THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 ACT, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF
THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT, OR (C) IF REGISTERED UNDER THE 1933 ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, A STOCK PURCHASE
AGREEMENT (THE "STOCK PURCHASE AGREEMENT"), DATED THE DATE HEREOF, A COPY
OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE
OFFICE, CONTAINS CERTAIN ADDITIONAL AGREEMENTS AMONG THE PARTIES,
INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH LIMIT THE EXERCISE RIGHTS
OF THE HOLDER AND SPECIFY MANDATORY REDEMPTION OBLIGATIONS OF THE COMPANY.
---------------------------------------
GLOBAL AXCESS CORP.
WARRANT FOR THE PURCHASE OF COMMON STOCK
___________Shares Ponte Vedra Beach, Florida
THIS IS TO CERTIFY that pursuant to that certain Stock Purchase
Agreement of even date herewith executed by the parties hereto (the "Stock
Purchase Agreement"), for value received, ________________(the "Holder") is
entitled at any time from the date hereof, but prior to 5:00 p.m., Ponte Vedra
Beach, Florida time on January 29, 2009, or 18 months after the effectiveness of
a Registration Statement (hereinafter defined) subsequent to the issuance
hereof, whichever is longer, subject to and upon the terms and conditions
contained herein, to purchase up to ___________ fully paid and non-assessable
shares of the common stock, par value $0.001 per share (the "Common Stock") of
Global Axcess Corp., a Nevada corporation (the "Company"), at a purchase price
of $1.00 per share of the Common Stock (the "Exercise Price") such number of the
shares and the Exercise Price being subject to adjustment as provided herein.
This I Warrant shall be void and of no effect and all rights hereunder
shall cease at 5:00 p.m., Ponte Vedra Beach, Florida time on January 29, 2009,
or 18 months after the effectiveness of a Registration Statement (the
"Expiration Date") subsequent to the issuance hereof, whichever is longer,
except to the extent theretofore exercised; provided that in the case of the
earlier dissolution of the Company, this I Warrant shall become void on the date
fixed for such dissolution. As used herein, "Registration Statement" means a
registration statement filed by the Company on Form X-0, XX-0, xx X-0, or some
other similar form pursuant to the Securities Act of 1933, as amended (the "1933
Act") to register the resale of the shares of the Common Stock upon the exercise
of this I Warrant.
1. Registration of this I Warrant. The Company shall register this I
Warrant upon records to be maintained by the Company for that purpose (the "I
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 I Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution
to the Holder, and for all other purposes, and the Company shall not be affected
by notice to the contrary.
2. Investment Representation. The Holder by accepting this I Warrant
represents that the Holder is acquiring this I Warrant for its own account or
the account of an affiliate for investment purposes and not with the view to any
offering or distribution and that the Holder will not sell or otherwise dispose
of this I Warrant or the underlying Common Stock in violation of applicable
securities laws. The Holder acknowledges that the certificates representing any
shares of the Common Stock will bear a legend indicating that they have not been
registered under the 1933 Act and may not be sold by the Holder except pursuant
to an effective Registration Statement or pursuant to an exemption from
registration requirements of the 1933 Act and in accordance with federal and
state securities laws.
3. Validity of I Warrant and Issuance of the Common Stock. The Company
represents and warrants that this I Warrant has been duly authorized and validly
issued and warrants and agrees that the Common Stock that may be issued upon the
exercise of the rights represented by this I Warrant will, when issued upon such
exercise, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof.
Subject to filing the Certificate of Amendment as set forth in Section 6.10 of
the Stock Purchase Agreement, the Company further warrants and agrees that
during the period within which the rights represented by this I Warrant may be
exercised, the Company will at all times have authorized and reserved a
sufficient number of shares of the Common Stock to provide for the exercise of
the rights represented by this Warrant.
