EXHIBIT 1.3
WARRANT AGREEMENT
BETWEEN
ACCELACORP 1, INC.
and
FLORIDA ATLANTIC STOCK TRANSFER, INC.,
as Warrant Agent
Dated as of , 2001
WARRANT AGREEMENT dated as of __________, 2001 between Accelacorp 1,
Inc., a California corporation (the "Company") and Florida Atlantic Stock
Transfer, Inc. (together with its permitted successors and assigns, the
("Warrant Agent").
WHEREAS, the Company proposes to offer for sale 1,000,000 Units,
consisting of 1,000,000 shares of its common stock, no par value (the "Common
Stock") 1,000,000 Common Stock Purchase Warrants (the "Warrants") at a price
of $0.02 per Unit, for an aggregate offering price of $20,000;
WHEREAS, each Warrant entitles the holder thereof to purchase one share
of Common Stock at an exercise price of $0.40, subject to adjustment, at any
time until ________, 2004 (the Common Stock issuable upon exercise of the
Warrants shall hereinafter be referred to as the "Warrant Shares");
WHEREAS, the Company wishes the Warrant Agent to act as warrant agent on
behalf of the Company in connection with the issuance, division, transfer,
exchange, substitution and exercise of the Warrants, and the Warrant Agent is
willing to so act.
NOW, THEREFORE, in consideration of the premises and the 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 set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") shall be substantially in the form set
forth in Exhibit A attached hereto.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its
President or a Vice President, and by its Secretary or an Assistant Secretary.
Each such signature may be in the form of a facsimile signature of the present
or any future Chairman of the Board, President, Vice President, Secretary or
Assistant Secretary and may be imprinted or otherwise reproduced on the
Warrant Certificates and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been Chairman of the Board,
President, Vice President, Secretary or Assistant Secretary, notwithstanding
the fact that at the time the Warrant Certificates shall be delivered or
disposed of he shall have ceased to hold such office.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such
Warrant Certificates nevertheless may be delivered or disposed of as though
such person had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date
of the execution of this Warrant Agreement any such person was not such
officer.
SECTION 4. Registration and Countersignature. Warrant Certificates
shall be manually countersigned by the Warrant Agent and shall not be valid
for any purpose unless so countersigned. The Warrant Agent shall, upon
written instructions of the Chairman of the Board, Chief Executive Officer,
Chief Operating Officer, or Chief Financial Officer of the Company,
countersign and deliver Warrant Certificates as provided in this Agreement
entitling the holders thereof initially to purchase not more than the number
of Warrant Shares referred to in the first recital hereof. The Company has
appointed the Warrant Agent as the register with respect to the Warrants. The
Warrant Agent shall number and register the Warrant Certificates in a
register.
The Company and the Warrant Agent may deem and treat the registered
holder(s) of the Warrants as the absolute owner(s) thereof (notwithstanding
any notation of ownership or other writing on the certificate relating
thereto), for all purposes, and shall not be affected by any notice to the
contrary and shall not be bound to recognize any equitable or other claim to
or in the Warrant on the part of any other person.
SECTION 5. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Warrants. When Warrants are presented to
the Warrant Agent with a request (i) to register the transfer of the Warrants
or (ii) to exchange such Warrants for an equal number of Warrants of other
authorized denominations, the Warrant Agent shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met; provided, however, that the Warrants so presented have been duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to
the Warrant Agent, duly executed by the holder thereof or by his attorney and
duly authorized in writing.
(b) Obligations with Respect to Transfers and Exchanges of Warrants.
To permit registrations of transfers and exchanges, the Company shall execute
and the Warrant Agent is hereby authorized to countersign, in accordance with
the provisions of Sections 3 and 4 and this Section 5, Warrants as required
pursuant to the provisions of this Section 5. All Warrants issued upon any
registration of transfer or exchange of Warrants shall be the valid
obligations of the Company, entitled to the same benefits under this Warrant
Agreement, as the Warrants surrendered upon such registration of transfer or
exchange.
