AMENDED AND RESTATED WARRANT AGREEMENT
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This AMENDED AND RESTATED WARRANT AGREEMENT dated as of February 2,
2003 between The Xxxxxxx Corporation, a Nevada corporation (the "Company"), and
Xxxxxxxxx Financial, LLC, a New Jersey limited liability company (hereinafter
referred to variously as the "Holder" or "Xxxxxxxxx"), amends and restates the
Warrant Agreement (the "Warrant Agreement") between the parties dated as of
March 7, 2002.
W I T N E S E T H:
WHEREAS, the Company and Xxxxxxxxx have entered into a certain
Consulting Agreement dated as of March 7, 2002 (hereinafter the "Consulting
Agreement"), pursuant to which Xxxxxxxxx and the Company entered into the
Warrant Agreement which entitled Xxxxxxxxx or its designees to receive, among
other things, warrants ("Warrants") to purchase at any time from March 7, 2002
until March 7, 2003 up to (A) 500,000 shares of the Company's common stock,
$.0005 par value per share ("Common Stock"), at a per share exercise price equal
to $6.50, (B) 250,000 shares of Common Stock at a per share exercise price equal
to $8.50, and (C) 250,000 shares of Common Stock at a per share exercise price
equal to $11.50;
WHEREAS, Xxxxxxxxx exercised all of its Warrants at $6.50 per share,
but to date has not exercised the Warrants at $8.50 per share or the Warrants at
$11.50 per share;
WHEREAS, Xxxxxxxxx has requested and the Company as agreed to
transfer the Warrants exercisable at a per share price of $11.50 to Gold Fund,
Ltd., LLC (a Holder and collectively with Xxxxxxxxx, the "Holders");
WHEREAS, the parties entered into an agreement (the "Settlement
Agreement") of even date herewith which provides for a continuation of services
by Xxxxxxxxx and a settlement of potential disputes; and
WHEREAS, as part of such Settlement Agreement, the Company has
agreed to extend the exercise period of the Warrants which were exercisable at
per share prices of $8.50 and $11.50 for a period of one year and issue to
Xxxxxxxxx additional Warrants to purchase 250,000 shares of Common Stock at a
per share exercise price of $9.50, which shall be exercisable for a period of
one year.
NOW, THEREFORE, in consideration of the execution by the parties of
the Settlement Agreement, the services to be rendered by Xxxxxxxxx pursuant to
the Consulting Agreement, the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO EXISTING WARRANTS AND GRANT AND EXERCISE OF
ADDITIONAL WARRANTS.
ss.1.1 AMENDMENT TO EXISTING WARRANTS. The exercise period of the
Warrants to purchase up to (i) 250,000 shares of Common Stock at a per share
exercise price of $8.50 and (ii) 250,000 shares of Common Stock at a per share
exercise price of $11.50 shall be extended until 5:30 p.m., New York time on
March 7, 2004. The Warrant Certificates evidencing the Warrants issued pursuant
to the Warrant Agreement which were exercisable at $8.50 and $11.50 are hereby
canceled. Xxxxxxxxx has requested and the Company as agreed to transfer the
Warrants exercisable at a per share price of $11.50 to Gold Fund, Ltd., LLC.
Amended and restated Warrant Certificates representing the amendments to these
Warrants shall be issued in the forms attached hereto as Exhibits A and C,
respectively ("Amended and Restated Warrant Certificates").
ss.1.2 GRANT AND EXERCISE OF ADDITIONAL WARRANTS. The Holder is
hereby granted the right to purchase up to 250,000 shares of Common Stock at a
per share exercise price of
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$9.50 exercisable at any time from the date hereof until 5:30 p.m., New York
time, March 7, 2004, and such Warrants shall be evidenced by a Warrant
Certificate, the form of which is attached hereto as Exhibit B. The Amended and
Restated Warrant Certificates and the Warrant Certificate may be referred to
singly as a "Warrant Certificate" and collectively as the "Warrant
Certificates".
