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Exhibit 4.8
FORM OF WARRANT--EXHIBIT B
SAFLINK Corporation
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND, UNLESS SO REGISTERED,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON SHARES
Warrant to purchase up to [1,000,000] shares of the $0.01 par value common
stock of SAFLINK Corporation (subject to adjustment)
This certifies that, for value received, , or its successors or assigns
(the "Holder"), is entitled, subject to the terms set forth below, to purchase
from SAFLINK Corporation (the "Company") up to [1,000,000] shares (the
"Warrant Shares") of the $0.01 par value common stock of the Company ("Common
Stock"), upon surrender of this certificate at 18650 N.E. 67th Court, Suite
210, Redmond, WA 98052, or such other place as the Company may designate in
writing to the Holder, and the simultaneous payment therefor in lawful money
of the United States of America of the Exercise Price (as hereinafter
defined). The number, character and Exercise Price of such shares are subject
to adjustment as provided herein. The term "Warrant" as used herein shall
include this certificate, the securities represented by this certificate and
any warrants delivered in substitution or exchange for this certificate as
provided herein.
This Warrant is issued in connection with that certain loan agreement by and
among the Holder and the Company (the "Loan Agreement") dated as of ,
2000 (the "Warrant Issue Date").
1. Term of Warrant. Subject to the terms and conditions set forth herein,
this Warrant shall be exercisable, in whole or in part, during the period of
time (the "Exercise Period") commencing on the Warrant Issue Date and ending
at 5:00 p.m. on the last day of the sixtieth (60th) full calendar month after
the Warrant Issue Date.
2. Exercise Price. Subject to Section 9(a), the price at which the Holder
may exercise this Warrant (the "Exercise Price") shall be at a fixed price of
One United States Dollar (U.S. $1.00) per share.
3. Vesting of Warrant. Effective as of the Warrant Issue Date, the Warrant
shall be fully vested and exercisable, and the Holder shall have the right to
purchase up to [1,000,000] shares of the Company's Common Stock pursuant to
the terms and conditions of this Warrant.
4. Exercise of the Warrant. Subject to the provisions of Section 5 below,
the purchase rights represented by this Warrant are exercisable by the Holder,
in whole or in part, at any time, and from time to time during the Exercise
Period, by the Holder's surrender of this Warrant at 18650 N.E. 67th Court,
Suite 210, Redmond, WA 98052, or such other place as the Company may designate
in writing to Holder, and the simultaneous payment therefor in lawful money of
the United States of America of the Exercise Price in immediately available
funds. This Warrant shall be deemed exercised on the date immediately prior
thereto, and the Holder shall be entitled to receive the shares of Common
Stock of the Company and be treated for all purposes as the holder of record
of such shares as of the close of business on such date. As promptly as
practicable, but in no event later than 10 business days thereafter, the
Company shall issue and deliver, at its sole cost and expense, to the person
or persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company, at its sole cost and expense, shall execute
and deliver a new warrant of like tenor as this Warrant, exercisable for the
remaining number of shares for which this Warrant may then be exercised, and
shall cancel this Warrant only upon issuance of such new warrant. There shall
be no cashless conversion of the Warrant.
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5. Redemption. This Warrant may be redeemed by the Company by giving written
notice of such redemption ("Warrant Redemption Notice") to the Holder on or
prior to the last day of the sixtieth (60th) full calendar month after the
Warrant Issue Date (the "Redemption"). The redemption price shall be three
hundred percent (300%) of the Exercise Price (the "Redemption Price"). The
Company shall be entitled to redeem the Warrant only in the event that the last
reported sale price on the principal securities exchange or market for the
Company's Common Stock equals or exceeds the Redemption Price for any twenty
(20) trading day period prior to such notice. The Redemption shall occur within
thirty (30) days of the Warrant Redemption Notice at a time place and date
selected by the Company at which time the Company shall pay the Redemption
Price and the Holder shall deliver to the Company in consideration thereof this
Warrant Certificate.
6. Rights as a Stockholder. The Holder shall not be entitled to vote, receive
dividends or be deemed to be the owner of record of the shares of Common Stock
of the Company to which this Warrant relates unless and until the Holder
exercises this Warrant, and then the Holder shall enjoy such rights only to the
extent of such exercise.
7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register (the "Warrant
Register") maintaining the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his/her
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to
such Holder as shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on the Warrant
Register of the Company, the Company may treat the Holder as shown on the
Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 6(a) above, issuing the Common Stock or other
securities then issuable upon the exercise of this Warrant, exchanging this
Warrant, replacing this Warrant, or any or all of the foregoing.
Thereafter, any such registration, issuance, exchange, or replacement, as
the case may be, shall be made at the office of such agent.