4. Registration of Transfers and Exchange of this I Warrant.
(a) Subject to compliance with the legend set forth on the face
of this I Warrant, the Company shall register the transfer of any
portion of this I Warrant in the I Warrant Register, upon surrender of
this I Warrant with the Form of Assignment attached hereto duly
completed and signed, to the Company at the office specified in or
pursuant to Paragraph 9 hereof. Upon any such registration or
transfer, a new warrant to purchase the Common Stock, in substantially
the form of this I Warrant (any such new warrant, a "New I Warrant"),
evidencing the portion of this I Warrant so transferred shall be
issued to the transferee and a New I Warrant evidencing the remaining
portion of this I Warrant not so transferred, if any, shall be issued
to the transferring Holder. The acceptance of the New I Warrant by the
transferee thereof shall be deemed the acceptance of such transferee
of all of the rights and obligations of the Holder.
(b) This I Warrant is exchangeable, upon the surrender hereof by
the Holder to the office of the Company specified in or pursuant to
Paragraph 9 for one or more New I Warrants, evidencing in the
aggregate the right to purchase the number of shares of the Common
Stock which may then be purchased hereunder. Any such New I Warrant
will be dated the date of such exchange.
5. Exercise of this I Warrant.
(a) Upon surrender of this I Warrant with the Form of Election to
Purchase attached hereto duly completed and signed to the Company, at
its address set forth in Paragraph 9 hereof, and upon payment and
delivery of the Exercise Price multiplied by the number of shares of
the Common Stock that the Holder intends to purchase hereunder, in
lawful money of the United States of America, in cash or by certified
or official bank check or checks, to the Company, all as specified by
the Holder in the Form of Election to Purchase, the Company shall
promptly but in no event later than five business days after the Date
of Exercise (as defined herein) issue or cause to be issued and
delivered to or upon the written order of the Holder and in such name
or names as the Holder may designate (subject to the restrictions on
transfer described in the legend set forth on the face of this I
Warrant), a certificate for the shares of the Common Stock issuable
upon such exercise, with such restrictive legend as required by the
1933 Act. Any person so designated by the Holder to receive the shares
of the Common Stock shall be deemed to have become holder of record of
the Common Stock as of the Date of Exercise of this I Warrant.
(b) "Date of Exercise" means the date on which the Company shall
have received (i) this I Warrant (or any New I Warrant, as
applicable), with the Form of Election to Purchase attached hereto (or
attached to such New I Warrant) appropriately completed and duly
signed, and (ii) payment of the Exercise Price for the number of
shares of the Common Stock so indicated by the Holder to be purchased.
(c) This I Warrant shall be exercisable at any time and from time
to time for such number of shares of the Common Stock as is indicated
in the attached Form of Election to Purchase. If less than all of the
shares of the Common Stock which may be purchased under this I Warrant
are purchased at any time, the Company shall issue or cause to be
issued, at its expense, a New I Warrant evidencing the right to
purchase the remaining number of shares of the Common Stock for which
no exercise has been evidenced by this I Warrant.
(d) Notwithstanding anything contained herein to the contrary,
the holder of this I Warrant may, at its election exercised in its
sole discretion, exercise this I Warrant in whole or in part and, in
lieu of making the cash payment otherwise contemplated to be made to
the Company upon such exercise in payment of the Exercise Price, elect
instead to receive upon such exercise the "Net Number" of shares of
the Common Stock determined according to the following formula (a
"Cashless Exercise"):
Net Number = (A x B) - (A x C)
-----------------------------
B
For purposes of the foregoing formula:
A = the total number shares with respect to which
this I Warrant is then being exercised.
B = the last reported sale price (as reported by
Bloomberg) of the Common Stock on the date
immediately preceding the date of the notice of
exercise of this I Warrant.
C = the Exercise Price then in effect at the time of
such exercise.
Provided, however, notwithstanding anything herein contained to the contrary,
the Holder may not affect a Cashless Exercise of this I Warrant until after July
29, 2005, and thereafter so long as there is an effective Registration Statement
with respect to the shares of the Common Stock underlying this I Warrant.
