Contract
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
SECURED BY SUCH SECURITIES.
WARRANT
Warrant
No. 4.17.09 Date of Original Issuance: April 17, 2009
ProLink
Holdings Corp., a Delaware corporation (the "Company"), hereby certifies
that, for value received, Xxxxxx Capital Master Fund, Ltd. or its registered
assigns (the "Holder"),
is entitled to purchase from the Company up to a total of 12,500,000 shares of
common stock, par value $0.0001 per share (the "Common Stock"), of the
Company (each such share, a "Warrant Share" and all such
shares, the "Warrant
Shares") at an exercise price equal to $0.03 per share (as adjusted from
time to time as provided in Section 9, the "Exercise Price"), at any time
and from time to time from and after the date hereof and through and including
April 17, 2014 (the "Expiration
Date"), and subject to the following terms and conditions:
1. Definitions. In
addition to the terms defined elsewhere in this Warrant, capitalized terms that
are not otherwise defined herein shall have the meanings given to such terms in
the Subscription Agreement of even date herewith to which the Company and the
original Holder are parties (the "Purchase
Agreement").
2. Registration of
Warrant. The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the "Warrant Register"), in the
name of the record Holder hereof from time to time. The Company may
deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
3. Registration of
Transfers. The Company shall register the transfer of any
portion of this Warrant in the Warrant Register, upon surrender of this Warrant,
with the Form of Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. Upon any such registration
or transfer, a new Warrant to purchase Common Stock, in substantially the form
of this Warrant (any such new Warrant, a "New Warrant"), evidencing the
portion of this Warrant so transferred shall be issued to the transferee and a
New Warrant evidencing the remaining portion of this Warrant not so transferred,
if any, shall be issued to the transferring Holder. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
4. Exercise and Duration of
Warrants. This Warrant shall be exercisable by the registered
Holder at any time and from time to time on or after the date hereof to and
including the Expiration Date. At 6:30 p.m., New York City time on
the Expiration Date, the portion of this Warrant not exercised prior thereto
shall be and become void and of no value, provided, that if the
closing sales price of the Common Stock on the Expiration Date is greater than
102% of the Exercise Price on the Expiration Date, then this Warrant shall be
deemed to have been exercised in full (to the extent not previously exercised)
on a “cashless exercise” basis at 6:30 P.M. New York City time on the Expiration
Date. The Company may not call or redeem all or any portion of this Warrant
without the prior written consent of the Holder.
5. Delivery of Warrant
Shares.
(a) To effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant is
being exercised. Upon delivery of the Exercise Notice to the Company
(with the attached Warrant Shares Exercise Log) at its address for notice set
forth herein and upon payment of the Exercise Price multiplied by the number of
Warrant Shares that the Holder intends to purchase hereunder, the Company shall
promptly (but in no event later than three Trading Days (as defined herein)
after the Date of Exercise (as defined herein)) issue and deliver to the Holder,
a certificate for the Warrant Shares issuable upon such exercise, which, unless
otherwise required by the Subscription Agreement, shall be free of restrictive
legends. A “Trading
Day” means a day on which the Common Stock is traded on an exchange, or
traded or quoted on an over-the-counter market. A "Date of Exercise" means the
date on which the Holder shall have delivered to Company: (i) the Exercise
Notice (with the Warrant Exercise Log attached to it), appropriately completed
and duly signed and (ii) if such Holder is not utilizing the cashless exercise
provisions set forth in this Warrant, payment of the Exercise Price for the
number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), then the Holder will have the right to rescind such exercise.
(c) If by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), and if after such third Trading Day and prior to the receipt of such
Warrant Shares, the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the Warrant Shares which the Holder anticipated receiving upon such
exercise (a "Buy-In"),
then the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder's total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required to
deliver to the Holder in connection with the exercise at issue by (B) the
exercise price of the Common Stock at the time of the obligation giving rise to
such purchase obligation and (2) reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not
honored. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the
Buy-In.