(c) Exchange of Warrant upon a Transfer. On surrender of this Warrant for
exchange, properly endorsed and subject to the provisions of this Warrant
with respect to compliance with the Act and with the limitations on
assignments and transfers and contained in this Section 7, the Company at
its expense shall issue to or on the order of the Holder a new Warrant or
Warrants of like tenor, in the name of the Holder or as the Holder (on
payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
(d) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof, acknowledges
that this Warrant and the shares of Common Stock to be issued upon
exercise hereof are being acquired solely for the Holder's own account
(and not as a nominee for any other party), and for investment (except
to the extent that a distribution may be effected pursuant to the
registration rights granted hereunder), and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of the
Common Stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any
state securities laws. Upon exercise of this Warrant, the Holder shall,
if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of Common Stock so purchased are being
acquired solely for the Holder's own account and not as a nominee for
any other party, for investment, and not with a view toward
distribution or resale (except to the extent that a distribution may be
effected pursuant to the registration rights granted hereunder).
(ii) This Warrant and all shares of Common Stock issued upon exercise
hereof or conversion thereof shall be stamped or imprinted with a
legend in substantially the following form (in addition to any legend
required by state securities laws):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS.
8. Reservation of Stock. The Company covenants that during the Exercise
Period, the Company will reserve from its authorized and unissued shares of
Common Stock a sufficient number of shares to provide for the issuance of
Common Stock upon the exercise of the Warrant and, from time to time, will take
all steps necessary to amend its certificate of incorporation (the
"Certificate") to provide sufficient authorized reserved shares of Common Stock
issuable upon exercise of the Warrant. The Company further covenants that all
shares that may be issued upon exercise of the rights represented by this
Warrant and payment of the Exercise Price, all as set forth herein, will be
free from all taxes, liens and charges in respect of the issue hereof (other
than taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates
for shares of Common Stock upon the exercise of this Warrant.
9. Registration Rights.
(a) Registration Initiated by Company. If the Company at any time prior
to the termination of this Section proposes to register an offering of its
securities of the same class as the shares underlying the Warrant under the
Securities Act of 1933 (the "Securities Act"), either for its own account
or for the account of or at the request of one or more persons holding
securities of the Company, the Company will:
(i) give written notice thereof to the Holder (which shall include a
list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other state
securities laws) within 10 business days of its receipt of a request
from one or more persons holding securities of the Company to register
securities, or from its decision to effect a registration of securities
(other than securities to be registered on Form S-8 or S-4 or such
successor forms as may be adopted by the Securities and Exchange
Commission in connection with employee benefit plans or stock
compensation arrangements or an acquisition) for its own account,
whichever first occurs; and
(ii) use its commercially reasonable efforts to include in such
registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all the
Registrable Shares (as defined herein) as specified in a written
request by Holder made within 30 days after receipt of such written
notice from the Company, except as set forth in Sections (b) and (c)
below; provided, however, that if at any time after giving written
notice to the Holder of its intention to register Company securities
under the Securities Act, the Company shall determine not to register
any such securities, the Company may, at its election, give written
notice of such determination to the Holder and, thereupon, shall be
relieved of its obligation to register such Registrable Shares pursuant
to this Section 9 in connection with such registration, without
prejudice, however, to any rights of the Holder to request that such
registration be effected as a registration under other provisions of
this Warrant, and provided further that if at any time after giving
written notice to the Holder of its intention to register Company
securities under the Securities Act, the Company shall determine to
delay the registration of such securities or suspend the use of such
registration statement, the Company shall be permitted to delay the
registration of such shares underlying the Warrant or suspend the use
of such registration statement for the same period as the delay in
registering the securities to be registered by the Company or the
suspension of the use of such registration statement for its own
account or for others.
For purposes of this Section 8, "Registrable Shares" means (i) the
shares underlying the Warrant, and (ii) any shares of Common Stock
issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares underlying the Warrant;
provided, however, that any shares previously sold to the public
pursuant to a registered public offering or pursuant to Rule 144 or
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Rule 145 under the Securities Act, and any shares otherwise sold or
transferred in a transaction in which the transferor's rights under
this Warrant are not assigned in accordance with this Warrant, shall
cease to be Registrable Securities.
(b) Amount to be Included. In the event that shares underlying the
Warrant are requested to be included in any registration initiated pursuant
to Section (a) that contemplates an underwritten public offering, and if,
in the good faith judgment of the managing underwriter of such public
offering, the inclusion of all of the shares underlying the Warrant
originally covered by a request for registration, together with the number
or amount of securities that were intended to be offered by other persons
holding securities of the Company who hold registration rights, would
interfere with the successful marketing of such securities, then, such
managing underwriter may limit the number or amount of securities to be
included in the registration such that all persons holding securities of
the Company (including the Holder) who hold registration rights and who
have requested registration (collectively, the "Security Holders") shall
participate in the underwritten public offering pro rata based upon the
total number or amount of securities to be offered by the total number or
amount of securities held by each Security Holder (including the number or
amount of securities which each such Security Holder may then be entitled
to receive upon the exercise of any option or warrant, or the exchange or
conversion of any security, held by such Security Holder). If any such
Security Holder would thus be entitled to include more securities than such
Security Holder requested to be registered, the excess shall be allocated
among the other Security Holders pro rata in a manner similar to that
described in the previous sentence.
