EXHIBIT 4.1
NEITHER THESE
SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE OR FOREIGN
COUNTRY IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR FOREIGN COUNTRY. THE SECURITIES REPRESENTED HEREBY MAY
NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS
UNLESS OFFERED, SOLD OR TRANSFERRED UNDER AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
Date: November
18, 2008
GPS INDUSTRIES,
INC.
STOCK PURCHASE
WARRANT
THIS CERTIFIES THAT, for value received, GREAT
WHITE SHARK ENTERPRISES, LLC or its registered assigns, is entitled
to purchase from GPS INDUSTRIES, INC. a Nevada corporation (the
“Company”), at any time and from time to time during
the Exercise Period (as defined in Section 2 hereof), Fourteen
Million Three Hundred Forty Four Thousand Two Hundred Sixty Two
(14,344,262) fully paid and nonassessable shares of the
Company’s common stock, (the “Common Stock”), at
an exercise price per share (the “Exercise Price”) of
$.122 (the “Warrant”). The number of shares of Common
Stock purchasable hereunder (the “Warrant Shares”) and
the Exercise Price are subject to adjustment as provided in Section
4 hereof.
This Warrant is subject to the following terms,
provisions and conditions:
1. (a) Manner of Exercise; Issuance of
Certificates . Subject to the provisions hereof, including,
without limitation, the limitations contained in Section 7 hereof,
this Warrant may be exercised at any time during the Exercise
Period by the holder hereof, in whole or in part, by delivery of a
completed exercise agreement in the form attached hereto (the
“Exercise Agreement”), to the Company by 5 p.m.
Sarasota, Florida time on any Business Day at the Company’s
principal executive offices (or such other office or agency of the
Company as it may designate by notice to the holder hereof) and
upon payment to the Company as provided in Section 1(b) below of
the applicable Exercise Price for the Warrant Shares specified in
the Exercise Agreement. The Warrant Shares so purchased shall be
deemed to be issued to the holder hereof or such holder’s
designee, as the record owner of such shares, as of the close of
business on the date on which this Warrant shall have been
surrendered and the completed Exercise Agreement shall have been
delivered and payment shall have been made for such shares as set
forth above or, if such day is not a Business Day, on the next
succeeding Business Day. The Warrant Shares so purchased,
representing the aggregate number of shares specified in the
Exercise Agreement, shall be delivered to the holder hereof as
promptly as practicable. If this Warrant shall have been exercised
only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such
certificates, deliver to the holder a new Warrant representing the
number of shares with respect to which this Warrant shall not then
have been exercised.
(b) Payment
of Exercise Price . The holder shall pay the Exercise Price in
immediately available funds.
2.
Period of Exercise
.
This Warrant may be exercised at any time or from time to time (an
“Exercise Date”) during the period (the “Exercise
Period”) beginning on (a) the date on which the holder of
this warrant has exercised its optional conversion rights set forth
in Section 2.1 of that certain Non-Negotiable Convertible
Promissory Note dated as of November 18, 2008 and ending (b) at
5:00 p.m., Sarasota, Florida time, May 8, 2012.
3.
Certain Agreements of the
Company . The Company
hereby covenants and agrees as follows:
(a) Shares
to be Fully Paid . All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully
paid and nonassessable and free from all taxes, liens, claims and
encumbrances (except for restrictions existing under applicable
securities laws).
(b)
Reservation of Shares . During the Exercise Period, the
Company shall at all times have authorized, and reserved for the
purpose of issuance upon exercise of this Warrant, a sufficient
number of shares of Common Stock to provide for the exercise in
full of this Warrant.
(c)
Successors and Assigns . This Warrant shall be binding upon
any entity succeeding to the Company by merger, consolidation, or
acquisition of all or substantially all of the Company’s
assets or any other similar transaction.
4.
Antidilution Provisions
.
During the Exercise Period, the Exercise Price and the number of
Warrant Shares issuable upon the exercise of the Warrants, shall be
subject to adjustment from time to time as provided in this Section
4.
In the event
that any adjustment of the Exercise Price as required herein
results in a fraction of a cent, such Exercise Price shall be
rounded up or down to the nearest cent; provided that, in no event
shall the Exercise Price per share be reduced below
$0.01.
(a)
Subdivision or Combination of Common Stock . If the Company,
at any time during the Exercise Period, subdivides (by any stock
split, stock dividend, recapitalization, reorganization,
reclassification or otherwise) its shares of Common Stock into a
greater number of shares, then, after the date of record for
effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately
reduced. If the Company, at any time during the Exercise Period,
combines (by reverse stock split, recapitalization, reorganization,
reclassification or otherwise) its shares of Common Stock into a
smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased.
(b)
Adjustment in Number of Shares . Upon each adjustment of the
Exercise Price pursuant to the provisions of Sections 4(a) and (c),
the number of shares of Common Stock issuable upon exercise of this
Warrant shall be appropriately increased or decreased to equal the
quotient obtained by dividing (i) the product of (A) the Exercise
Price in effect immediately prior to such adjustment, multiplied by
(B) the number of shares of Common Stock issuable upon exercise of
this Warrant immediately prior to such adjustment, by (ii) the
adjusted Exercise Price.
