UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 28, 2019
SITO MOBILE, LTD.
(Exact name of registrant as specified in its charter)
| Delaware | 001-37535 | 13-4122844 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
The Newport Corporate Center, 100 Town Square Place, Suite 204, Jersey City, NJ |
07310 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (201) 984-7085
(Former Name or Former Address, if Changed Since Last Report): Not Applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock, $0.001 par value | SITO | The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 28, 2019, SITO Mobile, Ltd. (the “Company”) completed an initial closing of a financing (the “Financing”) of non-convertible secured subordinated promissory notes (the “Notes”) and warrants (the “Warrants”) to purchase shares of common stock of the Company (“Common Stock”). Pursuant to the terms of the Financing, the Company will issue, offer and sell Notes and Warrants in one or more closings to certain investors (the “Investors”) in a private placement. Under the terms of the Financing, until August 27, 2019, the Company may borrow up to an aggregate principal amount of $7,317,060 under the Notes, which aggregate principal amount reflects an original issuance discount of approximately 18%, and such Notes will mature and become due 90 days upon issuance. The purchase price of each Note and associated Warrant will be equal to 82% of the principal amount of such Note, such that for each $1,000 paid in purchase price, the Investor will receive $1,219.51 in aggregate principal amount under the Note and a Warrant to purchase 1,000 shares of Common Stock at an exercise price of $1.00 per share. The Company may receive up to $6,000,000 in gross proceeds for the Notes and the maximum number of shares that may be issued pursuant to the Warrants will not exceed 6,000,000 shares of Common Stock. The Warrants are immediately exercisable and will expire upon the earlier of two years from the date of grant or a change in control. As of June 28, 2019, the Company has received approximately $1.7 million in gross proceeds and issued Notes with an aggregate principal amount of approximately $2.1 million and Warrants to purchase approximately 1.7 million shares of Common Stock to certain accredited investors.
The foregoing descriptions of the Notes and the Warrants are qualified in their entirety by reference to the form of Secured Subordinated Promissory Note and the form of Warrant, which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
The information included in Item 1.01 above is hereby incorporated by reference into this Item 2.03.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information included in Item 1.01 above that relates to the issuance of the Warrants in the private placement is hereby incorporated by reference into this Item 3.02. The issuance of the Warrants was made in reliance on the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506(b) of Regulation D promulgated under the Securities Act.
Item 9.01 – Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |
| 4.1 | Form of Secured Subordinated Promissory Note. | |
| 4.2 | Form of Warrant. |
Forward Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, including forward-looking statements regarding the expected timing and size of the Financing and the company’s ability to complete additional closings of the Financing. This information may involve known and unknown risks, uncertainties and other factors that may cause the Company’s actual results, performance or achievements to be materially different than the future results, performance or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe the Company’s future plans, strategies and expectations, are generally identifiable by use of the words “may,” “expect,” “anticipate,” “estimate,” “believe,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Actual events or results may differ materially from those discussed in forward-looking statements as a result of various factors, including, without limitation, risks and uncertainties relating to our capital requirements and whether or not we will be able to raise capital as needed, and factors generally affecting the business, operations, and financial condition of the Company, including the risks outlined under “Risk Factors” in this prospectus supplement and “Risk Factors” in the Company’s Annual Report on Form 10-K filed with the SEC on April 1, 2019, as amended on April 30, 2019. In light of these risks and uncertainties, there can be no assurance that the forward-looking statements contained herein will in fact be accurate. Further, the Company does not undertake any obligation to publicly update any forward-looking statements. As a result, you should not place undue reliance on these forward-looking statements.