n-GEN XXXXXXXXX.XXX, INC.
and
AMERICAN SECURITIES STOCK TRANSFER, INC.
WARRANT AGREEMENT
Dated as of _____________, 2000
Exhibit 4.2
WARRANT AGREEMENT, dated as of _____________, 2000, by and between
n-GEN XXXXXXXXX.XXX, INC., a Delaware corporation (the "Company"), and
AMERICAN SECURITIES STOCK TRANSFER, INC., as warrant and transfer agent
(hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell to the public up to
1,600,000 shares of Common Stock, $.0001 par value (hereinafter referred to
as "Common Stock" or "Common Shares"), and up to 1,600,000 Redeemable
Common Stock Purchase Warrants to purchase a share of Common Stock at $5.50
per share (the "Warrant") (including the underwriter's over-allotment
option granted to Xxxxxx Xxxxx Securities, Inc. (the "Underwriter"), (the
"Public Offering"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfers, exchanges and exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby
appoints the Warrant Agent to act as Agent for the Company in accordance
with the instructions hereinafter in this Agreement set forth, and the
Warrant Agent hereby accepts such appointment.
SECTION 2. FORM OF WARRANT. The text of the Warrant and of the
form of election to purchase shares as is printed on the reverse thereof as
now outstanding, is substantially as set forth respectively in Exhibit A
attached hereto. The per share Warrant Price (as hereinafter defined) and
the number of shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by the
manual or facsimile signature of the present or any future Chairman,
President, or Vice President of the Company, under its corporate seal,
affixed or in facsimile, attested by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company.
The Warrants will be dated as of the date of issuance by the Warrant
Agent either upon initial issuance or upon transfer or exchange.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Agent
shall maintain books for the transfer and registration of Warrants. Upon
the initial issuance of the Warrants, the Warrant Agent shall issue and
register the Warrants in the names of the respective holders thereof. The
Warrants shall be countersigned manually or by facsimile by the Warrant
Agent (or by any successor to the Warrant Agent then acting as warrant
agent under this Agreement) and shall not be valid for any purpose unless
so countersigned. Warrants may be so countersigned, however, by the
Warrant Agent (or by its successor as warrant agent) and be delivered by
the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall
have ceased to be such officers at the time of such countersignature or
delivery.
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SECTION 4. TRANSFERS AND EXCHANGES. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon surrender thereof
for transfer properly endorsed or accompanied by appropriate instructions
for transfer. Upon any such transfer, a new Warrant shall be issued to the
transferee and the surrendered Warrant shall be delivered by the Warrant
Agent. Warrants so cancelled shall be delivered by the Warrant Agent to
the Company from time to time upon request. Warrants may be exchanged at
the option of the holder thereof, when surrendered at the office of the
Warrant Agent, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Common Shares.
SECTION 5. RIGHTS OF REDEMPTION BY COMPANY. The Warrants are
redeemable by the Company at a price of $.05 per Warrant commencing on the
Effective Date (as defined in the Prospectus), upon 30 days' prior written
notice if the closing bid or trading price of the Company's Common Stock,
as applicable, over 30 consecutive trading days ending within 15 days of
the notice of redemption of the Warrants, averages in excess of $10.00.
Prior to the first anniversary of the Effective Date, the Warrants will not
be redeemable by the Company without the written consent of the
Underwriter. Any Warrants, so called, and not either converted or tendered
back to the Company by the end of the date specified in the Notice of Call,
will be entitled only to the redemption price of such Warrants, if
redeemed, and the holder thereof shall have forfeited his right to so exercise.