(c)
Consolidation, Merger or Sale . In case of any consolidation
of the Company with, or merger of the Company into, any other
entity, or in case of any sale or conveyance of all or
substantially all of the assets of the Company or other similar
transaction other than in connection with a plan of complete
liquidation of the Company at any time during the Exercise Period,
then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the holder of
this Warrant will have the right to acquire and receive upon
exercise of this Warrant in lieu of the shares of Common Stock
immediately theretofore acquirable upon the exercise of this
Warrant, such shares of stock, securities, cash or assets as may be
issued or payable with respect to or in exchange for the number of
shares of Common Stock immediately theretofore acquirable and
receivable upon exercise of this Warrant had such consolidation,
merger or sale or conveyance not taken place. In any such case, the
Company will make appropriate provision to cause the provisions of
this Section 4 thereafter to be applicable as nearly as may be in
relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not
effect any consolidation, merger or sale or conveyance of all or
substantially all of its assets or other similar transaction unless
prior to the consummation thereof, the successor entity (if other
than the Company) assumes by written instrument (a copy of which
shall be delivered to the holder of this Warrant) the obligations
under this Warrant and the obligations to deliver to the holder of
this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be
entitled to acquire. The provisions of this Section 4(c) shall also
apply to successive transactions covered by this
section.
(d)
Distribution of Assets . In case the Company shall declare
or make any distribution of its cash or other assets (or rights to
acquire its assets) to all holders of Common Stock as a partial
liquidating dividend, stock repurchase, return of capital or
otherwise (including any distribution to the Company’s
stockholders of shares (or rights to acquire shares) of capital
stock of a subsidiary) (a “Distribution”), at any time
during the Exercise Period, then, upon exercise of this Warrant for
the purchase of any or all of the shares of Common Stock subject
hereto, the holder of this Warrant shall be entitled to receive its
pro-rata amount of such assets (or such rights) as would have been
payable to the holder had such holder been the holder of such
shares of Common Stock on the record date for the determination of
stockholders entitled to such Distribution.
(e)
Subsequent Equity Sales at Less Than The Exercise Price
.
(i)
If
the Company shall, at any time or from time to time, issue any
shares of Common Stock (or be deemed to have issued shares of
Common Stock as provided in Section 4(e)(ii)) other than Excluded
Securities (as defined below), without consideration or for a
consideration per share less than the Exercise Price in effect
immediately prior to each such issuance then the Exercise Price
shall forthwith (except as provided in this Section 4(e)(i)) be
lowered to a price equal to the quotient obtained by
dividing:
(1)
the
total number of shares of Common Stock outstanding (including any
shares of Common Stock deemed to have been issued pursuant to
Section 4(e)(ii)(3)) (it being understood that the shares of Common
Stock issuable upon exercise of this Warrant immediately prior to
such issuance shall be deemed to be outstanding for all purposes of
the computation required in this Section 4(e)(i)(1)), immediately
prior to such issuance multiplied by the Exercise Price as in
effect immediately prior to such issuance, plus
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(2)
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the consideration received by the Company upon
such issuance, by
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(3)
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the total number of shares of Common Stock
outstanding (including any shares of Common Stock deemed to have
been issued pursuant to Section 4(e)(ii)) (it being understood that
the shares of Common Stock issuable upon exercise of this Warrant
immediately prior to such issuance shall be deemed to be
outstanding for all purposes of the computation required in this
Section 4(e)(i)(3)), immediately after the issuance of such Common
Stock.
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Following a reduction in the Exercise Price
under this Section 4(e)(i), the total number of Warrant Shares
issuable hereunder shall be proportionately increased such that the
aggregate Exercise Price payable hereunder, after taking into
account the decrease in the Exercise Price per Warrant Share, shall
be equal to the aggregate Exercise Price for all Warrant Shares
prior to such adjustment.
(ii)
For
the purposes of any adjustment of the Exercise Price pursuant to
Section 4(e)(i), the following provisions shall be
applicable:
(1)
In
the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid
therefor before deducting therefrom any discounts, commissions or
other expenses allowed, paid or incurred by the Company for any
underwriting or otherwise in connection with the issuance and sale
thereof.
(2)
In
the case of the issuance of Common Stock for a consideration in
whole or in part other than cash, the consideration other than cash
be shall be deemed to be the fair market value thereof as
determined in good faith by the Board, irrespective of any
accounting treatment.
(3)
In
the case of the issuance of (x) options to purchase or rights to
subscribe for Common Stock, (y) securities by their terms
convertible into or exchangeable for Common Stock or (z) options to
purchase or rights to subscribe for such convertible or
exchangeable securities:
(i)
the
aggregate maximum number of shares of Common Stock deliverable upon
exercise of such options to purchase or rights to subscribe for
Common Stock shall be deemed to have been issued at the time such
options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in
Sections 4(e)(ii)(1), 4(e)(ii)(2) and 4(e)(ii)(3)), if any,
received by the Company upon the issuance of such options or rights
plus the minimum purchase price provided in such options or rights
for the Common Stock covered thereby;
(ii)
the
aggregate maximum number of shares of Common Stock deliverable upon
conversion of or in exchange for any such convertible or
exchangeable securities or upon the exercise of options to purchase
or rights to subscribe for such convertible or exchangeable
securities and subsequent conversion or exchange thereof shall be
deemed to have been issued at the time such securities were issued
or such options or rights were issued and for a consideration equal
to the consideration received by the Company for any such
securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus
the additional consideration, if any, to be received by the Company
upon the conversion or exchange of such securities or the exercise
of any related options or rights (the consideration in each case to
be determined in the manner provided in Sections 4(e)(ii)(1),
4(e)(ii)(2) and 4(e)(ii)(3));
(iii)
on
any change in the number of shares or exercise price of Common
Stock deliverable upon exercise of any options or rights or
conversions of or exchanges for such securities, other than a
change resulting from the anti-dilution provisions thereof, the
Exercise Price shall forthwith be readjusted to the Exercise Price
as would have been obtained had the adjustment made upon the
issuance of such options, rights or securities not converted prior
to such change or options or rights related to such securities not
converted prior to such change been made upon the basis of such
change;
(iv)
on
the expiration of any such options or rights, the
