Contract
EXHIBIT
4.1
THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), NOR UNDER
ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, ASSIGNED, HYPOTHECATED OR
OTHERWISE TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT WITH RESPECT THERETO
IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH NOTE MAY BE SOLD, ASSIGNED, HYPOTHECATED OR TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAWS.
________________________________________
SIMTROL,
INC.
0000
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
| Right to Purchase: |
shares
of common stock
|
| Date: |
March
16, 2007
|
THIS
CERTIFIES THAT,
for
value received, (the “Holder”),
is
entitled to purchase from Simtrol,
Inc., a
Delaware corporation (the “Company”),
at
any time while this warrant is outstanding from March 16, 2007 until 5:00 p.m.
(ET) on March 15, 2010, fully paid and nonassessable shares of the Company’s
common stock, par value $0.001 per share (“Common
Stock”),
at an
exercise price of $0.375 per share, as adjusted.
1. The
Company is issuing this Warrant to the Holder pursuant to a Subscription
Agreement under a confidential private placement. This Warrant constitutes
part
of a unit subscribed to by the Holder in the Subscription Agreement.
2. (a) To
exercise this Warrant or any part of this Warrant, the Holder must deliver
to
the Company (collectively, the “Exercise
Documentation”):
(i) a
completed exercise agreement a form of which is attached; (ii) this Warrant;
and
(iii) a check payable to the Company or a wire transfer in an amount equal
to
the product of the exercise price and the number of shares the Holder desires
to
purchase. The Company will, without charge, issue certificates for shares of
Common Stock purchased upon exercise of this Warrant within five (5) business
days after receipt of the Exercise Documentation. Unless this Warrant has
expired, or all of the purchase rights represented by this Warrant have been
exercised, the Company will also prepare and deliver to the Holder a new
Warrant, substantially identical to this Warrant, representing the rights
formerly represented by this Warrant which have not expired or been exercised.
(b) Expiration/Redemption.
If, at
any time while this Warrant is outstanding and the Company has an effective
registration statement covering the common shares underlying this Warrant,
the
Common Stock is then listed or quoted on a Trading Market and the closing bid
price of the Common Stock is equal to or greater than $2.00 for 20 consecutive
trading days (excluding any weekend days or recognized market holidays) and
the
average trading volume of the Common Stock (defined as trading volume in shares
multiplied by the daily closing price of the stock) is equal to or greater
than
$150,000, the Company may call the warrant at a redemption price of $0.01 per
warrant. The Company will notify Holder in writing twenty (20) days prior to
the
Redemption Date.
3. The
Company will at all times reserve and keep available for issuance upon the
exercise of this Warrant such number of its authorized but unissued shares
of
Common Stock as will be sufficient to permit the exercise in full of this
Warrant, and upon such issuance such shares of Common Stock will be validly
issued, fully paid and nonassessable.
4. This
Warrant does not and will not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
5. Certain
Adjustments.
(a) Stock
Splits, etc. The number and kind of securities purchasable upon the exercise
of
this Warrant and the exercise price shall be subject to adjustment from time
to
time upon the happening of any of the following. In case the Company shall
(i)
pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
of Common Stock, or (iv) issue any shares of its capital stock in a
reclassification of the Common Stock, then the number of shares purchasable
upon
exercise of this Warrant immediately prior thereto shall be adjusted so that
the
Holder shall be entitled to receive the kind and number of shares or other
securities of the Company which it would have owned or have been entitled to
receive had such Warrant been exercised in advance thereof. Upon
each
such adjustment of the kind and number of shares or other securities of the
Company which are purchasable hereunder, the Holder shall thereafter be entitled
to purchase the number of shares or other securities resulting from such
adjustment at an exercise price per share or other security obtained by
multiplying the exercise price in effect immediately prior to such adjustment
by
the number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of shares or other securities of the
Company resulting from such adjustment. An
adjustment made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
(b) Pro
Rata
Distributions. If the Company, at any time prior to the termination date of
this
Warrant, shall distribute to all holders of Common Stock (and not to Holders
of
the Warrants) evidences of its indebtedness or assets or rights or warrants
to
subscribe for or purchase any security other than the Common Stock (which shall
be subject to the above section), then in each such case the exercise price
of
this Warrant shall be adjusted by multiplying the exercise price in effect
immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution by a fraction of which the denominator
shall be the closing bid price determined as of the record date mentioned above,
and of which the numerator shall be such closing bid price on such record date
less the then per share fair market value at such record date of the portion
of
such assets or evidence of indebtedness so distributed applicable to one
outstanding share of the Common Stock as determined by the Board of Directors
in
good faith. In either case the adjustments shall be described in a statement
provided to the Holders of the portion of assets or evidences of indebtedness
so
distributed or such subscription rights applicable to one share of Common Stock.
