EXHIBIT 4.5
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.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, VOID AFTER 5:00 P.M.
EASTERN TIME ON JUNE 28th, 2006 ("EXPIRATION DATE").
VISIONICS CORPORATION
WARRANT TO PURCHASE _________ SHARES OF
COMMON STOCK, $.01 PAR VALUE PER SHARE ("COMMON STOCK")
For VALUE RECEIVED, ____________ ("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
$___ (the exercise price in effect being herein called the "Warrant Price"),
____ 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 duty executed Warrant
exercise form 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.
Each exercise hereof shall constitute the representation and warranty of
the Warrantholder to the Company that the representations and warranties
contained in Article 5 of the Purchase Agreement (as defined below) are true and
correct in all material respects with respect to the Warrantholder as of the
time of such exercise.
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 Warrants. 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
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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, 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,
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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, 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
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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 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) For the term of this Warrant, in addition to the provisions
contained above, the Warrant Price shall be subject to adjustment as provided
below. An adjustment to the Warrant Price shall become effective immediately
after the payment date in the case of each dividend or distribution and
immediately after the effective date of each other event which requires an
adjustment.
(e) 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.
(f) Except as provided in subsection (g) hereof, if and whenever
the Company shall issue or sell, or is, in accordance with any of subsections (0
(1) through (0 (7) hereof, deemed to have issued or sold, any shares of Common
Stock for a consideration per share less than the Warrant Price in effect
immediately prior to the time of such issue or sale, then and in each such case
(a "Trigger Issuance") the then-existing Warrant Price, shall be reduced, as of
the close of business on the effective date of the Trigger Issuance, to a price
determined as follows:
Adjusted Warrant Price = (A x B) + D
-----------
A+C
where
"A" equals the number of shares of Common Stock outstanding
(including any Additional Shares of Common Stock (as defined below) immediately
preceding such Trigger Issuance);
"B" equals the Warrant Price in effect immediately
preceding such Trigger Issuance;
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"C" equals the number of Additional Shares of Common Stock
(as adjusted for stock splits, stock combinations, recapitalizations, and
dividends and the like) issued or deemed issued hereunder as a result of all
Trigger Issuances; and
"D" equals the aggregate consideration, if any, received or
deemed to be received by the Company upon such Trigger Issuance.
For purposes of this subsection (f), "Additional Shares of Common
Stock" shall mean all shares of Common Stock issued by the Company or deemed to
be issued pursuant to this subsection (0, other than Excluded Issuances (as
defined in subsection (g) hereof).
For purposes of this subsection (f), the following subsections
(f)(1) to (f)(7) shall also be applicable (subject, in each such case, to the
provisions of subsection (g) hereof) and to each other subsection contained in
this subsection (f):
(f)(1) Issuance of Rights or Options. In case at any time
the Company shall in any manner grant (directly and not by
assumption in a merger or otherwise) any warrants or other
rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights or
options being called "Options" and such convertible or
exchangeable stock or securities being called "Convertible
Securities") whether or not such Options or the right to convert
or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon the
conversion or exchange of such Convertible Securities
(determined by dividing (i) the sum (which sum shall constitute
the applicable consideration (the "Consideration")) of (x) the
total amount, if any, received or receivable by the Company as
consideration for the granting of such Options, plus (y) the
aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus (z), in the
case of such Options which relate to Convertible Securities, the
aggregate amount of additional consideration, if any, payable
upon the issue or sale of such Convertible Securities and upon
the conversion or exchange thereof, by (d) the total maximum
number of shares of Common Stock issuable upon the exercise of
such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such
Options) shall be less than the Warrant Price in effect
immediately prior to the time of the granting of such Options,
then the total number of shares of Common Stock issuable upon
the exercise of such Options or upon conversion or exchange of
the total amount of such Convertible Securities issuable upon
the exercise of such Options shall be
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deemed to have been issued for such price per share as of the
date of granting of such Options or the issuance of such
Convertible Securities and thereafter shall be deemed to be
outstanding for purposes of adjusting the Warrant Price. Except
as otherwise provided in subsection 8(0 (3), no adjustment of
the Warrant Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of
such Options or upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities.
