Exhibit 10.3
EXHIBIT B
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
SAFLINK CORPORATION
SERIES A WARRANT
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Dated June 5, 2001
SAFLINK CORPORATION, a Delaware corporation (the "Company"), hereby
certifies that, for value received, ____________, or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company up to a total of ________ shares of Common Stock, $.01 par value per
share (the "Common Stock"), of the Company (each such share, a "Warrant Share"
and all such shares, the "Warrant Shares") at an exercise price equal to (i)
$.25 per share from the date hereof and through and including the first
anniversary of the date hereof, or (ii) $.50 per share after the first
anniversary of the date hereof and through and including June __, 2006 (the
"Expiration Date") (provided that if the registration statement registering the
Warrant Shares is not declared effective by the Registration Deadline (as
defined in the Registration Rights Agreement, dated June __, 2001, by and among
the Company and certain purchasers listed therein), such Expiration Date shall
be extended 120 days from the effective date, as declared by the Securities and
Exchange Commission, of the registration statement registering the Warrant
Shares)) (as adjusted from time to time as provided in Section 7) (the "Exercise
Price"), at any time and from time to time from and after the date hereof and
through and including Expiration Date, and subject to the following terms and
conditions:
1. Registration of Warrant. The Company shall register this Warrant,
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upon records to be maintained by the Company for that purpose (the "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 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. Restrictions on and Registration of Transfers and Exchanges.
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(a) The Warrant shall be transferable only under circumstances
such that the transfer is exempt from the requirements of registration under the
Securities Act of 1933, as amended (the "1933 Act") and any applicable state
securities law. By acceptance hereof, the Holder agrees to comply with such
legislation. The Warrant and the rights granted to the holder are transferable,
in whole or in part, upon surrender of the Warrant as provided in Section 2(b)
below, provided that any transfer or assignment shall be subject to the
provisions of Sections 5.1 and 5.2 of the Securities Purchase Agreement dated
June __, 2001, by and among the Company and certain puchasers (the "Securities
Purchase Agreement").
(b) The Company shall register the transfer of any portion of
this Warrant in the Warrant Register, upon surrender of this Warrant, with the
Form of Assignment attached hereto duly completed and signed, to the Company at
the office specified in or pursuant to Section 3(b). Upon any such registration
or transfer, a new warrant to purchase Common Stock, in substantially the form
of this Warrant (any such new warrant, a "New Warrant"), evidencing the portion
of this Warrant so transferred shall be issued to the transferee and a New
Warrant evidencing the remaining portion of this Warrant not so transferred, if
any, shall be issued to the transferring Holder. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance of such
transferee of all of the rights and obligations of a holder of a Warrant.
(c) This Warrant is exchangeable, upon the surrender hereof by
the Holder to the office of the Company specified in or pursuant to Section 3(b)
for one or more New Warrants, evidencing in the aggregate the right to purchase
the number of Warrant Shares which may then be purchased hereunder. Any such New
Warrant will be dated the date of such exchange, but reference shall be made to
the original date of the issuance of the Warrant.
3. Duration and Exercise of Warrants.
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(a) This Warrant shall be exercisable by the registered Holder
on any business day before 5:30 P.M., Pacific time, at any time and from time to
time on or after the date hereof to and including the Expiration Date. At 5:30
P.M., Pacific time on the Expiration Date, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value.
(b) Subject to Sections 2(b), 4 and 10, upon surrender of this
Warrant, with the Form of Election to Purchase attached hereto duly completed
and signed, to the Company at its office at 18650 N.E. 67th Court, Suite 210,
Redmond, Washington 98052, Attn: Chief Financial Officer, or at such other
address as the Company may specify in writing to the then registered Holder, and
upon payment of the Exercise Price multiplied by the number of Warrant Shares
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, all
as specified by the Holder in the Form of Election to Purchase, the Company
shall promptly (but in no event later than 3 business days after the date of
exercise) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate for the Warrant Shares issuable upon such exercise.
Any person so
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designated by the Holder to receive Warrant Shares shall be deemed to have
become holder of record of such Warrant Shares as of the Date of Exercise of
this Warrant.
