Warrant Agent Agreement
This Warrant Agent Agreement ("Agreement") is made as of June 6,
2005 (the "Effective Date") by and between Alfa International
Holdings Corp., a Delaware corporation ("Alfa") which has its
principal offices at The Empire State Building, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, and Xxxxxx Xxxxxxx Financial Group, LLC,
("Ashton"), a New York corporation with its principal offices at
0000 Xxxxx Xxxxxx, Xxxxxx Xxxxxx, XX 00000. Alfa and Ashton are
sometimes referred to herein as a "Party" or as the "Parties".
WHEREAS, Alfa is a publicly traded traded company whose $0.01
par value common stock ("Common Stock") is quoted on the
Electronic Bulletin Board ("OTCBB") under the symbol TYBR., and
WHEREAS, Alfa has two wholly owned subsidiaries - Contact
Sports, Inc. ("Contact") and Ty-Breakers Corp. ("Ty-Breakers"),
and
WHEREAS, Journey of Light, Inc. ("JOL") is a privately held
Delaware corporation and Alfa recently entered into an agreement,
subject to certain conditions precedent, to acquire JOL, and
WHEREAS, Alfa presently has four million three hundred fifty-
four thousand (4,354,000) common stock purchase warrants
("Warrants") outstanding and such Warrants are held by one hundred
six (106) individuals (the "Warrant Holders") and such Warrants
are exercisable for the purchase of one share of Alfa's common
stock at a price of seventy-five cents ($0.75) per share (the
"Exercise Price") , and
WHEREAS, Ashton is a registered broker dealer and a member of
the National Association of Securities Dealers ("NASD")
experienced in rendering services related to advising companies in
financial and corporate matters, financial public relations,
investment banking and in acting as a broker and/or placement
agent in connection with the sale of securities including the
exercise of warrants, and
WHEREAS, Alfa requires investment banking and brokerage
expertise to support its business and growth, and otherwise
maximize the value of its business enterprises for its
shareholders by effecting or arranging the origination, issuance,
placement or sale of its equity securities, including the
exercise of the Warrants by the Warrant Holders, and
WHEREAS, Ashton has substantial contacts among the members
of the investment community, possesses investment banking and
brokerage expertise, and is willing to arrange access to its
professional contacts and provide its expertise and services to
Alfa, and
WHEREAS, Alfa's Board of Director's has recently approved the
reduction of the Exercise Price to sixty cents ($0.60) per share
for the period beginning on and including June 7, 2005 and ending
on and including July 22, 2005 (the "Reduced Price Exercise
Period") and after which Reduced Price Exercise Period the
Exercise Price will revert to the original exercise price of
seventy-five cents ($0.75), and
WHEREAS, Alfa desires to employ Ashton on a non-exclusive
basis as its agent (the "Warrant Agent") to contact the Warrant
Holders during the Reduced Price Exercise Period to make such
Warrant Holders aware of their rights and opportunities under the
Warrants and to assist Alfa in soliciting the exercise of such
Warrants by its Warrant Holders and Ashton is agreeable to such a
relationship.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and subject to the conditions hereof,
and intending to be legally bound hereto, the Parties agree as
follows:
1. Recitals. The above stated recitals are all incorporated
herein as if fully set forth in the body of this Agreement.
2. Appointment. Alfa hereby appoints Ashton as its non-
exclusive Warrant Agent and hereby retains and employs Ashton upon
the terms and conditions of this Agreement. Ashton accepts such
appointment.
3. Duties / Services.
3.1. Duties.
(I) Duties of Alfa.
A. Alfa shall promptly supply Ashton with a listing of the
Warrant Holders which shall include each Warrant Holder's name,
address and contact information. Alfa shall also provide Ashton
with a copy of the Warrant Agreement as well as the appropriate
forms to be used by Warrant Holders to exercise the Warrants.
X. Xxxxxx has undertaken a due diligence investigation of
Alfa prior to entering into this Agreement and Ashton will
familiarize itself with Alfa's periodic reports on Forms 10-KSB,
10-QSB and 8-K as filed via the XXXXX system with the Securities &
Exchange Commission ("SEC") and any such reports filed in the
future during the Term of this Agreement (collectively, the "SEC
Reports"). Further, Alfa shall furnish to Ashton copies of
documents, agreements, sample products and information - including
information on JOL - as Ashton may reasonably request in
connection with Ashton's due diligence investigation of Alfa,
Alfa's disclosures contained in the SEC Reports, and Alfa's
planned business operations. Alfa further covenants and agrees to
continue to reflect in its SEC Reports all material changes in its
business plans or operations or financial condition.