The initial exercise prices per share of the Warrants shall be
(subject to adjustment as provided in Section 8 hereof) as provided in Section 6
hereof.
Nothwithstanding anything the contrary, the Warrants shall not be
cancelled and are not cancellable by the Company for any reason prior to March
7, 2004, the date on which they expire by their terms.
2. WARRANT CERTIFICATES. The warrant certificates delivered and to
be delivered pursuant to this Amended and Restated Agreement shall be in the
form set forth in Exhibit A, Exhibit B and Exhibit C attached hereto and made a
part hereof, with such appropriate insertions, omissions, substitutions, and
other variations as required or permitted by this Amended and Restated
Agreement.
3. EXERCISE OF WARRANTS. The Warrants initially are exercisable at
the initial exercise prices (subject to adjustment as provided in Section 8
hereof) per share of Common Stock as set forth in Section 6 hereof payable by
certified or official bank check in New York Clearing House funds. Upon
surrender of a Warrant Certificate with the annexed Form of Election to Purchase
duly executed, together with payment of the Exercise Price (as hereinafter
defined) for the shares of Common Stock purchased at the Company's principal
offices in Pennsylvania (presently located at 000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxxxx, XX 18901) the registered holder of a Warrant Certificate shall be
entitled to receive a certificate or certificates
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for the shares of Common Stock so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Holder thereof, in
whole or in part (but not as to fractional shares of the Common Stock underlying
the Warrants), provided that no exercise may be for fewer than 50,000 shares of
Common Stock (or such lesser number that may remain upon exercise of the
Warrants). Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby. In the case of the purchase of less than all
the shares of Common Stock purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Common Stock.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying such Warrants, shall be made forthwith (and in
any event such issuance shall be made within fifteen (15) business days
thereafter) without charge to the Holder thereof including, without limitation,
any tax which may be payable in respect of the issuance thereof, and such
certificates shall (subject to the provisions of Sections 5 and 7 hereof) be
issued in the name of, or in such names as may be directed by, the Holder
thereof; PROVIDED, HOWEVER, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the Holder and
the Company shall not be required to issue or deliver such certificates unless
or until the person or persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
The Warrant Certificates and the certificates representing the
shares of Common Stock (and/or other securities, property or rights issuable
upon exercise of the Warrants) shall be
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executed on behalf of the Company by the manual or facsimile signature of the
then present Chairman or Vice Chairman of the Board of Directors or President or
Vice President of the Company under its corporate seal reproduced thereon,
attested to by the manual or facsimile signature of the then present Secretary
or Assistant Secretary of the Company. Warrant Certificates shall be dated the
date of execution by the Company upon initial issuance, division, exchange,
substitution or transfer.
5. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. The Holder
represents and warrants to the Company as follows:
ss.5.1 INVESTMENT. The Holder is acquiring the Warrants and the
Common Stock issuable upon exercise thereof for its own account as principal,
not as a nominee or agent, for investment purposes only, and not with a view to,
or for, resale in connection with, any distribution thereof within the meaning
of the Securities Act of 1933, as amended (the "Act").
ss.5.2 HOLDER'S INVESTMENT DECISION. The Holder: (a) is an
"accredited investor" as that term is defined in Rule 501 of Regulation D under
the Securities Act; (b) has been afforded access to current information and the
opportunity to ask questions of the Company's management concerning the
Company's business, management and financial affairs, including the Company's
operating results and liquidity and any uncertainty relating to the Company's
capitalization, and has received answers from the Company's management with
respect to all questions posed by the Holder to management; (c) has such
knowledge and experience in financial and business matters that the Holder is
capable of evaluating, and the Holder has evaluated, the merits and risks of
purchasing the Warrants and the Common Stock issuable upon exercise thereof and
understands that such purchases constitute a highly speculative investment; and
(d) has the financial ability to bear the economic risk of the Holder's
investment in the
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Warrants and the Common Stock issuable upon exercise thereof, has adequate means
to sustain a complete loss of such investments and has no need for liquidity in
such investments.
