**Exhibit 4.9**

 
| **No. 12A** | ** ** | **12,000  Shares** |
|------------------|------------|--------------------|

 
| * * | *Originally issued  November 20, 2009 (as a replacement for Warrant No. 5 issued  November 29, 2006)* |
|----------|----------------------------------------------------------------------------------------------------------------------|
|     |                                                                                                                 |
| * * | *Amended and Restated as of  March 5, 2010*                                                                     |

 

**INFOLOGIX,INC.**

 

AMENDEDAND RESTATED WARRANT TO PURCHASE COMMON STOCK

 

VOIDAFTER 5:30 P.M., EASTERN

TIME,ON THE EXPIRATION DATE

 

THIS WARRANT AND ANY SHARESACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THESECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISETRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATIONPROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLEEXEMPTIONS THEREFROM.

 

FOR VALUE RECEIVED,INFOLOGIX, INC., a Delaware corporation (the “Company”),  hereby agrees to sell upon the terms and onthe conditions hereinafter set forth, but no later than 5:30 p.m., EasternTime, on the Expiration Date (as hereinafter defined) to Michael M. Carter orregistered assigns (the “Holder”), under the terms as hereinafter set forth,12,000 fully paid and non-assessable shares of the Company’s Common Stock, parvalue $0.00001 per share (the “Warrant Stock”), at a purchase price of $1.8575per share (the “Warrant Price”), pursuant to this warrant (this “Warrant”).  The number of shares of Warrant Stock to beso issued and the Warrant Price are subject to adjustment in certain events ashereinafter set forth.  The term “CommonStock” shall mean, when used herein, unless the context otherwise requires, thestock and other securities and property at the time receivable upon theexercise of this Warrant.

 

1.               Exercise ofWarrant.

 

a.               The Holder may exercise thisWarrant according to its terms by completing the subscription form attachedhereto and surrendering this Warrant to the Company at the address set forth inSection 9, accompanied by payment in full of the purchase price for thenumber of shares of the Warrant Stock specified in the subscription form, or asotherwise provided in this Warrant, prior to 5:30 p.m., Eastern Time, on November 29,2011 (the “Expiration Date”).  Payment ofthe purchase price may be made (i) in cash or certified check or by bankdraft in lawful money of the United States of America or (ii) inaccordance with the net issuance formula below (“Net Issuance”).

 

----

 

If the Holder elects the NetIssuance method of payment, then the Company shall issue to Holder uponexercise such number of shares of Common Stock determined in accordance withthe following formula:

 

X=Y(A-B)

A

 

Where   X = the number of sharesof Common Stock to be issued to Holder;

 

Y = the number of shares of Common Stock withrespect to which Holder is exercising its rights under this Warrant;

 

A = the fair market value of one (1) shareof Common Stock on the date of exercise; and

 

B = the Warrant Price.

 

For purposes of the above calculation, thefair market value shall mean:

 

(i)                   if the Common Stock is listed or traded onthe NASDAQ stock market or any United States securities exchange or quoted onany securities quotation service operated by NASDAQ (including the OTC BulletinBoard), the closing price of a share of such Common Stock on the date ofexercise of the Warrant; or

 

(ii)                if at any time the Common Stock is not listedor traded on any United States stock exchange or quoted on any securitiesquotation service operated by NASDAQ, the fair market value determined in goodfaith by the Board of Directors of the Company.

 

b.                      This Warrantmay be exercised in whole or in part so long as any exercise in part hereofwould not involve the issuance of fractional shares of Warrant Stock.  If exercised in part, the Company shalldeliver to the Holder a new Warrant, identical in form, in the name of theHolder, evidencing the right to purchase the number of shares of Warrant Stockas to which this Warrant has not been exercised, which new Warrant shall besigned by the Chairman, Chief Executive Officer or President and the Secretaryor Assistant Secretary of the Company. The term Warrant as used herein shall include any subsequent Warrantissued as provided herein.