A "Date of Exercise" means the date on which the Company shall
have received (i) this Warrant (or any New Warrant, as applicable), with the
Form of Election to Purchase attached hereto (or attached to such New Warrant)
appropriately completed and duly signed, and (ii) payment (by cashier's check)
of the Exercise Price for the number of Warrant Shares so indicated by the
holder hereof to be purchased.
(c) This Warrant shall be exercisable, either in its entirety
or, from time to time, for a portion of the number of Warrant Shares so long as
at least 100 Warrant Shares are purchased in any one exercise. If less than all
of the Warrant Shares which may be purchased under this Warrant are exercised at
any time, the Company shall issue or cause to be issued, at its expense, a New
Warrant evidencing the right to purchase the remaining number of Warrant Shares
for which no exercise has been evidenced by this Warrant.
4. Payment of Taxes. The Company will pay all documentary stamp
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taxes attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder, and the Company shall not be required to issue or cause to be issued
or deliver or cause to be delivered the certificates for Warrant Shares unless
or until the person or persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise hereof.
5. Replacement of Warrant. If this Warrant is mutilated, lost,
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stolen or destroyed, the Company shall issue or cause to be issued in exchange
and substitution for and upon cancellation hereof, or in lieu of and
substitution for this Warrant, a New Warrant, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
indemnity, if requested, reasonably satisfactory to it.
6. Reservation of Warrant Shares. The Company covenants that it
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will at all times reserve and keep available out of the aggregate of its
authorized but unissued Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares which are then issuable and deliverable upon the
exercise of this entire Warrant, free from preemptive rights or any other actual
contingent purchase rights of persons other than the Holders (taking into
account the adjustments and restrictions of Section 7). All Warrant Shares that
shall be so issuable and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable, and free from all
taxes, liens, claims and encumbrances and will not be subject to preemptive
rights or other similar rights of stockholders of the Company, other than (i)
restrictions on transferability as may be applicable under federal and state
securities laws; (ii) restrictive stock legends contemplated by the Investment
Agreements (as defined in the Security Purchase Agreement); or (iii) those
created by the Holders.
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7. Certain Adjustments. The Exercise Price and number of Warrant
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Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 7. Upon each such adjustment of the
Exercise Price pursuant to this Section 7, the Holder shall thereafter prior to
the Expiration Date be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(a) Adjustments to Exercise Price for Certain Diluting Issues.
(i) Special Definitions. For purposes of this subsection (a), the
following definitions apply:
(1) "Options" shall mean rights, options (excluding options
issued to officers, directors or employees of or consultants to the Company
pursuant to a stock option plan on terms approved by the Board of Directors), or
warrants to subscribe for, purchase or otherwise acquire either Junior
Securities or Convertible Securities (defined below).
(2) "Original Issue Date" shall mean June ___, 2001.
(3) "Convertible Securities" shall mean any evidence of
indebtedness, shares (other than Common Stock), any series of Preferred Stock
(other than Series E Preferred Stock) or other securities convertible into or
exchangeable for Junior Securities.
(4) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to subsection (a)(iii), deemed to be
issued) by the Company after the Original Issue Date, other than shares of
Common Stock issued or issuable:
(A) upon conversion of shares of Series E Preferred
Stock;
(B) to officers, directors or employees of, or
consultants to, the Company pursuant to stock option or stock purchase plans as
currently in existence or the SAFLINK Corporation 2000 Stock Incentive Plan;
(C) as a dividend or distribution on Series E Preferred
Stock; or
(D) for which adjustment of the Exercise Price is made
pursuant to subsection 7(a)(iv) below.
(5) "Junior Securities" shall refer to Common Stock, any
class or series of preferred stock issued after the Original Issue Date or any
security or right convertible into or entitling the holder to receive shares of
Common Stock.
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(ii) No Adjustment of Exercise Price. Any provision herein to
the contrary notwithstanding, no adjustment in the Exercise Price shall be made
in respect of the issuance of Additional Shares of Common Stock unless the
consideration per share (determined pursuant to subsection 4(a)(v) hereof) for
an Additional Share of Common Stock issued or deemed to be issued by the Company
is less than the Exercise Price, in effect immediately prior to the date of such
issue.