ss.5.3 REGISTRATION UNDER THE ACT AND LEGEND. The Holder understands
and acknowledges that the certificates representing the Warrants and the Common
Stock issuable upon exercise thereof shall bear a legend substantially as
follows until (i) such securities shall have been registered under the Act and
effectively been disposed of in accordance with an effective registration
statement thereunder or (ii) in the opinion of counsel reasonably acceptable to
the Company such securities may be sold without registration under the Act as
well as any applicable "Blue Sky" or state securities laws:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS, SUPPORTED BY AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED."
6. EXERCISE PRICE.
ss.6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise
provided in Section 8 hereof, the initial exercise price of each of the
Warrants:
(a) represented in the form of the Amended and Restated Warrant
Certificate attached hereto as Exhibit A shall be $8.50 per share of
Common Stock;
(b) represented in the form of Warrant Certificate attached hereto
as Exhibit B shall be $9.50 per share of Common Stock; and
(c) represented in the form of the Amended and Restated Warrant
Certificate attached hereto as Exhibit C shall be $11.50 per share of
Common Stock.
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The adjusted exercise prices shall be the prices which shall result
from time to time from any and all adjustments of the initial exercise prices in
accordance with the provisions of Section 8 hereof.
ss.6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean
the initial exercise prices or the adjusted exercise prices, depending upon the
context.
7. REGISTRATION RIGHTS.
ss.7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933 ON FORM S-3. No
later than 120 days from the date hereof, the Company shall prepare and file
with the Securities and Exchange Commission (the "Commission") a post effective
amendment or other applicable filings to amend the registration statement on
Form S-3 filed by the Company on April 25, 2002 as may be reasonably necessary
in the opinion of counsel for the Company, so as to permit a public offering and
sale of the Common Stock issuable upon the exercise of the Warrants. The
registration statement on Form S-3 filed by the Company on April 25, 2002 and
each post effective amendment or other applicable filing relating thereto shall
hereinafter collectively be referred to as the "Registration Statement". The
Company shall use its best efforts to cause the Registration Statement to be
declared effective as promptly as practicable after it is filed with the
Commission and will use its best efforts to maintain the effectiveness of the
Registration Statement for as long as reasonably requested by the Holders.
ss.7.2 COVENANTS OF THE COMPANY AND THE HOLDER(S) WITH RESPECT TO
REGISTRATION. In connection with any registration under Section 7.1 hereof, each
of the Company and of the Holder, severally and not jointly covenants and agrees
as follows:
(a) The Company shall pay all costs (excluding any underwriting or
selling commissions or other charges of any broker-dealer acting on behalf of
Holders), fees and
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expenses in connection with the Registration Statement filed pursuant to
Sections 7.1 and 7.2 hereof including, without limitation, the Company's legal
and accounting fees, printing expenses, blue sky fees and expenses.
(b) The Company will take all necessary action which may be required
in qualifying or registering the Common Stock issuable upon the exercise of the
Warrants included in the Registration Statement for offering and sale under the
securities or blue sky laws of the state requested by the Holder. The Company
will deliver to the Holders such number of copies of the Prospectus contained in
the Registration Statement as the Holders may reasonably request.
(c) The Company shall indemnify the Holder(s) of the Common Stock
issuable upon the exercise of the Warrants to be sold pursuant to the
Registration Statement and each person, if any, who controls such Holder within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage,
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any
of them may become subject under the Act, the Exchange Act or otherwise, arising
from the Registration Statement; provided, however, that the Company will not be
liable in any such case if and to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished in writing specifically for use in the Registration
Statement or prospectus by any Holder, any such controlling person or any
underwriter of the Registration Statement, if any.
