Sensar Corporation Stock Purchase Warrant Agreement with Joe Kowal

Summary

This agreement grants Joe Kowal the right to purchase up to 1,000,000 shares of Sensar Corporation common stock at $0.40 per share. The warrant becomes effective upon the completion of a merger involving Sensar Corporation and VitalStream, Inc., and remains valid for eighteen months from that date unless terminated earlier under certain conditions. The warrant is nontransferable except in limited cases and includes provisions for adjustments in the number of shares and price if the company’s stock structure changes. The holder does not have stockholder rights until the warrant is exercised.

EX-4.4 5 a2078140zex-4_4.txt EXHIBIT 4.4 THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF. THE SECURITIES MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE CORPORATION RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER, CONCURRED IN BY COUNSEL FOR THE COMPANY, THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED. ---------------------------------------------- SENSAR CORPORATION STOCK PURCHASE WARRANT ---------------------------------------------- Warrant to Purchase 1,000,000 Shares of Common Stock For value received, Sensar Corporation, a Nevada corporation (the "COMPANY"), grants to Joe Kowal (the "HOLDER") the right, subject to the terms of this Stock Purchase Warrant (this "WARRANT"), to purchase at any time during the period commencing on the Effective Time (as defined below) and ending on the Expiration Date (as defined below), 1,000,000 fully paid and nonassessable shares (the "SHARES") of Common Stock, $.001 par value, of the Company ("COMMON STOCK") at $0.40 per share (the "EXERCISE PRICE"). The "EFFECTIVE TIME" shall mean the time at which a merger involving the Company or a wholly-owned subsidiary of the Company and VitalStream, Inc. becomes effective. The "EXPIRATION DATE" shall be the eighteen month anniversary of the Effective Time, unless all or a portion of this Warrant is earlier terminated as provided in Section 7 of this Warrant. This Warrant is nontransferable (except as provided in Section 8(e)) and may be exercised for all or any part of the Shares. The number of Shares that may be purchased are subject to adjustment under the terms of this Warrant. 1. EXERCISE OF WARRANT. (a) Unless terminated earlier under Section 7, the purchase rights represented by this Warrant are exercisable by the Holder, in whole or in part, at any time after the Effective Time and before the close of business on the Expiration Date, by the surrender of this Warrant and the Notice of Exercise annexed hereto duly executed at the principal executive office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), and upon payment of the Exercise Price of the Shares thereby purchased (by cash or by check or bank draft payable to the order of the Company in an amount equal to the Exercise Price of the Shares thereby purchased), whereupon the Holder shall be entitled to receive a certificate for the number of Shares so purchased. The Company agrees that if at the time of the surrender of this Warrant and purchase of the Shares, the Holder shall be entitled to exercise this Warrant, the Shares so purchased shall be deemed to be issued to such holder as the record owner of such Shares as of the close of business on the date on which this Warrant shall have been exercised as aforesaid. (b) Certificates for Shares purchased hereunder shall be delivered to the Holder within a reasonable time after the date on which this Warrant shall have been exercised as aforesaid. (c) The Company covenants that all Shares that may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). 2. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon the exercise of this Warrant, an amount equal to such fraction multiplied by the then current price at which each Share may be purchased hereunder shall be paid in cash to the Holder. 3. CHARGES, TAXES AND EXPENSES. Issuance of certificates for Shares upon the exercise of this Warrant shall be made without charge to the holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder. 4. NO RIGHTS AS STOCKHOLDERS. This Warrant does not entitle the Holder to any voting rights or other rights as a stockholder of the Company prior to the exercise thereof. 5. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor and dated as of such cancellation, in lieu of this Warrant. 6. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a legal holiday. 7. EARLY TERMINATION AND ADJUSTMENTS. (a) EARLY TERMINATION ON MERGER, ETC. If at any time the Company proposes to merge with or into any other corporation, effect a reorganization, or sell or convey all or 2 substantially all of its assets to any other entity in a transaction in which the stockholders of the Company immediately before the transaction own immediately after the transaction less than a majority of the outstanding voting securities of the surviving entity (or its parent), then the Company shall give the Holder thirty (30) days notice of the proposed effective date of the transaction and, if the Warrant has not been exercised by the effective date of the transaction, the Warrant shall terminate. Notwithstanding the foregoing, this Section 7(a) shall not apply to a merger between the Company or a wholly-owned subsidiary of the Company and VitalStream, Inc. (b) RECLASSIFICATION, ETC. If