EXHIBIT 4.6
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NEITHER THIS WARRANT NOR THE SHARES OF CLASS A VOTING COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AND NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION
SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on [___________], 20[__]
WARRANT TO PURCHASE SHARES OF CLASS A VOTING COMMON STOCK
OF
LOCATEPLUS HOLDINGS CORPORATION
FOR VALUE RECEIVED, LOCATEPLUS HOLDINGS CORPORATION (the "Company"), a
Delaware corporation, hereby certifies that [____________] or his permitted
assigns, is entitled to purchase from the Company, at any time or from time to
time commencing on the date hereof, and prior to 5:00 P.M., Eastern Standard
Time, on [____________], a total of [____________] fully paid and non-assessable
shares of the Class A Voting Common Stock, par value $.01 per share, of the
Company for an aggregate purchase price of $[____________]. Such warrants will
be exercisable for a period of ten years at an exercise price of $[____________]
per share. (Hereinafter, (I) said Class A Voting Common Stock, together with any
other equity securities which may be issued by the Company with respect thereto
or in substitution therefor, is referred to as the "Common Stock", (II) the
shares of the Common Stock purchasable hereunder are referred to as the "Warrant
Shares", (III) the aggregate purchase price payable hereunder for the Warrant
Shares is referred to as the "Aggregate Warrant Price", (IV) the price payable
hereunder for each of the Warrant Shares is referred to as the "Per Share
Warrant Price", (V) this Warrant, and all warrants hereafter issued in exchange
or substitution for this Warrant are referred to as the "Warrant" and (VI) the
holder of this Warrant is referred to as the "Holder".) The Per Share Warrant
Price is subject to adjustment as hereinafter provided.
1. EXERCISE OF WARRANT.
(a) CASH EXERCISE. This Warrant may be exercised, in whole at any
time or in part from time to time, commencing on the date hereof and prior to
5:00 P.M., Eastern Standard Time, on [____________] (the "Expiration Date"), by
the Holder of this Warrant by the surrender of this Warrant (with the
subscription form at the end hereof duly executed) at the address set forth in
Subsection 9(a) hereof, together with proper payment of the Aggregate Warrant
Price, or the proportionate part thereof if this Warrant is exercised in part.
Payment for Warrant Shares shall be made by certified or official bank check
payable to the order of the Company. If this Warrant is exercised in part, this
Warrant must be exercised for a minimum of 100 shares of the Common Stock, and
the Holder is entitled to receive a new Warrant covering the number of Warrant
Shares in respect of which this Warrant has not been exercised and setting forth
the proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares. Upon such surrender of this Warrant, the Company will (i) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of the Common Stock to which the Holder shall be entitled and, if
this Warrant is exercised in whole, in lieu of any fractional share of the
Common Stock to which the Holder shall be entitled, cash equal to the fair value
of such fractional share (determined in such reasonable manner as the Board of
Directors of the Company shall determine), and (ii) deliver the proportionate
part thereof if this Warrant is exercised in part, pursuant to the provisions of
the Warrant.
(b) NET ISSUANCE. In addition to the rights set forth in Section
1(a) hereof, the Holder shall have the right (the "Conversion Right") to require
the Company to convert this Warrant, in whole or in part, at any time prior to
the Expiration Date into shares of Common Stock as provided for in this Section
1(b). At the sole option of the Holder, upon exercise of the Conversion Right,
the Company shall deliver to the Holder (without payment by the Holder of any
Purchase Price) that number of shares of Common Stock equal to the quotient
obtained by dividing (X) the difference between (I) the Fair Market Value of the
number of shares of Common Stock for which this Warrant may be exercised, minus
(II) the Aggregate Warrant Price; by (Y) the Fair Market Value of one share of
Common Stock immediately prior to the exercise of the Conversion Right. This
warrant shall automatically be deemed to be exercised in full pursuant to the
provisions of this Section 1(b) hereof, without any further action on behalf of
the Holder immediately prior to the Expiration Date if not exercised before such
date.
