LENCO MOBILE INC. WARRANT (SERIES B)
EXHIBIT 4.9
EXHIBIT 1
WARRANT
(SERIES B)
November 30,
2009
THIS
WARRANT, AND ALL SHARES OF STOCK ISSUABLE UNDER THIS WARRANT, HAVE BEEN AND WILL
BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). SUCH SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
This
Series B Warrant is issued pursuant to the Securities Purchase Agreement
dated of even date herewith among Lenco Mobile Inc., a Delaware corporation (the
"Company"), its wholly
owned subsidiary AdMax Media Inc., a Nevada corporation and Agile Opportunity
Fund, LLC, a Delaware limited liability company (the "Securities Purchase
Agreement"). This Warrant is (i) entitled certain put
rights pursuant to Section 4.1 of the Securities Purchase Agreement, (ii)
entitled to certain registration rights pursuant to Section 4.2 of the
Securities Purchase Agreement and (iii) subject to certain restrictions on
exercise related to beneficial ownership limitations pursuant to
Section 1.5 of the Securities Purchase Agreement. The number of
shares issuable upon exercise of this Warrant shall be subject to adjustment in
accordance with the terms hereof.
THIS
CERTIFIES THAT, for value received, AGILE OPPORTUNITY FUND, LLC (the "Investor", "Lender" or the "Holder"), or its permitted
assigns is entitled, subject to the terms and conditions of this Warrant, at any
time following the Effective Date and before 5:30 P.M. New York City time on the
Expiration Date, to purchase from the Company, 75,000 shares of Common Stock
(such shares and all other shares issued or issuable pursuant to this Warrant
referred to hereinafter as "Warrant Stock"). The initial
"Purchase Price" per
share shall be equal to $3.40 for an aggregate Purchase Price for all Warrant
Stock equal to $255,000.
1. DEFINITIONS: As
used in this Warrant, the following terms shall have the following respective
meanings:
"Affiliate" when used with
respect to any Person, shall mean (a) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person, and (b) any executive officer or director of such Person and any
executive officer, director or general partner of the other Person which
controls such Person. For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlling", "controlled by"
and "under common control with"), with respect to any Person, shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Common Stock" shall mean the
common stock, $.001 par value per share, of the Company.
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"Effective Date" shall mean the
date first written above.
"Expiration Date" shall mean
the five year anniversary of the Effective Date.
"Fair Market Value" of a share
of Warrant Stock as of a particular date shall mean:
(a) If traded on
a securities exchange or a NASDAQ Market, the Fair Market Value shall be deemed
to be the average of the closing price of the Warrant Stock on such exchange or
market over the five (5) trading days ending on the day immediately prior
to the applicable date of valuation;
(b) If actively
traded over-the-counter, the Fair Market Value shall be deemed to be the average
of the closing bid prices over the five (5) trading days ending on the day
immediately prior to the applicable date of valuation; and
(c) If there is
no active public market, the Fair Market Value shall be the value thereof, as
agreed upon by the Company and the Holder; provided, however,
that if the Company and the Holder cannot agree on such value, such value shall
be determined by an independent valuation firm experienced in valuing businesses
such as the Company and jointly selected in good faith by the Company and the
Holder. Fees and expenses of the valuation firms shall be paid equally by the
Company and the Holder.
"Holder" shall mean the
Investor, its successors or assigns.
"Person" shall mean any
individual, corporation, partnership, limited liability company, trust or other
entity or organization, including any governmental authority or political
subdivision thereof.
"Registered Holder" shall mean
any Holder in whose name this Warrant is registered upon the books and records
maintained by the Company.
"SEC" shall mean the United
States Securities and Exchange Commission.
"Warrant" shall mean this
Warrant and any warrant delivered in substitution or exchange therefor as
provided herein.
2. EXERCISE
OF WARRANT.
2.1 Payment. Subject to
compliance with the terms and conditions of this Warrant and applicable
securities laws, this Warrant may be exercised, in whole or in part at any time
or from time to time, from and after the Effective Date and on or before the
Expiration Date by delivery (including, without limitation, delivery by
facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the
"Notice of Exercise"),
duly executed by the Holder, to the Company at its then principal office, and as
soon as practicable after such date, surrendering:
(a) this
Warrant at the principal office of the Company, and
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(b) payment
in cash, by check or by wire transfer of an amount equal to the product obtained
by multiplying the number of shares of Warrant Stock being purchased upon such
exercise by the then effective Purchase Price (the "Exercise
Amount").
