1
EXHIBIT 4.5
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE LAW, AND NO INTEREST HEREIN OR THEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS: (A)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES; (B) THE
COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF SAID SECURITIES
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION OR (C) THE COMPANY
OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
No._____ WARRANT TO PURCHASE
ISSUED: __________ _______SHARES OF
VOID AFTER TWO YEARS COMMON STOCK
AFFINITY TECHNOLOGY GROUP, INC.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY that, for value received and subject to the terms
and conditions hereof, Redmond Fund, Inc., a Nevada Corporation, or such person
to whom this Warrant is transferred pursuant to Section 7 hereof (the "Holder"),
is entitled to purchase up to __________ fully paid and nonassessable shares of
the common stock, par value $.0001 per share (the "Warrant Stock"), of Affinity
Technology Group, Inc., a Delaware corporation (the "Company"), at the price per
share of _______ Dollars per share (the "Exercise Price") (such Exercise Price
being subject to adjustment as provided herein).
This Warrant is subject to the following additional terms and
conditions:
1. METHOD OF EXERCISE
This Warrant may be exercised at any time, not later than two years
after the date of issuance hereunder (the "Exercise Period"), in whole or part
by delivering to the Company: (i) the form of Election to Purchase attached
hereto duly completed and executed by the Holder; (ii) this Warrant certificate;
and (iii) a bank check payable to the Company in the amount of the Exercise
Price multiplied by the number of shares for which this Warrant is being
exercised (the "Purchase Price"). Alternatively, in lieu of (iii) above, the
Holder may elect to receive shares equal to the value of this Warrant (or the
portion thereof being canceled) by giving notice of a cashless election in which
event the Company shall issue to holder a number of shares of 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 number of shares of Warrant Stock canceled under this
Warrant (at the date of such calculation).
A = The fair market value of one share of Common Stock (at the
date of such calculation).
B = The Exercise Price (as adjusted to the date of such
calculation).
1
2
For purposes of this provision, the fair market value of the Company's
Common Stock shall be the closing price for the Common Stock of the Company on
the business day immediately prior to the exercise of the Warrant.
2. DELIVERY OF STOCK CERTIFICATES
Within ten days after the payment of the Purchase Price following the
exercise of this Warrant (in whole or in part), the Company, at its expense,
shall issue in the name of and deliver to the Holder: (i) a certificate or
certificates for the number of fully paid and nonassessable shares of Warrant
Stock to which the Holder shall be entitled upon such exercise and payment and
(ii) a new Warrant of like tenor to purchase up to that number of shares of
Warrant Stock, if any, not previously purchased by the Holder if this Warrant
has not expired. The Holder shall for all purposes be deemed to have become the
holder of record of such shares of Warrant Stock on the date on which this
Warrant was surrendered and payment of the Purchase Price was made, irrespective
of the date of delivery of the certificate or certificates representing the
Warrant Stock; provided, that if the date on which such surrender and payment is
made is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of record of such shares of
Warrant Stock at the close of business on the next succeeding date on which the
stock transfer books are open.
3. COVENANTS AS TO WARRANT STOCK
The Company covenants and agrees that all the shares of Warrant Stock
issued pursuant to the terms of this Warrant (the "Reserved Shares") will, upon
their issuance, be validly issued and outstanding, fully paid and nonassessable.
The Company further covenants and agrees that the Company will at all times have
authorized and reserved a sufficient number of the Reserved Shares to provide
for the exercise of this Warrant.
4. TERMINATION
This Warrant shall be canceled and all rights granted hereunder shall
terminate upon the earliest to occur of the following (the "Expiration Date"):
(i) two years from the date hereof, (ii) the sale of all or substantially all of
the assets of the Company, or (iii) the consummation of any transaction or
series of related transactions (including, without limitation, any
reorganization, merger or consolidation) if, following such transaction, the
holders of the Company's outstanding voting securities prior to the transaction
cease to hold, directly or indirectly, securities representing a majority of the
outstanding voting power of the surviving entity. Provided, however, that the
Company shall have delivered to the Holder notice thirty business days before
the Expiration Date (other than pursuant to clause (i) above) and that the
Holder shall have the right immediately prior to Expiration Date to exercise
this Warrant.
5. ADJUSTMENT TO EXERCISE PRICE
In the event that the Company, after the date hereof: (i) pays a stock
dividend with respect to its capital stock; (ii) subdivides its outstanding
shares of capital stock; (iii) combines its outstanding shares of capital stock
into a smaller number of shares of any class of capital stock or (iv) issues any
shares of its capital stock in a reclassification of the capital stock,
including any such reclassification in connection with a consolidation or merger
in which the Company is the surviving corporation (any one of which action is
herein referred to as an "Adjustment Event"), the Exercise Price shall be
adjusted by multiplying such Exercise Price immediately prior to such Adjustment
Event by a fraction, the numerator of which shall be the number of shares of
Common Stock issued and outstanding immediately prior to such Adjustment Event,
and the denominator of which shall be the number of shares of Common Stock
issued and outstanding immediately thereafter.
2
3
6. FRACTIONAL SHARES
No fractional shares shall be issued upon the exercise of this Warrant.
