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: January 11, 1999
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Number of Common Shares: 50,000 Holder: Henry Hermann
Purchase Price: $0.29
Expiration Date: Three (3) years from date of vesting
For identification only. The governing terms of this
Warrant are set forth below.
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CANMAX INC., a Wyoming corporation (the "Company"), hereby certifies
that, for value received, Henry Hermann (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 the earlier of (a) three (3) years following the
date of vesting of the Warrant (the "Exercise Period"), at the Purchase
Price hereinafter set forth, Fifty Thousand (50,000) fully paid and
nonassessable shares of Common Stock (as defined below) 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 $0.29, 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 "Company" means Canmax Inc. and any entity that
shall succeed or assume the obligations of such corporation hereunder.
(b) The term "Common Stock" means the Company's common stock,
.001 par value per share.
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(c) 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 then traded on any
exchange, then the closing 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.
(d) 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.
(e) 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; Resale Restrictions.
1.1. Vesting. Holder's right to purchase 25,000 of the Warrant
Shares shall vest upon the first anniversary date of the date of this
Agreement, and the right to purchase the additional 25,000 Warrant
Shares shall vest on the eighteenth month anniversary date of this
Agreement (both subject to performance criteria to be agreed upon
between Mr. Hermann and the Company). Holder shall not have the right
to acquire any Warrant Shares pursuant to this Warrant prior the
vesting of such rights as set forth in this Section 1.1.
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"). Payment of the Exercise Price shall
be made by check or bank draft payable to the order of the Company or
by wire transfer to the account of the Company. 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 the other documents referred
to herein (the "Exercise Date").
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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 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.
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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. 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.
6. Transfer Restrictions. This Warrant shall be exercisable only by Holder
and shall not be assignable or transferable. Any 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.
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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 January 11, 1999.
CANMAX INC.
By: /s/ Roger D. Bryant
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Name: Roger D. Bryant
Title: President & CEO
Address: 150 W. Carpenter Frwy, Suite 100
Irving, Texas 75039
HOLDER:
/s/ Henry Hermann
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Printed Name: Henry Hermann
Address: _____________________
_____________________
Fax: _________________
<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,
______________4 shares of Common Stock (as defined in such Warrant) and
herewith makes payment therefor (including any Tax Withholding Liability) 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: ____________________
4 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.