2.2 Net
Issue Exercise. In lieu of the
payment methods set forth in Section 2.1(b) above, the Holder may elect to
exchange all or some of the Warrant for shares of Warrant Stock equal to the
value of the amount of the Warrant being exchanged on the date of exchange. If
the Holder elects to exchange this Warrant as provided in this Section 2.2,
the Holder shall tender to the Company the Warrant for the amount being
exchanged, along with written notice of the Holder's election to exchange some
or all of the Warrant, and the Company shall issue to the Holder the number of
shares of the Warrant Stock computed using the following formula:
X = Y (A-B)
A
Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock (as adjusted to the date of such
calculation).
All
references herein to an "exercise" of the Warrant shall include an exchange
pursuant to this Section 2.2.
2.3 "Easy
Sale" Exercise. In lieu of the
payment methods set forth in Section 2.1(b) above, when permitted by law and
applicable regulations (including exchange, NASDAQ and Financial Industry
Regulatory Authority ("FINRA") rules and including
that all shares so issued will be deemed to be fully paid, non-assessable and
properly listed or admitted for trading), the Holder may pay the Purchase Price
through a "same day sale" commitment from the Holder (and if applicable a
broker-dealer that is a member of FINRA (a "FINRA Dealer")), whereby the
Holder irrevocably elects to exercise this Warrant and to sell a portion of the
shares so purchased to pay for the Purchase Price and the Holder (or, if
applicable, the FINRA Dealer) commits upon sale (or, in the case of the FINRA
Dealer, upon receipt) of such shares to forward the Purchase Price directly to
the Company.
2.4 Stock
Certificates; Fractional Shares. As soon as
practicable on or after any date of exercise of this Warrant pursuant to this
Section 2, the Company shall issue and deliver to the Person or Persons
entitled to receive the same a certificate or certificates for the number of
whole shares of Warrant Stock issuable upon such exercise, together with cash in
lieu of any fraction of a share equal to such fraction of the current Fair
Market Value of one whole share of Warrant Stock as of the date of exercise of
this Warrant. No fractional shares or scrip representing fractional
shares shall be issued upon an exercise of this Warrant.
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2.5 Partial
Exercise; Effective Date of Exercise. In case of any
partial exercise of this Warrant, the Company shall cancel this Warrant upon
surrender hereof and shall execute and deliver a new Warrant of like tenor and
date for the balance of the shares of Warrant Stock purchasable
hereunder. This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above. The Person entitled to receive the shares
of Warrant Stock issuable upon exercise of this Warrant shall be treated for all
purposes as the holder of record of such shares as of the close of business on
the date the Holder is deemed to have exercised this Warrant.
2.6 Purchase
Price Adjustment.
(a) If the
Company shall effect a subdivision of the outstanding Common Stock, the Purchase
Price then in effect immediately before such subdivision shall be
proportionately decreased. If the Company shall combine the
outstanding shares of Common Stock, the Purchase Price then in effect
immediately before the combination shall be proportionately
increased. If the Company shall make or issue a dividend or other
distribution payable in securities, then and in each such event provision shall
be made so that the holder of this Warrant shall receive upon exercise hereof,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities that the holder of this Warrant would have received had
this Warrant been exercised for Common Stock on the date of such event and had
such holder thereafter during the period from the date of such event to and
including the date of exercise of this Warrant retained such securities
receivable by such holder as aforesaid during such period, giving effect to all
adjustments called for during such period under this paragraph. If
the Company shall reclassify its Common Stock (including any reclassification in
connection with a consolidation or merger in which the Company is the surviving
corporation), then and in each such event provision shall be made so that such
holder shall receive upon exercise hereof the amount of such reclassified Common
Stock that such holder would have received had this Warrant been exercised for
Common Stock immediately prior to such reclassification and had such holder
thereafter, during the period from the date of such event to and including the
date of exercise of this Warrant, retained such reclassified Common Stock,
giving effect to all adjustments called for during such period under this
paragraph with respect to the rights of the holder of this
Warrant.