Prior to due presentment for registration of transfer of any Warrant,
the Warrant Agent and the Company may deem and treat the person in whose name
any Warrant is registered as the absolute owner of such Warrant and neither
the Warrant Agent, nor the Company shall be affected by notice to the
contrary.
No service charge shall be made to a holder for any registration,
transfer or exchange.
SECTION 6. Exercise of Warrants.
(a) Subject to the terms of this Agreement, each Warrant holder shall
have the right, which may be exercised commencing on , 2001 and
until 5:00 P.M., Los Angeles Time, on __________, 2004 to receive from the
Company the number of fully paid and nonassessable Warrant Shares which the
holder may at the time be entitled to receive on exercise of such Warrants and
payment of the Exercise Price (as herein defined) then in effect for such
Warrant Shares. Each Warrant not exercised prior to 5:00 P.M., Los Angeles
Time, on _________, 2004 shall become void and all rights thereunder and all
rights in respect thereof under this Agreement shall cease as of such time.
(b) A Warrant may be exercised upon surrender to the Company at the
principal office of the Warrant Agent of the certificate or certificates
evidencing the Warrants to be exercised, with the form of election to purchase
on the reverse thereof duly filled in and signed, which signature shall be
guaranteed by an "eligible guarantor institution" as defined in Rule 17Ad-
15(a)(2) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and upon payment to the Company of the exercise price of
$0.40 (the "Exercise Price"), as adjusted as provided herein, for each Warrant
Share in respect of which a Warrant is then exercised. Payment of the
aggregate Exercise Price shall be made in cash or by certified or official
bank check in lawful money of the United States of America to the order of
the Company.
Subject to the provisions of Section 7 hereof, upon such surrender of
Warrants and payment of the Exercise Price, the Company shall issue and cause
to be delivered with all reasonable dispatch to or upon the written order of
the holder and in such name or names as the holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable
upon the exercise of such Warrants together with cash as provided in Section
13 hereof.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of
the Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued and the Warrant Agent is hereby irrevocably
authorized to countersign and to deliver the required new Warrant Certificate
or Certificates pursuant to the provisions of this Section and of Section 4
hereof, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose.
(c) All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent and disposed of by the Company in
accordance with applicable law. The Warrant Agent shall account promptly to
the Company with respect to Warrants exercised and concurrently pay to the
Company all monies received by the Warrant Agent for the purchase of the
Warrant Shares through the exercise of such Warrants. The Warrant Agent shall
keep copies of this Agreement and any notices given or received hereunder
available for inspection by the holders and the Company during normal business
hours at its office. The Company shall supply the Warrant Agent from time to
time with such numbers of copies of this Agreement as the Warrant Agent may
request.
SECTION 7. Payment of Taxes. The Company shall pay any documentary
stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided that the Company shall not be required to pay
any tax or taxes that may be payable in respect of any transfer involved in
the issuance of any Warrant Certificates or any certificates for Warrant
Shares in a name other than that of the registered holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and the Company shall
not be required to issue or deliver such Warrant 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 or is not due.
SECTION 8. Mutilated or Missing Warrant Certificates.If any mutilated
Warrant Certificate is surrendered to the Warrant Agent, or the Company and
the Warrant Agent receive evidence to their satisfaction of the destruction,
loss or theft of any Warrant Certificate, the Company shall issue and the
Warrant Agent, upon the written order of the Company signed by two officers of
the Company, shall countersign a replacement Warrant Certificate if the
Warrant Agent's requirements for replacements of Warrant Certificates are met.
If required by the Warrant Agent or the Company, an indemnity bond must be
supplied by the holder of such Warrant Certificate that is sufficient in the
judgment of the Warrant Agent and the Company to protect the Company, the
Warrant Agent or any agent from any loss that any of them may suffer if a
Warrant Certificate is replaced. The Company or the Warrant Agent may charge
for the expenses in replacing a Warrant Certificate.