Such adjustment shall be made whenever any such distribution is made and shall
become effective immediately after the record date mentioned above.
(c) Reorganization,
Reclassification, Merger, Consolidation or Disposition of Assets. In case the
Company shall reorganize its capital, reclassify its capital stock, consolidate
or merge with or into another corporation (where the Company is not the
surviving corporation or where there is a change in or distribution with respect
to the Common Stock), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another corporation and,
pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities
or
property of any nature whatsoever (including warrants or other subscription
or
purchase rights) in addition to or in lieu of common stock of the successor
or
acquiring corporation (“Other Property”), are to be received by or distributed
to the holders of Common Stock, then the Holder shall have the right thereafter
to receive upon exercise of this Warrant, the number of shares of common stock
of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and Other Property receivable upon or as a result of
such
reorganization, reclassification, merger, consolidation or disposition of assets
by a Holder of the number of shares of Common Stock for which this Warrant
is
exercisable immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume
the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as
may
be deemed appropriate (as determined in good faith by resolution of the Board
of
Directors of the Company) in order to provide for adjustments of shares for
which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section. For purposes of
this Section, “common stock of the successor or acquiring corporation” shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into
or
exchangeable for any such stock, either immediately or upon the arrival of
a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions
of
this Section shall similarly apply to successive reorganizations,
reclassifications, mergers,consolidations or disposition of assets.
6. Whenever
the number of shares or number or kind of securities or other property
purchasable upon the exercise of this Warrant or the exercise price is adjusted,
as herein provided, the Company shall give notice thereof to the Holder, which
notice shall state the number of shares (and other securities or property)
purchasable upon the exercise of this Warrant and the exercise price of such
shares (and other securities or property) after such adjustment, setting forth
a
brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.
7. Notice
of Corporate Action.
If at
any time:
(a) the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend or other distribution, or any right
to
subscribe for or purchase any evidences of its indebtedness, any shares of
stock
of any class or any other securities or property, or to receive any other right,
or
(b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all
or
substantially all the property, assets or business of the Company to, another
corporation or,
(c) there
shall be a voluntary or involuntary dissolution, liquidation or winding up
of
the Company;
then,
in
any one or more of such cases, the Company shall give to Holder (i) at least
ten
(10) days’ prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights
to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and
(ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least
ten (10) days’ prior written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause also shall specify (i)
the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall
be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares for securities or other property deliverable
upon such disposition, dissolution, liquidation or winding up. Each such written
notice shall be sufficiently given if addressed to Holder at the last address
of
Holder appearing on the books of the Company and delivered in accordance with
Section 7.
8. Fractional
Shares.