the Company should, at any time while this Warrant, or any portion hereof, remains outstanding and unexpired, by reclassification of securities or otherwise, change any of the securities as to which purchase rights under this Warrant exist into the same or a different class or classes, the number of shares of Common Stock for which this Warrant may be exercised shall continue to be the same. (c) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the outstanding shares of the Common Stock are divided into a greater number of shares, the number of shares of Common Stock purchasable upon the exercise of this Warrant shall be proportionately increased and the Exercise Price per share shall be proportionately reduced. Conversely, if the outstanding shares of Common Stock are combined into a smaller number of shares of Common Stock, the number of shares of Common Stock purchasable upon the exercise of this Warrant shall be proportionately reduced and the Exercise Price per share shall be proportionately increased. The increases and reductions provided for in this Section 7(c) shall be made with the intent and, as nearly as practicable, the effect that neither the percentage of the total equity of the Company obtainable on exercise of this Warrant nor the aggregate price payable for such percentage shall be affected by any event described in this Section 7(c). (d) CASH DISTRIBUTIONS. No adjustment on account of cash dividends or interest on the Shares or other securities purchasable hereunder will be made to the Exercise Price under this Warrant. (e) NOTICE OF ADJUSTMENT. Whenever an event occurs requiring any adjustment to be made pursuant to Section 7, upon request of the Holder, the Company shall promptly file with its Secretary or an assistant secretary at its principal office and with its stock transfer agent, if any, a certificate of its Chief Executive Officer or President specifying such adjustment, setting forth in reasonable detail the acts requiring such adjustment, and stating such other facts as shall be necessary to show the manner and figures used to compute such adjustment. Such Chief Executive Officer or President's certificate shall be made available at all reasonable times for inspection by the Holder. 8. MISCELLANEOUS. (a) ISSUE DATE. The provisions of this Warrant shall be construed and shall be given effect in all respects as if it had been issued and delivered by the Company on the date set forth below. This Warrant shall constitute a contract under the laws of the state of California and for all purposes shall be construed in accordance with and governed by the laws of said state. 3 (b) RESTRICTIONS. The Holder acknowledges that the Shares acquired upon the exercise of this Warrant shall be "restricted securities" as defined in Rule 144 under the Securities Act of 1933, as amended. (c) NOTICE. All notices required or permitted under this Warrant shall be given in writing and shall be deemed effectively given (a) upon personal delivery to the party to be notified, (b) three days after deposit with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified at the address for such party, (c) one day after deposit with a nationally recognized air courier service such as DHL or Federal Express, or (d) on the date of facsimile transmission, with confirmed transmission. Addresses for notices: If to the Company: Sensar Corporation One Jenner, Suite 100 Irvine, California 92618 Attn: President Facsimile: (949) 727-9660 If to the Holder: to the address set forth in the Preamble of the Consulting and Finders Agreement between holder, JDK Asscoiates, Inc. and the Company. or such other address as such party may designate by 10 days' advance written notice to the other party. (d) WAIVERS AND AMENDMENTS. This Warrant and any provisions hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. This Warrant shall be binding upon any successors or assigns of the Company. (e) ASSIGNMENT AND TRANSFERABILITY. This Warrant may be assigned or transferred by the Holder only with the prior written approval of the Company. 4 IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officers thereunto duly authorized. Dated: April 23, 2002. SENSAR CORPORATION By: /s/ Steve Strasser -------------------------------- Name: Steve Strasser Title: President 5 NOTICE OF EXERCISE TO: Sensar Corporation - ----------------------------- - ----------------------------- - ----------------------------- 1. The undersigned hereby elects to purchase ______________ shares of Common Stock, $.001 par value, of Sensar Corporation (the "SHARES") pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price in full, together with all applicable transfer taxes, if any. 2. Please issue a certificate or certificates representing the Shares in the name of the undersigned or in such other name as is specified below: -------------------------------------------------- (Print Name) -------------------------------------------------- (Address) -------------------------------------------------- (Address) 3. The undersigned confirms that the Shares are being acquired for the account of the undersigned for investment only and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or selling the Shares. - ---------------------- ------------------------------------ (Date) (Signature) ------------------------------------ (Print Name) 6