1
Exhibit 4.2
ACKEEOX CORP.
WARRANT AGREEMENT
WARRANT AGREEMENT made this 4th day of June, 2001 between ACKEEOX CORP., a
Florida corporation (the "Company"), and FLORIDA ATLANTIC STOCK TRANSFER, INC.,
a Florida corporation (the "Warrant Agent").
FOR VALUE RECEIVED, the parties hereto agree as follows:
1. OFFERING OF WARRANTS. The Company proposes to offer, sell and issue warrants
("Warrants") to purchase up to an aggregate of one million (1,000,000) shares of
its common stock ("Common Stock"). Such Warrants comprise a part of the
investment units to be sold by the Company, each unit ("Unit") consisting of a
share of Common Stock and a Warrant to purchase an additional share of Common
Stock. Each Warrant entitles the registered holder thereof ("Warrant Holder") to
purchase a share of Common Stock at the price of five dollars and ten cents
($5.10) per share.
A registration statement on Form SB-2 with respect to the Warrants, including a
form of prospectus, has been filed by the Company with the Securities and
Exchange Commission ("Commission") under the Securities Act of 1933, as amended
("Securities Act"). Amendments to such registration statement have been and may
be filed, and a final form of prospectus shall be filed with the Commission upon
the effectiveness of such registration statement. Such registration statement
(including all exhibits thereto), as amended at the time it becomes effective
and at the time each post-effective amendment thereto becomes effective, and the
final prospectus filed upon the effectiveness of such registration statement or
post-effective amendment (including any supplements to such final prospectus
filed following such effectiveness) are referred to herein, respectively, as the
"Registration Statement" and the "Prospectus."
2. WARRANTS. As described in the Registration Statement and the Prospectus, each
Warrant shall entitle the Warrant Holder to purchase Common Stock directly from
the Company at the price of five dollars and ten cents ($5.10) per share
("Exercise Price"). Each Warrant shall be exercisable as provided herein for a
period of twenty four (24) months commencing September 30, 2002, provided that
the Common Stock issuable upon the exercise of such Warrant is, at the time of
exercise, registered or otherwise qualified for sale under the Securities Act
and the securities or "blue sky" laws of the jurisdiction in which the exercise
of such Warrant is proposed to be effected ("Warrant Exercise Period"). Upon the
expiration of its Warrant Exercise Period, each Warrant will, respectively,
expire and become void and of no value.
3. CERTIFICATES. The certificates evidencing Warrants ("Warrant Certificates")
shall be registered as to each Warrant Holder and be substantially in the form
set forth in EXHIBIT "A" to this
2
Agreement. Warrant Certificates shall be signed by, or shall bear the facsimile
signature of the President or a Vice President of the Company. If any person
whose signature appears upon any Warrant Certificate as an officer of the
Company shall have ceased to be such officer before such Warrant Certificate is
issued and delivered, such Warrant may be issued and delivered as if such person
had not ceased to be an officer. Any Warrant Certificate may be signed by, or
made to bear the facsimile signature of, any person who at the actual date of
the preparation of such Warrant Certificate shall be a proper officer of the
Company to sign such Certificate even though such person was not such an officer
upon the date of this Agreement.
4. REGISTRATION OF TRANSFERS AND EXCHANGES. Subject to the provisions of Section
3, the Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificate upon records maintained by the Warrant Agent for
such purpose following the surrender of such Warrant Certificate to the Warrant
Agent for transfer, accompanied by appropriate instruments of transfer in form
satisfactory to the Company and the Warrant Agent and duly executed by the
Warrant Holder or a duly authorized attorney. Upon any such registration of
transfer, a new Warrant Certificate shall be issued in the name of and to the
transferee and the surrendered Warrant Certificate shall be canceled.
Notwithstanding the foregoing, Warrants shall not be transferable apart from the
Units before September 30, 2002.
5. EXERCISE OF WARRANTS.
(a) A Warrant shall be exercised by the Warrant Holder by surrendering to
the Warrant Agent the certificate evidencing such Warrant with the exercise form
on the reverse of such Warrant Certificate duly completed and executed and
delivering to the Warrant Agent, by good check payable to the order of the
Company, the aggregate Exercise Price of the shares of Common Stock to be
purchased.
(b) During its Warrant Exercise Period, a Warrant may be exercised in whole
at any time or in part from time to time, provided that not less than twenty
(20) shares of Common Stock shall be purchased upon any partial exercise.