6. Call by the Company. This I Warrant contains a callable feature
requiring the automatic exercise at any time prior to the Expiration Date if the
market price of the Company's common stock is equal to or in excess of the
callable price of $1.25 for a period of twenty (20) consecutive days and there
is an effective Registration Statement covering the shares Common Stock
underlying this I Warrant ("Automatic Exercise"). Upon occurrence of the
Automatic Exercise, the Company shall provide the Holder with notice of such
Automatic Conversion ("Automatic Exercise Notice"). Upon receipt of the
Automatic Exercise Notice, the Holder must (i) exercise, in whole or in part,
this I Warrant within ten (10) days; or (ii) notify the Company of its intent to
transfer this I Warrant pursuant to Section 4 of this I Warrant. In the event
that the Holder elects to transfer this I Warrant pursuant to Section 4 of this
I Warrant, then the subsequent holder of this I Warrant must exercise this I
Warrant on or before the thirtieth (30) day after notification of intent to
transfer this I Warrant. In the event that this I Warrant is exercised, the
Holder must deliver to the Company at its office at 000 Xxxxx Xxxxx Xxxx Xxxxx,
Xxxxx 000, Xxxxx Vedra Beach, Florida 32082 Attention: President, on or before
5:00 p.m., Eastern Time, on the required date, (i) Form of Election to Purchase
properly executed and completed by Holder or an authorized officer thereof, (ii)
a check payable to the order of the Company, in an amount equal to the product
of the Exercise Price multiplied by the number of I Warrant Shares specified in
the Exercise Notice, and (iii) this I Warrant. If the Holder does not exercise
this I Warrant within ten (10) days from receipt of the Automatic Exercise
Notice or, in the event that this I Warrant has been transferred pursuant to
Section 4 of this I Warrant, the subsequent holder of this I Warrant does not
exercise this I Warrant within thirty (30) days after notification of intent to
transfer this I Warrant, then this I Warrant will expire.
7. Adjustment of Exercise Price and Number of Shares. The shares of
the Common Stock or other securities at the time issuable upon exercise of this
I Warrant and the Exercise Price therefor, are subject to adjustment upon the
occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, Etc. The Exercise Price of this I Warrant and the
number of shares of the Common Stock or other securities at the time
issuable upon the exercise of this I Warrant shall be appropriately
adjusted to reflect any stock dividend, stock split, combination of
shares, reclassification, recapitalization or other similar event
affecting the number of outstanding shares of the Common Stock or
other securities of the Company.
(b) Adjustment for Reorganization, Consolidation, Merger, Etc. In
case of any consolidation or merger of the Company with or into any
other corporation, entity or person, or any other corporate
reorganization, in which the Company shall not be the continuing or
surviving entity of such consolidation, merger or reorganization (any
such transaction being referred to as a "Reorganization"), then, in
each case, the Holder, on exercise hereof at any time after the
consummation or effective date of such Reorganization (the "Effective
Date"), shall receive, in lieu of the shares of the Common Stock or
other securities of the Company at any time issuable upon the exercise
of this I Warrant prior to the Effective Date, the shares of the
Common Stock and other securities of the Company and property
(including cash) to which the Holder would have been entitled upon the
Effective Date if the Holder had exercised this I Warrant immediately
prior thereto (all subject to further adjustment as provided in this I
Warrant).
(c) Certificate as to Adjustments. In case of any adjustment or
readjustment in the price or kind of securities issuable on the
exercise of this I Warrant, the Company will promptly give written
notice thereof to the Holder in the form of a certificate, certified
and confirmed by the Board of Directors of the Company, setting forth
such adjustment or readjustment and showing in reasonable detail the
facts upon which such adjustment or readjustment is based.
8. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional shares of the Common Stock on the exercise of this
I Warrant. The number of full shares of the Common Stock that shall be issuable
upon the exercise of this I Warrant shall be computed on the basis of the
aggregate number of shares of the Common Stock purchasable on exercise of this I
Warrant so presented. If any fraction of shares of the Common Stock would,
except for the provisions of this Paragraph 8, be issuable on the exercise of
this I Warrant, the Company shall, at its option, (a) pay an amount in cash
equal to the Exercise Price multiplied by such fraction or (b) round the number
of shares of the Common Stock issuable, up to the next whole number.
9. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given (a) on the date they are
delivered if delivered in person; (b) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (c) on the date delivered by an overnight courier service; or (d)
on the third business day after it is mailed by registered or certified mail,
return receipt requested with postage and other fees prepaid, if to the Company
addressed to CFO, GLOBAL AXCESS CORP., 000 Xxxxx Xxxxx Xxxx Xx., Xxx 000, Xxxxx
Xxxxx Xxxxx, XX 00000, and if to the Holder addressed to
__________________________. Any party hereto may change its address upon 10
days' written notice to any other party hereto.
10. Miscellaneous.
(a) This I Warrant shall be binding on and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. This I Warrant may be amended only in writing and signed by
the Company and the Holder.
(b) Nothing in this I Warrant shall be construed to give to any
person or corporation other than the Company and the Holder any legal
or equitable right, remedy or cause of action under this Warrant. This
Warrant shall be for the sole and exclusive benefit of the Company and
the Holder.
(c) This I Warrant shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to
any conflicts of laws provisions thereof. Each party hereby
irrevocably submits to the personal jurisdiction of the United States
District Court for the District of Florida, as well as of the Superior
Courts of the State of State in ______County, Florida over any suit,
action or proceeding arising out of or relating to this Agreement.
Each party hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying
of the venue of any such mediation, arbitration, suit, action or
proceeding brought in any such county and any claim that any such
mediation, arbitration, suit, action or proceeding brought in such
county has been brought in an inconvenient forum.
(d) The headings herein are for convenience only, do not
constitute a part of this I Warrant and shall not be deemed to limit
or affect any of the provisions hereof.
(e) In case any one or more of the provisions of this I Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this I Warrant
shall not in any way be affected or impaired thereby and the parties
will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonably substitute
therefore, and upon so agreeing, shall incorporate such substitute
provision in this I Warrant.
(f) The Holder shall not, by virtue hereof, be entitled to any
voting or other rights of a shareholder of the Company, either at law
or equity, and the rights of the Holder are limited to those expressed
in this I Warrant.
(g) In the event of any conflict between the terms of this I
Warrant or the Stock Purchase Agreement, the terms of the Stock
Purchase Agreement shall control.
IN WITNESS WHEREOF, the Company has caused this I Warrant to be duly
executed by the authorized officer as of the date first above stated.
GLOBAL AXCESS CORP.
By
----------------------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing I Warrant)
To: GLOBAL AXCESS CORP.
In accordance with the I Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase ______________
shares of the Common Stock (the "Common Stock"), $0.001 par value, of Global
Axcess Corp. and encloses this I Warrant and $_______ for each share of the
Common Stock being purchased or an aggregate of $________________ in cash or
certified or official bank check or checks, which sum represents the aggregate
Exercise Price (as defined in the I Warrant) together with any applicable taxes
payable by the undersigned pursuant to the I Warrant.
The undersigned requests that certificates for the shares of the Common
Stock issuable upon this exercise be issued in the name of:
_______________________________
(Please print name and address)
_____________________________________________________________
(Please insert Social Security or Tax Identification Number)
If the number of shares of the Common Stock issuable upon this
exercise shall not be all of the shares of the Common Stock which the
undersigned is entitled to purchase in accordance with the enclosed I Warrant,
the undersigned requests that a New I Warrant (as defined in the I Warrant)
evidencing the right to purchase the shares of the Common Stock not issuable
pursuant to the exercise evidenced hereby be issued in the name of and delivered
to:
________________________________
________________________________
________________________________
(Please print name and address)
Dated: Name of Holder:
_____________________________
(Print)________________________________
By
_____________________________________
Name
___________________________________
Title
__________________________________
Signature must conform in all
espects to name of Holder as
specified on the face of the I Warrant