 

c.                       No fractionalshares or scrip representing fractional shares shall be issued upon theexercise of this Warrant.  The Companyshall pay cash in lieu of fractional shares with respect to the Warrant basedupon the fair market value of such fractional shares of Common Stock (whichshall be the closing price of such shares on the exchange or market on whichthe Common Stock is then traded) at the time of exercise of this Warrant.

 

----

 

d.                      In the event ofany exercise of the rights represented by this Warrant, a certificate orcertificates for the Warrant Stock so purchased, registered in the name of theHolder, shall be delivered to the Holder within a reasonable time after suchrights shall have been so exercised.  Theperson or entity in whose name any certificate for the Warrant Stock is issuedupon exercise of the rights represented by this Warrant shall for all purposesbe deemed to have become the holder of record of such Warrant Stock immediatelyprior to the close of business on the date on which the Warrant was surrenderedand payment of the Warrant Price and any applicable taxes was made,irrespective of the date of delivery of such certificate, except that, if thedate of such surrender and payment is a date when the stock transfer books ofthe Company are closed, such person shall be deemed to have become the holderof such Warrant Stock at the opening of business on the next succeeding date onwhich the stock transfer books are open. Except as provided in Section 4 hereof, the Company shall pay anyand all documentary stamp or similar issue or transfer taxes payable in respectof the issue or delivery of shares of Common Stock on exercise of this Warrant.

 

2.               Disposition ofWarrant Stock and Warrant.

 

a.               The Holder herebyacknowledges that (i) this Warrant and any Warrant Stock purchasedpursuant hereto are, as of the date hereof, not registered: (A) under theAct on the ground that the issuance of this Warrant is exempt from registrationunder Section 4(2) of the Act as not involving any public offering or(B) under any applicable state securities law because the issuance of thisWarrant does not involve any public offering and (ii) that the Company’sreliance on the Section 4(2) exemption of the Act and under applicablestate securities laws is predicated in part on the representations hereby madeto the Company by the Holder.  The Holderrepresents and warrants that he, she or it is acquiring this Warrant and willacquire the Warrant Stock for investment for its own account, with no presentintention of dividing his, her or its participation with others or reselling orotherwise distributing the same, subject.

 

The Holder hereby agreesthat it will not sell or transfer all or any part of this Warrant and/orWarrant Stock unless and until it shall first have given notice to the Companydescribing such sale or transfer and furnished to the Company either (i) anopinion, reasonably satisfactory to counsel for the Company, of counsel(skilled in securities matters, selected by the Holder and reasonablysatisfactory to the Company) to the effect that the proposed sale or transfermay be made without registration under the Act and without registration orqualification under any state law, or (ii) an interpretative letter fromthe Securities and Exchange Commission to the effect that no enforcement actionwill be recommended if the proposed sale or transfer is made withoutregistration under the Act.

 

b.          If, at the time of issuanceof the shares issuable upon exercise of this Warrant, no registration statementis in effect with respect to such shares under applicable provisions of theAct, the Company may at its election require that the Holder provide theCompany with written reconfirmation of the Holder’s investment intent and thatany stock certificate delivered to the Holder of a surrendered Warrant shallbear legends reading substantially as follows:

 

----

 

“THE SHARES REPRESENTED BYTHIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ANDMAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THEABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THATREGISTRATION IS NOT REQUIRED UNDER SAID ACT.”

 

In addition, so long as theforegoing legend may remain on any stock certificate delivered to the Holder,the Company may maintain appropriate “stop transfer” orders with respect tosuch certificates and the shares represented thereby on its books and recordsand with those to whom it may delegate registrar and transfer functions.

 

3.                   Reservation ofShares.  The Company hereby agrees thatat all times there shall be reserved for issuance upon the exercise of thisWarrant such number of shares of its Common Stock as shall be required forissuance upon exercise of this Warrant. The Company further agrees that all shares of Warrant Stock representedby this Warrant will be duly authorized and will, upon issuance and againstpayment of the exercise price, be validly issued, fully paid andnon-assessable.

