EXHIBIT 4.5
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE LAW OR
REGULATION OF ANY STATE. THIS COMMON STOCK WARRANT MAY NOT BE SOLD, OFFERED,
ASSIGNED OR TRANSFERRED UNLESS THE WARRANT IS REGISTERED UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS, OR UNLESS SUCH OFFERS, SALES,
ASSIGNMENTS AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
CANMAX INC.
COMMON STOCK PURCHASE WARRANT
DATED: July 1, 1998
- --------------------------------------------------------------------------------
Number of Common Shares: 100,000 Holder: Roger D. Bryant
Purchase Price: $0.53 per share 815 Cambridge Manor Lane
Expiration Date: June 30, 2008 Coppell, Texas 75019
For identification only. The governing terms of this Warrant are set forth
below.
- --------------------------------------------------------------------------------
CANMAX INC., a Wyoming corporation (the "COMPANY"), hereby certifies
that, for value received, Roger D. Bryant (the "HOLDER"), is entitled, subject
to the terms set forth below, to purchase from the Company at any time or from
time to time prior to earlier of (a) June 30, 2008, (b) the date the termination
of the employment of Holder under the Employment Contract among Holder, the
Company and CRSI (as amended, the "EMPLOYMENT CONTRACT") for "cause" (as defined
therein), of (c) two (2) years from the date of any termination of employment
(other than "for cause") under the Employment Contract (the "EXERCISE PERIOD")
at the Purchase Price hereinafter set forth, One Hundred Thousand (100,000)
fully paid and nonassessable shares of Common Stock (as hereinafter defined) of
the Company. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "PURCHASE PRICE") shall initially be $0.53; PROVIDED, HOWEVER,
that the Purchase Price shall be adjusted from time to time as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "CHANGE OF CONTROL" means the occurrence of any of
the following:
(i) any "Person" (as such term as defined in Section
13(d) and Section 14(d) of the Securities Act of 1934, as amended
(the "EXCHANGE ACT")), is or becomes a "beneficial owner" (as
defined in Section 13d-3 under the Exchange Act), directly
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 1
or indirectly, of securities of the CRSI or the Company
representing more than thirty percent (30%) of the combined
voting power of the outstanding securities of CRSI or the Company;
(ii) at any time during the twenty-four (24) month period
following a merger, tender offer, consolidation, sale of assets or
contested election, or any combination of such transactions, at
least a majority of the Board of Directors of the CRSI or the
Company shall cease to be "continuing directors" (meaning
directors of CRSI or the Company prior to such transaction or who
subsequently became directors and whose election or nomination for
election by the stockholders of CRSI or the Company was approved
by a vote of at least two-thirds (2/3) of the directors then still
in office prior to such transaction); or
(iii) the stockholders approve an agreement of sale or
disposition by CRSI or the Company of all or substantially all, of
the assets of CRSI or the Company.
(b) The term "COMPANY" means Canmax Inc. and any entity that
shall succeed or assume the obligations of such corporation hereunder.
(c) The term "COMMON STOCK" means the Company's common stock,
no par value per share.
(d) The term "CRSI" means Canmax Retail Systems, Inc., a Texas
corporation and wholly owned subsidiary of the Company.
(e) The term "FAIR MARKET VALUE" means the closing price of the
shares of Common Stock on the date of delivery of any Notice of Exercise
as reported on the Nasdaq SmallCap Market (or other exchange on which the
Common Stock is traded or, if not traded on any exchange, then the
closing bid price as of such date on the over-the-counter market or, if
not quoted on the over-the-counter market, then as determined by the
Board of Directors).
(f) The term "TAX WITHHOLDING LIABILITY" means all federal and
state income taxes, social security taxes and other taxes applicable to
compensation income arising from the exercise of this Warrant required by
applicable law to be withheld by the Company.
(g) The term "TRIGGER DATE" means the earlier to occur of the
following:
(i) the Company's recording of consolidated revenues
in excess of $50 million in any period of twelve consecutive
months and recording of cumulative positive earnings over such
twelve-month period; or
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 2
(ii) a Change of Control (other than a Change of
Control resulting from the Company's sale of its retail
automation software business occurring on or before June 30,
1999).
(h) The term "WARRANT SHARES" means as of any date during the
Exercise Period, that number of shares of Common Stock which shall be
exercisable (subject to any vesting requirements) by the Holder hereof
pursuant to the terms of this Warrant.
A. VESTING AND EXERCISE OF WARRANT.
(1) VESTING. Holder's right to purchase the Warrant Shares
shall vest upon the Trigger Date. Holder shall not have any right to
acquire any Warrant Shares pursuant to this Warrant prior to the vesting
of such rights as set forth in this Section 1.1, and such right must
vest, if at all, on or before the earlier of (a) the expiration of the
Exercise Period or (b) the termination of Holder's employment under the
Employment Contract.