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(d) The
Company's obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder's right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company's
failure to timely deliver certificates representing shares of Common Stock upon
exercise of the Warrant as required pursuant to the terms
hereof.
6. Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax, withholding tax, transfer agent fee or
other incidental tax or expense in respect of the issuance of such certificates,
all of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for
Warrant Shares or Warrants in a name other than that of the
Holder. The Holder shall be responsible for all other tax liability
that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
7. Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity (which shall not include a surety bond), if
requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation
of this Warrant, then the Holder shall deliver such mutilated Warrant to the
Company as a condition precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation of Warrant
Shares. The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized but unissued
and otherwise unreserved Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares which are then issuable and deliverable upon the
exercise of this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account
the adjustments and restrictions of Section 9). The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
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9. Certain
Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section
9.
(a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, or (iii) combines outstanding shares of Common Stock into a smaller
number of shares, then in each such case the Exercise Price shall be multiplied
by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such
event. Any adjustment made pursuant to clause (i) of this paragraph
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination. If any event requiring an adjustment under this paragraph occurs
during the period that an Exercise Price is calculated hereunder, then the
calculation of such Exercise Price shall be adjusted appropriately to reflect
such event.
(b) Fundamental
Transactions. If, at any time while this Warrant is
outstanding, (1) the Company effects any merger or consolidation of the Company
with or into another Person, (2) the Company effects any sale of all or
substantially all of its assets in one or a series of related transactions, (3)
any tender offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to tender or
exchange their shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property (in any such case, a "Fundamental Transaction"),
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the same amount and kind of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant (the "Alternate
Consideration"). For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted to apply to
such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders
of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any exercise of
this Warrant following such Fundamental Transaction. At the Holder's
option and request, any successor to the Company or surviving entity in such
Fundamental Transaction shall, either (1) issue to the Holder a new warrant
substantially in the form of this Warrant and consistent with the foregoing
provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof, or (2)
purchase the Warrant from the Holder for a purchase price, payable in cash
within five Trading Days after such request (or, if later, on the effective date
of the Fundamental Transaction), equal to the Black Scholes value of the
remaining unexercised portion of this Warrant on the date of such request. The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this paragraph (c) and insuring that the Warrant (or any
such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
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(c) Certain Diluting
Issuances. (i) If the Company shall, at any time or
from time to time, issue or distribute any shares of Common Stock, or be deemed
to have issued shares of Common Stock as provided herein, other than Excluded
Stock (as defined in Section 9(c)(iv) below) (each such event, including any
event described in paragraphs (ii)(C) and (ii)(D) below, being herein called a
“Common Stock
Distribution”), without consideration or for a consideration per share
less than the Exercise Price on the date of such Common Stock Distribution or on
the first date of the announcement of such Common Stock Distribution, whichever
is greater, then, effective immediately after the open of business on the day
following such Common Stock Distribution, the Exercise Price as in effect
immediately prior to such Common Stock Distribution shall forthwith be lowered
to a price equal to the amount determined by multiplying the Exercise Price by a
fraction: (A) the numerator of which shall be (x) the total number of shares of
Common Stock outstanding (including shares of Common Stock issuable upon
exercise or conversion of outstanding options, warrants and convertible
securities) immediately prior to such Common Stock Distribution, plus (y) the
number of shares of Common Stock which the net aggregate consideration, if any,
received by the Company upon such Common Stock Distribution would purchase at
the Exercise Price in effect immediately prior to such Common Stock
Distribution; and (B) the denominator of which shall be (x) total number of
shares of Common Stock outstanding (including shares of Common Stock issuable
upon exercise or conversion of outstanding options, warrants and convertible
securities) immediately prior to such Common Stock Distribution, plus (y) the
number of additional shares of Common Stock issued as part of such Common Stock
Distribution. In the event of any such adjustment, the number of
shares of Common Stock purchasable upon exercise of this Warrant shall forthwith
be increased by multiplying the number of shares of Common Stock subject to
purchase upon exercise of this Warrant by a fraction, the numerator of which
shall be the total number of shares of Common Stock outstanding (including
shares of Common Stock issuable upon exercise or conversion of outstanding
options, warrants and convertible securities immediately after such Common Stock
Distribution), and the denominator of which shall be an amount equal to the sum
of (i) the number of shares of Common Stock outstanding immediately prior to
such Common Stock Distribution, plus (ii) the number of shares of Common Stock
which the aggregate consideration, if any, received by the Company (determined
as provided below) for such Common Stock Distribution would buy at the Exercise
Price thereof as of the date immediately prior to such Common Stock Distribution
or as of the date immediately prior to the date of announcement of such Common
Stock Distribution (whichever is greater).