(c) Upon receipt of a Warrant Certificate with the exercise form thereon
duly executed together with payment in full of the aggregate Exercise Price of
the shares of Common Stock to be purchased, the Warrant Agent shall requisition
from the Company and upon receipt shall make delivery of, certificates
evidencing the total number of shares of Common Stock issuable upon such
exercise, in such names and denominations as are required for delivery to, or in
accordance with the instructions of the Warrant Holder. Such Common Stock
certificates shall be deemed to be issued, and the person to whom such shares of
Common Stock are
-2-
3
issued of record shall be deemed to have become a holder of record of such
shares of Common Stock, as of the date of the surrender of such Warrant
Certificate and payment of the Exercise Price, whichever shall last occur;
provided, that if the books of the Company with respect to the transfer of
Common Stock are then closed, such shares shall be deemed to be issued, and the
person to whom such shares of Common Stock are issued of record shall be deemed
to have become a record holder of such shares, as of the date on which such
transfer books of the Company shall next be open (whether before, on or after
the expiration of the applicable Warrant Exercise Period).
(d) Subject to Section 6(b), if less than all the Warrants evidenced by a
Warrant Certificate are exercised upon a single occasion, a new Warrant
Certificate for the balance of the Warrants not so exercised shall be issued and
delivered to, or in accordance with transfer instructions properly given by, the
Warrant Holder, until the expiration of the applicable Warrant Exercise Period.
(e) All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled.
(f) Upon the exercise of any Warrant, the Warrant Agent shall promptly
forward all funds received in payment of the Exercise Price to the Company. Once
such funds are determined to be collected, the Warrant Agent shall cause the
certificate(s) representing the shares of Common Stock issued upon the exercise
of Warrants to be delivered to the record holder(s) of such Common Stock.
(g) Reasonable expenses incurred by the Warrant Agent hereunder shall be
paid or reimbursed by the Company. These expenses, including delivery of Common
Stock certificates to shareholders, shall be paid directly by the Company upon
demand. A report setting forth (i) the names of exercising Warrant Holders, (ii)
the number of shares of Common Stock issuable to such exercising Warrant
Holders, respectively, (iii) the amount of funds remitted by such exercising
Warrant Holders, respectively, and (iv) any expenses paid (including fees and
expenses of the Warrant Agent) shall be provided to the Company by the Warrant
Agent periodically.
6. TAXES. The Company shall pay all taxes attributable to the initial issuance
of shares of Common Stock upon the exercise of Warrants. Taxes attributable to
(i) the issuance of any Common Stock certificate in the name other than that of
a Warrant Holder upon the exercise of Warrants or (ii) the transfer of any
Warrant shall be paid by the Warrant Holder requesting such issuance or
proposing to effect such transfer; such transactions shall only be effected
following the deposit with the Warrant Agent of funds sufficient to pay in full
any tax liability incurred or to be incurred in connection therewith.
-3-
4
7. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant Certificate is
mutilated, lost, stolen or destroyed, the Company and the Warrant Agent may, on
such terms as to indemnity or otherwise as they may in their discretion impose
(which shall, in the case of a mutilated Warrant Certificate, include the
surrender thereof), and upon receipt of evidence satisfactory to the Company and
the Warrant Agent of such mutilation, loss, theft or destruction, issue a
substitute Warrant Certificate. Applicants for substitute Warrant Certificates
shall comply with any reasonable regulations (and pay any reasonable charges)
prescribed by the Company or the Warrant Agent.
8. RESERVATION OF SHARES. For the purpose of enabling the Company to satisfy its
obligation to issue Common Stock upon the exercise of Warrants, 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, the full number of
shares which may be issued upon the exercise of Warrants; such shares of Common
Stock shall upon issuance be fully paid, nonass- essable, and free from all
taxes, liens, charges and security interests with respect to the issuance
thereof.
9. GOVERNMENTAL RESTRICTIONS. If any shares of Common Stock issuable upon the
exercise of Warrants require registration with or approval of any governmental
authority, the Company shall endeavor to secure such registration or approval;
provided that in no event shall such shares of Common Stock be issued, and the
Company shall have the authority to suspend the exercise of all Warrants, until
such registration or approval shall have been obtained; however all Warrants,
the exercise of which is requested during any such suspension, shall be
exercisable at the Exercise Price. If any such period of suspension continues
past the expiration of its Warrant Exercise Period, any Warrant as to which
exercise has been requested on or prior to the expiration of its Warrant
Exercise Period shall be exercisable upon the removal of such suspension until
the close of business on the business day immediately following the expiration
of such suspension.
