<PAGE>
As filed with the Securities and Exchange Commission on September 8, 1999.
Registration No. 333-____
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
ARDIS TELECOM & TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 75-2801677
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8100 JETSTAR DRIVE, SUITE 100
IRVING, TEXAS 75063
(Address of Principal Executive Offices) (Zip Code)
-------------------------
ARDIS TELECOM & TECHNOLOGIES, INC.
AMENDED STOCK OPTION PLAN
AND
PERFORMANCE WARRANTS
FOR CERTAIN EXECUTIVE OFFICERS AND KEY EMPLOYEES OF ARDIS TELECOM &
TECHNOLOGIES, INC.
(Full title of the plans)
-------------------------
ROGER D. BRYANT COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER WILLIAM L. RIVERS, ESQ.
ARDIS TELECOM & TECHNOLOGIES, INC. ARTER & HADDEN LLP
8100 JETSTAR DRIVE, SUITE 100 1717 MAIN ST., SUITE 4100
IRVING, TEXAS 75063 DALLAS, TEXAS 75201-4605
(Name and address of (214) 761-2100
agent for service)
(972) 929-1920
(Telephone number,
including area code,
of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Common Stock $.001 1,100,000 shares (2) $ 943,341(2) $263(3)
par value(4)
- --------------------------------------------------------------------------------------------------------------------
Common Stock $.001 875,000 shares 0.53(6) $ 463,750 $129
par value(5)
- --------------------------------------------------------------------------------------------------------------------
TOTAL 1,975,000 $1,407,091 $392
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, shares of Common Stock of the Registrant
issuable (i) pursuant to the exercise of options granted or to be granted
under the ARDIS Telecom & Technologies, Inc. Stock Option Plan (the "Plan")
and (ii) upon exercise of Performance Warrants ("Compensation Contracts")
granted to certain executive officers and key employees of the Registrant in
order to prevent dilution resulting from any future stock split, stock
divided or similar transactions are also being registered hereunder.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee as follows: (i) the maximum proposed
offering price at which outstanding options under the Plan (1,028,990 shares
of Common Stock) may be exercised is $905,706 and (ii) the maximum proposed
offering price at which unissued options may be exercised under the Plan
(71,010 shares of Common Stock) is $37,635 calculated on the basis of the
market price per share of Common Stock on the NASD's OTCBB on September 3,
1999 ($0.53), in accordance with Rule 457(c).
(3) Relates only to additional shares registered hereby and does not
include the amount of the registration fee previously paid in connection with
the 1,200,000 shares of Common Stock previously registered by that
Registration Statement on Form S-8 filed with the Commission on March 14,
1997 (Reg. No. 333-23313).
(4) Represents additional shares of Common Stock reserved for
issuance under the Plan.
(5) Represents the shares of Common Stock reserved for issuance
under the Compensation Contracts.
(6) Based on the price per share pursuant to which outstanding
Compensation Contracts can be exercised pursuant to Rule 457(h).
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
PURPOSE.
This Registration Statement is being filed for the purposes of (1)
registering an additional 1,100,000 shares of the Registrant's Common Stock
issuable pursuant to stock options granted under the Registrant's Stock
Option Plan for which a Registration Statement on Form S-8 (No. 333-23313) is
currently effective and (2) registering up to 875,000 shares of the
Registrant's Common Stock issuable upon exercise of certain Performance
Warrants ("Compensation Contracts") granted by the Registrant to certain of
its executive officers and key employees.
REGISTRATION OF ADDITIONAL SECURITIES.
The Registrant's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on March 14, 1997 (No. 333-23313) is
hereby incorporated by reference.
COMPENSATION CONTRACTS.
The Registrant represents that the Compensation Contracts have been
issued under an "employee benefit plan," as that term is defined pursuant to
Rule 405 of Regulation C.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed by the Registrant (or
by Canmax, Inc., the Registrant's predecessor) with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference:
(a) our Annual Report on Form 10-K, as amended by Amendment No. 1
on Form 10-K/A, filed with the Commission for the fiscal year
ended October 31, 1998;
(b) our Quarterly Reports on Form 10-Q filed with the Commission
for the quarters ended January 31, 1999 and April 30, 1999;
(c) our Current Report on Form 8-K dated December 7, 1998; and
(d) all documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of
such documents until such time as there shall have been filed
a post-effective amendment that indicates that all securities
offered under the Registration Statement have been sold or
that deregisters all securities remaining unsold at the time
of the amendment.