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SITO MOBILE, LTD. | ||
| Date: July 5, 2019 | By: | /s/ Terrance S. Lynn |
| Name: | Terrance S. Lynn | |
| Title: | Chief Financial Officer and Secretary | |
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Exhibit 4.1
REFERENCE IS MADE TO THAT CERTAIN FINANCING AND SECURITY AGREEMENT, DATED AS OF FEBRUARY 11, 2019 (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED FROM TIME TO TIME, THE “FAST PAY AGREEMENT”), BY AND AMONG SITO MOBILE, LTD. (THE “BORROWER”), SITO MOBILE SOLUTIONS, INC. (“SITO MOBILE SOLUTIONS”), SITO MOBILE MEDIA, INC. (“SITO MOBILE MEDIA”), DOUBLEVISION NETWORKS, INC. (“DOUBLEVISION”), AND SITO MOBILE R&D IP, LLC (“SITO R&D”, AND TOGETHER WITH THE BORROWER, SITO MOBILE SOLUTIONS, SITO MOBILE MEDIA, AND DOUBLEVISION, COLLECTIVELY, THE “OBLIGORS”), AND FAST PAY PARTNERS LLC (“FAST PAY”). THE INDEBTEDNESS EVIDENCED BY THIS SECURED SUBORDINATED PROMISSORY NOTE AND THE SECURITY INTERESTS GRANTED HEREIN ARE SUBORDINATED TO ANY PRESENT OR FUTURE INDEBTEDNESS OWING FROM ANY OF THE OBLIGORS TO (A) FAST PAY AND ANY SECURITY INTERESTS GRANTED BY ANY OBLIGOR TO FAST PAY, AND ITS SUCCESSORS AND ASSIGNS, AND MAY BE ENFORCED ONLY IN ACCORDANCE WITH THE TERMS OF THAT CERTAIN SUBORDINATION AGREEMENT DATED AS OF JUNE [__], 2019, AMONG THE OBLIGORS, [NAME OF HOLDER], CERTAIN OTHER PARTIES THERETO AND FAST PAY (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED, THE “FAST PAY SUBORDINATION AGREEMENT”) AND (B) EACH OTHER CREDITOR IDENTIFIED AS A “SENIOR LENDER” BY THE BORROWER IN WRITING (EACH A “SENIOR LENDER”) AND ANY SECURITY INTERESTS GRANTED BY ANY OBLIGOR TO ANY SUCH SENIOR LENDER, AND ITS SUCCESSORS AND ASSIGNS, AND MAY BE ENFORCED ONLY IN ACCORDANCE WITH THE TERMS OF EACH APPLICABLE SUBORDINATION AGREEMENT AMONG THE OBLIGORS, [NAME OF HOLDER], CERTAIN OTHER PARTIES THERETO AND SUCH SENIOR LENDER(S) (AS AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED FROM TIME TO TIME, EACH AN “ADDITIONAL SUBORDINATION AGREEMENT”, AND TOGETHER WITH THE FAST PAY SUBORDINATION AGREEMENT, EACH A “SUBORDINATION AGREEMENT” AND COLLECTIVELY, THE “SUBORDINATION AGREEMENTS”). THE INDEBTEDNESS TO WHICH THE INDEBTEDNESS UNDER THIS SECURED SUBORDINATED PROMISSORY NOTE IS SUBORDINATED IS “SENIOR INDEBTEDNESS.”
THE SECURITIES REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
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SECURED SUBORDINATED PROMISSORY NOTE
$[____________][1]
[DATE]
Jersey City, New Jersey
For value received, SITO MOBILE, LTD., a Delaware corporation (the “Borrower”), promises to pay to [Name of Holder] (the “Holder”), the principal amount of [DOLLAR AMOUNT IN WORDS ($[____________])] (the “Loan”) under the terms of this Secured Subordinated Promissory Note (this “Note”). This Note is subject to the following terms and conditions.
1. Maturity. Subject to the terms contained herein and in the applicable Subordination Agreements, the principal amount the Loan shall be due and payable on the date that is 90 days after the date hereof.
2. Payment. All payments shall be made in lawful money of the United States of America at such place as the Holder hereof may from time to time designate in writing to the Borrower. In addition to all other amounts to be paid hereunder, the Borrower agrees to reimburse the Holder, or any other holder or owner of this Note, for any and all reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, whether or not suit is instituted, and, if suit is instituted whether at the trial court level, appellate level, any bankruptcy, probate or administrative proceeding or otherwise) incurred in collecting or attempting to collect on this Note.