(iii) Deemed Issue of Additional Shares of Common Stock. In the
event the Company at any time or from time to time after the Original Issue Date
shall issue any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities then entitled to receive
any such Options or Convertible Securities, then the maximum number of shares
(as set forth in the instrument relating thereto without regard to any
provisions contained therein designed to protect against dilution) of Common
Stock issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that in any such case
Additional Shares of Common Stock shall be deemed to have been issued;
(1) no further adjustments in the Exercise Price shall be
made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of Options or conversion or exchange of such Convertible
Securities;
(2) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Company, or decrease or increase in the number
of shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Exercise Price computed upon the original issue thereof (or upon
the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease in proportion to
its affect on such Options or the rights of conversion or exchange under such
Convertible Securities (provided, however, that no such adjustment of the
Exercise Price shall affect Common Stock previously issued upon the exercise of
the Warrant);
(3) upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which shall not have
been exercised, the Exercise Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be recomputed as if in
the case of Convertible Securities or Options for Common Stock the only
Additional Shares of Common Stock issued were the shares of Common Stock, if
any, actually issued upon the exercise of such Options or the conversion or
exchange of such Convertible Securities and the consideration received therefor
was the consideration actually received by the Company for the issue of all such
Options, whether or not exercised, plus the consideration actually received by
the Company upon such exercise, or for the issue of all such Convertible
Securities which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Company upon such conversion or
exchange.
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(4) in the case of any Options which expire by their terms not
more than 30 days after the date of issue thereof, no adjustment of the Exercise
Price shall be made until the expiration or exercise of all such Options,
whereupon such adjustment shall be made in the same manner provided in clause
(3) above.
(iv) Adjustment of Exercise Price Upon Issuance of Additional Shares
of Common Stock. In the event this Company, at any time after the Original
Issue Date shall issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to subsection (a)(iii))
without consideration or for a consideration per share less than the Exercise
Price in effect on the date of and immediately prior to such issue, then and in
such event, the Exercise Price shall be reduced, concurrently with such issue,
to a price (calculated to the nearest cent) determined by multiplying such
Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issue plus the
number of shares of Common Stock which the aggregate consideration received by
the Company for the total number of Additional Shares of Common Stock so issued
would purchase at such Exercise Price in effect immediately prior to such
issuance, and the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued. For the purpose of the above
calculation, the number of shares of Common Stock outstanding immediately prior
to such issue shall be calculated on a fully diluted basis, as if all of the
Warrants and all Convertible Securities had been fully converted into shares of
Common Stock immediately prior to such issuance and any outstanding warrants,
options or other rights for the purchase of shares of stock or Convertible
Securities had been fully exercised immediately prior to such issuance (and the
resulting securities fully converted into shares of Common Stock, if so
convertible) as of such date, but not including in such calculation any
additional shares of Common Stock issuable with respect to shares of Series E
Preferred Stock, Convertible Securities, or outstanding options, warrants or
other rights for the purchase of shares of stock or convertible securities,
solely as a result of the adjustment of the respective Exercise Prices (or other
conversion ratios) resulting from the issuance of Additional Shares of Common
Stock causing such adjustment.
(v) Determination of Consideration. For purposes of this subsection
(a), the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Company excluding amounts paid for
accrued interest or accrued dividends ;
(B) insofar as it consists of property other than cash,
be computed at the fair value thereof at the time of receipt of such property,
as determined in good faith by the Board and the holders of a majority of
Warrant Shares issuable pursuant to all outstanding Series A Warrants; and
(C) in the event Additional Shares of Common Stock are
issued together with other shares or securities or other assets of the Company
for consideration which
6
covers both, the proportion of such consideration so received, computed as
provided in clauses (A) and (B) above, as determined in good faith by the Board
and the holders of a majority of Warrant Shares issuable pursuant to all
outstanding Series A Warrants.
(D) with respect to clauses (B) and (C), in the event
that the Board and the holders of a majority of Warrant Shares issuable pursuant
to all outstanding Series A Warrants cannot reach a determination as to the
computation of such consideration, then the Company shall promptly appoint its
independent certified public accountants to make such determination as promptly
as practical.