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The
provisions of this paragraph (c), including by operation of subsections (C) or
(D) of paragraph (ii) below, shall not operate to increase the Exercise Price or
to reduce the number of shares of Common Stock subject to purchase upon exercise
of this Warrant.
(ii) For the
purposes of any adjustment of the Exercise Price pursuant to paragraph (i)
above, the following provisions shall be applicable:
(A)
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In
the case of the issuance, sale or distribution of Common Stock for cash in
a public offering or private placement, the consideration received
therefor shall be deemed to be the amount received by the Company therefor
before deducting therefrom any discounts, commissions or placement fees
payable by the Company to any underwriter or placement agent in connection
therewith;
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(B)
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In
the case of the issuance of Common Stock for a consideration in whole or
in part other than cash, the consideration other than cash received by the
Company shall be deemed to be the fair market value of such consideration,
as determined in good faith by the Board of Directors of the Company,
irrespective of any accounting
treatment;
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(C)
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In
the case of the issuance, sale, distribution or granting (whether directly
or by assumption in a merger or otherwise) of any rights to subscribe for
or to purchase, or any warrants or options for the purchase of, Common
Stock or any stock or securities convertible into or exchangeable for
Common Stock (such rights, warrants or options being herein called “Options” and such
convertible or exchangeable stock or securities being herein called “Convertible
Securities”), whether or not such Options or the rights to convert
or exchange any such Convertible Securities are immediately exercisable,
then, for purposes of paragraph (i) above, the aggregate maximum number of
shares of Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of such Convertible Securities and subsequent
conversion or exchange thereof shall be deemed to have been issued as of
the date of issuance of such Options, Convertible Securities or rights and
thereafter shall be deemed to be outstanding; and the Company shall be
deemed to have received as consideration the amount equal to the
consideration, if any, received by the Company upon the issuance of such
options or rights plus the minimum additional consideration, if any, to be
received by the Corporation upon the conversion or exchange of such
Convertible Securities or the exercise of Options or rights (such
consideration in each case to be determined in the manner provided in
Sections 9(ii)(A) and 9(ii)(B));
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(D)
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If
the purchase price provided for in any Option referred to in paragraph (i)
above, the additional consideration, if any, payable upon the conversion
or exchange of any Convertible Securities referred to in subsection (C)
above, or the rate at which any Convertible Securities referred to in
subsection (C) above are convertible into or exchangeable for Common Stock
shall change at any time (other than under or by reason of provisions
designed to protect against, and having the effect of protecting against,
dilution upon an event which results in a related adjustment pursuant to
this Section 9), then, the number of shares of Common Stock purchasable
upon exercise of this Warrant and the Exercise Price then in
effect shall forthwith be readjusted (effective only with respect to any
exercise of this Warrant after such readjustment) to the number of shares
of Common Stock purchasable upon exercise of this Warrant and the Exercise
Price which would then be in effect had the adjustment made upon the
issue, sale, distribution or grant of such Options or Convertible
Securities been made based upon such changed purchase price, additional
consideration or conversion rate, as the case may be; provided, however, that
such readjustment shall give effect to such change only with respect to
such Options and Convertible Securities as then remain
outstanding;
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(E)
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Upon
the expiration of any such Options or the termination of any rights,
Convertible Securities or exchangeable securities, the applicable Exercise
Price shall forthwith be readjusted to such Exercise Price as would have
been in effect at the time of such expiration or termination had such
Options, rights, Convertible Securities or exchangeable securities, to the
extent outstanding immediately prior to such expiration or termination,
never been issued;
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(F)
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If
the Company shall pay a dividend or make any other distribution upon any
capital stock of the Company payable in Common Stock, Options or
Convertible Securities, then, for purposes of paragraph (i) above, such
Common Stock, Options or Convertible Securities, as the case may be, shall
be deemed to have been issued or sold without consideration;
and
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(G)
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If
the Company shall declare a record date for the holders of the Common
Stock for the purpose of entitling them to receive a dividend or other
distribution payable in Common Stock, Options or Convertible Securities or
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, sale, distribution or grant 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.