10. ADJUSTMENTS. Subject to the terms set forth in the Warrant Certificates, if,
prior to the exercise of any Warrants, the Company shall have effected one or
more stock split-ups, stock dividends or other increases or reductions of the
number of shares of its Common Stock outstanding without receiving compensation
therefor in money, services or property, the number of shares of Common Stock
subject to the Warrants shall, (i) if a net increase shall have been effected in
the number of outstanding shares of Common Stock, be proportionately increased,
and the cash consideration payable per share shall be proportionately reduced,
and, (ii) if a net reduction shall have been effected in
-4-
5
the number of outstanding shares of Common Stock, be proportionately reduced and
the cash consideration payable per share be proportionately increased.
11. NOTICE TO WARRANT HOLDERS.
(a) Upon any adjustment as described in Section 10 hereof, the Company
within twenty (20) days thereafter shall (i) cause to be filed with the Warrant
Agent a certificate signed by an officer of the Company setting forth the
details of such adjustment, the method of calculation and the facts upon which
such calculation is based, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause written notice of
such adjustments to be given to each Warrant Holder as of the record date
applicable thereto.
(b) If the Company proposes to enter into any reorganization,
reclassification, sale of all or substantially all of its assets, consolidation,
merger, dissolution, liquidation or winding up, the Company shall give notice of
such fact at least twenty (20) days prior to such action to all Warrant Holders,
which notice shall set forth such facts as indicate the effect of such action
(to the extent such effect may be known at the date of such notice) on the
Exercise Price and the kind and amount of the shares or other securities and
property deliverable upon exercise of the Warrants. Without limiting the
obligation of the Company under the provisions of this Agreement to provide such
notice to each Warrant Holder, failure of the Company to give notice shall not
invalidate any corporate action taken by the Company.
12. NO FRACTIONAL WARRANTS OR SHARES. The Company shall not be required to issue
fractions of Warrants upon the reissue of Warrants, any adjustments as described
in Section 10 hereof or otherwise; but the Company in lieu of issuing any such
fractional interest, shall round up or down to the nearest full Warrant. If the
total Warrants surrendered for exercise would result in the issuance of a
fractional share of Common Stock, the Company shall not be required to issue a
fractional share but rather the aggregate number of shares issuable shall be
rounded up or down to the nearest full share.
13. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall have any rights
of a shareholder of the Company, either at law or equity, and the rights of the
Warrant Holders, as such, are limited to those rights expressly provided in this
Agreement or in the Warrant Certificates. The Company and the Warrant Agent may
treat the registered Warrant Holder in respect of any Warrant Certificate as the
absolute owner thereof for all purposes notwithstanding any notice to the
contrary.
14. WARRANT AGENT. The Company hereby appoints the Warrant Agent to act as the
agent of the Company, and the Warrant Agent
-5-
6
hereby accepts such appointment, upon the following terms and conditions by all
of which the Company and every Warrant Holder, by acceptance of a Warrant, shall
be bound:
(a) Statements contained in this Agreement and in the Warrant Certificates
shall be taken as statements of the Company. The Warrant Agent assumes
responsibility hereunder only for the correctness of any statement which
describes the Warrant Agent and/or for action taken or to be taken by the
Warrant Agent.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the Company's covenants contained in this
Agreement or in the Warrant Certificates.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company), and the Warrant Agent shall incur no
liability or responsibility to the Company or to any Warrant Holder in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel, provided the Warrant
Agent shall have exercised reasonable care in the selection and continued
employment of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any Warrant Holder for any action taken in reliance upon any
notice, resolution, waiver, consent, order, certificate or other paper, document
or instrument believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent for the services rendered
by the Warrant Agent hereunder those fees to which the Warrant Agent is entitled
as the Company's transfer agent and registrar. The Company shall also reimburse
the Warrant Agent for all expenses, taxes and governmental charges and all other
charges of any kind or nature incurred by the Warrant Agent in the performance
of this Agreement.