(f)(2) Issuance of Convertible Securities. In case the
Company shall in any manner issue (directly and not by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert any
such Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon such
conversion or exchange (determined by dividing (i) the sum
(which sum shall constitute the applicable Consideration) of (x)
the total amount received or receivable by the Company as
consideration for the issue or sale of such Convertible
Securities, plus (y) the aggregate amount of additional
consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (ii) the total number of
shares of Common Stock issuable upon the conversion or exchange
of all such Convertible Securities) shall be less than the
Warrant Price in effect immediately prior to the time of such
issue or sale, then the total maximum number of shares of Common
Stock issuable upon conversion or exchange of all such
Convertible Securities shall be deemed to have been issued for
such price per share as of the date of the issue or sale of such
Convertible Securities and thereafter shall be deemed to be
outstanding for purposes of adjusting the Warrant Price,
provided that (a) except as otherwise provided in subsection 8
(0 (3), no adjustment of the Warrant Price shall be made upon
the actual issuance of such Common Stock upon conversion or
exchange of such Convertible Securities and (b) no further
adjustment of the Warrant Price shall be made by reason of the
issue or sale of Convertible Securities upon exercise of any
Options to purchase any such Convertible Securities for which
adjustments of the Warrant Price have been made pursuant to
other provisions of this subsection 8 (0 (2).
(f)(3) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the
purchase price provided for in any Option referred to in
subsection 8 (0 (1) hereof, the additional consideration, if
any, payable upon the conversion or exchange of any Convertible
Securities referred to in subsections 8(0(1) or 8(0(2), or the
rate at which Convertible Securities referred to in subsections
8 (0 (1) or 8 (0 (2) are convertible into or exchangeable for
Common Stock shall
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change at any time (including, but not limited to, changes under
or by reason of provisions designed to protect against
dilution), the Warrant Price in effect at the time of such event
shall forthwith be readjusted to the Warrant Price which would
have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase
price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold; and on
the termination of any such Option or any such right to convert
or exchange such Convertible Securities (including without
limitation upon the redemption or purchase for Consideration of
all such Convertible Securities by the Company), the Warrant
Price then in effect hereunder shall forthwith be changed to the
Warrant Price which would have been in effect at the time of
such termination had such Option or Convertible Securities, to
the extent outstanding immediately prior to such termination,
never been issued.
(f)(4) Stock Dividends. Subject to the provisions hereof, in
case the Company shall declare a dividend or make any other
distribution upon any stock of the Company (other than the
Common Stock) payable in Common Stock, Options or Convertible
Securities, then any Common Stock, Options or Convertible
Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued or
sold without consideration.
(f)(5) Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold
for cash, the Consideration received therefor shall be deemed to
be the net amount received by the Company therefor, after
deduction therefrom of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares of Common Stock,
Options or Convertible Securities shall be issued or sold for a
Consideration other than cash, the amount of the Consideration
other than cash received by the Company shall be deemed to be
the fair value of such Consideration as determined in good faith
by the Board of Directors of the Company, after deduction of any
expenses incurred or any underwriting commissions or concessions
paid or allowed by the Company in connection therewith. In case
any Options shall be issued in connection with the issue and
sale of other securities of the Company, together comprising one
integral transaction in which no specific consideration is
allocated to such Options by the parties thereto, such Options
shall be deemed to have been issued for such consideration as
determined in good faith by the Board of Directors of the
Company.
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(f)(6) Record Date. In case the Company shall take a record
of the holders of its Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in
Common Stock, Options or Convertible Securities or (ii) to
subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date
of the issue or sale 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.
(f)(7) Treasury Shares. 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 or any of its
wholly-owned subsidiaries, and the disposition of any such
shares shall be considered an issue or sale of Common Stock for
the purpose of this subsection (0).