Every replacement Warrant Certificate is an obligation of the Company
and shall be entitled to all of the benefits of this Agreement equally and
proportionately with all other Warrant Certificates duly issued hereunder.
SECTION 9. Reservation of Warrant Shares. The Company shall at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock that may then be deliverable upon the
exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common Stock
shall be irrevocably authorized and directed at all times to reserve such
number of authorized shares of Common Stock as shall be required for such
purpose. The Company shall keep a copy of this Agreement on file with the
transfer agent for the Common Stock.
Before taking any action that would cause an adjustment pursuant to
Section 11 hereof to reduce the Exercise Price below the then par value (if
any) of the Warrant Shares, the Company shall take all action that may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares at the Exercise
Price as so adjusted.
The Company covenants that all Warrant Shares issued upon exercise of
Warrants shall, upon issue, be fully paid, nonassessable, free of preemptive
rights and free from all taxes, liens, charges and security interests with
respect to the issue thereof.
SECTION 10. Government Approvals and Stock Exchange Listings. The
Company shall use its best efforts to (a) obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities
and to make securities acts filings under federal and state laws, if any, that
are required to permit the exercise of the Warrants and the issuance, sale,
transfer and delivery of the Warrant Shares issued upon exercise of the
Warrants, and (b) have the Warrant Shares, immediately upon their issuance,
listed on the principal securities exchanges and markets within the United
States of America, if any, on which other shares of Common Stock are then
listed.
SECTION 11. Adjustments; Etc. The Exercise Price and the number of
shares purchasable hereunder are subject to adjustment from time to time as
follows:
(a) Merger, Sale of Assets, etc.
If at any time while the Warrants, or any portion thereof, are
outstanding and unexpired there shall be (1) a reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), (2) a merger or consolidation of the Company with or
into another corporation in which the Company is not the surviving entity, or
a reverse triangular merger in which the Company is the surviving entity but
the shares of the Company's capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property, whether in
the form of securities, cash, or otherwise, or (3) a sale or transfer of the
Company's properties and assets as, or substantially as, an entirety to any
other person, then as part of such reorganization, merger, consolidation, sale
or transfer, lawful provision shall be made so that the holder of Warrants
shall thereafter be entitled to receive upon exercise of the Warrants, during
the period specified herein and upon payment of the Exercise Price then in
effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such reorganization, merger,
consolidation, sale or transfer that a holder of the Warrant Shares
deliverable upon exercise of the Warrants would have been entitled to receive
in such reorganization, consolidation, merger, sale or transfer if the
Warrants had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11(a) shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that are
at the time receivable upon the exercise of Warrants. If the per-share
consideration payable to the holder thereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then
the value of such consideration shall be determined in good faith by the
Company?s Board of Directors. In all events, appropriate
adjustment (as determined in good faith by the Company?s Board of
Directors) shall be made in the application of the provisions of the Warrants
with respect to the rights and interests of the holders thereof after the
transaction, to the end that the provisions of the Warrants shall be
applicable after that event, as near as reasonably may be, in relation to any
shares or other property deliverable after that event upon exercise of
Warrants.
(b) Reclassification, etc.
If the Company, at any time while Warrants, or any portion
thereof, remain outstanding and unexpired, by reclassification of securities
or otherwise, shall change any of the securities as to which purchase rights
under the Warrants exist into the same or a different number of securities of
any other class or classes, the Warrants shall thereafter represent the right
to acquire such number and kind of securities as would have been issuable as
the result of such change with respect to the securities that were subject to
the purchase rights under the Warrants immediately prior to such
reclassification or other change and the Exercise Price thereof shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 11.
(c) Split, Subdivision or Combination of Shares.
