EXHIBIT 4.6
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS WARRANT HAS BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION HEREOF OR OF THE
COMMON STOCK ISSUABLE UPON EXERCISE HEREOF WITHIN THE MEANING OF THE SECURITIES
ACT OF 1933 AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER. NEITHER THIS
WARRANT NOR THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY BE TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SALE OF THE
SECURITIES UNDER THE SECURITIES ACT OF 1933 OR UPON RECEIPT BY THE COMPANY OF AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO TECHNEST HOLDINGS, INC. AS TO AN
EXEMPTION THEREFROM.
Warrant to Subscribe for
______ Common Shares
STOCK PURCHASE WARRANT
To Subscribe for and Purchase Stock of
TECHNEST HOLDINGS, INC.
__________
1. ISSUE; NUMBER OF SHARES SUBJECT TO WARRANT.
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THIS CERTIFIES that, for value received, [NAME OF WARRANT HOLDER] or
registered assigns is entitled to subscribe for and purchase from Technest
Holdings, Inc., a Nevada corporation (the "COMPANY"), at the Purchase Price (as
hereinafter defined) at any time during the period from the date hereof to and
including the close of business on January__, 2010 up to [NUMBER OF SHARES
SUBJECT TO WARRANT] fully paid and nonassessable shares (the "COMMON SHARES") of
the Common Stock, $0.001, par value per share ("COMMON STOCK"), of the Company
for $.03078 per share (the "PURCHASE PRICE"); SUBJECT, HOWEVER, to the
provisions and upon the terms and conditions hereinafter set forth.
2. EXERCISE; ISSUE DATE; DELIVERY OF COMMON SHARES; UNEXERCISED PORTION.
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(a) Subject to the availability of sufficient authorized shares of
Common Stock for issuing at the time of exercise. the rights represented by this
Warrant may be exercised by the holder hereof, in whole or in part (but not as
to a fractional Common Share), by the surrender of this Warrant (properly
endorsed if required) at the principal office of the Company, at (or such other
office or agency of the Company, as it may designate by notice in writing to the
holder hereof at the address of such holder appearing on the books of the
Company) together with payment to the Company (a) by certified bank or cashier's
check of the purchase price for the Common Shares issuable upon such exercise or
(b) in accordance with SECTION 2(b) below. The Company agrees that the Common
Shares so purchased shall be deemed to be issued to the holder hereof as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered and payment made for such Common
Shares. Certificates for the Common Shares so purchased shall be delivered to
the holder hereof within a reasonable time, not exceeding three (3) Trading Days
(as hereinafter defined), after the rights represented by this Warrant shall
have been so exercised, and unless this Warrant has expired, a new Warrant
exercisable for the number of Common Shares, if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the holder
hereof within such time. "Trading Day" means a day on which the Common Stock is
quoted on the OTC Bulletin Board or traded on the NASDAQ Stock Market, the New
York Stock Exchange or the American Stock Exchange or if the Common Stock is not
quoted or listed a day on which commercial banks are open for business in New
York City.
(b) If a registration statement covering the Common Shares is not
declared effective within four (4) months from the date this Warrant is issued
or if it ceases to be effective for any period of time after four (4) months
from the date this Warrant is issued, then the holder may surrender this Warrant
to the Company together with a notice of net exercise, in which event the
Company shall issue to the holder a number of Common Shares (the "ISSUED
SHARES") equal to the total number of Common Shares issuable hereunder LESS the
number of Common Shares having an aggregate market value (defined as the average
closing sale price of the Common Stock for the five (5) trading days immediately
prior to the Exercise Date as reported by Bloomberg Information Systems, Inc. or
any successor to its function of reporting stock prices) equal to the aggregate
exercise price of the Issued Shares. The Holder may not exercise this Warrant
pursuant to the terms of this Section 2(b) at any time there is a registration
statement covering the resale of the Common Shares with a current prospectus
available.
(c) Notwithstanding anything to the contrary contained herein, the
number of Common Shares that may be acquired by the holder of this Warrant 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 Exchange Act, does not exceed 4.999% 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. By written notice to
the Company, a holder of this Warrant may waive the provisions of this Section
3(b) as to itself but any such waiver will not be effective until the 61st day
after delivery thereof. By written notice to the Company, a holder may waive the
provisions of this SECTION 2(c) as to itself but any such waiver will not be
effective until the 61st day after delivery thereof and such waiver shall have
no effect on any other holder PROVIDED THAT, in no event shall the number of
shares of Common Stock that may be acquired by a holder and its affiliates
(including, but not limited to, any person who may be deemed an affiliate for
purposes of aggregation under Rule 144(e) promulgated under the Securities Act
of 1933, as amended) exceed 9.999% of the outstanding shares of the Markland
Common Stock following such conversion.