(f) The Company shall indemnify the Warrant Agent and hold it harmless
against any and all liabilities, including judgments, costs and counsel fees,
incurred in connection with its performance of this Agreement, except as a
result of the Warrant Agent's negligence or bad faith. In no case shall the
Warrant Agent be liable for special, indirect, incidental or consequential loss
or damage of any kind whatsoever, even if the Warrant Agent has been advised of
the likelihood of such loss or damage.
(g) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more Warrant Holders shall furnish the Warrant
Agent with reasonable security and indemnity for any costs and expenses which
-6-
7
may be incurred in connection with such action, suit or legal proceeding, but
this provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may, in its sole and absolute discretion, consider
proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the Warrant Holders as their respective
rights or interests may appear, subject to the terms set forth in the Warrant
Certificates.
(h) The Warrant Agent and any shareholder, 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 or a shareholder, director, officer or employee of
such Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company or for any other legal entity.
15. SUCCESSOR WARRANT AGENT. Any entity into which the Warrant Agent may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which the Warrant
Agent shall be a party, or any entity succeeding to the trust business of the
Warrant Agent, shall be the successor to the Warrant Agent hereunder without the
execution or filing of any paper or any further act of a party or the parties
hereto.
16. CHANGE OF WARRANT AGENT. The Warrant Agent may resign from its duties under
this Agreement upon notice given in writing by the Warrant Agent or the Company;
the Warrant Agent may be discharged by the Company from its duties under this
Agreement upon notice given in writing by the Company to the Warrant Agent; the
foregoing notices shall, in either case, give the date when such resignation or
discharge shall take effect and shall be sent at least thirty (30) days prior to
the date so specified. If the Warrant Agent shall resign, be discharged 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 thirty (30) days after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent (or
by any Warrant Holder) or after discharging the Warrant Agent, then any Warrant
Holder may apply to the Circuit Court in and for Xxxx Xxxxx Xxxxxx,
-0-
0
Xxxxxxx, for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or by
such Court, the duties of the Warrant Agent shall be carried out by the Company.
Any 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, and the former Warrant Agent shall deliver and
transfer to the successor Warrant Agent any property at the time held by it
thereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary to effect the delivery or transfer. Failure to give any notice
provided for herein, 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.
17. NOTICES. Any notice or demand authorized by this Agreement to be given or
made by the Warrant Agent or by any Warrant Holder to or on the Company shall be
sufficiently given or made if sent by first class mail, certified or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Ackeeox Corp.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: President
Any notice or demand authorized hereby to be given or made by any Warrant Holder
or by the Company to or on the Warrant Agent shall be sufficiently given or made
if sent by mail, first class, certified or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company), as follows:
Florida Atlantic Stock Transfer, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Warrant Agent to or on the Warrant
Holders shall be sufficiently given or made if sent by first class mail,
certified or registered, postage prepaid, addressed to the Warrant Holders at
their last known addresses as such addresses shall appear on the registration
books for the Warrant Certificates maintained by the Warrant Agent.
18. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may from time
to time supplement or amend this Agreement without the approval of any of the
Warrant Holders in order to
-8-
9
cure any ambiguity, or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable.
19. SUCCESSORS. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns.
20. TERMINATION. This Agreement shall terminate at the close of business on the
date upon which the Warrant Exercise Period expires as to all Warrants (or the
business day next following such date) or such earlier date upon which all of
the Warrants have been exercised; provided, however, that if exercise of the
Warrants is suspended pursuant to Section 9 and such suspension continues
beyond the date upon which the Warrant Exercise Period expires as to all
Warrants, this Agreement shall terminate on the business day immediately
following the expiration of such suspension. The provisions of Section 13 shall
survive such termination.
21. GOVERNING LAW. This Agreement and each Warrant Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Florida and
for all purposes shall be construed in accordance with the internal laws of said
state.
22. BENEFITS OF AGREEMENT. Nothing in this Agreement shall be construed to give
to any person or entity other than the Company, the Warrant Agent and the
Warrant Holders, any legal or equitable right, remedy or claim hereunder, this
Agreement being expressly for the sole and exclusive benefit of the Company, the
Warrant Agent and the Warrant Holders.
23. COUNTERPARTS. This Agreement may be executed in counterparts, and both of
such counterparts shall for all purposes be deemed to be an original and both
such counterparts shall together constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-9-
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by
their duly authorized agents.
ACKEEOX CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx, President
FLORIDA ATLANTIC STOCK TRANSFER, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: President
------------------------------
-10-