SECTION 6. EXERCISE OF WARRANTS. Subject to the provisions of
this Agreement, each registered holder of Warrants shall have the right
which may be exercised through ____________, 2005 commencing from the
Effective Date and ending at the close of business on __________, 2005 to
purchase from the Company (and the Company shall issue and sell to such
registered holder of Warrants) the number of fully paid and non-assessable
Common Shares specified in such Warrants, upon surrender to the Company at
the office of the Warrant Agent of such Warrants, with the form of election
to purchase duly filled in and signed, and upon payment to the order of the
Company of the Warrant Price, determined in accordance with Sections 10 and
11 herein, for the number of shares in respect of which such Warrants are
then exercised. Payment of such Warrant Price shall be made in cash or by
certified check or bank draft or postal or express money order payable, in
United States dollars, to the order of the Company. No adjustment shall be
made for any dividends on any Common Shares issuable upon exercise of a
Warrant. Subject to Section 7, upon such surrender of Warrants, and
payment of the Warrant Price as aforesaid, the Company shall issue and
cause to be delivered with all reasonable dispatch to or upon the written
order of the registered holder of such Warrants and in such name or names
as such registered holder may designate, a certificate or certificates for
the largest number of whole Common Shares so purchased upon the exercise of
such Warrants. The Company shall not be required to issue any fraction of
a share of Common Stock or make any cash or other adjustment except as
provided in Section 12 herein, in respect of any fraction of a Common Share
otherwise issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated to be
named therein shall be deemed to have become a holder of record of such
shares as of the date of the surrender of such Warrants and payment of the
Warrant Price as aforesaid provided, however, that if, at the date of
surrender of such Warrants and payment of such Warrant Price, the transfer
books for the
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Common Shares or other class of stock purchasable upon the exercise of such
Warrants shall be closed, the certificates for the shares in respect of
which such Warrants are then exercised shall be issuable as of the date on
which such books shall be oened and until such date the Company shall be
under no duty to deliver any certificate for such shares; provided,
further, however, that the transfer books aforesaid, unless otherwise
required by law or by applicable rule of any national securities exchange,
shall not be closed at any one time for a period longer than 20 days. The
rights of purchase represented by the Warrants shall be exercisable, at the
election of the registered holders thereof, either as an entirety or from
time to time for part only of the shares specified therein and, in the
event that any Warrant is exercised in respect of less than all of the
shares specified therein at any time prior to the date of expiration of the
Warrant, a new Warrant or Warrants will be issued to such registered holder
for the remaining number of shares specified in the Warrant so surrendered,
and the Warrant Agent is hereby irrevocably authorized to countersign and
to deliver the required new Warrants pursuant to the provisions of this
Section during the Warrant exercise period, and the Company, whenever
requested by the Warrant Agent, will supply the Warrant Agent with Warrants
duly executed on behalf of the Company for such purpose.
SECTION 7. PAYMENT OF TAXES. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Common Shares issuable
upon the exercise of Warrants; provided, however, that the Company shall
not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue or delivery of any certificates for
Common Shares in a name other than that of the registered holder of
Warrants in respect of which such shares are issued, and in such case
neither the Company nor the Warrant Agent shall be required to issue or
deliver any certificate for Common Shares or any Warrant until the person
requesting the same has paid to the Company the amount of such tax or has
established to the Company's satisfaction that such tax has been paid.
SECTION 8. MUTILATED OR MISSING WARRANTS. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the Company may in
its discretion issue and the Warrant Agent shall countersign and deliver in
exchange and substitution for and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent right
or interest, but only upon receipt of evidence satisfactory to the Company
and the Warrant Agent of such loss, theft or destruction of such Warrant
and indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrants shall also comply with such other reasonable
regulations and pay such reasonable charges as the Company or the Warrant
Agent may prescribe.
SECTION 9. RESERVATION OF COMMON SHARES. There have been
reserved, and the Company shall at all times keep reserved, out of the
authorized and unissued Common Shares, a number of shares sufficient to
provide for the exercise of the rights of purchase represented by the
Warrants, and the Transfer Agent for the Common Shares and every subsequent
transfer agent for any shares of the Company's capital stock issuable upon
the exercise of any of the rights of purchase aforesaid are hereby
irrevocable authorized and directed at all times to reserve such number of
authorized and unissued shares as shall be requisite for such purpose. The
Company agrees that all Common Shares issued upon exercise of the Warrants
shall be, at the time of delivery of the certificates for such Common
Shares, validly issued and outstanding, fully paid and non-assessable
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and listed on any national securities exchange upon which the other Common
Shares are then listed. The Company will file such Registration
Statement(s) pursuant it to deliver to each person exercising a Warrant,
a Prospectus meeting the requirements of Section 11(a) (3) of such
Securities Act and otherwise complying therewith, and will deliver such a
Prospectus to each such person; PROVIDED, that the Company shall only be
obligated to use its reasonable, good faith efforts to have any such
registration statement declared effective by the Securities and Exchange
Commission, and to have such reserved shares qualified for delivery to
holders of the Warrants under applicable state securities laws, and to the
extent that the Company has used such prescribed efforts but has been
unsuccessful in obtaining any such registration(s) or qualification(s), it
shall not constitute a breach of this Agreement by the Company. The
Company will keep a copy of this Agreement on file with the Transfer Agent
for the Common Shares and with every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is
hereby irrevocably authorized to requisition from time to time such
Transfer Agent for stock certificates required to honor outstanding
Warrants. The Company will supply such Transfer Agent with duly executed
stock certificates for such purpose. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be cancelled by the Warrant
Agent and shall thereafter be delivered to the Company, and such cancelled
Warrants shall constitute sufficient evidence of the number of Common
Shares which have been issued upon the exercise of such Warrants. Promptly
after the date of expiration of the Warrants, the Warrant Agent shall
certify to the Company the total aggregate amount of Warrants then
outstanding, and thereafter no Common Shares shall be subject to
reservation in respect to such Warrants which shall have expired.
