EXHIBIT 4.7
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 20, 1998
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Number of Common Shares: 100,000 Holder: Ivor J. Flannery
Purchase Price: $0.53 per share 150 W. Carpenter Freeway
Expiration Date: July 19, 2008 Irving, Texas 75039
For identification only. The governing terms of this Warrant are set forth
below.
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CANMAX INC., a Wyoming corporation (the "COMPANY"), hereby certifies
that, for value received, Ivor J. Flannery (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) July 19, 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:
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COMMON STOCK PURCHASE WARRANT - PAGE 1 (CANMAX INC.)
(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 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:
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COMMON STOCK PURCHASE WARRANT - PAGE 2 (CANMAX INC.)
(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
(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.
1. VESTING AND EXERCISE OF WARRANT.
1.1. 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.
1.2. 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
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COMMON STOCK PURCHASE WARRANT - PAGE 3 (CANMAX INC.)
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").
1.3. 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.
2. 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.
3. 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:
3.1. 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.
3.2. 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
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COMMON STOCK PURCHASE WARRANT - PAGE 4 (CANMAX INC.)
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.
3.3. 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 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.
4. 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.
5. 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.
6. 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.
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COMMON STOCK PURCHASE WARRANT - PAGE 5 (CANMAX INC.)
7. 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.
8. 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.
9. 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.
10. 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]
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COMMON STOCK PURCHASE WARRANT - PAGE 6 (CANMAX INC.)
DATED as of the date first written above.
CANMAX INC.
By: /s/Roger D. Bryant
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Name: Roger D. Bryant
Title: President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Ivor J. Flannery
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Name: Ivor J. Flannery
Address: 150 W. Carpenter Freeway
Coppell, Texas 75039
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COMMON STOCK PURCHASE WARRANT - PAGE 7 (CANMAX INC.)
EXHIBIT A
FORM OF NOTICE OF EXERCISE - WARRANT
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(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:
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(Name must conform to name of Holder as
specified on the face of the Warrant)
By:
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Name:
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Title:
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Address of Holder:
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Date of exercise:
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(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.
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COMMON STOCK PURCHASE WARRANT - PAGE 8 (CANMAX INC.)