(d) Each Holder of Common Stock issuable upon the exercise of the
Warrants which are to be sold pursuant to the Registration Statement shall
indemnify the Company, each
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person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, any underwriter of the Registration
Statement, if any, and all other selling security holders selling Common Stock
pursuant to the Registration Statement against all loss, claim, damage, expense
or liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them may
become subject under the Act, the Exchange Act or otherwise, which may arise out
of or be based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by such
Holder in writing specifically for use in the Registration Statement or
prospectus.
(e) Nothing contained in this Amended and Restated Agreement shall
be construed as requiring the Holder(s) to exercise their Warrants prior to the
filing of any post effective amendment or other filing relating to the
Registration Statement or the effectiveness thereof.
(f) The Company shall deliver promptly to each Holder participating
in the offering requesting the correspondence and memoranda described below and
the managing underwriter copies of all correspondence between the Commission and
the Company, its counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to the Registration Statement and
permit the Holder and underwriter to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted from the
Registration Statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors,
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all to such reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request as it deems necessary to comply with
applicable securities laws or NASD rules.
8. ADJUSTMENTS TO EXERCISE AND NUMBER OF SECURITIES.
ss.8.1 STOCK SPLIT, STOCK DIVIDEND OR RECAPITALIZATION. In case the
Company shall at any time effect a stock split, stock dividend or similar
capital adjustment to the outstanding shares of Common Stock, the Exercise Price
and the number of shares of Common Stock issuable upon exercise of the Warrants
shall forthwith be adjusted. At the time of any such adjustment, the Company
shall make appropriate reserves to ensure the timely performance of its
obligations hereunder.
ss.8.2 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company with, or into, another corporation (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the holder of each of the Warrants then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrants) to receive, upon exercise of such warrants, the
kind and amount of shares of stock and other securities and property receivable
upon such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such warrants might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in this Section 8. The above provision of
this Subsection shall similarly apply to successive consolidations or mergers.
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9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of securities in such denominations as shall
be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of any Warrant Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be
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duly and validly issued, fully paid, non-assessable and not subject to the
preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted.
12. NOTICE OF WARRANT HOLDERS. Nothing contained in this Amended and
Restated Agreement shall be construed as conferring upon the Holders the right
to vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other manner, or
as having any rights whatsoever as a stockholder of the Company. If, however, at
any time prior to the expiration of the Warrants and their exercise, any of the
following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchange for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
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then, in any one or more of said events, the Company shall give
notice of such event at least fifteen (15) days prior to the date fixed as a
record date or the date of the closing the transfer books for the termination of
the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(a) If to the Holders, Xxxxxxxxx Financial, LLC,188 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxx, XX 00000 or as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 hereof
or to such other address as the Company may designate by notice to the Holders.
14. SUCCESSORS. All the covenants and provisions of this Amended and
Restated Agreement shall be binding upon and inure to the benefit of the
Company, the Holder and their respective successors and assigns hereunder. In
the case of a Holder, all such successors and assigns shall be deemed a "Holder"
for purposes of this Agreement.
15. GOVERNING LAWS SUBMISSION TO JURISDICTION. This Amended and
Restated Agreement and each Warrant Certificate issued hereunder shall be deemed
to be a contract made
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under the laws of the Commonwealth of Pennsylvania and for all the purposes
shall be construed in accordance with the laws of said Commonwealth without
giving effect to the rules of said State governing the conflicts of laws.
The Company and the Holder hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Amended and
Restated Agreement shall be brought and enforced in the state or federal courts
located in the Commonwealth of Pennsylvania, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company, and the Holder
hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any such process or summons to be served upon any of the
Company and the Holder (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
the address as set forth in Section 13 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim.
16. ENTIRE AGREEMENT: MODIFICATION. This Amended and Restated
Agreement contains the entire understanding between the parties hereto,
supercedes all other agreements whether written or oral with respect to the
subject matter (including, but not limited to, the Warrant Agreement between the
parties hereto dated March 7, 2002) hereof and may not be modified or amended
except by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought.