(2) METHOD OF EXERCISE. This Warrant may be exercised (subject
to the vesting requirements set forth above) by the Holder hereof in
whole or in part (but not as to a fractional share of Common Stock), at
any time and from time to time during the Exercise Period for up to, but
not more than, the number of vested Warrant Shares at such time, by
delivery to the Company at its principal office of (i) a notice of
exercise (a "NOTICE OF EXERCISE") substantially in the form attached
hereto as EXHIBIT A, (ii) evidence satisfactory to the Company of the
authority of the person executing such Notice of Exercise, (iii) this
Warrant, and (iv) payment of (A) the Purchase Price multiplied by the
number of shares of Common Stock for which this Warrant is being
exercised (the "EXERCISE PRICE") and (B) Tax Withholding Liability.
Payment of the Exercise Price shall be made by (a) check or bank draft
payable to the order of the Company or by wire transfer to the account of
the Company, (b) Holder's surrender to the Company of a number of shares
of Common Stock owned by Holder for at least six (6) months having an
aggregate Fair Market Value equal to the Exercise Price, or (c) any
combination of the foregoing; provided that the Company may, in its
discretion, (i) allow the exercise of this Warrant in a broker-assisted
or similar transaction in which the Exercise Price is not received by the
Company until promptly after exercise, and/or (ii) allow the Company to
loan the Exercise Price to the Holder, if the exercise will be followed
by a prompt sale of some or all of the underlying shares and a portion of
the sale proceeds is dedicated to full payment of the Exercise Price and
any Tax Withholding Liability. Payment of the Tax Withholding Liability
shall be made (a) check or bank draft payable to the order of the Company
or by wire transfer to the account of the Company or (b) Holder's
surrender to the Company of a number of shares of Common Stock owned by
Holder having an aggregate Fair Market Value equal to the Exercise Price
(or by withholding a portion of the shares otherwise issuable in
connection with this Warrant). The shares so purchased shall be deemed
to be issued as of the close of business on the date on which the Company
shall have received from the Holder payment in full of the Exercise Price
and Tax Withholding Liability and the other documents referred to herein
(the "EXERCISE DATE").
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 3
(3) REGULATION D RESTRICTIONS. The Holder hereof represents
and warrants to the Company that it has acquired this Warrant and
anticipates acquiring the shares of Common Stock issuable upon exercise
of the Warrant solely for its own account for investment purposes and not
with a view to or for distributing such securities unless such
distribution has been registered with the Securities and Exchange
Commission or an applicable exemption is available therefor. At the time
this Warrant is exercised, the Company may require the Holder to state in
the Notice of Exercise such representations concerning the Holder as are
necessary or appropriate to assure compliance by the Holder with the
Securities Act.
B. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon as
practicable after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder a certificate for the number
of fully paid and nonassessable shares of Common Stock to which the Holder shall
be entitled on such exercise, plus, in lieu of any fractional share to which the
Holder would otherwise be entitled, cash equal to such fraction multiplied by
the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which the Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
C. ADJUSTMENTS ON CERTAIN CAPITAL TRANSACTIONS. On the occurrence of any of
the following events, the following adjustments to the rights granted under this
Warrant shall be made:
(1) In case the number of outstanding shares of Common Stock of
the Company shall be increased by way of a stock dividend, stock split,
recapitalization, or other similar means, the number of unexercised
shares of Common Stock covered by this Warrant shall be increased by the
amount that a like number of shares of outstanding Common Stock shall
have been increased as a result of such stock increase and the Purchase
Price shall be adjusted by multiplying the Purchase Price in effect
immediately prior to such stock increase by a fraction, the numerator of
which shall be the number of unexercised shares covered by this Warrant
immediately prior to such stock increase and the denominator of which
shall be the number of unexercised shares of Common Stock covered by this
Warrant as adjusted for such stock increase.
(2) In case the number of outstanding shares of Common Stock of
the Company shall be reduced by recapitalization, reverse stock split or
otherwise, the number of unexercised shares covered by this Warrant shall
be reduced by the amount that a like number of shares of outstanding
Common Stock shall have been reduced as a result of such stock reduction
and the Purchase Price shall be adjusted by multiplying the Purchase
Price in effect immediately prior to such stock reduction by a fraction,
the numerator of which shall be the number of unexercised shares covered
by this Warrant immediately prior to such stock reduction and the
denominator of which shall be the number of unexercised shares covered by
this Warrant as adjusted for such stock reduction.