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3. COMMON SHARES FULLY PAID; RESERVATION OF COMMON SHARES; LISTING.
The Company covenants and agrees that all Common Shares which may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue). The Company shall use its
best efforts to effect a reverse split of its outstanding shares of Common Stock
sufficient to provide for the exercise of the rights represented by this
Warrant. After such reverse split, the Company further covenants and agrees that
during the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized, and reserved, a
sufficient number of Common Shares to provide for the exercise of the rights
represented by this Warrant, and will at its expense upon each such reservation
of shares use its best efforts to procure the listing thereof on all public
trading markets on which the Common Stock of the Company is then listed.
4. TAXES.
The issue of stock certificates on any exercise of this Warrant shall
be made without charge to the holder of the Warrant for any documentary stamp
tax in respect of the issue thereof. The Company shall not, however, be required
to pay any documentary stamp tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of the Warrant and the Company shall not be required to issue or deliver
any such stock certificate unless and until the person or persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the reasonable satisfaction of the Company that such tax has
been paid.
5. FRACTIONAL SHARES.
The Company shall not be required to issue certificates representing
fractions of shares of Common Stock upon the exercise of the Warrant, but in
respect of any fraction of a share of Common Stock, it will make a payment in
cash based on the then excess of the Fair Market Value (as hereinafter defined)
of a share of Common Stock over the warrant Purchase Price. "Fair Market Value"
means the last reported closing price of the Common Stock on the NASDAQ Stock
Market or any national securities exchange on which the Common Stock is traded
on the date of exercise of this Warrant, or, if the Common Stock is not traded
on the NASDAQ Stock Market or a national securities exchange, the mean of the
reported high bid and low asked prices of the Common Stock in the
over-the-counter bulletin board on the date of exercise of this Warrant, or, if
not so traded, as determined in good faith by, or at the direction of, the Board
of Directors of the Company.
6. ADJUSTMENTS TO PURCHASE PRICE.
The above provisions are, however, subject to the following:
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(a) The Purchase Price shall be subject to adjustment from time to time
as hereinafter provided. The term "Purchase Price" shall mean, unless and until
any such adjustment shall occur, the Purchase Price resulting from such
adjustment and any other previous adjustments.
Upon each adjustment of the Purchase Price resulting from (i) the
declaration of a dividend upon, or the making of any distribution in respect of,
any stock of the Company payable in Common Stock (and subject to the provisions
of PARAGRAPH (d) below) or any stock or other securities convertible into or
exchangeable for Common Stock (such convertible or exchangeable stock or
securities being herein called "CONVERTIBLE SECURITIES"), or (ii) the
reclassification, subdivision or combination of the Common Stock into a greater
or smaller number of shares (and subject to the provisions of PARAGRAPH (e)
below), the holder of this Warrant shall thereafter be entitled to purchase, at
the Purchase Price resulting from such adjustment, the number of shares obtained
by multiplying the Purchase Price in effect immediately prior to such adjustment
by the number of shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Purchase Price resulting from
such adjustment.
(b) In case the Company shall declare a dividend upon the Common Stock
payable otherwise than out of earnings or surplus (other than paid-in surplus)
or otherwise than in Common Stock or Convertible Securities, the Warrant
Purchase Price per share of the Common Stock shall be adjusted as determined in
good faith by the Board of Directors of the Company. For the purposes of the
foregoing a dividend other than in cash shall be considered payable out of
earnings or surplus (other than paid-in surplus) only to the extent that such
earnings or surplus are charged an amount equal to the fair value of such
dividend as determined in good faith by the Board of Directors of the Company.
Such reductions shall take effect as of the date on which a record is taken for
the purpose of such dividend, or, if a record is not taken, the date as of which
the holders of Common Stock of record entitled to such dividend are to be
determined.
(c) In case the Company shall at any time issue shares of Common Stock
in a stock dividend, stock distribution, or subdivision, the Purchase Price in
effect immediately prior to such issuance shall be proportionately reduced, and
conversely, in case the outstanding shares of Common Stock of the Company shall
be combined or consolidated into a smaller number of shares by reclassification
or otherwise, the Purchase Price in effect immediately prior to such combination
shall be proportionately increased.