(c) FAIR MARKET VALUE. For the purpose of this Section 1, the "Fair
Market Value" a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(i) If the Company's Common Stock is traded on an exchange or
is quoted on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") National Market System, then Fair
Market Value shall mean the closing or last sale price,
respectively, reported for the last business day immediately
preceding the Determination Date;
(ii) If the Company's Common Stock is not traded on an
exchange or on the NASDAQ National Market System but is traded in
the over-the-counter market, then Fair Market Value shall mean the
closing bid and asked prices reported for the last business day
immediately preceding the Determination Date;
(iii) If the Determination Date is the date on which the
Company's Common Stock is first sold to the public by the Company is
a firm commitment public offering under the Securities Act of 1933,
as amended (the "1933 Act"), then Fair Market Value shall mean the
initial public offering price (before deducting commissions,
discounts or expenses) at which the Common Stock is sold in such
offering; and
(iv) If the Determination Date is none of the foregoing
clauses (i), (ii), and (iii), then Fair Market Value will be
determined by the Company's Board of Directors, acting in good
faith.
2. RESERVATION OF WARRANT SHARES. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and in
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
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3. ANTI-DILUTION PROVISIONS.
(a) If, at any time or from time to time after the date of this
Warrant, the Company shall distribute to the holders of the Common Stock (I)
securities, other than shares of the Common Stock, or (II) property, other than
cash, without payment therefor, with respect to the Common Stock, then, and in
each such case, the Holder, upon the exercise of this Warrant, shall be entitled
to receive the securities and properties which the Holder would hold on the date
of such exercise if, on the date of this Warrant, the Holder had been the holder
of record of the number of shares of the Common Stock subscribed for upon such
exercise and, during the period from the date of this Warrant to and including
the date of such exercise, had retained such shares and the securities and
properties receivable by the Holder during such period. Notice of each such
distribution shall be forthwith mailed to the Holder.
(b) In case the Company shall hereafter (I) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (II) subdivide its
outstanding shares of Common Stock into a greater number of shares, (III)
combine its outstanding shares of Common Stock into a smaller number of shares
or (IV) issue by reclassification of its Common Stock any shares of capital
stock of the Company, the Per Share Warrant Price in effect immediately prior to
such action shall be adjusted so that if the Holder surrendered this Warrant for
exercise immediately thereafter, the Holder would be entitled to receive the
number of shares of Common Stock or other capital stock of the Company which he
would have owned immediately following such action had such Warrant been
exercised immediately prior thereto. An adjustment made pursuant to this
subsection (b) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this
subsection (b), the Holder of this Warrant shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and
other capital stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written notice to the Holder of
this Warrant promptly after such adjustment) shall determine the allocation of
the adjusted Per Share Warrant Price between or among shares of such classes of
capital stock or shares of Common Stock and other capital stock.
(c) In case of any consolidation or merger to which the Company is a
party other than a merger or consolidation in which the Company is the
continuing corporation, or in case of any sale or conveyance to another entity
of the property of the Company as an entirety or substantially as an entirety,
or in the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company), the Holder shall have the right thereafter to
convert this Warrant into the kind and amount of securities, cash or other
property which he would have owned or have been entitled to receive immediately
after such consolidation, merger, statutory exchange, sale or conveyance had
such Warrant been converted immediately prior to the effective date of such
consolidation, merger, statutory exchange, sale or conveyance and in any such
case, if necessary, appropriate adjustment shall be made in the application of
the provisions set forth in this Section 3 with respect to the rights and
interests thereafter of the Holder to the end that the provisions set forth in
this Section 3 shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the conversion of this Warrant. The above
provisions of this subsection (c) shall similarly apply to successive
consolidations, mergers, statutory exchanges, sales or conveyances. Notice of
any such consolidation, merger, statutory exchange, sale or
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conveyance and of said provisions so proposed to be made, shall be mailed to the
Holder not less than 30 days prior to such event. A sale of all or substantially
all of the assets of the Company for a consideration consisting primarily of
securities shall be deemed a consolidation or merger for the foregoing purposes.