<PAGE>
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that
the statement contained herein or in any subsequently filed document that
also is or is deemed to be incorporated by reference herein, or in any
document forming any part of the Section 10(a) Prospectus to be delivered to
participants in connection with, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation provides that the
Registrant shall indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law ("DGCL").
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlements actually and reasonably incurred by them in connection
with any action, suit or proceeding brought by third parties by reason of the
fact that they were or are directors, officers, employees or agents, acted in
good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. In a derivative action (I.E., one by or in the right of the
corporation), indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to
a matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made if such persons
have been adjudged liable to the corporation, unless and only to the extent
that the court in which the action or suit was brought shall determine upon
application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnity for such expenses, despite such
adjudication of liability.
Section 102(b)(7) of the DGCL permits a corporation organized under
Delaware law to eliminate or limit the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director subject to certain limitations. The Registrant's
Certificate of Incorporation includes the following provision:
3
<PAGE>
No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director of the Corporation, PROVIDED,
HOWEVER, that the foregoing is not intended to eliminate or limit the
liability of a director of the Corporation for (i) any breach of a
director's duty of loyalty to the Corporation or its stockholders, (ii)
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) a violation of Section
174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. No amendment or repeal of this Article NINTH shall apply to or
have any effect on the liability or alleged liability of any director
of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
The Registrant's Bylaws further provides for the indemnification of,
and advancement of expenses to, its officers and directors in certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit Description
----------- ---------------------------------------------------------------------------
<S> <C>
4.1 Amended and Restated Stock Option Plan (filed as Exhibit 4.3 to the
Registrant's Annual Report on Form 10-K for the year ended October 31,
1998 and incorporated herein by reference)
4.2 Form of Stock Option Agreement (filed as Exhibit 10.2 to the Registrant's
Registration Statement on Form 10 filed on October 5, 1993 and
incorporated herein by reference)
4.3 Amended Common Stock Purchase Warrant issued to Roger D. Bryant dated July
1, 1997 and amended July 20, 1998 (filed herewith)
4.4 Amended Common Stock Purchase Warrant issued to Debra L. Burgess dated
July 1, 1997 and amended July 20, 1998 (filed herewith)
4.5 Common Stock Purchase Warrant issued to Roger D. Bryant dated July 1, 1998
(filed herewith)
4.6 Common Stock Purchase Warrant issued to Debra L. Burgess dated July 1,
1998 (filed herewith)
4.7 Common Stock Purchase Warrant issued to Ivor J. Flannery dated July 20,
1998 (filed herewith)
4
<PAGE>
4.8 Common Stock Purchase Warrant issued to Scott R. Matthews dated July 20,
1998 (filed herewith)
5.1 Opinion of Arter & Hadden LLP, as to the validly of the shares of Common
Stock offered hereby (including shares of Common Stock issuable upon
exercise of stock options and the Compensation Contracts) (filed herewith)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit 5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent auditors (filed
herewith)
23.3 Consent of Ernst & Young LLP (filed herewith)
</TABLE>
5
<PAGE>
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement: (i)
to include any prospectus required by Section 10(a)(3) of the Act; (ii) to
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement; (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irving, Texas, on September 8, 1999.
ARDIS TELECOM & TECHNOLOGIES, INC.
By: /s/ Roger D. Bryant
-------------------------------------
Roger D. Bryant
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
and in the capacities indicated on September 8, 1999.
<TABLE>
<CAPTION>
SIGNATURES TITLES
- --------------------------------------- -------------------------------------------------
<S> <C>
/s/ Roger D. Bryant President, Chief Executive Officer and Director
- --------------------------------------- (PRINCIPAL EXECUTIVE OFFICER)
Roger D. Bryant
/s/ Debra L. Burgess Chief Operating Officer, Chief Financial Officer,
- --------------------------------------- Executive Vice President and Director
Debra L. Burgess (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
/s/ Nick DeMare Director
- ---------------------------------------
Nick DeMare
/s/ Robert M. Fidler Director
- ---------------------------------------
Robert M. Fidler
/s/ Thomas Rinehart Director
- ---------------------------------------
Thomas Rinehart
</TABLE>
7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
----------- ----------------------------------------------------------
<S> <C>
4.1 Amended and Restated Stock Option Plan (filed as Exhibit
4.3 to the Registrant's Annual Report on Form 10-K for the
year ended October 31, 1998 and incorporated herein by
reference)
4.2 Form of Stock Option Agreement (filed as Exhibit 10.2 to
the Registrant's Registration Statement on Form 10 filed
on October 5, 1993 and incorporated herein by reference)