17. SEVERABILITY. If any provision of this Amended and Restated
Agreement shall be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision of this Amended and
Restated Agreement.
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18. CAPTIONS. The caption headings of the Sections of this Amended
and Restated Agreement are for convenience of reference only and are not
intended, nor should they be construed as, a part of this Agreement and shall be
given no substantive effect.
19. BENEFITS OF THIS AGREEMENT. Nothing in this Amended and Restated
Agreement shall be construed to give to any person or corporation other than the
Company and the Holder any legal or equitable right, remedy or claim under this
Amended and Restated Agreement; and this Amended and Restated Agreement shall be
for the sole and exclusive benefit of the Company and the Holder.
20. COUNTERPARTS. This Amended and Restated Agreement may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Agreement to be duly executed, as of the day and year
first above written.
THE XXXXXXX CORPORATION
By:/s/ Xxxxxx X. Xxxxx
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Title: Chief Financial Officer
XXXXXXXXX FINANCIAL, LLC
By:/s/ Xxx Xxxxxx
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Authorized Officer
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EXHIBIT A
FORM OF AMENDED AND RESTATED WARRANT CERTIFICATE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, MARCH 7, 2004
No. FF-A1 250,000 Warrants
AMENDED AND RESTATED WARRANT CERTIFICATE
This Amended and Restated Warrant Certificate ("Warrant
Certificate") certifies that, Xxxxxxxxx Financial, LLC or its registered
assigns, is the registered holder of 250,000 Warrants to purchase initially, at
any time from March 7, 2002, until 5:30 p.m. New York time on March 7, 2004
("Expiration Date"), up to 250,000 fully-paid and non-assessable shares of
common stock, par value $.0005 per share ("Common Stock"), of THE XXXXXXX
CORPORATION, a Nevada corporation (the "Company"), at an initial exercise price,
subject to adjustment in certain events (the "Exercise Price"), of $8.50 per
share of Common Stock, upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, but subject to the
conditions set forth herein and in the Amended and Restated Warrant Agreement
dated as of February 2, 2003 between the Company and Xxxxxxxxx Financial, LLC
(the "Warrant Agreement"). Payment of the Exercise Price shall be made by
certified or official bank check in New York Clearing House funds payable to the
order of the Company.
No Warrants may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
obligations, duties and immunities thereunder of the Company and the holders
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
A-1
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax in other governmental charge
imposed in connection with such transfer, and each such transferee shall be a
holder for purposes of this Warrant Certificate.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings ascribed to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated as of February 2, 2003
The Xxxxxxx Corporation
By:/s/ Xxxxxx X. Xxxxx
------------------------------
Title: Chief Financial Officer
Attest:
A-2
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____ shares of Common Stock
at an exercise price of $____ per share and herewith tenders in payment for such
Securities a certified or official bank check payable in New York Clearing House
Funds to the order of ___________ in the amount of $___________, all in
accordance with the terms hereof. The undersigned requests that a certificate
for such Securities be registered in the name of ___________whose address is
___________and that such Certificate be delivered to ___________ whose address
is _______________.
Signature_______________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
A-3
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires to
transfer the Warrant Certificate.)
FOR VALUE RECEIVED ________________ here sells, assigns and
transfers unto
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: Signature:
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
A-4
EXHIBIT B
FORM OF WARRANT CERTIFICATE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, MARCH 7, 2004
No. FF-A2 250,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate ("Warrant Certificate") certifies that,
Xxxxxxxxx Financial, LLC or its registered assigns, is the registered holder of
250,000 Warrants to purchase initially, at any time from February 2, 2003 until
5:30 p.m. New York time on March 7, 2004 ("Expiration Date"), up to 250,000
fully-paid and non-assessable shares of common stock, par value $.0005 per share
("Common Stock"), of THE XXXXXXX CORPORATION, a Nevada corporation (the
"Company"), at an initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $9.50 per share of Common Stock, upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Amended and Restated Warrant Agreement dated as of February 2, 2003
between the Company and Xxxxxxxxx Financial, LLC (the "Warrant Agreement").