(3) In case the Company shall consolidate with or merge into
another corporation, the holder of this Warrant will thereafter receive,
upon the exercise thereof in accordance with the terms of this Warrant,
the securities or property to which the holder
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 4
of the number of shares of Common Stock then deliverable upon the
exercise of this Warrant would have been entitled upon such consolidation
or merger ("OTHER SECURITIES") and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or property
thereafter deliverable upon the exercise of this Warrant.
D. RIGHTS AS A SHAREHOLDER. Holder shall not have any rights as a
shareholder of the Company with respect to the shares subject to this Warrant.
E. SECURITIES LAW REQUIREMENTS; REGISTRATION OBLIGATIONS. Neither this
Warrant nor the Warrant Shares have been registered under the Securities Act or
any state securities or blue sky laws. Accordingly, upon (a) any transfer of
this Warrant, any transferee of this Warrant or (b) the exercise of this Warrant
in whole or in part, and if the Warrant Shares have not been registered under
the Securities Act, Holder or any other person exercising this Warrant shall, as
applicable, represent and agree in writing satisfactory to the Company that
Holder or such other person (a) is acquiring the shares for the purpose of
investment and not with a view to distribution thereof, (b) knows the shares
have not been registered under the Securities Act or any state securities or
blue sky laws, (c) understands that he must bear the economic risk of said
investment for an indefinite period of time until the shares are registered
under the Securities Act and applicable state securities or blue sky laws or an
exemption from such registration is available, and (d) will not solicit any
offer to sell or sell all or any portion of the shares other than pursuant to an
opinion of counsel reasonably satisfactory to the Company. The Company shall,
upon written demand by Holder, use its best efforts to cause the Warrant Shares
to be registered under the Securities Act and any state securities or blue sky
laws; provided that the Company's obligation to register the Warrant Shares
under the Securities Act shall be limited to the filing of a registration
statement on Form S-8 or, if unavailable, on Form S-3, or any successors to such
forms, and the Company shall have no registration obligations to Holder at any
time that the use of such forms is unavailable to the Company for the
registration of the Warrant Shares.
F. TRANSFER RESTRICTIONS. This Warrant shall be exercisable only by Holder
shall not be assignable or transferable, except by will or by the laws descent
and distribution. Any other attempted alienation, assignment, pledge,
hypothecation, attachment, execution or similar process, whether voluntary or
involuntary, with respect to all or any part of this Warrant or any right
hereunder, shall be null and void.
G. RESERVATION OF STOCK, ETC. ISSUABLE ON EXERCISE OF WARRANT. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 5
H. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security satisfactory in form and amount
to the Company or, in the case of any such mutilation, on surrender and
cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new warrant of like tenor.
I. NOTICES, ETC. All notices and other communications hereunder shall be
personally delivered, telecopied or mailed by first class registered or
certified mail, postage prepaid, at such address of facsimile numbers as may
have been furnished to each party by the other in writing.
J. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Texas. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
[SIGNATURE PAGE FOLLOWS]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 6
DATED as of the date first written above.
CANMAX INC.
By: /s/Debra L. Burgess
------------------------
Name: Debra L. Burgess
Title: Executive Vice President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Roger D. Bryant
-------------------------------
Name: Roger D. Bryant
Address: 815 Cambridge Manor Lane
Coppell, Texas 75019
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 7
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
------------------------------------
(To be executed only upon exercise or conversion
of the Warrant in whole or in part)
To Canmax Inc.
The undersigned registered holder of the accompanying Warrant hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
______________(1.) shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability of
either (a) $__________, (b) _____________ shares of Common Stock that have been
held by Holder for no less than six (6) months and have an aggregate Fair Market
Value of $_______________ as of the date written below, (c) with regard to the
Tax Withholding Liability only, ________ shares of Common Stock held by Holder
having an aggregate Fair Market Value of $________ as of the date written below,
or (d) with regard to the payment of the Tax Withholding Liability only,
withholding ________ shares of Common Stock otherwise issuable upon the exercise
of this Warrant having an aggregate Fair Market Value of $________ as of the
date written below. The undersigned requests that the certificates for such
shares of Common Stock be issued in the name of, and delivered to,
_______________________________________________ whose address is
_____________________________________________________________________________.
Dated: ____________________________
-------------------------------------------
(Name must conform to name of Holder as
specified on the face of the Warrant)
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Address of Holder:
-------------------------------------------
-------------------------------------------
-------------------------------------------
Date of exercise: ____________________
(1.) Insert the number of shares of Common Stock as to which the
accompanying Warrant is being exercised. In the case of a partial exercise, a
new Warrant or Warrants will be issued and delivered, representing the
unexercised portion of the accompanying Warrant, to the holder surrendering the
same.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT-PAGE 8