3. Transfer; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors, heirs and assigns of the parties.
4. Collateral. As security for repayment of the amounts owing hereunder, the Borrower hereby assigns as security to the Holder, and hereby grants to the Holder a security interest in and continuing lien on, all of the Borrower’s right, title and interest in, to and under the following assets, in each case whether now owned or existing or hereafter acquired or arising and wherever located (collectively, the “Collateral”): (a) accounts; (b) chattel paper; (c) deposit accounts; (d) documents and contracts; (e) equipment; (f) general intangibles; (g) instruments; (h) inventory; (i) investment property; (j) letters of credit and letter-of-credit rights; (k) intellectual property; (l) to the extent not otherwise included above, all books and records relating to the foregoing and supporting obligations relating to any of the foregoing; (m) to the extent not otherwise included above, all other assets of the Borrower; and (n) to the extent not otherwise included above, all proceeds, products, accessions, rents and profits of or in respect of any of the foregoing; provided that Collateral shall not include: (i) any of the foregoing where the granting of a lien therein is prohibited by applicable law, (ii) with respect to any lease, license, contract, property rights or agreement to which any Borrower is a party, any of its rights or interests thereunder to the extent that any applicable term therein prohibits the creation of a lien therein (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9406, 9407, 9408 or 9409 of the Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction), (iii) any intent-to-use trademark application until a statement of use or amendment to allege use has been filed with the U.S. Patent and Trademark Office or the California Trademark filing office with respect to such trademark application, or (iv) any license, permit or other governmental authorization, consent, approval or the like that could or would be cancelled, revoked, terminated or otherwise cease to be in full force and effect as a result of the granting of any lien therein.
[1] Amount equal to the holders pro rata share of the undiscounted principal amount.
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The Borrower shall promptly procure, execute and deliver to the Holder all documents, instruments and agreements and perform all acts which are necessary or desirable, or which the Holder may reasonably request, to establish, maintain, preserve, protect and perfect the Collateral, the lien granted to the Holder therein and the subordinated priority of such lien or to enable the Holder to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, the Borrower hereby authorizes the Holder to file any UCC financing statements necessary to perfect the lien granted to the Holder hereunder.
5. Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
6. Notices. Any notice required or permitted by this Note shall be in writing and shall be deemed sufficient upon delivery, when delivered personally, by facsimile or by a nationally-recognized delivery service (such as Federal Express or UPS), or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice:
SITO Mobile, Ltd.
The Newport Corporate Center
100 Town Square Place, Suite 204
Jersey City, NJ 07310
Attn: [_______]
Telephone: [(___) ___-____]
[Name of Holder]
[__________________]
[__________________]
Attn: [_______]
Telephone: [(___) ___-____]
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7. Amendments and Waivers. Any term of this Note may be amended only with the written consent of the Borrower and the Holder. Any amendment or waiver effected in accordance with this Section 7 shall be binding upon the Borrower, the Holder and each transferee of this Note.
8. Counterparts. This Note may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an original, and a facsimile or scanned signature will be deemed an original and valid signature.
9. Subordination. The indebtedness evidenced by this Note and the security interests granted to Holder herein are hereby expressly subordinated, to the extent and in the manner set forth in the applicable Subordination Agreements.
Nothing contained in this or the preceding paragraph shall impair, solely as between the Borrower and the Holder, the obligation of the Borrower, which is absolute and unconditional, to pay to the Holder hereof the amounts payable hereunder as and when the same shall become due and payable, or shall prevent the Holder from exercising all rights, powers and remedies otherwise provided herein or by applicable law, all subject to the rights, if any, of the parties to each applicable Subordination Agreement.
[SIGNATURE PAGE FOLLOWS]
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This Note is issued as of the date first written above.
| BORROWER: | ||
| SITO MOBILE, LTD. | ||
| By: | ||
| Name: | Terrance Lynn | |
| Title: | Chief Financial Officer | |
| AGREED TO AND ACCEPTED: | ||
| By: | ||
| Name: | ||
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Exhibit 4.2
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
|
Warrant No. ____
|
Date of Issuance: __________
Number of Shares: __________ |
SITO Mobile, Ltd.
Stock Purchase Warrant
SITO Mobile, Ltd., a Delaware corporation (the “Company”), for value received, hereby certifies that ____________________, or its registered assigns (the “Registered Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at any time after the date hereof and on or before the Expiration Date (as defined in Section 5) the number of shares set forth above of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”) at a price of $1.00 per share (subject to adjustment as provided herein). The shares purchasable upon exercise of this Warrant, and the purchase price per share, as adjusted from time to time pursuant to the provisions of this Warrant, are hereinafter referred to as the “Warrant Stock” and the “Purchase Price,” respectively.
This Warrant is issued pursuant to, and is subject to the terms and conditions of, that certain Secured Subordinated Convertible Note and Warrant Purchase Agreement (the “Agreement”) dated June 28, 2019.