(d) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger or amalgamation of the Company
with another corporation, or the sale of all or substantially all of its assets
to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, amalgamation or sale,
lawful and adequate provision shall be made whereby the holder hereof shall
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in this Warrant and in lieu of the Common Shares
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, (i) such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for a number of outstanding
Common Shares equal to the number of Common Shares immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby
had such reorganization, reclassification, consolidation, merger, amalgamation
or sale not taken place, and (ii) if such consolidation, merger, sale, transfer
or other disposition is with any person (or any affiliate of such person) who
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shall have made a purchase, tender or exchange offer which was accepted by the
holders of more than fifty percent (50%) of the outstanding shares of Common
Stock, the holder of this Warrant shall have been given a reasonable opportunity
then to elect to receive, either (x) the stock, securities, cash or properties
he would have received pursuant to CLAUSE (i) immediately preceding or (y) the
stock, securities, cash or properties issued to previous holders of the Common
Stock in accordance with such offer, or the equivalent thereof. In any such case
appropriate provision shall be made with respect to the rights and interests of
the holder of this Warrant to the end that the provisions hereof (including
without limitation provisions for adjustment of the Purchase Price and of the
number of shares purchasable upon the exercise of this Warrant) shall thereafter
be applicable, as nearly as may be, in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise hereof. The above
provisions of this paragraph shall similarly apply to successive
reorganizations, reclassification, consolidations, mergers, sales, transfers or
other dispositions.
(e) Upon any adjustment of the Purchase Price or the number of shares
of Common Stock purchasable pursuant to this Warrant, then and in each such case
the Company shall give written notice thereof, by first class mail, postage
prepaid, addressed to the registered holder of this Warrant at the address of
such holder as shown on the books of the Company, which notice shall state the
warrant purchase price resulting from such adjustment and or the increase or
decrease, if any, in the number of shares purchasable upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. No notice shall be required by this
section unless the adjustment to the Purchase Price is an amount greater than
$.10 per share, but notice of any such lesser adjustment shall be made at the
time and together with the next subsequent adjustment which shall be an amount
greater than $.10 per share.
(f) In case at any time:
(1) The Company shall pay any dividend payable in stock
upon its Common Stock or make any distribution (other
than regular cash dividends out of earned surplus) to
the holders of its Common Stock;
(2) The Company shall offer for subscription pro rata to
the holders of its Common stock any additional shares
of stock of any class or other rights;
(3) There shall be any capital reorganization, or
reclassification of the capital stock of the Company,
or consolidation or merger or amalgamation of the
Company with, or sale of all or substantially all of
its assets to, another corporation; or
(4) 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 the holder of
this Warrant (aa) at least ten days' prior written notice of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, amalgamation, dissolution, liquidation or winding up, and (bb) in the case
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of any such reorganization, reclassification, consolidation, merger,
amalgamation, sale, dissolution, liquidation or winding up, at least ten days'
prior written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause (aa) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and such notice in accordance
with the foregoing clause (bb) shall also specify the date on which the holders
of Common stock shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, amalgamation, sale, dissolution, liquidation or winding
up, as the case may be. Each such written notice shall be given by first class
mail, postage prepaid, addressed to the holder of this Warrant at the address of
such holder as shown on the books of the Company.
7. NO RIGHTS AS A STOCKHOLDER. The Warrant shall not entitle the holder hereof
to any rights as a stockholder of the Company, including, without limitation,
voting rights.
This Warrant and all rights hereunder are transferable, in whole or in
part, at the office or agency of the Company referred to in the second paragraph
hereof by the holder hereof in person or by duly authorized attorney, upon
surrender of this Warrant properly endorsed. Each taker and holder of this
Warrant, by taking or holding the same, consents and agrees that this Warrant,
when endorsed in blank, shall be deemed negotiable, and that the holder hereof,
when so endorsed, may be treated by the Company and all other persons dealing
with this Warrant as the absolute owner hereof for any purposes and as the
person entitled to exercise the rights represented by this Warrant, or to the
transfer hereof on the books of the Company, any notice to the contrary
notwithstanding; but until each transfer on such books, the Company may treat
the registered holder hereof as the owner hereof for all purposes.
This Warrant is exchangeable, upon the surrender hereof by the holder
hereof at such office or agency 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 such holder hereof at the time of such
surrender.
IN WITNESS WHEREOF, Technest Holdings, Inc., has caused this Warrant to
be signed by its duly authorized officers under its corporate seal, and this
Warrant to be dated ______________.
ATTEST: TECHNEST HOLDINGS, INC.
_____________________ By: _______________________
Secretary [Clerk] Name: _____________________
Title: ____________________
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SUBSCRIPTION AGREEMENT
Date __________
To
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to subscribe for and purchase Common Shares covered by
such Warrant, and makes payment herewith in full therefor at the price per share
provided by this Warrant.
Signature _________________
Address____________________
__________________
ASSIGNMENT
FOR VALUE RECEIVED ___________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the within Warrant, with
respect to the number of Common Shares Thereby covered set forth hereinbelow
unto:
NAME OF ASSIGNEES ADDRESS NO. OF SHARES
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Dated: _________, 19__
Signature _________________
Address____________________
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