SECTION 10. WARRANT PRICE. The Warrant Price at which Common Stock
shall be purchasable shall be $5.50 per whole share. No fractional shares
shall be issued.
SECTION 11. ADJUSTMENTS. Subject and pursuant to the provisions of
this Section 11, the Warrant Price and number of Common Shares subject to
this Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time subdivide its outstanding
Common Shares by recapitalization, reclassification, split-up thereof,
or other such issuance without additional consideration, the Warrant
Price immediately prior to such subdivision shall be proportionately
decreased, and, if the Company shall at any time combine the
outstanding Common Shares by recapitalization, reclassification or
combination thereof, the Warrant Price immediately prior to such
combination shall be proportionately increased. Any such adjustment
to the Warrant Price, or the corresponding adjustment to the number of
Common Shares purchasable upon the exercise of Warrants, shall become
effective at the close of business on the record date for such
subdivision or combination.
(b) In the event the Company adopts a resolution for the
liquidation, dissolution, or winding up of the Company's business, the
Company will give written notice of such adoption of a resolution to
the registered holders of the Warrants. Thereupon all liquidation and
dissolution rights under the Warrants will terminate at the end of
thirty (30) days from the date of the notice to the extent not
exercised within those thirty (30) days.
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(c) If any capital reorganization or reclassification of the
Common Stock of the Company (other than a change in par value), or
consolidation or merger of the Company with another corporation (other
than a merger with a subsidiary in which the Company is the surviving
entity), or the sale of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities, cash, or
assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization, reclassification, consolidation,
merger or sale, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent
a supplemental Warrant Agreement providing that each registered holder
of a Warrant shall have the right thereafter and until the expiration
date to exercise such Warrant for the kind and amount of stock,
securities, cash or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale by a holder of the
number of shares of Common Stock for the purchase of which such
Warrant could have been exercised immediately prior to such
reorganization, reclassification, consolidation, merger or sale,
subject to adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 11.
(d) Upon any adjustment of the Warrant Price as hereinabove
provided, the number of Common Shares issuable upon exercise of a
Warrant shall be changed to the number of shares determined by
dividing (i) the aggregate Warrant Price payable for the purchase of
all shares issuable upon exercise of the Warrant immediately prior to
such adjustment by (ii) the Warrant Price per share in effect
immediately after such adjustment.
(e) Anything hereinabove to the contrary notwithstanding, no
adjustment of the Warrant Price or in the number of Common Shares
subject to any Warrant shall be made upon the issuance or sale by the
Company of any Common Shares pursuant to the exercise of any warrants
which may be issued by the Company pursuant to any underwriting
agreement between the Company and any underwriter (including the
Underwriter), pursuant to the issuance of shares of Common Stock upon
exercise of any of the Warrants, pursuant to any existing stock option
plan or any such plan which may be adopted by the Company, pursuant to
any merger, reorganization, consolidation, acquisition or other
corporate transaction, or otherwise in connection with any issuance of
securities by the Company, except as specifically identified herein.
(f) No adjustment in the Warrant Price shall be required under
this Section 11 unless such adjustment would require an increase or
decrease in such price of at least 10%; provided, however, that any
adjustments which by reason of the foregoing are not required at the
time to be made shall be carried forward and taken into account and
included in determining the amount of any subsequent adjustment; and
provided further, however, that in case the Company shall at any time
subdivide or combine the outstanding Common Shares or issue any
additional Common Shares as a dividend, said amount of 10% per share
shall forthwith be proportionately increased in the case of a
combination or decreased in the case of a subdivision or stock
dividend so as to appropriately reflect the same.