1. Number of Shares. Subject to the terms and conditions hereinafter set forth, the Registered Holder is entitled, upon surrender of this Warrant, to purchase from the Company the number of shares (subject to adjustment as provided herein) of Warrant Stock first set forth above.
2. Exercise.
(a) Manner of Exercise. This Warrant may be exercised by the Registered Holder, in whole or in part, by surrendering this Warrant, with the purchase/exercise form appended hereto as Exhibit A (the “Exercise Form”) duly executed by such Registered Holder or by such Registered Holder’s duly authorized attorney, at the principal office of the Company, or at such other office or agency as the Company may designate, accompanied by payment in full of the Purchase Price payable in respect of the number of shares of Warrant Stock purchased upon such exercise. The Purchase Price may be paid by cash, check, or wire transfer pursuant to the wire instructions set forth on the Exercise Form.
(b) Effective Time of Exercise. Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant shall have been surrendered to the Company as provided in Section 2(a) . At such time, the person or persons in whose name or names any certificates or book-entry notations for Warrant Stock shall be issuable upon such exercise as provided in Section 2(c) shall be deemed to have become the holder or holders of record of the Warrant Stock represented by such certificates or book-entry notations.
(c) Delivery to Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within three (3) Trading Days (as defined below) thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct:
(i) a certificate or evidence of book-entry notation for the number of shares of Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or warrants (dated the date hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock equal (without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the number of such shares purchased by the Registered Holder upon such exercise as provided in Section 2(a).
For purposes of this Warrant, a “Trading Day” means any day on which the Common Stock is traded on the Nasdaq Capital Market, or, if the Nasdaq Capital Market is not the principal trading market for the Common Stock on such day, then on the principal securities exchange or securities market on which the Common Stock is then traded.
3. Adjustments.
(a) Stock Splits and Dividends. If the Company’s outstanding shares of the same class as the Warrant Stock shall be subdivided into a greater number of shares or a dividend in the Company’s shares of the same class as the Warrant Stock shall be paid in respect of the Company’s shares of the same class as the Warrant Stock, the Purchase Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If the Company’s outstanding shares of the same class as the Warrant Stock shall be combined into a smaller number of shares, the Purchase Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Purchase Price, the number of shares of Warrant Stock purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment.
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(b) Reclassification, Etc. In case there occurs any reclassification or change of the outstanding securities of the Company or of any reorganization of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case the Registered Holder, upon the exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, the stock or other securities or property to which such Holder would have been entitled upon such consummation if such Holder had exercised this Warrant immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section 3.
(c) Adjustment Certificate. When any adjustment is required to be made in the Warrant Stock or the Purchase Price pursuant to this Section 3, the Company shall promptly mail to the Registered Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Purchase Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment.
4. Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that none of the Company’s securities (including this Warrant and the Warrant Stock) have been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon its exercise (or any securities issued by the Company upon exchange thereof) in the absence of (i) an effective registration statement under the Securities Act as to the sale of any such securities and registration or qualification of such securities under any applicable U.S. federal or state securities law then in effect, or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate, book-entry notation or other instrument for Warrant Stock issued upon the exercise of this Warrant (or any securities issued by the Company upon exchange thereof) shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 4(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of the Warrant with a properly executed assignment (in the form of Exhibit B hereto) at the principal office of the Company.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register, the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
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5. Termination. This Warrant (and the right to purchase securities upon exercise hereof) shall terminate upon the earliest to occur of the following (the “Expiration Date”):
(a) the two (2) year anniversary of the date of issuance first set forth above, or
(b) the sale, conveyance or disposal of all or substantially all of the Company’s property or business or the Company’s merger with or into or consolidation with any other corporation (other than a wholly-owned subsidiary of the Company) or any other transaction or series of related transactions in which more than fifty percent (50%) of the voting securities of the Company is disposed of, provided that this Section 5(b) shall not apply to a merger effected exclusively for the purpose of changing the domicile of the Company or to an equity financing in which the Company is the surviving corporation.
6. Notices of Certain Transactions. In case:
(a) the Company shall take a record of the holders of its outstanding stock of the same class as the Warrant Stock (or other stock or securities at the time deliverable upon the exercise of this Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any other right,
(b) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger of the Company, any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity), or any transfer of all or substantially all of the assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation, or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of the Company’s outstanding stock of the same class as the Warrant Stock (or such other stock or securities at the time deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation, or winding-up) are to be determined. Such notice shall be mailed at least five (5) Trading Days prior to the record date or effective date for the event specified in such notice.