No
fractional securities or scrip representing fractional securities shall be
issued upon the exercise of this Warrant. With respect to any fraction of a
share of Common Stock otherwise issuable upon any such exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current market value of such fractional securities, determined
as follows:
(a) If
the
Common Stock is listed on a national securities exchange or admitted to unlisted
trading privileges on such exchange, the current market value shall be the
last
reported sale price of the security on such exchange on the last business day
prior to the date of exercise of this Warrant, or if no such sale is made on
such day, the average closing bid and asked prices for such day on such
exchange; or
(b) If
the
Common Stock is listed on one of the following trading systems or admitted
to
unlisted trading privileges on such systems, the current value shall be the
last
reported sale price on The Nasdaq Stock Market, Inc. (“NASDAQ”)
National Market System (“NASDAQ/NMS”)
or the
closing transaction price on the Nasdaq Small-Cap Market or the NASDAQ OTC
Bulletin Board (or, if not so quoted, by the National Quotation Bureau, Inc.)
on
the last business day prior to the date of the exercise of this Warrant;
or
(c) If
the
Common Stock is not so listed or admitted to unlisted trading privileges and
prices are not reported on NASDAQ, or the NASDAQ OTC Bulletin Board (or by
the
National Quotation Bureau, Inc.), the current value shall be an amount, not
less
than the book value, determined in such reasonable manner as may be prescribed
by the Board of Directors of the Company.
9. Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft
or
destruction, of reasonably satisfactory indemnification, including a surety
bond, and upon surrender and cancellation of this Warrant, if mutilated, the
Company shall cause to be executed and delivered a new Warrant of like tenor
and
date.
10. The
Holder of this Warrant shall not, by virtue hereof, be entitled to any voting
or
other rights of a stockholder in the Company, either at law or equity, and
the
rights of the Holder are limited to those expressed in this
Warrant.
11. The
construction, validity and interpretation of this Warrant will be governed
by
the laws of the State of Georgia. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed and attested
by its duly authorized officers under its corporate seal.
|
SIMTROL,
INC.
|
ATTEST:
|
|
By:
/s/ Xxxxxxx Xxxx
|
By:
/s/ Xxxxxxx Xxxx
|
|
Name:
Xxxxxxx Xxxx
|
Name:
Xxxxxxx Xxxx
|
|
Title:
CEO
|
Title:
Secretary
|
EXERCISE
AGREEMENT
To: Simtrol,
Inc.
(1) The
undersigned hereby elects to purchase ________ shares of Simtrol, Inc. pursuant
to the terms of the attached Warrant (only if exercised in full), and tenders
herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Payment
shall take the form of:
[
] in
lawful money of the United States
(3) Please
issue a certificate or certificates representing said shares in the name of
the
undersigned or in such other name as is specified below:
_______________________________
The
shares shall be delivered to the following:
_______________________________
_______________________________
_______________________________
| [HOLDER] | |||
| By: | ________________________ | ||
| Name: | |||
| Title: | |||
| Dated: | ________________________ | ||
WARRANT
ASSIGNMENT FORM
(To
assign the foregoing Warrant, execute
this
form. Do not use this form to exercise the Warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
______________________________________________________________________
whose address is
| Dated: |
______________________,
________
|
||
|
Holder’s
Signature:
|
_______________________________________ | ||
|
Holders
Address:
|
_______________________________________ | ||
| _______________________________________ | |||
Signature
Guaranteed: _________________________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
Exhibit
A
The
following language is added to the Stock Purchase Warrant dated March 16, 2007
as Section 2.(c):
“If,
but
only if, at any time after one year from the date of issuance of this Warrant
there is no effective registration statement registering the resale of the
Common Stock underlying this Warrant by the Holder, this Warrant may also be
exercised, in whole or in part, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a certificate for the number
of
shares of Common Stock equal to the quotient obtained by dividing [(A-B) (X)]
by
(A), where:
| (A) = |
the
closing bid price on the trading day preceding the date of such
election;
|
| (B) = |
the
Exercise Price of the Warrants, as adjusted; and
|
| (X) = |
the
number of shares of Common Stock issuable upon exercise of the Warrants
in
accordance with the terms of this
Warrant.”
|
The
following language is added to Section (2) of the Warrant Exercise
Agreement:
[
] if
permitted pursuant to subsection 2(c) of the Stock Purchase Warrant, the
cancellation of such number of shares as is necessary, in accordance with the
formula set forth in subsection 2(c), to exercise this Warrant with respect
to
the maximum number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in subsection 2(c).