(d) Whenever the Per Share Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights of the Holder of this
Warrant in accordance with this Section 3, the Company shall promptly prepare a
certificate of an officer of the Company, setting forth the Per Share Warrant
Price and the number of Warrant Shares after such adjustment or modification, a
brief statement of the facts requiring such adjustment or modification and the
manner of computing the same and cause a copy of such certificate to be mailed
to the Holder.
(e) If the Board of Directors of the Company shall declare any
dividend or other distribution in cash with respect to the Common Stock, other
than out of earned surplus, the Company shall mail notice thereof to the Holder
not less than 15 days prior to the record date fixed for determining
shareholders entitled to participate in such dividend or other distribution.
4. FULLY PAID STOCK; TAXES. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable, and not
subject to preemptive rights, and the Company will take all such actions as may
be necessary to assure that the par value or stated value, if any, per share of
the Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all Federal and state stamp, original issue or similar
taxes that may be payable in respect of the issue of any Warrant Share or
certificate therefor.
5. TRANSFER.
(a) SECURITIES LAWS. Neither this Warrant nor the Warrant Shares
issuable upon the exercise hereof have been registered under the Securities Act
of 1933, as amended (the "Securities Act") or under any state securities laws
and unless so registered may not be transferred, sold, pledged, hypothecated or
otherwise disposed of unless an exemption from such registration is available.
In the event Holder desires to transfer this Warrant or any of the Warrant
Shares issued, the Holder must give the Company prior written notice of such
proposed transfer including the name and address of the proposed transferee.
Such transfer may be made only either (I) upon publication by the Securities and
Exchange Commission (the "Commission") of a ruling, interpretation, opinion or
"no action letter" based upon facts presented to said Commission, or (II) upon
receipt by the Company of an opinion of counsel to the Company in either case to
the effect that the proposed transfer will not violate the provisions of the
Securities Act, the Securities Exchange Act of 1934, as amended, or the rules
and regulations promulgated under either such act, or in the case of clause (ii)
above, to the effect that the Warrant or Warrant Shares to be sold or
transferred has been registered under the Securities Act of 1933, as amended,
and that there is in effect a current prospectus meeting the requirements of
Subsection 10(a) of the Securities Act, which is being or will be delivered to
the purchaser or transferee at or prior to the time of delivery of the
certificates evidencing the Warrant or Warrant Stock to be sold or transferred.
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(b) CONDITIONS TO TRANSFER. Prior to any such proposed transfer, and
as a condition thereto, if such transfer is not made pursuant to an effective
registration statement under the Securities Act, the Holder will, if requested
by the Company, deliver to the Company (I) an investment covenant signed by the
proposed transferee, (ii) an agreement by such transferee to the impression of
the restrictive investment legend set forth herein on the certificate or
certificates representing the securities acquired by such transferee, (III) an
agreement by such transferee that the Company may place a "stop transfer order"
with its transfer agent or registrar, and (IV) an agreement by the transferee to
indemnify the Company to the same extent as set forth in the next succeeding
paragraph.
(c) INDEMNITY. The Holder acknowledges that the Holder understands
the meaning and legal consequences of this Section 5, and the Holder hereby
agrees to indemnify and hold harmless the Company, its representatives and each
officer and director thereof from and against any and all loss, damage or
liability (including all attorneys' fees and costs incurred in enforcing this
indemnity provision) due to or arising out of (A) the inaccuracy of any
representation or the breach of any warranty of the Holder contained in, or any
other breach of, this Warrant, (B) any transfer of the Warrant or any of the
Warrant Shares in violation of the Securities Act, the Securities Exchange Act
of 1934, as amended, or the rules and regulations promulgated under either of
such acts, (C) any transfer of the Warrant or any of the Warrant Shares not in
accordance with this Warrant or (D) any untrue statement or omission to state
any material fact in connection with the investment representations or with
respect to the facts and representations supplied by the Holder to counsel to
the Company upon which its opinion as to a proposed transfer shall have been
based.