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(g) On the effective date of any new Warrant Price the number of
shares as to which any Warrant may be exercised shall be increased or
decreased so that the total sum payable to the Company on the exercise
of such Warrant shall remain constant.
(h) The form of Warrant need not be changed because of any
change pursuant to this Article, and Warrants issued after such change
may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this agreement.
However, the Company may at any time in its sole discretion (which
shall be conclusive) make any change in the form of Warrant that the
Company may deem appropriate and that does not affect the substance
thereof; and any Warrant thereafter issued or countersigned, whether
in exchange or substitution for an outstanding Warrant or otherwise,
may be in the form as so changed.
SECTION 12. FRACTIONAL INTEREST. The Company shall not be required
to issue fractions of Common Shares on the exercise of Warrants or any cash
or other adjustment in respect of such fractions of Common Shares. If any
fraction of a Common Share would, except for the provisions of this Section
12, be issuable on the exercise of any Warrant (or specified portions
thereof), the Company shall issue such number of shares of Common Stock to
which the Warrant holder is entitled, rounded up to the nearest number of
whole shares.
SECTION 13. NOTICES TO WARRANTHOLDERS.
(a) Upon any adjustment of the Warrant Price and the number of
shares issuable on exercise of a Warrant, then and in each such case
the Company shall give written notice thereof to the Warrant Agent,
which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of
shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(b) In case at any time:
(i) the Company shall pay any dividends payable in stock
upon its Common Stock or make any distribution (other than
regular cash dividends) to the holders of its Common Stock;
(ii) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of
any class or other rights;
(iii) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or
consolidation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company;
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then, in any one or more of such cases, the Company shall give written
notice to all Warrant holders of record not fewer than 10 days' prior
to the date on which the books of the Company shall close or a record
shall be taken for (i) such dividend, distribution, or subscription
rights, or (ii) such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, or winding up shall take
place, as the case may be. Such notice shall also specify the date as
of which the holders of Common Stock of record shall participate in
such dividend, distribution, or subscription rights, or shall be
entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding up,
as the case may be. Failure to give or publish such notice, or any
defect therein, shall not affect the legality or validity of any of
the matters set forth in this Section 13 inclusive.
(c) The Company shall cause copies of all financial statements
and reports, proxy statements and other documents as it shall send to
its stockholders to be sent by first-class mail, postage prepaid, on
the date of mailing to such stockholders, to each registered holder of
Warrants at his address appearing on the Warrant register as of the
record date for the determination of the stockholders entitled to such
documents.
SECTION 14. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS.
(a) The Warrant Agent shall forward promptly to the Company,
with respect to Warrants exercised, the funds which will be deposited
in a special account in a bank designated by the Company for the
benefit of the Company, for the purchase of Common Shares through the
exercise of such Warrants.
(b) The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of Warrants during normal business
hours.
SECTION 15. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT. Any corporation or company which may succeed to the business of the
Warrant Agent by any merger or consolidation or otherwise to which the
Warrant Agent shall be a party, shall be the successor Warrant Agent
hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided that such corporation
would be eligible for appointment as a successor Warrant Agent under the
provisions of Section 17 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have
been countersigned, any successor to the Warrant Agent may countersign such
Warrants either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrants shall
have the full force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrants so countersigned; and in case at that time
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any of the Warrants shall not have been countersigned, the Warrant Agent
may countersign such Warrants either in its prior name or in its changed
name; and in all such cases such Warrants shall have the full force
provided in the Warrants and in this Agreement.
SECTION 16. DUTIES OF WARRANT AGENT. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of
Warrants, by their acceptance thereof, shall be bound:
(a) The statements of fact and recitals contained herein and in
the Warrants shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describe the Warrant Agent or action taken or
to be taken by it. The Warrant Agent assumes no responsibility with
respect to the distribution of the Warrants except as herein expressly
provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrants to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the written advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant for any action taken in
reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument reasonably
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Warrant Agent in the execution of this
Agreement and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the
Warrant Agent's negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more registered
holders of Warrants shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be
incurred, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper,
whether with or without any such security or indemnity.
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All rights of action under this Agreement or under any of the Warrants
may be enforced by the Warrant Agent without the possession of any of
the Warrants or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable
benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
(g) The Warrant Agent and any stockholder, director, officer,
partner or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or become pecuniary
interested in any transaction in which the Company may be interested,
or contract with or lend money to otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent and
not in a ministerial capacity, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be
liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own negligence or bad faith.