If the Company at any time while Warrants, or any portion thereof,
remain outstanding and unexpired, shall split, subdivide or combine the
securities as to which purchase rights under the Warrants exist, into a
different number of securities of the same class, the Exercise Price for such
securities shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of a combination.
(d) Adjustments for Dividends in Stock or Other Securities or
Property.
If while Warrants, or any portion thereof, remain outstanding and
unexpired, the holders of the securities as to which purchase rights under the
Warrants exist at the time shall have received, or, on or after the record
date fixed for the determination of eligible stockholders, shall have become
entitled to receive, without payment therefor, other or additional stock or
other securities or property (other than cash) of the Company by way of
dividend, then and in each case, Warrants shall represent the right to
acquire, in addition to the number of shares of the security receivable upon
exercise of Warrants, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other securities or
property (other than cash) of the Company that such holder would hold on the
date of such exercise had he been the holder of record of the security
receivable upon exercise of a Warrant on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock available by
it as aforesaid during such period, giving effect to all adjustments called
for during such period by the provisions of this Section 11.
(e) Form of Warrants.
The Company may, at its option, issue new Warrant Certificates
evidencing Warrants in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price per Warrant Share
and the number or kind or class of shares or other securities or property
purchasable under the Warrant Certificate made in accordance with the
provisions of this Agreement. However, irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the exercise
of the Warrants, Warrants theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are used in the
Warrants initially issuable pursuant to this Agreement.
SECTION 12. Fractional Interests. The Company shall not be required
to issue fractional Warrant Shares on the exercise of Warrants. If more than
one Warrant shall be presented for exercise in full at the same time by the
same holder, the number of full Warrant Shares which shall be issuable upon
the exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section
12, be issuable on the exercise of any Warrants (or specified portion
thereof), upon payment in full of the Exercise Price with respect to such
fraction of a Warrant Share the Company shall pay an amount in cash equal to
the same fraction of the Current Market Price of such share of Common Stock on
the day immediately preceding the date the Warrant is presented for exercise,
provided that at the request of the Warrant holder, the Exercise Price with
respect to such fraction of a Warrant Share may be netted against the cash to
be paid by the Company under this Section 12.
With respect to this Agreement, the "Current Market Price" per share of
Common Stock on any date is the average of the Quoted Prices of the Common
Stock for 30 consecutive trading days commencing 45 trading days before the
date in question. The "Quoted Price" of the Common Stock is the last reported
sales price of the Common Stock as reported by the Nasdaq Stock Market, or if
the Common Stock is listed on a securities exchange, the last reported sales
price of the Common Stock on such exchange which shall be for consolidated
trading if applicable to such exchange, or if neither so reported or listed,
the last reported bid price of the Common Stock. In the absence of one or
more such quotations, the Current Market Price shall be determined in good
faith by a nationally recognized investment banking firm that is a member firm
of the National Association of Securities Dealers, Inc. and independent of the
Company.
SECTION 13. Notices to Warrant Holders. Upon any adjustment or
action required to be taken pursuant to Section 11 of this Agreement, the
Company shall (a) promptly prepare a certificate setting forth such adjustment
or action and a brief statement of the facts accounting for such adjustment or
action, (b) promptly file with the Warrant Agent and with each transfer agent
for the Common Stock a copy of such certificate and (c) send a brief summary
thereof to each holder of a Warrant Certificate in accordance with Section 18
hereof.
In case:
(a) of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required,
or of the conveyance or transfer of the properties and assets of the Company
substantially as an entirety, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a change in par
value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), or a tender offer or exchange
offer for shares of Common Stock; or
(b) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; then the Company shall cause to be given to each
of the registered holders of the Warrant Certificates at his address appearing
on the Warrant register, at least 20 days prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, in accordance with Section 18 hereof, a written notice stating,
as appropriate, (i) the initial expiration date set forth in any tender offer
or exchange offer for shares of Common Stock, or (ii) the date on which any
such consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up is expected to become effective or consummated, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure to give the
notice required by this Section 13 or any defect therein shall not affect the
legality or validity of any consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up, or the vote upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the
right to vote or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or the election of Directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company.