X. Xxxxxx'x shareholders, officers, employees, members of
their families and or consultants to Ashton or agents of Ashton
may purchase Common Stock or other securities of Alfa and, in the
future, may hold positions in and engage in transactions with
respect to Alfa's Common Stock. Since Ashton imposes restrictions
on such transactions to guard against trading on the basis of non-
public information, Alfa shall at the time it supplies any such
non-public information, notify Ashton of its non-public nature.
(II) Duties of Ashton.
(A) Ashton is, and shall throughout the Term of this
Agreement, remain a member in good standing of the NASD. Ashton
shall immediately notify Alfa of any change in its status as a
member in good standing of the NASD;
(B) Ashton shall be duly registered as a broker/dealer
pursuant to the requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act") and shall maintain such
registration in good standing during the Term of this Agreement.
Both Ashton and any principal or registered representative of
Aston are, and shall during the Term hereof remain, registered in
every state where the Warrant Holders reside. Ashton shall
immediately notify Alfa of any change in its status as a duly
registered broker/dealer under the 1934 Act;
(C) Ashton shall comply with all rules regulations,
proclamations, directives and decisions of the SEC, NASD or any
state regulatory agency having jurisdiction over the offer and
sale of securities or the solicitation of the Warrants with
respect to the manner in which potential investors are solicited
including, but not limited to the rules and regulations relating
to the use of "cold calling" of potential investors and the
requirement that Ashton have a pre-existing relationship with
potential investors who are so solicited. It shall be the sole
obligation of Ashton to assure compliance with all such regulatory
rules, regulations and procedures;
(D) In the course of the performance of this Agreement it
is expected that specific sensitive material non-public
information concerning the operations or planned operations of
Alfa and JOL and their business and potential business partners
and associates and their future plans shall come to the attention
and knowledge of Ashton. In such event Ashton agrees that it will
not divulge, discuss, or otherwise reveal such information to any
third parties;
(E) Ashton agrees that any breach of the foregoing
provisions shall constitute a material breach of this Agreement;
3.2. Services. Ashton will provide to Alfa, on a best
efforts basis, services as follows:
3.2.1. Advice and Counsel: Ashton will provide advice and
counsel regarding Alfa's business and financial plans and
strategies to the extent requested by Alfa and consistent with
the terms of this Agreement and the rules and regulations of any
regulatory agency having jurisidiction over such activities.
3.2.2 Brokerage Activities: To the extent consistent with
Alfa's business objectives of attracting long-term investors to
its Common Stoock, Ashton will use its best efforts to arrange or
effect, as a broker, the purchase by investors and/or investment
funds of Alfa's publicly traded Common Stock.
3.2.3 Warrant Agent: Ashton shall act as Alfa's non-
exclusive Warrant Agent during the Reduced Price Exercise Period
(and any extension by Alfa thereof) with respect to the possible
exercise of Warrants by the Warrant Holders.
3.2.4 Best Efforts: Ashton shall devote such time and
best efforts to the affairs of Alfa as are reasonable and
adequate to render the services contemplated by this Agreement.
Ashton cannot guarantee results on behalf of Alfa but will pursue
all avenues available to it and through its network of financial
and other contacts.
4. Compensation to Ashton
4.1 Warrant Agent Fee: As compensation for its services
as Warrant Agent hereunder, Alfa shall pay Ashton ten percent
(10%) of the gross amount of the proceeds received by Alfa as a
result of the exercise during the Reduced Price Exercise Period
of the Warrants when such exercise by the Warrant Holders is a
result of the efforts of Ashton.
4.2 Subscriber List: Alfa shall deliver to Ashton the
listing of the holders of Alfa's Series B Preferred stock who are
also the Warrant Holders. The majority of the Warrant Holders are
"accredited investors" and Ashton acknowledges that Alfa's
introduction of the Warrant Holders to Ashton is of value to
Ashton's business.
5. Representations. Each party hereby represents, covenants
and warrants to the other party as follows:
5.1 Execution by Ashton. The execution and performance of
this Agreement by Ashton has been duly authorized by the Board of
Directors of Ashton in accordance with its charter, by-laws and
all applicable laws and constitutes the valid and binding
obligation of Ashton duly enforceable according to its terms. The
performance by Ashton of this Agreement will not violate any
applicable court decree or order, law or regulation, nor will it
violate any provision of the organizational documents or bylaws of
Ashton or any contractual obligation by which Ashton may be bound.