4.3 Amended Common Stock Purchase Warrant issued to Roger D.
Bryant dated July 1, 1997 and amended July 20, 1998 (filed
herewith)
4.4 Amended Common Stock Purchase Warrant issued to Debra L.
Burgess dated July 1, 1997 and amended July 20, 1998
(filed herewith)
4.5 Common Stock Purchase Warrant issued to Roger D. Bryant
dated July 1, 1998 (filed herewith)
4.6 Common Stock Purchase Warrant issued to Debra L. Burgess
dated July 1, 1998 (filed herewith)
4.7 Common Stock Purchase Warrant issued to Ivor J. Flannery
dated July 20, 1998 (filed herewith)
4.8 Common Stock Purchase Warrant issued to Scott R. Matthews
dated July 20, 1998 (filed herewith)
5.1 Opinion of Arter & Hadden LLP, as to the validly of the
shares of Common Stock offered hereby (including shares of
Common Stock issuable upon exercise of stock options and
the Compensation Contracts) (filed herewith)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit
5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent
auditors (filed herewith)
23.3 Consent of Ernst & Young LLP (filed herewith)
</TABLE>
8
<PAGE>
EXHIBIT 4.3
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.
AMENDED COMMON STOCK PURCHASE WARRANT
DATED: July 1, 1997
AMENDED: July 20, 1998
- ------------------------------------------------------------------------------
Number of Common Shares: 250,000 Holder: Roger D. Bryant
Purchase Price: $0.53 per share 815 Cambridge Manor Lane
Expiration Date: June 30, 2007 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, 2007, (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, Two Hundred Fifty Thousand
(250,000) 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:
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 1 (CANMAX INC.)
<PAGE>
(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:
(i) the earnings per share (after taxes) of the Company equals
or exceeds $0.30 per share during any fiscal year calculated under
the "basic" method-
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 2 (CANMAX INC.)
<PAGE>
(meaning based on the number of shares actually outstanding as of
the date of calculation); or
(ii) the closing price of the Common Stock as reported on the
Nasdaq SmallCap Market (or other national automated quotation
system or national stock exchange on which the Common Stock may be
listed) equals or exceeds $8.00 per share for a period of sixty-
five (65) consecutive trading days.
(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 50% of the Warrant
Shares shall vest upon the Trigger Date, and Holder's right to purchase
the remaining 50% of the Warrant Shares shall vest one (1) year following
the Trigger Date; provided that all unvested Warrant Shares shall vest
upon a Change of Control. 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. The Company acknowledges that this Warrant fully vested upon
the Change of Control occurring on January 30, 1998.
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 and Tax Withholding Liability, 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
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 3 (CANMAX INC.)
<PAGE>
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").
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 (and earnings per share and closing price targets used to determine
whether a Trigger Date has occurred) shall be adjusted by multiplying the
Purchase Price (and earnings per share and closing price targets used to
determine whether a Trigger Date has occurred) 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.
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 4 (CANMAX INC.)
<PAGE>
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 (and earnings per share and closing price targets
used to determine whether a Trigger Date has occurred) shall be adjusted
by multiplying the Purchase Price (and earnings per share and closing
price targets used to determine whether a Trigger Date has occurred) 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.
3.3. 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,
6. 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
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 5 (CANMAX INC.)
<PAGE>
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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. REISSUANCE. This Warrant is issued in full substitution and
replacement of the warrant agreement between the Company and the Holder dated
July 1, 1997 (the "Prior Warrant"), which Prior Warrant is hereby canceled.
[SIGNATURE PAGE FOLLOWS]
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 6 (CANMAX INC.)
<PAGE>
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
AMENDED COMMON STOCK PURCHASE WARRANT-PAGE 7 (CANMAX INC.)
<PAGE>
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.
