EXHIBIT 4.5
THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK OF
TRI-S SECURITY
CORPORATION
Issue Date:
THIS CERTIFIES
THAT , for value received,
or (subject to the restrictions on transfer contained herein) its
registered assigns (the “ Holder ”) is entitled
to purchase from Tri-S Security Corporation, a Georgia corporation
(the “ Company ”), at any time or from time to
time after 9:00 a.m., Atlanta, Georgia time, after the date on
which Shareholder Approval (as hereinafter defined) is obtained and
prior to 5:00 p.m., Atlanta, Georgia time, on the date which
is the third anniversary of the Issue Date set forth above (the
“ Expiration Date ”), at the place where the
Warrant Agency (as hereinafter defined) is located, at the Exercise
Price (as hereinafter defined), the number of shares of common
stock, $0.001 par value per share (the “ Common Stock
”), of the Company specified above, all subject to adjustment
and upon the terms and conditions as hereinafter
provided.
Capitalized terms used and
not otherwise defined in this Warrant shall have the meanings set
forth in Article V hereof.
ARTICLE I
EXERCISE OF
WARRANTS
1.1.
Method of
Exercise . To exercise this
Warrant in whole or in part, after the date on which Shareholder
Approval is obtained, the Holder shall deliver to the Company at
the Warrant Agency: (a) this Warrant; (b) a written
notice, substantially in the form of the subscription notice
attached hereto as Annex 1 (the “ Subscription
Notice ”), of such Holder’s election to exercise
this Warrant, which notice shall specify the number of shares of
Common Stock to be purchased, the denominations of the share
certificate or certificates desired and the name or names of the
Eligible Holder(s) in which such certificates are to be registered;
and (c) payment of the Exercise Price with respect to such
shares of Common Stock. Such payment may be made, at the
option of the Holder, by cash, money order, certified or bank
cashier’s check or wire transfer.
The
Company shall, as promptly as practicable and in any event within
five (5) Business Days thereafter, execute and deliver or
cause to be executed and delivered, in accordance with such
subscription notice, a certificate or certificates representing the
aggregate number of shares of Common Stock specified in said
notice. The share certificate or certificates so delivered
shall be in such denominations as may be specified in such notice
(or, if such notice shall not specify denominations, one
certificate shall be issued) and shall be issued in the name of the
Holder or such other name or names of Eligible Holder(s) as shall
be designated in such notice. Such certificate or
certificates shall be deemed to have been issued, and such Holder
or any other person so designated to be named therein shall be
deemed for all purposes to have become holders of record of such
shares, as of the date the aforementioned notice is received by the
Company. If this Warrant shall have been exercised only in
part, the Company shall, at the time of delivery of the certificate
or certificates, deliver to the Holder a new Warrant evidencing the
right to purchase the remaining shares of Common Stock called for
by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant. The Company shall pay all
expenses payable in connection with the preparation, issuance and
delivery of share certificates and new Warrants as contemplated by
Section 2.6 below (other than transfer or similar taxes in
connection with the transfer of securities), except that, if share
certificates or new Warrants shall be registered in a name or names
other than the name of the Holder, funds sufficient to pay all
transfer taxes payable as a result of such transfer shall be paid
by the Holder at the time of delivering the aforementioned notice
or promptly upon receipt of a written request of the Company for
payment.
If
this Warrant shall be surrendered for exercise within any period
during which the transfer books for shares of the Common Stock of
the Company or other securities purchasable upon the exercise of
this Warrant are closed for any purpose, the Company shall not be
required to make delivery of certificates for the securities
purchasable upon such exercise until the date of the reopening of
said transfer books.
1.2.
Shares To Be Fully Paid and
Nonassessable . All shares of
Common Stock issued upon the exercise of this Warrant shall be
validly issued, fully paid and nonassessable.
1.3.
No
Fractional Shares To Be Issued . The Company shall
not be required to issue fractions of shares of Common Stock upon
exercise of this Warrant. If any fraction of a share would,
but for this Section, be issuable upon any exercise of this
Warrant, in lieu of such fractional share the Company shall issue
to the Holder a whole share of Common Stock.
1.4.