In lieu of fractional shares, the Company shall pay the Holder a sum in cash
equal to the fair market value of the fractional shares (as determined by the
Company's Board of Directors) on the date of exercise.
7. RESTRICTIONS ON TRANSFER
Neither this Warrant nor the Warrant Stock may be transferred unless:
(i) such transfer is registered under the Securities Act of 1933, as amended
(the "Securities Act"), and any applicable state securities or blue sky laws;
(ii) the Company has received a legal opinion reasonably satisfactory to the
Company to the effect that the transfer is exempt from the prospectus delivery
and registration requirements of the Securities Act and any applicable state
securities or blue sky laws or (iii) the Company otherwise satisfies itself that
such transfer is exempt from registration.
8. LEGEND
A legend setting forth or referring to the above restrictions shall be
placed on this Warrant, any replacement hereof or any certificate representing
the Warrant Stock, and a stop transfer restriction or order shall be placed on
the books of the Company and with any transfer agent until such securities may
be legally sold or otherwise transferred.
9. HOLDER AS OWNER
The Company may deem and treat the holder of record of this Warrant as
the absolute owner hereof for all purposes regardless of any notice to the
contrary.
10. NO SHAREHOLDER RIGHTS
This Warrant shall not entitle the Holder to any voting rights or any
other rights as a shareholder of the Company or to any other rights whatsoever
except the rights stated herein; and, no dividend or interest shall be payable
or shall accrue in respect of this Warrant or the Warrant Stock until and to the
extent that this Warrant shall be exercised.
11. CONSTRUCTION
The validity and interpretation of the terms and provisions of this
Warrant shall be governed by the laws of the State of Delaware. The descriptive
headings of the several sections of this Warrant are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions thereof.
12. EXCHANGE OF WARRANT
This Warrant is exchangeable upon the surrender hereof by the Holder at
the office of the Company for new Warrants of like tenor representing in the
aggregate the right to subscribe for and purchase the number of shares which may
be subscribed for and purchased hereunder, each of such new Warrants to
represent the right to subscribe for and purchase such number of shares as shall
be designated by the Holder at the time of such surrender.
13. LOST WARRANT CERTIFICATE
If this Warrant is lost, stolen, mutilated or destroyed, the Company
shall issue a new Warrant of like denomination, tenor and date as this Warrant,
subject to the Company's right to require the Holder to give the Company a bond
or other satisfactory security sufficient to indemnify the Company against any
3
4
claim that may be made against it (including any expense or liability) on
account of the alleged loss, theft, mutilation or destruction of this Warrant or
the issuance of such new Warrant.
14. WAIVERS AND AMENDMENTS
This Warrant, or any provision hereof, may be changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
15. NOTICES
All notices, requests, consents, payments and other communications
required or provided for herein to any party shall be in writing, and shall be
deemed to be given when: (i) delivered in person; (ii) sent by first class
registered or certified mail with postage prepaid; (iii) delivered by overnight
receipted courier service; or (iv) except with respect to payments, sent by
confirmed facsimile transmission. Notices shall be sent to the addresses set
forth below, or to such other addresses as may hereafter be designated in
writing by the party:
If to the Company: AFFINITY TECHNOLOGY GROUP, INC.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, CEO, President
with a copy to:
XXXXXXXX, XXXXXXXX & XXXXXX, P.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
If to Holder: REDMOND FUND, INC.
00000 Xxxxx 000 X
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, CEO
with a copy to:
XXXXXX, PEPPER & SHEFELMAN
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
16. REGISTRATION RIGHTS
The Holder shall have such registration rights with respect to the
shares of Common Stock issuable upon exercise of the Warrants as are granted in
that certain Common Stock Purchase Agreement between the Holder and the Company
and dated as of this date.
17. INVESTMENT INTENT
By accepting this Warrant, the Holder represents that it is acquiring
this Warrant for investment, for the Holder's own account and not with a view
to, or for sale in connection with, any distribution thereof.
4
5
IN WITNESS WHEREOF, the Company has executed this Warrant as of the
date first written above.
AFFINITY TECHNOLOGY GROUP, INC.
-------------------------------
President
5
6
ELECTION TO PURCHASE
To:
---------------------------
The undersigned hereby irrevocably elects to purchase _________ shares
of common stock issuable upon the exercise of the within Warrants, and requests
that certificates for such shares shall be issued in the name of and delivered
to the address of the undersigned, at the address stated below and, if said
number of shares shall not be all the shares which may be purchased pursuant to
the within Warrants, that new Warrants evidencing the right to purchase the
balance of such shares be registered in the name of, and delivered to, the
undersigned at the address stated below. The undersigned hereby agrees with and
represents to the Company that said shares of the common stock are acquired for
investment, for the undersigned's own account and not with a view to, or for
sale in connection with, any distribution or public offering thereof within the
meaning of the Securities Act of 1933, as amended.
_____ (a) Payment enclosed in the amount of $______________; or
_____ (b) Cashless exercise is requested in accordance with
Paragraph 1 formula.
Dated: ______________, 200__.
Name of holder of Warrants:
-------------------------------------
(please print)
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Signature:
------------------------------------
6