<PAGE>
EXHIBIT 4.4
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.
AMENDED COMMON STOCK PURCHASE WARRANT
DATED: July 1, 1997
AMENDED: July 20, 1998
- -----------------------------------------------------------------------------
Number of Common Shares: 125,000 Holder: Debra L. Burgess
Purchase Price: $0.53 per share 724 Castle Creek
Expiration Date: June 30, 2007 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, Debra L. Burgess (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, 2007, (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 Twenty Five Thousand
(125,000) 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:
COMMON STOCK PURCHASE WARRANT-PAGE 1 (CANMAX INC.)
<PAGE>
(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:
COMMON STOCK PURCHASE WARRANT-PAGE 2 (CANMAX INC.)
<PAGE>
(i) the earnings per share (after taxes) of the Company
equals or exceeds $0.30 per share during any fiscal year
calculated under the "basic" method (meaning based on the
number of shares actually outstanding as of the date of
calculation); or
(ii) the closing price of the Common Stock as reported on
the Nasdaq SmallCap Market (or other national automated
quotation system or national stock exchange on which the
Common Stock may be listed) equals or exceeds $8.00 per share
for a period of sixty-five (65) consecutive trading days.
(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 50% of the Warrant
Shares shall vest upon the Trigger Date, and Holder's right to purchase
the remaining 50% of the Warrant Shares shall vest one (1) year following
the Trigger Date; provided that all unvested Warrant Shares shall vest
upon a Change of Control. 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. The Company acknowledges that this Warrant fully vested upon
the Change of Control occurring on January 30, 1998.
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 and Tax
Withholding Liability, 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
COMMON STOCK PURCHASE WARRANT-PAGE 3 (CANMAX INC.)
<PAGE>
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").
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 (and earnings per share and closing price targets used to determine
whether a Trigger Date has occurred) shall be adjusted by multiplying the
Purchase Price (and earnings per share and closing price targets used to
determine whether a Trigger Date has occurred) 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
COMMON STOCK PURCHASE WARRANT-PAGE 4 (CANMAX INC.)
<PAGE>
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 (and earnings per share and closing price targets
used to determine whether a Trigger Date has occurred) shall be adjusted
by multiplying the Purchase Price (and earnings per share and closing
price targets used to determine whether a Trigger Date has occurred) 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.
3.3. 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
COMMON STOCK PURCHASE WARRANT-PAGE 5 (CANMAX INC.)
<PAGE>
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.
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.
11. REISSUANCE. This Warrant is issued in full substitution and
replacement of the warrant agreement between the Company and the Holder dated
July 1, 1997 (the "Prior Warrant"), which Prior Warrant is hereby canceled.
[SIGNATURE PAGE FOLLOWS]
COMMON STOCK PURCHASE WARRANT-PAGE 6 (CANMAX INC.)
<PAGE>
DATED as of the date first written above.
CANMAX INC.
By: /s/Roger D. Bryant
---------------------------------
Name: Roger D. Bryant
Title: President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Debra L. Burgess
----------------------------------------
Name: Debra L. Burgess
Address: 724 Castle Creek
Coppell, Texas 75019
COMMON STOCK PURCHASE WARRANT-PAGE 7 (CANMAX INC.)
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT 4.6
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: 200,000 Holder: Debra L. Burgess
Purchase Price: $0.53 per share 724 Castle Creek
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, Debra L. Burgess (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, Two Hundred Thousand (200,000)
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:
- --------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 1 (CANMAX INC.)
<PAGE>
(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:
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 2 (CANMAX INC.)
<PAGE>
(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
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 3 (CANMAX INC.)
<PAGE>
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
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 4 (CANMAX INC.)
<PAGE>
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.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 5 (CANMAX INC.)
<PAGE>
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]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 6 (CANMAX INC.)
<PAGE>
DATED as of the date first written above.
CANMAX INC.
By: /s/Roger D. Bryant
----------------------------
Name: Roger D. Bryant
Title: President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Debra L. Burgess
-----------------------------------
Name: Debra L. Burgess
Address: 724 Castle Creek
Coppell, Texas 75019
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 7 (CANMAX INC.)
<PAGE>
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 (CANMAX INC.)
<PAGE>
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
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
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
</TABLE>
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, 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:
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 1 (CANMAX INC.)