SECTION 14. Concerning the Warrant Agent. The Company agrees to pay
to the Warrant Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Warrant Agent, its
reasonable expenses and counsel fees and disbursements and other reasonable
disbursements incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against,
any loss, liability, or expense incurred without negligence, bad faith or
willful misconduct on the part of the Warrant Agent for anything done or
omitted by the Warrant Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of
defending against any claim of liability arising therefrom, directly or
indirectly. The indemnification provided for hereunder shall survive the
expiration of the Warrants and the termination of this Agreement.
The Warrant Agent shall be protected and shall incur no liability for,
or in respect of, any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Warrant
Certificate or certificate for Warrant Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it, after proper inquiry or examination,
to be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
SECTION 15. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent or any successor Warrant
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Warrant Agent or any
successor Warrant Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Warrant Agent or any
successor Warrant Agent, shall be the successor to the Warrant Agent under
this Agreement 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 hereof. In case at the time such successor Warrant Agent shall
succeed to the agency created by this Agreement any of the Warrant
Certificates shall have been countersigned but not delivered, any such
successor Warrant Agent may adopt the countersignature of the predecessor
Warrant Agent and deliver such Warrant Certificates so countersigned; and, in
case at that time any of the Warrant Certificates shall not have been
countersigned, any successor Warrant Agent may countersign such Warrant
Certificate either in the name of the predecessor or in the name of the
successor Warrant Agent; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates in this Agreement.
In case at any time the name of the Warrant Agent shall be changed, and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and, in case at
that time any of the Warrant Certificates shall not have been countersigned,
the Warrant Agent may countersign such Warrant Certificates either in its
prior name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates
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, all of which the Company, by its acceptance hereof, and the
holders of Warrant Certificates, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may consult with legal counsel selected by it
(who may be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the Warrant Agent
as to any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by a person reasonably believed by the
Warrant Agent to be the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Warrant Agent; and such certificate shall be full
authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Warrant Agent shall not be liable for, or by reason of, any
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except as to the fact that it has countersigned the Warrant
Certificates) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Warrant Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Warrant Agent) or in respect of the validity
or execution of any Warrant Certificate (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant Certificate; nor shall
it be responsible for any adjustment required under the provisions of Section
11 hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Warrants evidenced
by Warrant Certificates after receipt of the certificate described in Section
13 hereof); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of Common Stock or other securities to be issued under this Agreement
or any Warrant Certificate or as to whether any shares of Common Stock or
other securities shall, when so issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from any person
reasonably believed by the Warrant Agent to be the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant Secretary or the
Treasurer of the Company, and is authorized to apply to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with written instructions of any such person. Any application by
the Warrant Agent for written instructions from the Company may, at the option
of the Warrant Agent, set forth in writing any action proposed to be taken or
omitted by the Warrant Agent under this Agreement and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Warrant Agent shall not be liable for any action taken by, or omission of, the
Warrant Agent in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less
than five business days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Warrant Agent shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
(g) The Warrant Agent and any stockholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not Warrant Agent under this Agreement to the extent lawfully permitted to so
act. 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 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 or agents (which shall not include its employees),
and the Warrant Agent shall not be answerable or accountable for any act or
omission, default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company or to the holders of the Warrants resulting from
any such act, omission, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment thereof.
(i) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not reasonably
assured to it.
(j) If, with respect to any Warrant Certificate surrendered to the
Warrant Agent for exercise or transfer, the form of election to purchase or
transfer, as the case may be, has not been completed, the Warrant Agent shall
not take any further action with respect to such requested exercise or
transfer without first consulting with the Company.
(k) The Warrant Agent shall not be required to take notice of, or be
deemed to have notice of, any fact, event or determination under this
Agreement unless and until the Warrant Agent shall be specifically notified in
writing of such fact, event or determination.