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(iii) For
purposes of determining whether any adjustment is required pursuant to this
Section 9(c), any security of the Company having rights substantially equivalent
to the Common Stock as to dividends or upon liquidation, dissolution or winding
up of the Company shall be treated as if such security were Common
Stock. No further adjustment of the Exercise Price adjusted upon the
issuance of any such options, rights, convertible securities or exchangeable
securities shall be made as a result of the actual issuance of Common Stock on
the exercise of any such rights or options or any conversion or exchange of any
such securities.
(iv) “Excluded Stock” shall mean
(A) shares of Common Stock issued (or issuable upon exercise of rights, options
or warrants outstanding from time to time) granted or issued to officers,
directors or employees of, or consultants to, the Company pursuant to a stock
grant, stock option plan, employee stock purchase plan, restricted stock plan or
other similar plan or agreement or otherwise, in each case as approved by the
Board of Directors, (B) shares of Common Stock issued (or issuable upon exercise
of rights, options or warrants outstanding from time to time) granted or issued
to financial institutions, equipment lessors, brokers or similar persons in
connection with commercial credit arrangements, equipment financings, commercial
property lease transactions or similar transactions, (C) securities issued in
connection with a strategic alliance or similar transaction, (D) shares of
Common Stock issued (or issuable upon exercise of rights, options or warrants
outstanding from time to time) for bona fide services, (E) shares issued or
issuable as a result of any stock split, combination, dividend, distribution,
reclassification, exchange or substitution, and (F) shares of Common Stock
issuable upon exercise of rights, options, warrants, notes or other rights to
acquire securities of the Corporation outstanding as of the date
hereof.
(d) Number of Warrant
Shares. Simultaneously with any adjustment to the Exercise
Price pursuant to paragraph (a) of this Section, the number of Warrant Shares
that may be purchased upon exercise of this Warrant shall be increased or
decreased proportionately, so that after such adjustment the aggregate Exercise
Price payable hereunder for the adjusted number of Warrant Shares shall be the
same as the aggregate Exercise Price in effect immediately prior to such
adjustment.
(e) Calculations. All
calculations under this Section 9 shall be
made to the nearest cent or the nearest 1/100th of a
share, as applicable. 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, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
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(f) Notice of
Adjustments. Upon the occurrence of each adjustment pursuant
to this Section
9, the Company at its expense will promptly compute such adjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment, including a statement of the adjusted Exercise Price and
adjusted number or type of Warrant Shares or other securities issuable upon
exercise of this Warrant (as applicable), describing the transactions giving
rise to such adjustments and showing in detail the facts upon which such
adjustment is based. Upon written request, the Company will promptly
deliver a copy of each such certificate to the Holder and to the Company's
Transfer Agent.