 

4.                   Exchange,Transfer or Assignment of Warrant.  This Warrant is exchangeable, withoutexpense, at the option of the Holder, upon presentation and surrender hereof tothe Company or at the office of its stock transfer agent, if any, for otherWarrants of different denominations, entitling the Holder or Holders thereof topurchase in the aggregate the same number of shares of Common Stock purchasablehereunder.  Upon surrender of thisWarrant to the Company or at the office of its stock transfer agent, if any,with funds sufficient to pay any transfer tax, the Company shall, withoutcharge, execute and deliver a new Warrant in the name of the assignee named insuch instrument of assignment and this Warrant shall promptly be canceled.

 

5.                   CapitalAdjustments.  ThisWarrant is subject to the following further provisions:

 

a.               Recapitalization,Reclassification and Succession.  If any recapitalization of the Company orreclassification of its Common Stock or any merger or consolidation of theCompany into or with a corporation or other business entity, or the sale ortransfer of all or substantially all of the Company’s assets or of anysuccessor corporation’s assets to any other corporation or business entity (anysuch corporation or other business entity being included within the meaning ofthe term “successor corporation”) shall be effected, at any time while thisWarrant remains outstanding and unexpired, then, as a condition of suchrecapitalization, reclassification, merger, consolidation, sale or transfer,lawful and adequate provision shall be made whereby the Holder of this Warrantthereafter shall have the right to receive upon the exercise hereof as providedin Section 1 and in lieu of the shares of Common Stock immediatelytheretofore issuable upon the exercise of this Warrant, such shares of capitalstock, securities or other property as may be issued or payable with respect toor in exchange for a number of outstanding shares of Common Stock equal to thenumber of shares of Common Stock immediately theretofore issuable upon theexercise of this Warrant had such recapitalization, reclassification, merger,consolidation, sale or transfer not taken place, and in each such case, theterms of this Warrant shall be applicable to the shares of stock or other 

 

----

 

securities or propertyreceivable upon the exercise of this Warrant after such consummation.

 

b.              Subdivision or Combinationof Shares.  If theCompany at any time while this Warrant remains outstanding and unexpired shallsubdivide or combine its Common Stock, the number of shares of Warrant Stockpurchasable upon exercise of this Warrant and the Warrant Price shall beproportionately adjusted.

 

c.               Stock Dividends andDistributions.  If theCompany at any time while this Warrant is outstanding and unexpired shall issueor pay the holders of its Common Stock, or take a record of the holders of itsCommon Stock for the purpose of entitling them to receive, a dividend payablein, or other distribution of, Common Stock, then (i) the Warrant Priceshall be adjusted in accordance with Section 5(d) and (ii) thenumber of shares of Warrant Stock purchasable upon exercise of this Warrantshall be adjusted to the number of shares of Common Stock that Holder would haveowned immediately following such action had this Warrant been exercisedimmediately prior thereto.

 

d.              Warrant Price Adjustment.  Whenever the number of shares of WarrantStock purchasable upon exercise of this Warrant is adjusted, as hereinprovided, the Warrant Price payable upon the exercise of this Warrant shall beproportionately adjusted.

 

e.               Certain Shares Excluded.  The number of shares of Common Stockoutstanding at any given time for purposes of the adjustments set forth in thisSection 5 shall exclude any shares then directly or indirectly held in thetreasury of the Company.

 

f.                 Deferral and Cumulation ofDe Minimis Adjustments.  TheCompany shall not be required to make any adjustment pursuant to this Section 5if the amount of such adjustment would be less than one percent (1%) of theWarrant Price in effect immediately before the event that would otherwise havegiven rise to such adjustment. In such case, however, any adjustment that wouldotherwise have been required to be made shall be made at the time of andtogether with the next subsequent adjustment which, together with anyadjustment or adjustments so carried forward, shall amount to not less than onepercent (1%) of the Warrant Price in effect immediately before the event givingrise to such next subsequent adjustment.