SECTION 17. Change of Warrant Agent. The Warrant Agent or any
successor Warrant Agent may resign and be discharged from its duties under
this Agreement upon 30 days? notice in writing mailed to the Company
and to each transfer agent of the Common Stock by registered or
certified mail. The Company may remove the Warrant Agent or any
successor Warrant Agent upon 30 days? notice in writing mailed to
the Warrant Agent or successor Warrant Agent, as the case may be,
and to each transfer agent of the Common Stock by registered or
certified mail. 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
giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent, then the holder of any Warrant
Certificate may apply to any court of competent jurisdiction for
the appointment of a new Warrant Agent. Notwithstanding any
provision to the contrary contained herein, the removal or
resignation of the Warrant Agent will not be effective until such
time as a successor Warrant Agent has been appointed in
accordance with the terms of this Agreement. Any successor
Warrant Agent, whether appointed by the Company or by such a
court, shall be a corporation or other business organization
organized and doing business under the laws of the United States
or any state of the United States, in good standing, which is
authorized under such laws to exercise corporate trust or stock
transfer powers. 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 predecessor Warrant
Agent shall deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder and execute and
deliver any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Warrant Agent and each transfer agent of the
Common Stock and mail notice thereof in writing to the registered
holders of the Warrant Certificates. Failure to give any notice
provided for in this Section 18, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Warrant Agent or the appointment of the successor Warrant
Agent, as the case may be.
SECTION 18. Notices. Any notice or demand authorized by
this Agreement to be given or made by the registered holder of
any Warrant Certificate to or on the Company shall be
sufficiently given or made when and if deposited in the mail,
first class or registered, postage prepaid, or next-day air
courier, addressed to the office of the Company expressly
designated by the Company at its office for purposes of this
Agreement (until the Warrant holders are otherwise notified in
accordance with this Section by the Company) as follows:
Accelacorp 1, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Subject to the provisions of Section 15 hereof, any notice
or demand authorized by this Agreement to be given or made by the
Company or by the registered holder of any Warrant Certificate 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 with the Company) as follows:
Florida Atlantic Stock Transfer, Inc.
0000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxx Xxxxxx, President
Any notice pursuant to this Agreement to be given by the
Company to the registered holder(s) of any Warrant Certificate
shall be sufficiently given and when and if deposited in the
mail, first class or registered, postage prepaid, or next-day air
courier, addressed (until the Company is otherwise notified in
accordance with this Section by such holder) or next- day air
courier to such holder at the address appearing on the Warrant
register of the Company.
SECTION 19. 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 Warrant
Certificates in order (i) to cure any ambiguity or (ii) to
correct or supplement any provision contained herein that 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 may deem necessary or
desirable and which shall not in any way materially adversely
affect the interests of the holders of Warrant Certificates. Any
amendment or supplement to this Agreement that has a material
adverse effect on the interests of holders shall require the
written consent of registered holders of a majority of the then
outstanding Warrants. The consent of each registered holder of a
Warrant affected shall be required for any amendment pursuant to
which the Exercise Price would be increased or the number of
Warrant Shares purchasable upon exercise of Warrants would be
decreased. The Warrant Agent shall be entitled to receive and,
subject to Section 19 hereof shall be fully protected in relying
upon an officers? certificate and opinion of counsel as
conclusive evidence that any such amendment or supplement is
authorized or permitted hereunder, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company
in accordance with its terms. The Company may not sign any
amendment or supplement until the Company?s board of directors
approves it.
SECTION 20. Determinations and Actions by the Board of Directors,
etc. All actions, calculations, interpretations and determinations
(including, without limitation, all omissions with respect to the foregoing)
which are done or made by the Board of Directors in good faith shall not
subject the Board of Directors, or any member thereof, to any liability to the
holders of the Warrant Certificates.