Securities Laws; Share
Legend . The Holder, by
acceptance of this Warrant, agrees that this Warrant and all shares
of Common Stock issuable upon exercise of this Warrant will be
disposed of only in accordance with the Securities Act of 1933, as
amended (the “ Securities Act ”) and the
rules and regulations of the Securities and Exchange
Commission (the “ Commission ”) promulgated
thereunder. In addition to any other legend which the Company
may deem advisable under the Securities Act and applicable state
securities laws, all certificates representing shares of Common
Stock (as well as any other securities issued hereunder in respect
of any such shares) issued upon exercise of this Warrant shall be
endorsed as follows:
2
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
Any
certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued
upon completion of a public distribution pursuant to a registration
statement under the Securities Act) shall also bear such legend
unless, in the opinion of counsel (in form and substance reasonably
satisfactory to the Company) selected by the Holder of such
certificate and reasonably acceptable to the Company, the
securities represented thereby need no longer be subject to
restrictions on resale under the Securities Act.
ARTICLE II
WARRANT AGENCY;
TRANSFER, EXCHANGE AND
REPLACEMENT OF
WARRANT
2.1.
Warrant Agency
. Until such time, if
any, as an independent agency shall be appointed by the Company to
perform services described herein with respect to this Warrant (the
“ Warrant Agency ”), the Company shall perform
the obligations of the Warrant Agency provided herein at its
principal office address or such other address as the Company shall
specify by prior written notice to the Holder.
2.2.
Ownership of
Warrant . The Company may
deem and treat the person in whose name this Warrant is registered
as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by any person other than the
Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for
registration of transfer as provided in this
Article II.
2.3.
Transfer of
Warrant . This Warrant may
only be transferred to a purchaser subject to and in accordance
with this Section 2.3, and any attempted transfer which is not
in accordance with this Section 2.3 shall be null and void and
the transferee shall not be entitled to exercise any of the rights
of the holder of this Warrant. The Company agrees to maintain
at the Warrant Agency books for the registration of such transfers
of Warrants, and transfer of this Warrant and all rights hereunder
shall be registered, in whole or in part, on such books, upon
surrender of this Warrant at the Warrant Agency in accordance with
this Section 2.3, together with: (i) a written assignment
of this Warrant, substantially in the form of the assignment
attached hereto as Annex 2 , duly executed by the
Holder or its duly authorized agent or attorney-in-fact, with
signatures guaranteed by a bank or trust company or a broker or
dealer registered with the NASD, and funds sufficient to pay any
transfer taxes payable upon such transfer; and (ii) an
investment representation letter, in form and substance acceptable
to the Company, executed by the assignee or assignees of this
Warrant. Upon surrender of this Warrant in accordance with
this Section 2.3, the Company (subject to being satisfied that
such transfer is in compliance with
3
Section 1.4) shall
execute and deliver a new Warrant or Warrants of like tenor and
representing in the aggregate the right to purchase the same number
of shares of Common Stock in the name of the assignee or assignees
and in the denominations specified in the instrument of assignment,
and this Warrant shall promptly be canceled. Notwithstanding
the foregoing, a Warrant may be exercised by a new Holder without
having a new Warrant issued. The Company shall not be
required to pay any Federal or state transfer tax or charge that
may be payable in respect of any transfer of this Warrant or the
issuance or delivery of certificates for Common Stock in a name
other than that of the registered Holder of this
Warrant.
2.4.
Division or Combination of
Warrants . This Warrant may
be divided or combined with other Warrants, in connection with the
partial exercise of this Warrant, upon surrender hereof and of any
Warrant or Warrants with which this Warrant is to be combined at
the Warrant Agency, together with a written notice specifying the
names and denominations in which the new Warrant or Warrants are to
be issued, signed by the Holders hereof and thereof or their
respective duly authorized agents or attorneys-in-fact.
Subject to compliance with Section 2.3 as to any transfer
which may be involved in the division or combination, the Company
shall execute and deliver a new Warrant or Warrants in exchange for
the Warrant or Warrants to be divided or combined in accordance
with such notice.
2.5.
Loss, Theft, Destruction of
Warrant Certificates . Upon receipt by the
Company 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, upon receipt of
indemnity or security (in customary form) reasonably satisfactory
to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of such Warrant and upon reimbursement
of the Company’s reasonable incidental expenses, the Company
will make and deliver, in lieu of such lost, stolen, destroyed or
mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of shares of Common
Stock.
2.6.
Expenses of Delivery of
Warrants . Except as
otherwise expressly provided herein, the Company shall pay all
expenses (other than transfer taxes as described in
Section 2.3) and other charges payable in connection with the
preparation, issuance and delivery of Warrants hereunder and shares
of Common Stock upon the exercise hereof.
ARTICLE III
LIMITATIONS ON
EXERCISE; ADJUSTMENT PROVISIONS
3.1
Shareholder
Approval . In no event shall
the Holder of this Warrant be p