<PAGE>
(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:
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 2 (CANMAX INC.)
<PAGE>
(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
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 3 (CANMAX INC.)
<PAGE>
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
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 4 (CANMAX INC.)
<PAGE>
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.
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 5 (CANMAX INC.)
<PAGE>
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]
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 6 (CANMAX INC.)
<PAGE>
DATED as of the date first written above.
CANMAX INC.
By: /s/Roger D. Bryant
-----------------------------------
Name: Roger D. Bryant
Title: President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Ivor J. Flannery
--------------------------------------------
Name: Ivor J. Flannery
Address: 150 W. Carpenter Freeway
Coppell, Texas 75039
- -------------------------------------------------------------------------------
COMMON STOCK PURCHASE WARRANT - PAGE 7 (CANMAX INC.)
<PAGE>
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 (CANMAX INC.)
<PAGE>
EXHIBIT 4.8
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
- --------------------------------------------------------------------------------
Number of Common Shares: 100,000 Holder: Scott R. Matthews
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.
- --------------------------------------------------------------------------------
CANMAX INC., a Wyoming corporation (the "COMPANY"), hereby certifies
that, for value received, Scott R. Matthews (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 for Cause (as defined below), of (c) two (2) years
from the date of any termination of employment (other than for "Cause") (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 "CAUSE" means a termination of Holder's employment
with the Company or CTI as a result of an act or acts of dishonesty on
the Employee's part constituting a felony or intended to result directly
or indirectly in substantial gain or personal enrichment to him at the
expense of the Company or CTI; or Holder's willful and continued failure
substantially to perform his duties and responsibilities as an officer of
the Company or CTI (other than such failure resulting from his incapacity
due to physical or mental illness) after a demand for substantial
performance is delivered to the Holder by the Chief Operating Officer or
Chief Executive Officer of the Company or CTI which specifically
identifies the manner in which such officer believes that the Holder
<PAGE>
has not substantially performed his duties and the Holder is given a
reasonable time after such demand substantially to perform his duties;
provided that Holder's employment shall not be considered to have been
terminated by the Company or CTI for cause if the act or failure to act
upon which the termination is based (A) was done or omitted to be done
without intent of gaining therefrom directly or indirectly a profit to
which the Holder was not legally entitled and as a result of his good
faith belief that such act or failure to act was in or was not opposed to
the interests of the Company or CTI, or (B) is an act or failure to act
in respect of which the Holder meets the applicable standard of conduct
prescribed for indemnification or reimbursement of expenses under the
Bylaws of the Company or CTI or the laws of its state of incorporation.
(b) 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 or
indirectly, of securities of the CTI 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 CTI or the
Company shall cease to be "continuing directors" (meaning
directors of CTI or the Company prior to such transaction or who
subsequently became directors and whose election or nomination for
election by the stockholders of CTI 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 CTI or the Company of all or substantially all, of
the assets of CTI or the Company.
(b) The term "COMPANY" means Canmax Inc. and any entity that
shall succeed or assume the obligations of such corporation hereunder.
The term "COMMON STOCK" means the Company's common stock, no par
value per share.
The term "CTI" means Canmax Telecom, 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).
<PAGE>
(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
(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 with the
Company or CTI.
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
<PAGE>
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").
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
<PAGE>
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.
3.3. 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.
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.
<PAGE>
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]
<PAGE>
DATED as of the date first written above.
CANMAX INC.
By: /s/Roger D. Bryant
---------------------------------
Name: Roger D. Bryant
Title: President
Address: 150 West Carpenter Freeway
Irving, Texas 75039
Fax: (972) 281-2385
HOLDER:
/s/ Scott R. Matthews
----------------------------------------
Name: Scott R. Matthews
Address: 150 W. Carpenter Freeway
Irving, Texas 75039
<PAGE>
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.
<PAGE>
EXHIBIT 5.1
ARTER & HADDEN LLP
1717 MAIN STREET, SUITE 4100
DALLAS, TEXAS 75201
(214) 761-2100
September 8, 1999
ARDIS Telecom & Technologies, Inc.
8100 Jetstar Drive, Suite 100
Irving, Texas 75063
RE: OFFERING OF SHARES OF COMMON STOCK OF ARDIS TELECOM &
TECHNOLOGIES, INC.