(g) Notice of Corporate
Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common
Stock, including without limitation any granting of rights or warrants to
subscribe for or purchase any capital stock of the Company or any Subsidiary,
(ii) authorizes or approves, enters into any agreement contemplating or solicits
stockholder approval for any Fundamental Transaction or (iii) authorizes the
voluntary dissolution, liquidation or winding up of the affairs of the Company,
then the Company shall deliver to the Holder a notice describing the material
terms and conditions of such transaction, at least 20 calendar days prior to the
applicable record or effective date on which a Person would need to hold Common
Stock in order to participate in or vote with respect to such transaction, and
the Company will take all steps reasonably necessary in order to insure that the
Holder is given the practical opportunity to exercise this Warrant prior to such
time so as to participate in or vote with respect to such transaction; provided,
however, that the failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be described in such
notice.
10. Payment
of Exercise Price. The Holder may
pay the Exercise Price in one of the following manners:
(a) Cash
Exercise. The Holder may deliver immediately available funds;
or
(b) Cashless
Exercise. The Holder may notify the Company in an Exercise
Notice of its election to utilize cashless exercise, in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y
[(A-B)/A]
where:
X = the
number of Warrant Shares to be issued to the Holder.
Y = the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the
average of the closing prices for the five Trading Days immediately prior to
(but not including) the Exercise Date.
B = the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued, subject to any change of law after
the date hereof.
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11. Limitations on
Exercise. Notwithstanding anything to the contrary contained
herein, the number of shares of Common Stock that may be acquired by the Holder
upon any exercise of this Warrant (or otherwise in respect hereof) shall be
limited to the extent necessary to insure that, following such exercise (or
other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its affiliates and any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder's for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), does not
exceed 9.999% of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon such
exercise). For such purposes, beneficial ownership shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. This provision shall not
restrict the number of shares of Common Stock which a Holder may receive or
beneficially own in order to determine the amount of securities or other
consideration that such Holder may receive in the event of a Fundamental
Transaction as contemplated in Section 9 of this Warrant. The
provisions of this Section 11 may be waived by such Holder, at the election of
such Holder, upon not less than 61 days’ prior notice to the Company, and the
provisions of this Section 11 shall continue to apply until such 61st day (or
such later date, as determined by such Holder, as may be specified in such
notice of waiver).
12. No Fractional
Shares. No fractional shares of Warrant Shares will be issued
in connection with any exercise of this Warrant. In lieu of any
fractional shares which would otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the closing price of one
Warrant Share as reported by the applicable exchange or bulletin board on the
date of exercise.
13. Notices. Any
and all notices or other communications or deliveries hereunder (including,
without limitation, any Exercise Notice) shall be in writing and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section prior to 6:30 p.m. (New York City time) on a Trading
Day, (ii) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section on a day that is not a Trading Day or later than 6:30 p.m. (New
York City time) on any Trading Day, (iii) the Trading Day following the date of
mailing, if sent by nationally recognized overnight courier service, or (iv)
upon actual receipt by the party to whom such notice is required to be
given. The addresses for such communications shall be: (i)
if to the Company, to ProLink Holdings Corp., Attn: Chief Executive Officer,
Facsimile No.: (000) 000-0000, or (ii) if to the Holder, to the address or
facsimile number appearing on the Warrant Register or such other address or
facsimile number as the Holder may provide to the Company in accordance with
this Section.
14. Warrant
Agent. The Company shall serve as warrant agent under this
Warrant. Upon 30 days' notice to the Holder, the Company may appoint
a new warrant agent. Any corporation into which the Company or any
new warrant agent may be merged or any corporation resulting from any
consolidation to which the Company or any new warrant agent shall be a party or
any corporation to which the Company or any new warrant agent transfers
substantially all of its corporate trust or shareholders services business shall
be a successor warrant agent under this Warrant without any further
act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
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15. Miscellaneous.