(i) The Warrant Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys, agents or employees, and the
Warrant Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys, agents, or
employees or for any loss to the Company resulting from such neglect
or misconduct, provided reasonable care has been exercised in the
selection and continued employment thereof.
(j) Any request, direction, election, or order or demand of the
Company shall be sufficiently evidenced by an instrument signed in the
name of the Company by its President or a Vice President or its
Secretary or an Assistant Secretary or its Treasurer or an Assistant
Treasurer (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Warrant Agent by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company.
SECTION 17. CHANGE OF WARRANT AGENT. The Warrant Agent may resign
and be discharged from its duties under this Agreement by giving to the
Company notice in writing, and to the holders of the Warrants notice by
mailing such notice to holders at their addresses appearing on the Warrant
register, of such resignation, specifying a date when such resignation
shall take effect. The Warrant Agent may be removed by like notice to the
Warrant Agent from the Company and by like mailing of notice to the holders
of the Warrants. If the Warrant Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
to the Warrant Agent. If the Company shall fail to make such appointment
within a period of 30 days after such removal or after it has been notified
in writing of such resignation or in capacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who
shall, with such notice, submit his Warrant for inspection by the Company),
then the registered holder of any
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Warrant may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Any successor warrant
agent, whether appointed by the Company or by such court, shall be a bank,
or trust company or active transfer agent, in good standing, incorporated
under the laws of a state of the United States of America. After
appointment, the successor warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed; but the former Warrant
Agent shall deliver and transfer to the successor warrant agent all
cancelled Warrants, records and property at the time held by it hereunder,
and execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Failure to file or mail any notice provided by
this Section, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Warrant Agent or the
appointment of thesuccessor warrant agent, as the case may be.
SECTION 18. IDENTITY OF TRANSFER AGENT. Forthwith upon the
appointment of any Transfer Agent for the Common shares or of any
subsequent transfer agent for Common Shares or other shares of the
Company's capital stock issuable upon exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent
a statement setting forth the name and address of such Transfer Agent. The
Warrant Agent hereby acknowledges that it is, at the time of execution
hereof, the Transfer Agent, and waives any statement required herein with
respect thereto.
SECTION 19. NOTICES. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any
Warrant to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent) as follows:
n-GEN XXXXXXXXX.XXX, INC.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to:
Berenbaum, Weinshienk & Xxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Any notice pursuant to this Agreement to be given or made by the
Company or by the registered holder of any Warrant to or on the Warrant
Agent shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by
the Warrant Agent with the Company) as follows:
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American Securities Stock Transfer, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: ____________________
SECTION 20. SUPPLEMENTS AND AMENDMENTS. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Warrants in order to cure any
ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising
hereunder which the Company and the Warrant Agent may deem necessary or
desirable and which shall not be inconsistent with the provisions of the
Warrants and which shall not adversely affect the interests of the holders
of Warrants.
SECTION 21. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 22. COLORADO CONTRACT. This Agreement shall be deemed to
be a contract made under the laws of the State of Colorado and for all
purposes shall be construed in accordance with laws of said State.
SECTION 23. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the registered holders of the Warrant any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrants.
SECTION 24. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall be considered an
original.
SECTION 25. EFFECTIVENESS. This Agreement shall be deemed binding,
and, therefore, in effect, as of and subject to the effective date of the
Registration Statement for the Public Offering.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
n-GEN XXXXXXXXX.XXX, INC.
(Corporate Seal)
By: ____________________________________
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Attest:
-12-
_________________________________
Xxxxxxx X. Xxxxxxx, Secretary
AMERICAN SECURITIES STOCK
TRANSFER, INC.
By: __________________________________
________________________
Executive Vice President
-13-
EXHIBIT A
FORM OF WARRANT
This certifies that ___________________, or registered assigns, is the
registered holder of the number of Warrants indicated above, each of which
Warrants entitles the holder thereof to purchase, at any time on or before
_____________, 2005, one Share of the $.0001 par value common stock of n-Gen
Xxxxxxxxx.Xxx, Inc., a corporation duly organized and existing under
the laws of the state of Delaware, hereinafter called the Company, as such
shares are constituted on ____________, 2000, at the subscription price of
$5.50 per Share by surrendering this Warrant, with the subscription form on
the reverse side thereof duly executed, at the office of the Warrant Agent,
and by paying in lawful money of the United States, the Subscription Price
for each Share as to which this Warrant is exercised, buy only subject to
the conditions set forth herein and in the Warrant Agreement.
