMAX INC.)
forms, and the Company shall have no registration obligations to Holder at
any time that the use of such forms is unavailable to the Company for the
registration of the Warrant Shares.
7. TRANSFER RESTRICTIONS. This Warrant shall be exercisable only by
Holder shall not be assignable or transferable, except by will or by the laws
descent and distribution. Any other attempted alienation, assignment, pledge,
hypothecation, attachment, execution or similar process, whether voluntary or
involuntary, with respect to all or any part of this Warrant or any right
hereunder, shall be null and void.
8. RESERVATION OF STOCK, ETC. ISSUABLE ON EXERCISE OF WARRANT. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
9. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
10. NOTICES, ETC. All notices and other communications hereunder
shall be personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
11. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
12. REISSUANCE. This Warrant is issued in full substitution and
replacement of the warrant agreement between the Company and the Holder dated
July 1, 1997 (the "Prior Warrant"), which Prior Warrant is hereby canceled.
[SIGNATURE PAGE FOLLOWS]
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 6 (CANMAX INC.)
DATED as of the date first written above.
CANMAX INC.
By: /s/Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Address: 000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
HOLDER:
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Address: 000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 7 (CANMAX INC.)
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Canmax Inc.
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________(1) shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability of
either (a) $__________, (b) _____________ shares of Common Stock that have
been held by Holder for no less than six (6) months and have an aggregate
Fair Market Value of $_______________ as of the date written below, (c) with
regard to the Tax Withholding Liability only, ________ shares of Common Stock
held by Holder having an aggregate Fair Market Value of $________ as of the
date written below, or (d) with regard to the payment of the Tax Withholding
Liability only, withholding ________ shares of Common Stock otherwise
issuable upon the exercise of this Warrant having an aggregate Fair Market
Value of $________ as of the date written below. The undersigned requests
that the certificates for such shares of Common Stock be issued in the name
of, and delivered to, ___________________________________________ whose
address is _______________________________________________________________.
Dated: ____________________________
___________________________________________
(Name must conform to name of Holder as
specified on the face of the Warrant)
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address of Holder:
___________________________________________
___________________________________________
___________________________________________
Date of exercise: ____________________
______________________
(1.) Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