5.2 Execution by Alfa. The execution and performance of this
Agreement by Alfa has been duly authorized by the Board of
Directors of Alfa in accordance with its charter, by-laws and all
applicable laws and constitutes the valid and binding obligation
of Alfa duly enforceable according to its terms. The performance
by Alfa of this Agreement will not violate any applicable court
decree or order, law or regulation, nor will it violate any
provision of the organizational documents or bylaws of Alfa or any
contractual obligation by which Alfa may be bound.
5.3 Authorization: Each Party and its signatories hereto
has full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. Xxxxx X. Xxxxxx
and Xxxx Xxxxxxxxx as the persons executing this Agreement on
behalf of Alfa and Ashton respectively, each represent and
warrant that they have the full power and authority to execute
this Agreement on behalf of Alfa and Ashton respectively and that
the Boards of Directors of Alfa and Ashton, as the case may be,
have authorized them to execute and deliver this Agreement.
5.4 No Violation: Neither the execution and delivery of
this Agreement by a Party nor the consummation of the
transactions contemplated hereby will violate any provision of
the charter or by-laws of such Party, or violate any terms or
provision of any other agreement to which such Party is bound,
or any statute or law.
5.5 Consents: No consent of any person, other than the
signatories hereto, is necessary to the consummation of the
transactions contemplated hereby.
5.6 Reliance: Each Party has relied and will rely upon the
documents, instruments and written information furnished by the
other Party and its officers or designated employees. All
representations and statements provided by or about a Party are
true, complete and accurate to the best of such Party's
knowledge.
5.7 Services Not Expressed or Implied:
X. Xxxxxx has not agreed with Alfa in this Agreement or
any other agreement oral or written to be a market-maker in
Alfa's Common Stock or other securities or in any specific
securities or securities in which Alfa has an interest.
B. Any payments made herein to Ashton are not and shall
not be construed as compensation for the purposes of making a
market, to cover Ashton's out-of-pocket expenses for making a
market, or for the submission by Ashton of an application to make
a market in any securities. At present, Ashton does not make a
market in any security. In the event that it gains such ability,
the Parties agree that no portion of the compensation or
reimbursement hereunder shall be allocated to any such market
making services.
C. No payments made hereunder to Ashton are for the
purpose of affecting the price of any security or influencing any
market-making functions, including but not limited to bid/ask
quotations, initiation and termination of quotations or for the
submission of any application to make a market.
6. Confidentiality: Ashton and Alfa each agree to provide
reasonable security measures to keep information confidential
when release may be detrimental to their respective business
interests. Ashton and Alfa shall each require their employees,
agents, affiliates, subcontractors, other licensees and others
who will have access to such information through Ashton and Alfa
respectively, to first enter appropriate nondisclosure agreements
requiring the confidentiality contemplated by this Agreement.
7. Term of Agreement. This Agreement shall be effective
upon execution by the Parties and shall continue for six (6)
months after the Effective Date (the "Term"), unless terminated
sooner by either Party in accordance with paragraph 8 hereof.
8. Termination. This Agreement may be terminated by either
Party prior to the expiration of the Term upon giving to the
other party thirty (30) days written notice thereof, after which
time this Agreement is terminated. However, either Party may
terminate this Agreement upon three (3) days prior notice if the
other Party shall have materially breached any provision of this
Agreement or if such Party shall have failed to abide by any law,
rule, regulation or directive of any governmental, quasi-
governmental or regulatory agency, either federal, state or local,
having jurisdiction over such Party where such violation could
have an adverse effect upon the terminating Party or its business
or assets. Notwithstanding the foregoing, all payments due to
Ashton from Alfa pursuant to Section 4.1 hereof must be paid to
Ashton by Alfa prior to any Terminationof this Agreement by Alfa.
9. Miscellaneous Provisions
9.1 Amendment and Modification: This Agreement may be
amended, modified or supplemented only by written agreement of
Ashton and Alfa.
9.2 Waiver of Compliance: Any failure of Ashton, on the
one hand, or Alfa, on the other, to comply with any obligation,
agreement, or condition herein may be expressly waived in writing
but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
9.3 Expenses: The Parties agree that all fees and expenses
incurred by a Party in connection with this Agreement shall,
unless agreed to the contrary in writing, be borne by the Party
incurring such fees and expenses.
9.4 Compliance with Regulatory Agencies: Each Party agrees
that all actions, direct or indirect, taken by it and its
respective agents, employees and affiliates in connection with
this Agreement and the transactions contemplated hereby and any
financing, underwriting, brokerage activities or Warrant
solicitation hereunder shall conform to all applicable Federal
and State securities laws and to the rules and regulations of any
applicable regulatory body.