Payment of the Exercise Price shall be made by certified or official bank check
in New York Clearing House funds payable to the order of the Company.
No Warrants may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
obligations, duties and immunities thereunder of the Company and the holders
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
B-1
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax in other governmental charge
imposed in connection with such transfer, and each such transferee shall be a
holder for purposes of this Warrant Certificate.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings ascribed to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated as of February 2, 2003
The Xxxxxxx Corporation
By:/s/ Xxxxxx X. Xxxxx
------------------------------
Title: Chief Financial Officer
Attest:
B-2
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____ shares of Common Stock
at an exercise price of $____ per share and herewith tenders in payment for such
Securities a certified or official bank check payable in New York Clearing House
Funds to the order of ___________ in the amount of $___________, all in
accordance with the terms hereof. The undersigned requests that a certificate
for such Securities be registered in the name of ___________whose address is
___________and that such Certificate be delivered to ___________ whose address
is _______________.
Signature_______________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
B-3
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires to
transfer the Warrant Certificate.)
FOR VALUE RECEIVED ________________ here sells, assigns and
transfers unto
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: Signature:
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or other
Identifying Number of Assignee)
B-4
EXHIBIT C
FORM OF AMENDED AND RESTATED WARRANT CERTIFICATE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, SUPPORTED BY AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., NEW YORK TIME, MARCH 7, 2004
No. FF-A3 250,000 Warrants
AMENDED AND RESTATED WARRANT CERTIFICATE
This Amended and Restated Warrant Certificate ("Warrant
Certificate") certifies that, Gold Fund, Ltd., LLC or its registered assigns, is
the registered holder of 250,000 Warrants to purchase initially, at any time
from March 7, 2002 until 5:30 p.m. New York time on March 7, 2004 ("Expiration
Date"), up to 250,000 fully-paid and non-assessable shares of common stock, par
value $.0005 per share ("Common Stock"), of THE XXXXXXX CORPORATION, a Nevada
corporation (the "Company"), at an initial exercise price, subject to adjustment
in certain events (the "Exercise Price"), of $11.50 per share of Common Stock,
upon surrender of this Warrant Certificate and payment of the Exercise Price at
an office or agency of the Company, but subject to the conditions set forth
herein and in the Amended and Restated Warrant Agreement dated as of February 2,
2003 between the Company and Xxxxxxxxx Financial, LLC (the "Warrant Agreement").
Payment of the Exercise Price shall be made by certified or official bank check
in New York Clearing House funds payable to the order of the Company.
No Warrants may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
obligations, duties and immunities thereunder of the Company and the holders
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
C-1
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax in other governmental charge
imposed in connection with such transfer, and each such transferee shall be a
holder for purposes of this Warrant Certificate.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings ascribed to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated as of February 2, 2003
The Xxxxxxx Corporation
By:/s/ Xxxxxx X. Xxxxx
------------------------------
Title: Chief Financial Officer
Attest:
C-2
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____ shares of Common Stock
at an exercise price of $____ per share and herewith tenders in payment for such
Securities a certified or official bank check payable in New York Clearing House
Funds to the order of ___________ in the amount of $___________, all in
accordance with the terms hereof. The undersigned requests that a certificate
for such Securities be registered in the name of ___________whose address is
___________and that such Certificate be delivered to ___________ whose address
is _______________.
Signature_______________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
C-3
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder desires to
transfer the Warrant Certificate.)
FOR VALUE RECEIVED ________________ here sells, assigns and
transfers unto
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: Signature:
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or other
Identifying Number of Assignee)
C-4