(c) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company
shall so advise the Holder as a part of the written notice given pursuant
to Section (a). In such event, the right of each shareholder requesting
registration pursuant to this Section 9 shall be conditioned upon its
participation in such underwriting and the inclusion of the Registrable
Shares in the underwriting to the extent provided herein (the "Requesting
Shareholder"). The Requesting Shareholder shall (together with the Company
and the other security holders (if any) distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company (including, without limitation, customary lock-
up provisions as required by the underwriter). If the Requesting
Shareholder disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the underwriter.
Any Registrable Shares excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
(d) Withdrawal from Registration. The Holder may, at any time prior to
the effective date of the registration statement relating to such
registration, revoke such request under this Section 9 by delivering
written notice of such revocation to Company.
(e) Expenses of Registration. The Company shall bear all Company
registration expenses incurred in connection with each registration
pursuant to Section 9, excluding any underwriting discounts, brokerage
commissions, or similar expenses.
(f) Maintaining an Effective Registration Statement. Except as otherwise
provided herein, the Company shall keep such registration statement
described in Section 9 effective until such time when the Holder shall have
completed the offering and sale of the Common Stock described in such
registration statement, provided such period of time shall not exceed 60
days.
(g) Termination of Registration Rights. The registration rights set forth
in this Section 9 shall terminate in the event that all Registrable Shares
are permitted to be sold pursuant to Rule 144 under the Securities Act in a
three month period.
10. Merger, Sale of Assets and other Fundamental Corporate Changes. If at
any time during the Exercise Period there shall be a sale of all or
substantially all of the Company's assets, or a merger, consolidation or
reorganization of the Company in which the Company is not the surviving
entity, or other transaction in which the shares of the Company are converted
into shares of another entity (a "Corporate Change Event"), the
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Company shall provide the Holder with written notice of such Corporate Change
Event at least ten (10) business days prior to the date on which a record will
be taken of stockholders of the Company with respect to such event (or, if the
Company notifies its stockholders of such record date less than ten (10)
business days prior to such record date, then the Company shall provide Holder
such notice at the same time that it provides its stockholders with such
notice).
11. No Impairment. The Company shall not, by amendment of its charter,
through a reorganization, transfer of assets, consolidation, merger,
dissolution, issuance or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
required to be observed by the Company pursuant to this Warrant, and shall
assist in carrying out all of the provisions of this Warrant that may be
necessary or appropriate to protect Holder's rights hereunder against
impairment.
12. Adjustments. The number of securities purchasable hereunder is subject to
adjustment from time to time during the Exercise Period in order to preserve
the value of this Warrant as follows:
(a) If the Company at any time during the Exercise Period splits,
subdivides or combines the securities as to which purchase rights under
this Warrant exist into a different number of securities of the same class,
the Holder shall be entitled to acquire a proportionate number of
securities of the same class at a price per share that is also adjusted
proportionately.
(b) If the Company at any time during the Exercise Period changes any of
the securities as to which purchase rights under this Warrant exist into
another class of securities of the Company, this Warrant shall thereafter
represent the right, but not the obligation, with respect to the securities
that were subject to the purchase rights under this Warrant immediately
prior to such change, to acquire such number of securities of such other
class as would have been issuable as a result of such change had the Holder
exercised this Warrant immediately prior to such change.
(c) If at any time during the Exercise Period, the holders of the Common
Stock of the Company become entitled to receive, without consideration
therefor, other or additional stock or other securities or property (other
than cash) of the Company, then this Warrant shall represent the right, but
not the obligation, to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant that the Holder is
otherwise entitled to acquire, and without payment of additional
consideration for the right to acquire such additional property, the amount
of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would have been entitled to
receive had it been the holder of record of the security receivable to
which purchase rights under this Warrant relate at the time the holders of
the Company's Common Stock became entitled to receive such property.
13. Miscellaneous.
(a) Successors. All the covenants and provisions hereof by or for the
benefit of the Company or the Holder shall bind and inure to the benefit of
their respective successors and assigns, without regard to the conflict of
laws provisions thereof.
(b) Governing Law. This Warrant shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be
construed in accordance with the laws of said State.
(c) Saturdays, Sundays, Holidays. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday in the
State of Delaware, then such action may be taken or such right may be
exercised on the next succeeding day not a legal holiday.
(d) Amendment. This Warrant and any term hereof may not be changed,
waived, discharged or amended except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
amendment is sought.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly authorized officer.
Dated .
SAFLINK CORPORATION
By: _________________________________
Name: James W. Shepperd
Title: Chief Financial Officer
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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 SAFLINK
Corporation 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 shares of Common Stock available for
purchase under and pursuant to the Warrant, 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:
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whose address is:
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and whose social security number or tax identification number is:
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(Please print name and address)
Dated: ,
[ ].:
By: _________________________________
Name:
Title:
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