(a) This
Warrant shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns. Subject to the preceding
sentence, nothing in this Warrant shall be construed to give to any Person other
than the Company and the Holder any legal or equitable right, remedy or cause of
action under this Warrant. This Warrant may be amended only in
writing signed by the Company and the Holder and their successors and
assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of
this Warrant and the transactions herein contemplated (“Proceedings”) (whether
brought against a party hereto or its respective affiliates, employees or
agents) may be commenced non-exclusively in the state and federal courts sitting
in the City of New York, Borough of Manhattan (the “New York
Courts”). Each party hereto hereby irrevocably submits to the
non-exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any New York Court, or that such Proceeding has been commenced
in an improper or inconvenient forum. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Warrant or the transactions contemplated
hereby. If either party shall commence a Proceeding to enforce any
provisions of this Warrant, then the prevailing party in such Proceeding shall
be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(d) In case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties
-11-
will
attempt in good faith to agree upon a valid and enforceable provision which
shall be a commercially reasonable substitute therefor, and upon so agreeing,
shall incorporate such substitute provision in this Warrant.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
-12-
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
By:
|
/s/
Xxxxxxxx X. Xxxx
|
|
Name:
Xxxxxxxx X. Xxxx
|
||
Title:
Chief Executive Officer
|
-13-
WARRANT
ORIGINALLY ISSUED _____________
WARRANT
NO. __
EXERCISE
NOTICE
The
undersigned hereby irrevocably elects to purchase _____________
shares of Common Stock pursuant to the above captioned Warrant, and, if such
Holder is not utilizing the cashless exercise provisions set forth in the
Warrant, encloses herewith $________ in cash, certified or official bank check
or checks or other immediately available funds, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares of
Common Stock to which this Exercise Notice relates, together with any applicable
taxes payable by the undersigned pursuant to the Warrant.
By its
delivery of this Exercise Notice, the undersigned represents and warrants to the
Company that in giving effect to the exercise evidenced hereby the Holder will
not beneficially own in excess of the number of shares of Common Stock
(determined in accordance with Section 13(d) of the Securities Exchange Act of
1934) permitted to be owned under Section 11 of this Warrant to which this
notice relates.
By its
delivery of this Exercise Notice, the undersigned represents and warrants to the
Company that:
(a) Investment
Intent. The undersigned is acquiring the Common Stock as
principal for its own account for investment purposes only and not with a view
to or for distributing or reselling such Common Stock or any part thereof,
without prejudice, however, to such undersigned's right at all times to sell or
otherwise dispose of all or any part of such Common Stock in compliance with
applicable federal and state securities laws. Subject to the
immediately preceding sentence, nothing contained herein shall be deemed a
representation or warranty by the undersigned to hold the Common Stock for any
period of time. The undersigned is acquiring the Common Stock
hereunder in the ordinary course of its business. The undersigned does not have
any agreement or understanding, directly or indirectly, with any person to
distribute any of the Common Stock. Notwithstanding the foregoing,
nothing herein shall prevent the undersigned from transferring the Common Stock
issuable upon exercise of this Warrant.
(b) Investor
Status. At the date hereof the undersigned is, an
"accredited investor" as defined in Rule 501(a) under the Securities
Act. The undersigned is not a registered broker-dealer under Section
15 of the Exchange Act.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of
PLEASE
INSERT SOCIAL SECURITY OR
TAX
IDENTIFICATION NUMBER
(Please
print name and address)
Warrant Shares Exercise
Log
Date
|
Number
of Warrant
Shares
Available to be
Exercised
|
Number
of Warrant
Shares
Exercised
|
Number
of Warrant Shares
Remaining
to be Exercised
|
WARRANT
ORIGINALLY ISSUED _______________
WARRANT
NO. __
FORM OF
ASSIGNMENT
[To be
completed and signed only upon transfer of Warrant]
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the above-captioned
Warrant to purchase ____________ shares of Common Stock to which such
Warrant relates and appoints ________________ attorney to transfer said right on
the books of the Company with full power of substitution in the
premises.
Dated: _______________,
____
_______________________________________
|
|
(Signature
must conform in all respects to name of
holder
as specified on the face of the Warrant)
|
|
___
____________________________________
|
|
Address
of Transferee
|
|
_______________________________________
|
|
_______________________________________
|
In the
presence of:
__________________________