This Warrant is one of a duly authorized issue of Warrants for the
purchase of Shares evidencing the right to purchase shares of the Company.
It is issued under and in accordance with certain resolutions adopted by
the Board of Directors of the Company on _____________, 2000, and is
subject to the terms and provisions contained in the Warrant Agreement, to
all of which the holder of this Warrant, by acceptance hereof, consents.
A copy of the Warrant Agreement may be obtained for inspection by the
holder hereof upon written request to the Transfer Agent of the Company.
This Warrant is redeemable at the option of the Company on 30 days
notice at the price of $.05 per Warrant, subject to the terms of the
Warrant Agreement. No fractional shares will be issued upon the exercise
of this Warrant, but, in lieu of any fractional interest, the Company shall
pay cash as provided in the Warrant Agreement. Upon any partial exercise
of this Warrant, there shall be countersigned and issued to or upon the
order of the holder thereof a new Warrant in respect of the Shares as to
which this Warrant shall not have been exercised. This Warrant shall be
exchanged either separately or in combination with one or more other
Warrants for one or more new Warrants of the same aggregate number of
Shares as were evidenced by the Warrant or Warrants exchanged.
This Warrant is issued subject to the condition, and every holder
hereof by accepting the same agrees with every subsequent holder hereof and
with the Company, that delivery hereof by any person in possession of the
same, however such possession may have been acquired, if properly assigned
in blank, or if properly assigned to a specified person, by delivery hereof
to such person, shall vest title hereof and all rights hereunder in the
transferee to the same extent and for all purposes as would delivery under
like circumstances of any negotiable instrument; and that the Company may
treat the record holder hereof for the time being, or when presented
properly assigned to a specified person, the person to whom assigned, or,
when presented properly assigned in blank, the bearer hereof, as the
absolute holder for all purposes and shall not be affected by any notice to
the contrary.
This Warrant does not entitle any holder hereof to any rights of a
shareholder of this Company.
-14-
IN WITNESS WHEREOF the Company has caused this Warrant to be signed by
its Chief Executive Officer and by its Secretary each by facsimile
signature and has caused a facsimile of its corporate seal to be imprinted
hereon.
Dated:
-15-
n-GEN XXXXXXXXX.XXX, INC.
PURCHASE WARRANT
SUBSCRIPTION FORM
To Be Executed By The Registered Holder
In Order To Exercise Warrants
The undersigned registered holder irrevocably elects to exercise __________
Warrants represented by this Warrant Certificate, and to purchase the
shares of Common Stock issuable upon the exercise of such Warrants and
enclosed $__________ as purchase price therefor, and requests that
certificates for such shares be issued in the name of:
__________________________________________________________________________
(PLEASE TYPE OR PRINT NAME AND ADDRESS)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to ________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
_____________________ and, if such number of Warrants shall not be all the
Warrants evidenced by this Warrant Certificate, that a new Warrant
Certificate for the balance of such Warrants be registered in the name of,
and delivered to, the Registered Holder at the address stated below.
______________________________________
(SIGNATURE)
______________________________________
(SIGNATURE)
Dated:____________________ ______________________________________
ADDRESS
______________________________________
__________________________ ______________________________________
SIGNATURE(s) GUARANTEED TAX IDENTIFICATION NUMBER
-16-
ASSIGNMENT
To Be Executed By The Registered Holder
In Order to Transfer Warrants
For Value Received, _______________________________ hereby sell, assign and
transfer unto: __________________________________________________________
(PLEASE TYPE OR PRINT NAME AND ADDRESS)
_________________________________________________________________________
__________________________________________________________________________
___________________________________________________________________________
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
of the Warrants represented by this Warrant Certificate, and hereby
irrevocably constitute and appoint _______________________________ Attorney
to transfer this Warrant Certificate on the books of the Company, with full
power of substitution in the premises.
Dated: _____________________ ______________________________________
(SIGNATURE)
____________________________ ______________________________________
SIGNATURE(s) GUARANTEED (SIGNATURE)
THIS SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND
TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND
MUST BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM
OF THE AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC COAST
STOCK EXCHANGE OR MIDWEST STOCK EXCHANGE.
-17-