Ladies and Gentlemen:
On September 8, 1999 ARDIS Telecom & Technologies, Inc., a Delaware
corporation and successor by merger to Canmax Inc. (the "Company"), expects to
file with the Securities and Exchange Commission a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"). The Registration Statement relates to the offering (the
"Offering") of up to 1,975,000 shares (the "Registrable Shares") of the common
stock, $.001 par value per share (the "Common Stock") issuable (a) pursuant to
the Company's Amended Stock Option Plan (the "Plan"), (with respect to 1,100,000
shares) (b) the Company's Amended Stock Purchase Warrant issued to Roger D.
Bryant dated July 1, 1997 and amended July 20, 1998 with regard to 250,000
shares, (c) the Company's Amended Common Stock Purchase Warrant issued to Debra
L. Burgess dated July 1, 1997 and amended July 20, 1998 with respect to 125,000
shares, (d) the Company's Common Stock Purchase Warrant issued to Roger D.
Bryant dated July 1, 1998 with respect to 100,000 shares, (e) the Company's
Common Stock Purchase Warrant issued to Debra L. Burgess dated July 1, 1998 with
respect to 200,000 shares, (f) the Company's Common Stock Purchase Warrant
issued to Ivor J. Flannery dated July 20, 1998 with respect to 100,000 shares,
and (g) the Company's Common Stock Purchase Warrant issued to Scott R. Matthews
dated July 20, 1998 with respect to 100,000 shares (collectively, the Common
Stock Purchase Warrants referred to in (b) through (g) above are referred to as
the "Compensation Contracts"). The firm has acted as your counsel in connection
with the preparation and filing of the Registration Statement, and you have
requested our opinion with respect to certain legal aspects of the Offering.
<PAGE>
In rendering our opinion, we have examined and relied upon the original
or copies, certified to our satisfaction, of (i) the Certificate of
Incorporation of the Company, as amended through the date hereof, (ii) the
Bylaws of the Company, as amended through the date hereof, (iii) copies of
various resolutions of the Board of Directors of the Company (iv) copies the
Plan and Compensation Contracts and (v) such other documents and instruments as
we have deemed necessary.
In our examination, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or reproduction copies. As to various questions of fact material to this
opinion, we have relied upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
Based on the foregoing examination and subject to the comments and
assumptions set forth below, we are of the opinion that issuance and sale of the
Registrable Shares have been duly authorized and, when signed, delivered and
paid for in accordance with the provisions of the Plan or the Compensation
Contracts, as applicable, will be validly issued, fully paid and non-assessable.
This opinion is limited in all respect to the General Corporation Law of
the State of Delaware as in effect on the date hereof. For purposes of this
opinion, we have assumed that the Compensation Contracts and all options issued
under the Plan were duly authorized under Wyoming law and that upon issuance,
delivery and payment, all shares issuable thereunder would have been validly
issued, fully paid and nonassessable under Wyoming law.
We bring to your attention the fact that this legal opinion is an
expression of professional judgment and not a guarantee of result. This opinion
is given as of the date hereof, and we assume no obligation to update or
supplement such opinion to reflect any facts or circumstances that may hereafter
come to our attention or any changes in laws or judicial decisions that may
hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ ARTER & HADDEN LLP
------------------------------
ARTER & HADDEN LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to 1,975,000 shares of ARDIS Telecom &
Technologies, Inc. common stock issuable pursuant to its Amended Stock Option
Plan and certain compensation contracts, of our report dated January 20,
1999, with respect to the consolidated financial statements of ARDIS Telecom
& Technologies, Inc. included in the Annual Report (Form 10-K/A) for the year
ended October 31, 1998.
/s/ KING GRIFFIN & ADAMSON P.C.
____________________________________
KING GRIFFIN & ADAMSON P.C.
Dallas, Texas
September 1, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the registration of 1,975,000 shares of
common stock issuable pursuant to the ARDIS Telecom & Technologies, Inc. Amended
Stock Option Plan and certain compensation contracts, of our report dated
December 18, 1997, with respect to the consolidated financial statements of
ARDIS Telecom & Technologies, Inc. included in its Annual Report (Form 10-K/A)
for the year ended October 31, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
---------------------------
ERNST & YOUNG LLP
Dallas, Texas
September 1, 1999