(b) In case
of any consolidation or merger of the Company with or into another corporation
or the conveyance of all or substantially all of the assets of the Company to
another corporation, this Warrant shall thereafter be exercisable (to the extent
such exercise is permitted hereunder) into the number of shares of stock or
other securities or property to which a holder of the number of shares of Common
Stock of the Company deliverable upon exercise of this Warrant would have been
entitled upon such consolidation, merger or conveyance; and, in any such case,
appropriate adjustment shall be made in the application of the provisions herein
set forth with respect to the rights and interest thereafter of the holder of
this Warrant, to the end that the provisions set forth herein shall be
thereafter applicable, as nearly as reasonably may be, in relation to any shares
of stock or other property thereafter deliverable upon the exercise of the this
Warrant.
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3. VALID
ISSUANCE; TAXES.
All
shares of Warrant Stock issued upon the exercise of this Warrant shall be
validly issued, fully paid and non-assessable; provided that the Company shall
pay all taxes and other governmental charges that may be imposed in respect of
the issue or delivery thereof. The Company shall not be required to pay any tax
or other charge imposed in connection with any transfer involved in the issuance
of any certificate for shares of Warrant Stock in any 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 stock certificate or security until such tax or
other charge has been paid, or it has been established to the Company's
reasonable satisfaction that no tax or other charge is due.
4. LOSS
OR MUTILATION.
Upon
receipt of evidence reasonably satisfactory to the Company of the ownership of
and the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to it, and (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Company shall execute and deliver in lieu
thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated
Warrant.
5. RESERVATION
OF WARRANT STOCK.
The
Company hereby covenants that at all times there shall be reserved for issuance
and delivery upon exercise of this Warrant such number of shares of Warrant
Stock, Common Stock or other shares of capital stock of the Company as are from
time to time issuable upon exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Certificate of Incorporation to provide
sufficient reserves of shares of Warrant Stock issuable upon exercise of this
Warrant. All such shares shall be duly authorized, and when issued upon such
exercise, shall be validly issued, fully paid and non-assessable, free and clear
of all liens, security interests, charges and other encumbrances or restrictions
on sale and free and clear of all preemptive rights, except encumbrances or
restrictions arising under federal or state securities laws. Issuance of this
Warrant shall constitute full authority to the Company's officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Warrant Stock upon the exercise of this
Warrant.
6. RESTRICTIONS
ON TRANSFER.
The
Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the SEC under the Act covering the disposition or sale of
this Warrant or the Warrant Stock issued or issuable upon exercise hereof, as
the case may be, and registration or qualification under applicable state
securities laws, such Holder will not sell, transfer, pledge, or hypothecate any
or all such Warrants or Warrant Stock, as the case may be, unless either the
Company has received an opinion of counsel, in form and substance reasonably
satisfactory to the Company, to the effect that such registration is not
required in connection with such disposition.
7. NOTICE.
Any
notices required or permitted to be given under the terms of this Warrant shall
be sent by certified mail (return receipt requested) or delivered personally or
by courier (including a recognized overnight delivery service) or by facsimile
and shall be effective five days after being placed in the mail, if mailed by
regular United States mail, or upon receipt, if delivered personally or by
courier (including a recognized overnight delivery service) or by facsimile, in
each case addressed to a party. The addresses for such communications
shall be:
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If
to the Holder:
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Agile
Opportunity Fund, LLC
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0000
Xxxx Xxxxxxx Xxxx, Xxxxx 000X
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Xxxxxxxx,
XX 00000
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Attn: Xxxxx
Xxxxxx
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Facsimile: (000)
000-0000
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With
a copy to (which shall not constitute notice):
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Xxxxxxxxx
Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
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000
Xxx Xxxxxxx Xxxx
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Xxxxxxx,
XX 00000
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Attn: Xxxx
X. Xxxxxx, Esq.
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Facsimile: (000)
000-0000
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If
to the Company:
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000
Xxxxxxx Xx.
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Xxxxx
Xxxxxxx, XX 00000
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Attn: President
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Facsimile: (000)
000-0000
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With
a copy to (which shall not constitute notice):
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Sheppard,
Mullin, Xxxxxxx & Xxxxxxx, LLP
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00000
Xx Xxxxxx Xxxx, Xxxxx 000
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Xxx
Xxxxx, XX 00000
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Attn.: Xxxxx
X. Xxxxxx III
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Facsimile: (000)
000-0000
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8. HEADINGS;
SECTION REFERENCE.