(2) Options and Convertible Securities. The consideration per
share received by the Company for Additional Shares of Common Stock deemed to
have been issued pursuant to subsection 4(a)(iii), relating to Options and
Convertible Securities shall be determined by dividing:
(A) the total amount, if any, received or receivable by
the Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) payable to the Company
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities by
(B) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against the dilution) issuable upon the
exercise of such Options or conversion or exchange of such Convertible
Securities.
(b) If the Company, at any time while this Warrant is outstanding,
(i) shall pay a stock dividend or otherwise make a distribution or distributions
on shares of its Common Stock or any class or series of Preferred Stock payable
in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock
into a larger number of shares, or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, the Exercise Price shall be multiplied by
a fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any, but including warrants or options that would
be included for purposes of determining earnings per share in accordance with
generally accepted accounting principals) outstanding before such event and of
which the denominator shall be the number of shares of Common Stock (excluding
treasury shares, if any, but including warrants or options that would be
included for purposes of determining earnings per share in accordance with
generally accepted accounting principals) outstanding after such event. Any
adjustment made pursuant to this Section shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination, and shall apply to
successive subdivisions and combinations.
(c) Major Transactions.
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7
(i) If the Company shall consolidate with or merge into any
corporation or reclassify its outstanding shares of Common Stock (other than by
way of subdivision or reduction of such shares), or if there shall occur any
share exchange pursuant to which all of the outstanding shares of Common Stock
are converted into other securities or property, then each holder of a Warrant
shall thereafter be entitled to receive consideration, in exchange for such
Warrant, equal to the greater of, as determined in the sole discretion of such
holder: (x) a warrant to purchase (at the same aggregate exercise price and on
the same terms and conditions as the Warrant surrendered) the number of shares
of stock or securities or property of the Company, or of the entity resulting
from such transaction, to which a holder of the number of shares of Common Stock
delivered upon exercise of such Warrant would have been entitled upon such
transaction had the holder of such Warrant exercised (without regard to any
limitations on exercise herein contained) the Warrant on the trading date
immediately preceding the public announcement of such transaction and had such
Common Stock been issued and outstanding and had such holder been the holder of
record of such Common Stock at the time of such transaction, and the Company
shall make lawful provision therefor as a part of such consolidation, merger or
reclassification; and (y) cash paid by the Company in immediately available
funds, in an amount equal to the Black-Scholes Amount (as defined herein) times
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the number of shares of Common Stock for which this Warrant was exercisable
(without regard to any limitations on exercise herein contained) on the date
immediately preceding the date of such transaction.
(ii) If, in connection with a business acquisition or a series of
business acquisitions occurring within any six (6) month period, the Company
shall issue capital stock representing in excess of forty percent (40%) of its
Common Stock outstanding immediately prior to such issuance (determined on a
fully-diluted basis), or if the Company shall sell all or substantially all of
its assets, then each Holder of a Warrant shall, at the option of each such
Holder, be entitled to receive consideration, in exchange for such Warrant held
by it, in cash paid by the Company from immediately available funds, in an
amount equal to the Black-Scholes Amount times the number of shares of Common
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Stock for which this Warrant was exercisable (without regard to any limitations
on exercise herein contained) on the date immediately preceding the date of such
transaction.
(iii) No sooner than ten (10) days nor later than five (5) days prior
to the consummation of any transaction of a sort described in paragraphs (i) or
(ii) above, but not prior to the public announcement of any such transaction,
the Company shall deliver written notice ("Notice of Major Transaction") to the
---------------------------
Holder of this Warrant, which Notice of Major Transaction shall be deemed to
have been delivered one (1) business day following the Company's sending such
notice by telecopy (provided that the Company sends a confirming copy of such
notice on the same day by overnight courier) of such Notice of Major
Transaction. Such Notice of Major Transaction shall indicate the amount and
type of the consideration which the Holder would receive under clause (i) of
this Section 4(e).