(g) Anything herein to the contrary notwithstanding, the Company
shall not be required to make any adjustment of the Warrant Price in the case of
the issuance of any of (A) capital stock, Options or Convertible Securities
issued to directors, officers, employees or consultants of the Company in
connection with their service as directors of the Company, their employment by
the Company or their retention as consultants by the Company pursuant to an
equity compensation program approved by the Board of Directors of the Company or
the compensation committee of the Board of Directors of the Company, (B) sales
of shares of Common Stock upon the conversion or exercise of Options or
Convertible Securities issued prior to the date hereof or (C) capital stock
issued as full or partial consideration for a merger or acquisition, or a
strategic allegiance or alliance in which the Company with respect to such
strategic allegiance or alliance issues shares of its equity securities having
an aggregate Fair Market Value (as defined below) of less than $10 million,
approved by the Board of Directors of the Company. The "Fair Market Value" of a
security as of a particular date (the "Valuation Date") shall mean the
following: (a) if the security is then listed on a national stock exchange, the
closing sale price of one security on such exchange on the last trading day
prior to the Valuation Date; (b) if the security is then quoted on Nasdaq, the
closing sale price of one security 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 security is not then listed on a
national stock exchange or quoted on Nasdaq, the Fair Market Value of one
security as of the Valuation Date, shall be determined in good faith by the
Board of Directors of the Company and Special Situation Funds ("SSF"). In the
event that the Board of Directors of the Company and SSF are unable to agree
upon the Fair Market Value in respect of subpart (c) hereof, the Company and SSF
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
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Company and the Investors (pro rata in respect of their ownership of Securities
at such time) as such terms are defined in that certain Purchase Agreement among
the Company and the Investors dated the date hereof. An "Excluded Issuance"
shall mean each of items (A), (B) and (C) above.
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. Extension of Expiration Date. If the Company fails to cause
any Registration Statement covering Registrable Securities (capitalized terms
are as defined in the Registration Rights Agreement dated of even date herewith)
(the_ "Registration Rights Agreement") to be declared effective prior to the
applicable dates set 641 therein, or if any of the events specified in clause
(B) or (C) of Section 2(c) of the Registration. Rights Agreement occurs and the
Blackout Period (whether alone, or in combination with any other Blackout
Period) continues for more than 60 days in any 12 month period, or for more than
a total of 90 days, then the Expiration Date of this Warrant shall be extended
one day for each day beyond the 60-day or 90-day limits, as the case may be,
that the Blackout Period continues.
Section 11. 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 12. 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 13. 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 14. 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 14.
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 14. 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 15. Registration Rights. The initial holder of this Warrant is
entitled to the benefit of certain registration rights in respect of the Warrant
Shares and Additional Warrant Shares as provided in the Registration Rights
Agreement, and any subsequent holder hereof may be entitled to such rights.
Section 16. 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 17. 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 18. 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
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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 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 cash-less
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 19. 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 20. Amendments and Waivers. Subject to the provisions of Section
9.11 of that certain Purchase Agreement, dated as of June 27, 2001, among the
Company and the Investors parties thereto, this Warrant may be amended only by a
writing signed by the Company and the Warrantholder.
[SIGNATURES BEGIN ON THE NEXT PAGE]
12
IN WITNESS WHEREOF, Visionics Corporation has caused this Warrant to be
duly executed, as of the day and year first above written.
VISIONICS CORPORATION
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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: ________________, _____
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, Name (please print)
unless the Warrant has been assigned.
-------------------------------------
Address
-------------------------------------
Address
-------------------------------------
Federal Identification or
Social Security No.
Assignee:
-------------------------------------
-------------------------------------
-------------------------------------
15
APPENDIX "B"
NET ISSUE ELECTION NOTICE
To: Visionics Corporation
Date:________________________
The undersigned hereby elects under Section 18 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
-----------------------------------------------
Name for Registration
-----------------------------------------------
Mailing Address