The
headings in this Warrant are for purposes of convenience in reference only, and
shall not be deemed to constitute a part hereof. All
Section references herein are references, to Sections of this Warrant
unless specified otherwise.
9. LAW
GOVERNING.
This
Warrant shall be governed by and construed in accordance with the laws of the
State of New York without regard to the conflict of laws
provisions. The parties agree that the New York State Supreme Court
located in the County of Nassau, State of New York shall have exclusive
jurisdiction in connection with any dispute concerning or arising out of this
Warrant, or otherwise relating to the parties relationship. In any
action, lawsuit or proceeding brought to enforce or interpret the provisions of
this Warrant and/or arising out of or relating to any dispute between the
parties, the prevailing party with respect to each specific issue in a matter
shall be entitled to recover all of his or its costs and expenses relating to
such issue (including without limitation, reasonable attorney's fees and
disbursements) in addition to any other relief to which such party may be
entitled.
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10. NO
IMPAIRMENT.
The
Company will not, by amendment of its Certificate of Incorporation or
bylaws, or through reorganization, consolidation, merger, dissolution, issue or
sale of securities, sale of assets or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Registered Holder of this Warrant against impairment.
Without limiting the generality of the foregoing, the
Company: (a) will not increase the par value of any shares of
stock issuable upon the exercise of this Warrant above the amount payable
therefor upon such exercise and (b) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Warrant Stock upon exercise of this
Warrant.
11. SEVERABILITY.
If any
term, provision, covenant or restriction of this Warrant is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Warrant shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
12. COUNTERPARTS.
For the
convenience of the parties, any number of counterparts of this Warrant may be
executed by the parties hereto and each such executed counterpart shall be, and
shall be deemed to be, an original instrument.
13. NO
INCONSISTENT AGREEMENTS.
The
Company will not on or after the date of this Warrant enter into any agreement
with respect to its securities which is inconsistent with the rights granted to
the Holder or otherwise conflicts with the provisions hereof.
14. SATURDAYS,
SUNDAYS AND HOLIDAYS.
If the
Expiration Date falls on a Saturday, Sunday or legal holiday, the Expiration
Date shall automatically be extended until 5:30 P.M. the next business
day.
15. FACSIMILE
SIGNATURE.
In the
event that any signature is delivered by facsimile transmission, PDF, electronic
signature or other similar electronic means, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such signature page were an
original thereof.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
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IN
WITNESS WHEREOF, the undersigned duly authorized representative of the Company
has executed this Warrant as of the day and date first written
above.
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
CEO
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EXHIBIT 1
NOTICE
OF EXERCISE
(To
be executed upon exercise of Warrant)
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate of Lenco Mobile Inc. for ___
shares of Warrant Stock:
1. Tenders
herewith payment of the exercise price in full in the form of cash or a
certified or official bank check in same-day funds in the amount of $_______ for
__________ such securities.
2. Elects
the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and
accordingly requests delivery of a net of _________ of such securities,
according to the following calculation:
X = Y
(A-B) ( )
= ( )
[( ) -
( )]
A (_______)
Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of the Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock.
3. Elects
the Easy Sale Exercise option pursuant to Section 2.3 of the Warrant, and
accordingly requests delivery of a net of ________ of such securities to the
brokerage firm identified below and attaches the agreement of said firm to pay
to the Company out of the proceeds of sale the purchase price of the Warrant
Shares.
Unless
Easy Sale Exercise is elected above, in which case the Warrant Shares shall be
issued to the Warrant Holder's account at said brokerage firm, please issue a
certificate or certificates for such securities in the name of, and pay any cash
for any fractional share to (please print name, address and social security
number):
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Name:
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Address:
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Signature:
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Date:
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Note: The
above signature should correspond exactly with the name on the first page of
this Warrant Certificate or with the name of the assignee appearing in the
assignment form below.
If said
number of shares shall not be all the shares purchasable under the within
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the shares purchasable thereunder
rounded up to the next higher whole number of shares.
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