SECTION 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its successors and assigns hereunder. Upon becoming a successor to
the Company, such successor shall be deemed to be the Company for the purposes
of this Agreement.
SECTION 22. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED,
INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
SECTION 23. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
SECTION 24. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 25. Counterparts. This 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 all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
ACCELACORP 1, INC.
By
Name: Xxxx X. Xxxxxx
Title: President
FLORIDA ATLANTIC STOCK TRANSFER,
INC.
By:_____________________________________
Name: Xxxx Xxxxxx
Title: President
EXHIBIT A
[Form of Warrant Certificate]
[Face]
ACCELACORP 1, INC.
Void After ______________, 2004
Common Stock Purchase Warrant Certificate
THIS CERTIFIES THAT, for value received, ____________________ or
registered assigns, is the owner of
the number of Common Stock Purchase Warrants ("Warrants") set forth above.
Each Warrant (subject to adjustments
as hereinafter referred to) entitles the owner hereof to purchase during the
three year period commencing
_____________, 2000 until 5:00 P.M., Los Angeles Time, on ______________,
2004, one fully paid and nonassessable
share of common stock, no par value, of Accelacorp 1, Inc., a California
corporation (hereinafter called the
"Corporation") (such shares of common stock being hereinafter referred to as
the "Common Stock"), upon payment of
the warrant price (as hereinafter described); provided, however, that under
certain conditions set forth in the Warrant
Agreement hereinafter mentioned, the number of shares of Common Stock
purchasable upon the exercise of the
Warrants may be increased or reduced and the warrant price may be adjusted.
Subject to adjustment as aforesaid, the
initial warrant price per Warrant (hereinafter called the "warrant price")
shall be $0.40 per Warrant. As provided in said
Warrant Agreement, the warrant price and any and all applicable taxes due in
connection with the exercise of the
Warrants, the exchange of the initial Warrants for Common Stock and the
issuance of the Common Stock is payable,
upon the exercise of the Warrants, in lawful money of the United States either
in cash or by certified check or bank draft
to the order of the Corporation.
Upon the exercise of the Warrants, the form of election to purchase on
the reverse hereof must be properly
completed and executed and this Warrant Certificate surrendered. In the event
that less than all of the Warrants
represented by this certificate are exercised at any one time, a new Warrant
Certificate for the remaining number of
unexercised Warrants will be issued upon such surrender.
Prior to the due presentment for registration of transfer of this Warrant
Certificate, the Corporation and the
Warrant Agent may deem and treat the registered holder as the absolute owner
hereof and of each Warrant represented
hereby (notwithstanding any notation of ownership or other writing herein made
by anyone other than a duly authorized
officer of the Corporation or the Warrant Agent), for all purposes, and
neither the Corporation nor the Warrant Agent
shall be affected by any notice to the contrary.
This Warrant Certificate is issued under, and the rights represented
hereby are subject to, the terms and
provisions contained in a Warrant Agreement dated ,
2001, by and among the Corporation and Florida
Atlantic Stock Transfer, Inc., as Warrant Agent (the "Warrant Agent"), and is
further subject to all the terms and
provisions of which the registered holder of this Warrant Certificate, by
acceptance hereof, assents. Reference is hereby
made to said Warrant Agreement for a more complete statement of the rights and
limitations of rights of the registered
holders hereof, the rights and duties of the Warrant Agent and the rights and
obligations of the Corporation thereunder.
Copies of said Warrant Agreement are on file at the office of the Warrant Agent.
The Corporation shall not be required upon the exercise of the Warrants
to issue fractions of shares of Common
Stock.