9.5 Notices. Unless otherwise specifically provided in this
Agreement, all notices, requests, consents, approvals, agreements
or other communications required or permitted to be given under
this Agreement shall be in writing and shall be delivered in one
of the following means: (a) by hand; (b) by facsimile transmission
to those parties with fax numbers indicated below (with subsequent
written confirmation by another means in compliance with this
Section 9.5); (c) by registered or certified mail, first class
postage prepaid, return receipt requested; or (d) by nationally
recognized overnight courier, addressed to the respective
addresses of the parties as follows:
If to Alfa: If to Ashton:
----------- -------------
Alfa International Xxxxxx Xxxxxxx Financial
Holdings Corp. Group, LLC
000 Xxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxx Xxxxxx, XX 00000
Fax: 000-000-0000 Fax: 718 - 000-0000
Tel: 000-000-0000 Tel: 718 - 000-0000
or to such other address as any Party shall designate by notice
to the other Party given in accordance herewith. Any such notice
or other communication shall be deemed to have been given or made
(i) upon delivery, if delivered personally, (ii) one (1) business
day after transmission, if delivered by facsimile transmission
during normal business hours, (iii) three (3) business days after
mailing, if mailed, or (iv) one (1) business day after delivery
to the courier, if delivered by overnight courier service.
9.6 Assignment: This Agreement, and all of the provisions
hereof shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any right, interest or
obligations hereunder will be assigned by any of the Parties
hereto without the prior written consent of the other Party,
except by operation of law.
9.7 Delegation: Neither Party shall delegate the performance
of its duties under this agreement without the prior written
consent of the other Party.
9.8 Publicity: Ashton shall not make or issue, or cause to be
made or issued any announcement or written statement concerning
this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of
Alfa. This provision shall not apply, however, to any
announcement or written statements required to be made by law or
the regulations of any Federal or State govermental agency.
9.9 Governing Law: This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State
of New York applicable to contracts made and to be entirely
performed therein and without regard to principles of conflict of
laws. Any litigation based hereon, or arising out of, under or in
connection with this Agreement shall be brought and maintained
exclusively in the courts of the State of New York or in the
United States District Court for the Southern District of New
York. Alfa and Ashton each hereby expressly and irrevocably
submits to the jurisdiction of the courts of the State of New York
and of the United States District Court for the Southern District
of New York for the purpose of any such litigation set forth
above. Alfa and Ashton each hereby expressly and irrevocably
waives, to the fullest extent permitted by law, any objection
which they have or hereafter may have to the laying of venue of
any such litigation brought in any such court referred to above
and any claim that any such litigation has been brought in an
inconvenient forum.
9.10 Counterparts: This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
9.11 Headings: The heading of the sections of this Agreement
are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this
Agreement.
9.12 Entire Agreement: This Agreement sets forth the entire
agreement and understanding of the Parties hereto in respect of
the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written.
9.13 Third Parties: Except as specifically set forth or
referred to herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any
person other than the Parties hereto and their successors or
assigns, any rights or remedies under or by reason of this
Agreement.
9.14 Severability: If any part of this Agreement is found by
a court of competent jurisdiction to be invalid or unenforceable,
that part shall be severed from the remainder of the Agreement.
The invalidity or un-enforceability of any such provision of this
Agreement shall not affect or limit the validity or
enforceability of any other provision hereof.
9.15 Further Assurances: Each of the Parties agrees that it
shall from time-to-time-time take such actions and execute such
additional instruments as may be reasonably necessary or
convenient to implement and carry out the intent and purpose of
this Agreement.
9.16 Right to Data after Termination: After termination of this
Agreement each Party shall, except as may be reasonably required
for its reasonable business purposes, either deliver to the other
Party or destroy all non-public records, notes, data, memorandum
and products of any nature that are the property of the other
Party and are in the custody or control of such Party.
9.17 Relationship of the Parties: Nothing contained in this
Agreement shall be deemed to make either Party the partner or
legal representative of the other, or to create any fiduciary
relationship between them, except as otherwise expressly provided
herein. It is not the intention of the parties to create, nor
shall this Agreement be construed to create, any commercial
relationship other than the contractual relationship set out
herein. Neither Party shall have any authority to act for, or to
assume any obligation or responsibility on behalf of, the other
Party, except as otherwise expressly provided herein. The rights,
duties, obligations and liabilities of the Parties shall be
separate, not joint or collective. Each Party shall be
responsible only for its obligations as herein set out and shall
be liable only for its costs and expenses as provided herein.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be duly executed as of the Effective Date first above written.
Alfa International Xxxxxx Xxxxxxx Financial
Holdings Corp. Group, LLC
By:------------------------ By:--------------------------
Xxxxx X. Xxxxxx Xxxx Xxxxxxxxx
President Chief Compliance Officer
Director of Operations