(d) TRANSFER. Except as restricted hereby, this Warrant and the
Warrant Shares issued may be transferred by the Holder in whole or in part at
any time or from time to time. Upon surrender of this Warrant to the Company or
at the office of its stock transfer agent, if any, with assignment documentation
duly executed and funds sufficient to pay any transfer tax, and upon compliance
with the foregoing provisions, the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in such instrument of
assignment, and this Warrant shall promptly be cancelled. Any assignment,
transfer, pledge, hypothecation or other disposition of this Warrant attempted
contrary to the provisions of this Warrant, or any levy of execution, attachment
or other process attempted upon the Warrant, shall be null and void and without
effect.
(e) LEGEND AND STOP TRANSFER ORDERS. Unless the Warrant Shares have
been registered under the Securities Act, upon exercise of any part of the
Warrant and the issuance of any of the shares of Warrant Shares, the Company
shall instruct its transfer agent to enter stop transfer orders with respect to
such shares, and all certificates representing Warrant Shares shall bear on the
face thereof substantially the following legend, insofar as is consistent with
Delaware law:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS
OF THAT ACT OR AN OPINION OF COUNSEL TO THE COMPANY IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION.
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6. "PIGGY-BACK" REGISTRATIONS. If at any time the Company shall determine
to register any of its securities under the Securities Act (including pursuant
to a demand of any stockholder of the Company exercising registration rights),
other than on Form S-8 or Form S-4 or their then equivalents, it shall send to
each Holder of the Common Stock or Warrant Shares (the "Registrable Shares"),
including each Holder who has the right to acquire Registrable Shares, written
notice of such determination and, if within 45 days after receipt of such
notice, such Holder shall so request in writing, the Company shall use its best
efforts to include in such registration statement all or any part of the
Registrable Shares such Holder requests to be registered therein, except that
if, in connection with any offering involving an underwriting of Common Stock to
be issued by the Company, the managing underwriter shall impose a limitation on
the number of shares of such Common Stock which may be included in any such
registration statement because, in its judgment, such limitation is necessary to
effect an orderly public distribution, and such limitation is imposed pro rata
with respect to all securities whose holders have a contractual, incidental
("piggy-back") right to include such securities in the registration statement
and as to which inclusion has been requested pursuant to such right, then the
Company shall be obligated to include in such registration statement only such
limited portion (which may be none) of the Registrable Shares with respect to
which such Holder has requested inclusion hereunder.
7. LOSS, ETC. OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent to
or receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the exercise hereof.
9. COMMUNICATION. No notice or other communication under this Warrant shall
be effective unless the same is in writing and is mailed by first-class mail,
postage prepaid, addressed to:
(a) the Company at 100 Cummings Center, Suite 235M, Beverly, MA
01915 or such other address as the Company has designated in writing to the
Holder, or
(b) the Holder at _________________________________________, or such
other address as the Holder has designated in writing to the Company.
10. HEADINGS. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
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11. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the law of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, LocatePLUS Holdings Corporation, has caused this
Warrant to be signed by its ____________________________ and its corporate seal
to be hereunto affixed and attested by its _________________ this
[____________].
ATTEST: __________________________________
By:_______________________________
________________________________ (name)
(name) Title:
Title:
[Corporate Seal]
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SUBSCRIPTION
The undersigned, , pursuant to the provisions of the foregoing Warrant,
hereby agrees to subscribe for the purchase of shares of the Class A Voting
Common Stock of LocatePLUS Holdings Corporation covered by said Warrant, and
makes payment therefor in full at the price per share provided by said Warrant.
Dated: Signature___________________________
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Address ___________________________
___________________________
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ASSIGNMENT
FOR VALUE RECEIVED hereby sells, assigns and transfers unto ______ the
foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint ______________________________, attorney, to transfer
said Warrant on the books of LocatePLUS Holdings Corporation
Dated: Signature___________________________
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Address ___________________________
___________________________
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED hereby assigns and transfers unto _________ the right to
purchase shares of the Class A Voting Common Stock of LocatePLUS Holdings
Corporation by the foregoing Warrant, and a proportionate part of said Warrant
and the rights evidenced hereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer that part of said Warrant on the
books of ____________________.
Dated: Signature___________________________
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Address ___________________________
___________________________
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