The Warrants are transferable at the office of the Warrant Agent (or of
its successor as Warrant Agent) by the
registered holder hereof in person or by attorney duly authorized in writing
but only in the manner and subject to the
limitations provided in the Warrant Agreement and upon surrender of this
Warrant Certificate and the payment of any
transfer taxes. Upon any such transfer, a new Warrant Certificate, or new
Warrant Certificates of different
denomination, of like tenor and representing an equal aggregate number of
Warrants will be issued to the transferee in
exchange for this Warrant Certificate which shall be canceled. This Warrant
Certificate when surrendered at the office
of the Warrant Agent (or of its successors as Warrant Agent) by the registered
holder hereof in person or by attorney
duly authorized in writing may be exchanged, in the manner and subject to the
limitations provided in the Warrant
Agreement for another Warrant Certificate, or other Warrant Certificates of
different denominations, of like tenor and
representing an equal number of Warrants; provided, however, that in the event
that a Warrant Certificate surrendered
for transfer bears a restrictive legend, the Warrant Agent shall not cancel
such certificate and issue new Warrant
Certificates in exchange therefor until the Warrant Agent has received an
opinion of counsel for the Corporation stating
that such transfer may be made and indicating whether the new Warrant
Certificate must also bear a restrictive legend.
If this Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books
for the Common Stock purchasable upon the exercise of the Warrants are closed
for any purpose, the Corporation shall
not be required to make delivery of certificates for the Common Stock
purchasable upon such exercise until the date
of the reopening of said transfer books.
The Corporation shall not be obligated to deliver any shares of Common
Stock pursuant to the exercise of the
Warrants unless a registration statement under the Securities Act of 1933, as
amended, is effective with respect to such
Common Stock. Warrants shall not be exercisable by the owner in any state
where such exercise would be unlawful.
The holder of Warrants shall not be entitled to any of the rights of a
stockholder of the Corporation prior to
the exercise thereof.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
This Warrant Certificate shall be governed by and construed in accordance
with the laws of the State of
California.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed by the facsimile signature
of the President and attested by the facsimile signature of its Secretary.
Dated:
ACCELACORP 1, INC.
By:________________________________________
President
By:________________________________________
Secretary
COUNTERSIGNED
FLORIDA ATLANTIC STOCK TRANSFER, INC.
Warrant Agent
By:_____________________________
Authorized Signature
[Reverse Side of Warrant Certificate]
ELECTION TO PURCHASE
To be Executed by the Registered Holder in Order to Exercise Warrants
To: Accelacorp 1, Inc.
c/o Florida Atlantic Stock Transfer, Inc.
0000 X. Xxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxxx, Xxxxxxx 00000
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant(s) for and to purchase thereunder
shares of Common Stock provided for therein and tenders
herewith payment of the purchase price in full to the order of the Corporation
and requests that certificates for such shares shall be issued in the name of
and be delivered to and,
if said number of shares shall not be all the shares purchasable thereunder,
that a new Warrant Certificate for the balance remaining of the shares
purchasable under the within Warrant(s) be registered in the name of, and
delivered to, the undersigned at the address stated below.
Dated:
Signature
Name
NOTE: The above signature must correspond with the name as written upon
the face of this Warrant
Certificate or with the name of the assignee appearing in the assignment form
below in every particular without alteration or enlargement or any change
whatever.
*Signature Guaranteed:
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
For value received hereby sell, assign and transfer unto
( ) Warrants represented by the within Warrant Certificate, together with
all right, title and interest therein, and do hereby irrevocably constitute
and appoint attorney, to transfer said Warrants on the books of the
within named Corporation, with full power of substitution in the premises.
Dated , 20
Signature:
NOTE: The above signature must correspond with the name as written upon
the face of this Warrant Certificate in every particular without alteration or
enlargement or any change whatever.
*Signature Guaranteed:
*In case of assignment, or if the Common Stock issued upon exercise is
to be registered in the name of a person other than the holder, the holder's
signature must be guaranteed by an eligible guarantor institution
(Bank,Stockbrokers, Savings and Loan Association and Credit Unions), with
membership in an approved signature guarantee medallion program pursuant to
S.E.C. Rule 17Ad-15.