 

6.                   Notice ToHolders.

 

a.               Notice ofRecord Date.  In case:

 

(i)                     the Company shall take arecord of the holders of its Common Stock (or other stock or securities at thetime receivable upon the exercise of this Warrant) for the purpose of entitlingthem to receive any dividend (other than a cash dividend payable out of earnedsurplus of the Company) or other distribution, or any right to subscribe for orpurchase any shares of stock of any class or any other securities;

 

(ii)                  of any capitalreorganization of the Company, any reclassification of the capital stock of theCompany, any consolidation with or merger of the Company into anothercorporation, or any conveyance of all or substantially all of the assets of theCompany to 

 

----

 

another corporation; or

 

(iii)               of any voluntarydissolution, liquidation or winding-up of the Company;

 

then, and in each such case, the Company willmail or cause to be mailed to the Holder hereof a notice specifying, as thecase may be, (i) the date on which a record is to be taken for the purposeof such dividend, distribution or right, and stating the amount and characterof such dividend, distribution or right, or (ii) the date on which suchreorganization, reclassification, consolidation, merger, conveyance,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 Common Stock (or suchstock or securities at the time receivable upon the exercise of this Warrant)shall be entitled to exchange their shares of Common Stock (or such other stockor securities) for securities or other property deliverable upon suchreorganization, reclassification, consolidation, merger, conveyance,dissolution or winding-up.  Such noticeshall be mailed at least 15 days prior to the record date therein specified;provided, however, failure to provide any such notice shall not affect thevalidity of such transaction.

 

b.              Notice of Adjustment.  Whenever any adjustment shall be madepursuant to Section 5 hereof, the Company shall promptly notify the Holderof this Warrant of the event requiring the adjustment, the amount of theadjustment, the method by which such adjustment was calculated and the WarrantPrice and number of shares of Warrant Stock purchasable upon exercise of thisWarrant after giving effect to such adjustment.

 

7.                   Loss, Theft,Destruction or Mutilation.  Uponreceipt by the Company of evidence satisfactory to it of the ownership and theloss, theft, destruction or mutilation of this Warrant and, in the case ofloss, theft or destruction, of indemnity satisfactory to the Company and, inthe case of mutilation, upon surrender and cancellation thereof, the Companywill execute and deliver a new Warrant of like tenor dated the date hereof.

 

8.                   Warrant Holdernot a Stockholder.  The Holderof this Warrant, as such, shall not be entitled by reason of this Warrant toany rights whatsoever as a stockholder of the Company.

 

9.                   Notices.  Any notice required or contemplated by thisWarrant shall be deemed to have been duly given if transmitted by registered orcertified mail, return receipt requested, or nationally recognized overnightdelivery service, to the Company at its principal executive offices 101 E.County Line Road, Suite 210, Hatboro, PA 19040, Attention: Chief ExecutiveOfficer, or to the Holder at the name and address set forth in the WarrantRegister maintained by the Company.

 

10.             Choice of Law.  THIS WARRANT IS ISSUED UNDER AND SHALL FORALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWSOF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OFLAW.

 

11.             Jurisdiction and Venue.  The Company and Holder hereby agree that anydispute which 

 

----

 

may arise between them arising out of or inconnection with this Warrant shall be adjudicated before a court located in NewCastle County, Delaware and they hereby submit to the exclusive jurisdiction ofthe federal and state courts of the State of Delaware located in New CastleCounty with respect to any action or legal proceeding commenced by any party,and irrevocably waive any objection they now or hereafter may have  respecting the  venue of any such  action or proceeding  brought in such acourt or respecting the fact that such court is an inconvenient  forum, relating to or arising out ofthis  Warrant or any acts or omissionsrelating to the sale of the securities hereunder, and consent to the service ofprocess in the manner set forth in Section 9 of this Warrant.

 

This Warrant No. 12A replaces andsupersedes that Warrant No. 12 granted by the Company to the Holder on November 20,2009.

 

*SignaturePage Follows*

 

----

 

IN WITNESS WHEREOF, theundersigned has duly executed this Warrant as of this 5th day of March, 2010.

 

 
| ** ** | **INFOLOGIX, INC.** |
|------------|---------------------|
|       |                |
|       |                |
|       | By:                 | DAVID T. GULIAN |
|       |                | Name: David T. Gulian |
|       |                | Title: President and CEO |

 

SignaturePage to Replacement Warrant - Carter

 

----