For purposes of this Section 4(e), the "Black-Scholes Amount" shall be an
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amount determined by calculating the "Black-Scholes" value of an option to
purchase one share of Common Stock on the applicable page on the Bloomberg
online page, using the following variable values: (i) the current market price
of the Common Stock equal to the closing trade price on the last trading day
8
before the date of the Notice of the Major Transaction (provided such market
price for purposes of this definition shall be capped at a maximum of two times
the then current Exercise Price in effect); (ii) volatility of the Common Stock
equal to the volatility of the common Stock during the 100 trading day period
preceding the date of the Notice of the Major Transaction; (iii) a risk free
rate equal to the interest rate on the United States treasury bill or treasury
note with a maturity corresponding to the remaining term of this Warrant on the
date of the Notice of the Major Transaction; and (iv) an exercise price equal to
the Exercise Price on the date of the Notice of the Major Transaction. In the
event such calculation function is no longer available utilizing the Bloomberg
online page, the Holder shall calculate such amount in its sole discretion using
the closest available alternative mechanism and variable values to those
available utilizing the Bloomberg online page for such calculation function.
(iv) Notwithstanding anything in this Section 4(e) which may be to
the contrary, if following a transaction which triggers the applicability of
paragraphs (i) or (ii), the Common Stock remains outstanding or holders of
Common Stock receive any common stock or substantially similar equity interest,
in each of the foregoing cases which is publicly traded, each Holder may, at its
option in lieu of receiving the consideration set forth in paragraphs (i) or
(ii) above, as applicable, retain its Warrants and such Warrants shall continue
to apply to such common stock or shall apply, as nearly as practicable, to such
other common stock or equity interest, as the case may be.
(d) If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets (other than cash dividends) or
rights or warrants to subscribe for or purchase any security (excluding those
referred to in Sections 7(b), (c) and (e)), then in each such case the Exercise
Price shall be determined 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 Exercise Price determined as of the record date mentioned above,
and of which the numerator shall be such Exercise Price on such record date less
the then 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
Common Stock as determined by the Board and the holders of a majority of Warrant
Shares issuable pursuant to all outstanding warrants.
(e) If, at any time while this Warrant is outstanding, the Company
shall issue or cause to be issued rights or warrants to acquire or otherwise
sell or distribute shares of Common Stock to all holders of Common Stock for a
consideration per share less than the Exercise Price then in effect, then,
forthwith upon such issue or sale, the Exercise Price shall be reduced to the
price (calculated to the nearest cent) determined by dividing (i) an amount
equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issue or sale multiplied by the Exercise Price, and
(B) the consideration, if any, received or receivable by the Company upon such
issue or sale by (ii) the total number of shares of Common Stock outstanding
immediately after such issue or sale.
(f) For the purposes of this Section 7, the following clauses shall
also be applicable:
9
(i) Record Date. In case the Company shall take a record of
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the holders of its Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in Common Stock or in Convertible
Securities, or (B) to subscribe for or purchase Common Stock or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
(ii) Treasury Shares. The number of shares of Common Stock
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outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(g) All calculations under this Section 7 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(h) Whenever the Exercise Price is adjusted pursuant to Section 7(d)
above or Section 7(j) below, the Company shall promptly mail or cause to be
mailed to each Holder, a notice setting forth the Exercise Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Such adjustment shall become effective immediately after the record
date mentioned above. All determinations with respect to adjustments by the
Company hereunder shall be made by the Board and the holders of a majority of
Warrant Shares issuable pursuant to all outstanding warrants in good faith.
(i) If:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock in Common Stock; or
(ii) the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to all holders of
the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of
any rights; or
(iv) the approval of any stockholders of the Company shall be
required in connection with any reclassification of the
Common Stock of the Company, any consolidation or merger
to which the Company is a party, any sale or transfer of
all or substantially all of the assets of the Company, or
any compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; or
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(v) the Company shall authorize the voluntary dissolution,
liquidation or winding up of the affairs of the Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, to the extent practicable at
least 20 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or
warrants, or if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up; provided, however, that the
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failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice.
For the purposes of (i), (ii), and (iii) of this subsection, the holder
shall be entitled upon exercise of the Warrant for the purchase of any or all of
the shares of Common Stock subject hereto, to receive the amount of such assets
(or rights) which would have been payable to the holder had such holder been the
holder of such shares of Common Stock on the record date for determination of
stockholders entitled to such distribution.