7. Reservation of Stock. The Company will at all times reserve and keep available, solely for the issuance and delivery upon the exercise of this Warrant, such shares of Warrant Stock and other stock, securities and property, as from time to time shall be issuable upon the exercise of this Warrant.
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8. Exchange of Warrants. Upon the surrender by the Registered Holder of any Warrant or Warrants, properly endorsed, to the Company at the principal office of the Company, the Company will issue and deliver to or upon the order of such Registered Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in the name of such Registered Holder or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock called for on the face or faces of the Warrant or Warrants so surrendered.
9. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
10. No Rights as Stockholder. Until the exercise of this Warrant, the Registered Holder of this Warrant shall not have or exercise any rights by virtue hereof as a stockholder of the Company.
11. No Fractional Shares. No fractional shares of Warrant Stock will be issued in connection with any exercise hereunder. In lieu of any fractional shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the fair market value of one share of Warrant Stock on the date of exercise, as determined in good faith by the Company’s Board of Directors.
12. Attorney’s Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of this Warrant, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
13. Miscellaneous.
(a) Governing Law. The validity, interpretation, construction and performance of this Warrant, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of California, without giving effect to principles of conflicts of law.
(b) Entire Agreement. This Warrant sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
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(c) Amendments and Waivers. No modification of or amendment to this Warrant, nor any waiver of any rights under this Warrant, shall be effective unless in writing signed by the Company and the Registered Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance.
(d) Successors and Assigns. The terms and conditions of this Warrant shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
(e) Notices. Any notice, demand or request required or permitted to be given under this Warrant shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
(f) Severability. If one or more provisions of this Warrant are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Warrant, (b) the balance of this Warrant shall be interpreted as if such provision were so excluded and (c) the balance of this Warrant shall be enforceable in accordance with its terms.
(g) Construction. This Warrant is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Warrant shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
(h) Counterparts. This Warrant may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Registered Holder have executed this Warrant as of the date first set forth above.
| the company: | ||
| SITO Mobile, Ltd. | ||
| By: | ||
| Name: Terrance Lynn | ||
| Title: Chief Financial Officer | ||
| Address: The Newport Corporate Center 100 Town Square Place, Suite 204 Jersey City, NJ United States | ||
ACCEPTED AND AGREED:
The REGISTERED holder:
_______________________________________
(print name)
_______________________________________
(Signature)
Address:
________________________
________________________
Email: ___________________
-2-
EXHIBIT A
PURCHASE/EXERCISE FORM
|
To: SITO Mobile, Ltd. |
Dated: _______________ |
The undersigned, pursuant to the provisions set forth in the attached Warrant No. ____, hereby irrevocably elects to (a) purchase ____________________ shares of the capital stock covered by such Warrant and herewith makes payment of $____________________, representing the full purchase price for such shares at the price per share provided for in such Warrant. If payment shall be made by wire transfer, the undersigned shall hereby have initiated on the date hereof a wire transfer in accordance with the following wire instructions:
| Bank: | Wells Fargo Bank, N.A. | |
| Bank Address: | 420 Montgomery, San Francisco, CA 94104 | |
| Routing No: | 121000248 | |
| ACH ABA: | 121042882 | |
| Swift Code: | WFBIUS6S | |
| Account No.: | 3318405994 |
The undersigned acknowledges that it has reviewed the representations and warranties of the Purchasers set forth in the Agreement (as defined in the Warrant) and by its signature below hereby makes such representations and warranties to the Company. Defined terms contained in such representations and warranties shall have the meanings assigned to them in the Agreement, provided that the term “Purchaser” shall refer to the undersigned and the term “Securities” shall refer to the Warrant Stock (and any securities issued by the Company upon exchange thereof).
|
Acknowledged
and agreed to by |
|
____________________________________________
|
|
| By:_________________________________________ | |
| (Signature) | |
| Name:_______________________________________ | |
| Title:________________________________________ | |
Address: |
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to the number of shares of capital stock covered thereby set forth below, unto:
|
Name of Assignee |
Address/Facsimile Number | No. of Shares | ||
| Acknowledged and agreed to by the REGISTERED Holder: |
|
| ____________________________________________ (Registered Holder) |
|
| By: _________________________________________ | |
| (Signature) | |
| Name:_______________________________________ | |
| Title:________________________________________ | |
Address: |