(j) If at any time conditions shall arise by reason of action
taken by the Company which in the opinion of the Board of Directors are not
adequately covered by the other provisions hereof and which would reasonably be
expected to materially affect the rights of the Holders (different than or
distinguished from the effect generally on rights of holders of any class of the
Company's capital stock) or if any time such conditions are expected to arise by
reason of any action contemplated by the Company, the Company shall mail a
written notice briefly describing the action contemplated and the material
adverse effects of such action on the rights of the Holders to the extent
practicable at least 20 calendar days prior to the effective date of such
action, and an Appraiser selected by the Holders of majority in interest of the
Warrants then outstanding and consented to by the Company (which consent shall
not be unreasonably withheld) shall give its opinion as to the adjustment, if
any (not inconsistent with the standards established in this Section 7), of the
Exercise Price (including, if necessary, any adjustment as to the Warrant Shares
to be purchased upon exercise of this Warrant) and any distribution which is or
would be required to be preserved without diluting the rights of the Holders.
8. Cap Amount. Prior to Stockholder Approval (as defined in the
----------
Securities Purchase Agreement) and regardless of whether shares of the Company's
Common Stock are listed for trading on the Nasdaq National Market, the Nasdaq
SmallCap Market or the OTC Bulletin Board unless otherwise permitted by the
rules of Nasdaq (as defined in the Securities Purchase Agreement) or unless the
rules thereof no longer are applicable to the Company, in no event shall the
total number of shares of Common Stock issued upon conversion of the Series E
Preferred Stock ("Preferred Stock") and exercise of the Warrants (if required)
exceed the maximum number of shares of Common Stock that the Company can issue
without stockholder
11
approval pursuant to Nasdaq Rule 4350 (or any successor rule) (the
"Cap Amount") which, as of the date of initial issuance of shares of Preferred
----------
Stock and Warrants, shall be 19.99% of the total number of shares of Common
Stock outstanding immediately prior to the date of the Closing (or any such
higher number as the rules permit). A Holder's allocable portion of the Cap
Amount shall be applicable to both shares of Preferred Stock and Warrants held
by it and shall be applied to such Preferred Stock and Warrants on the basis of
the time of conversion or exercise, as the case may be, thereof. The foregoing
restriction shall not apply to the extent waived, modified or otherwise
permitted by the Nasdaq National Market System or the Nasdaq SmallCap Market, as
applicable to the Common Stock.
9. Redemption. Provided (a) all such Common Stock can be sold pursuant
----------
thereto at all times during the period from the date which is twenty (20)
trading days prior to the delivery of the Warrant Redemption Notice until the
date which is ten (10) trading days following the delivery of the Warrant
Redemption Notice (the "Redemption Effective Time"), and (b) the Closing Bid
-------------------------
Price of the Common Stock for the twenty (20) consecutive trading days preceding
the delivery of the Warrant Redemption Notice is at least two hundred percent
(200%) of the then-effective Exercise Price, the Company may, by notice
delivered to the Holders (the "Warrant Redemption Notice"), cause, effective as
-------------------------
of the Redemption Effective Time, (x) if the Redemption Effective Time is prior
to the nine-month anniversary of the date hereof, the number of shares of Common
Stock into which this Warrant is then exercisable to be reduced by an amount
(the "Reduction Amount") which is no greater than fifty percent (50%) of such
----------------
number, by payment of cash equal to the product of $.10 times the Reduction
Amount (provided, however that to the extent the Holder effects any exercise of
this Warrant between the date of delivery of the Warrant Redemption Notice and
the Redemption Effective Time, the Reduction Amount shall be reduced share for
share by the number of the shares of Common Stock into which this Warrant is so
exercised during such period); and (y) if the Redemption Effective Time is on or
after the nine-month anniversary of the date hereof, the number of shares of
Common Stock into which this Warrant is then exercisable to be reduced by an
amount which is no greater than one hundred percent (100%) of such number, by
payment of cash equal to the product of $.10 times the number of shares of
Common Stock by which the number of shares of Common Stock into which this
Warrant is then exercisable is reduced.
For purposes of this section, the term "Closing Bid Price" means for any
security as of any date, the closing bid price of such security on the principal
securities exchange or trading market where such security is listed or traded as
reported by Bloomberg Financial Markets or a comparable reporting service of
national reputation reasonably selected by the Company if Bloomberg Financial
Markets is not then reporting closing bid prices of such security (collectively,
"Bloomberg"), or if the foregoing does not apply, the last reported sale price
---------
of such security in the over-the-counter market on the electronic bulletin board
of such security as reported by Bloomberg, or, if no sale price is reported for
such security by Bloomberg, the average of the bid prices of any market makers
for such security as reported in the "pink sheets" by the National Quotation
Bureau, Inc. If the Closing Bid Price cannot be calculated for such security on
such date on any of the foregoing bases, the Closing Bid Price of such security
on such date shall be the fair market value as reasonably determined by an
independent investment banking firm reasonably selected by the Company, with the
costs of such appraisal to be borne by the Company.
12
10. Fractional Shares. The Company shall not be required to issue or
-----------------
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares which shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section 10, be issuable
on the exercise of this Warrant, the Company shall, at its option, (a) pay an
amount in cash equal to the Exercise Price multiplied by such fraction or (b)
shall round the number of Warrant Shares issuable, up to the next whole number
of such shares.
11. Notices. Any and all notices or other communications or
-------
deliveries hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Section prior to 4:30 p.m. (Pacific Time) on a business day, (ii) the business
day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this Section later
than 4:30 p.m. (Pacific Time) on any date and earlier than 11:59 p.m. (Pacific
Time) on such date, (iii) the business day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The addresses
for such communications shall be: (i) if to the Company, to 18650 N.E. 67th
Court, Suite 210, Redmond, Washington 98052, Attn: Chief Financial Officer,
Phone: (425) 881-6766, Facsimile: (425) 497-1778, or (ii) if to the Holder, to
the Holder at the address or facsimile number appearing on the Warrant Register
or such other address or facsimile number as the Holder may provide to the
Company in accordance with this Section 9.
12. Warrant Agent.
-------------
(a) The Company shall serve as warrant agent under this Warrant.
Upon thirty (30) days' notice to the Holder, the Company may appoint a new
warrant agent.
(b) Any corporation into which the Company or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
13. Miscellaneous.
-------------
(a) This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing signed by the Company and the Holder.
(b) Subject to Section 13(a), above, nothing in this Warrant
shall be construed to give to any person or corporation other than the Company
and the Holder any legal or
13
equitable right, remedy or cause under this Warrant; this Warrant shall be for
the sole and exclusive benefit of the Company and the Holder.
(c) This Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of Delaware without regard to
the principles of conflicts of law thereof.
(d) The headings herein are for convenience only, do not
constitute a part of this 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 Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this 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 reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
14
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its authorized officer as of the date first indicated above.
SAFLINK CORPORATION
By: ________________________________
Name:
_______________________________
Title:
______________________________
15
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To SAFLINK Corporation.:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase _____________
shares of Common Stock ("Common Stock"), $.01 par value per share, of SAFLINK
Corporation and encloses herewith $________ in cash or certified or official
bank check or checks, which sum represents the aggregate Exercise Price (as
defined in the Warrant) for the number of shares of Common Stock to which this
Form of Election to Purchase relates, together with any applicable taxes payable
by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
_________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
________________________________________________________________________________
If the number of shares of Common Stock issuable upon this exercise shall
not be all of the shares of Common Stock which the undersigned is entitled to
purchase in accordance with the enclosed Warrant, the undersigned requests that
a New Warrant (as defined in the Warrant) evidencing the right to purchase the
shares of 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 respects to name of
holder as specified on the face of the Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of SAFLINK Common Stock
to which the within Warrant relates and appoints ________________ attorney to
transfer said right on the books of SAFLINK Corporation with full power of
substitution in the premises.
Dated:
_______________, ____
_______________________________________________________
(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant)
_______________________________________________________
Address of Transferee
_______________________________________________________
_______________________________________________________
In the presence of:
__________________________