1
EXHIBIT 4.3
FORM OF
WARRANT AGREEMENT
To Purchase _________ Shares of Common Stock
Dated as of January 1, 2000
XXXXXXXXXX.XXX, INC.
a Florida Corporation
Issue Date: January 1, 2000
THIS CERTIFIES THAT, [NAME OF HOLDER] ("Warrant Holder"), with an
address at _____________________________________, is entitled, upon the terms
and subject to the conditions of this Warrant Agreement (the "Warrant
Agreement"), to warrants granting the right to subscribe for and purchase
fully-paid and non-assessable shares of common stock, par value $.0001 per
share (the "Common Stock"), of XxxxxxXxxx.xxx, Inc., a Florida corporation (the
"Company").
1. ISSUANCE OF WARRANTS. On the Issue Date, the Company will issue
to the Warrant Holder warrants (the "Warrants") to acquire __________ shares of
the Common Stock (the " Warrant Shares") on the terms and conditions set forth
herein.
2. EXERCISE PRICE. The Warrants shall have an exercise price of
$2.00 per share of Common Stock, as adjusted pursuant to the provisions of
Section 8 of this Warrant Agreement (the "Exercise Price").
3. VESTING AND TERM.
(a) Vesting. Except as otherwise provided for herein, the term of
the Warrants and the right to purchase Warrant Shares as granted herein shall
automatically vest on the Issue Date.
(b) Term. Warrants may be exercised at any time and from time to
time up to 5:00 p.m., Eastern Standard Time, on the second anniversary of the
Issue Date (the "Expiration Date").
4. EXERCISE OF WARRANTS.
(a) Exercise. The Warrants and the purchase rights represented
thereby are exercisable by the Warrant Holder, in whole or in part, at any time
after they vest until 5:00 p.m., Eastern Standard Time, on the Expiration Date
in accordance with the procedures set forth in Section 4(b) below. Upon receipt
of the items required under Section 4(b) and the Warrant Holder's fulfillment
of the other terms of Section 4(b), the Company shall issue to the Warrant
Holder a certificate for the number of shares of Common Stock purchased. The
Warrant Holder, upon exercise of the Warrants, shall be deemed to have become
the holder of the Warrant Shares represented thereby (and such Warrant Shares
shall be deemed to have been issued) immediately prior to the close of business
on the date or dates upon which the Warrants are exercised. In the event of any
exercise of the rights represented by the Warrants, certificates for the
Warrant Shares so purchased shall be delivered to the Warrant Holder as soon as
practical and in any event within ten (10) business days after receipt of such
notice and, unless the Warrants have been fully exercised or expired, new
Warrants representing the remaining portion of the Warrants and the underlying
Warrant Shares, if any, with respect to which this Warrant Agreement shall not
then have been exercised shall also be issued to the Warrant Holder as soon as
possible and in any event within such ten (10) day period.
(b) Method of Exercise. The Warrants may be exercised, at the
election of the Warrant Holder, by the tender of the Notice of Exercise in the
form attached hereto as Exhibit A (the "Notice of Exercise")
2
and the surrender of the Warrants at the principal office of the Company and by
the payment to the Company, by check, cancellation of indebtedness or other
form of payment acceptable to the Company, of an amount equal to the then
applicable Exercise Price per share multiplied by the number of Warrant Shares
then being purchased. Notwithstanding any provisions herein to the contrary, if
the fair market value of one share of Common Stock is greater than the Exercise
Price (at the date of calculation as set forth below), in lieu of exercising
the Warrants for cash, the Warrant Holder may elect to receive Warrant Shares
equal to the value (as determined below) of the Warrants (or portion thereof
being canceled) by surrender of the Warrants at the principal office of the
Company together with the duly executed Notice of Exercise in which event the
Company shall issue to the Warrant Holder a number of shares of the Common
Stock computed using the following formula:
X= Y (A-B)
-------
A
WHERE X= the number of shares of Common Stock to be issued to the
Warrant Holder;
Y= the number of shares of the Common Stock purchasable under the
Warrants or, if only a portion of the Warrants is being
exercised, the portion of the Warrants being canceled (at the
date of such calculation);
A= the fair market value of one share of the Company's Common
Stock (at the date of such calculation); and
B= Exercise Price (at the date of such calculation).
For purposes of this Section 4(b), fair market value means, with respect to
Common Stock, awards or other property, as of a particular date, (i) if the
Common Stock is listed on a national securities exchange, the closing sales
price per share of Common Stock on the consolidated transaction reporting
system for the principal such national securities exchange on that date, or, if
there shall have been no such sale so reported on that date, on the last
preceding date on which such a sale was so reported, (ii) if the Common Stock
is not so listed, but is quoted in the Nasdaq National Market System, the
closing sales price per share of Common Stock on the Nasdaq National Market
System on that date, or, if there shall have been no such sale so reported on
that date, on the last preceding date on which such a sale was so reported,
(iii) if the Common Stock is not so listed or quoted, the mean between the
closing bid and asked price on that date, or, if there are no quotations
available for such date, on the last preceding date on which such quotations
shall be available, as reported by Nasdaq, or, if not reported by Nasdaq, by
the National Quotation Bureau, Inc., (iv) if the date on which shares of Common
Stock are first issued and sold pursuant to a registration statement filed with
and declared effective by the Securities and Exchange Commission, the initial
public offering price of the shares so issued and sold, as set forth in the
first final prospectus used in such offering and (v) if such date is prior to
the date of the initial public offering, the price shall be as determined by
the Board to be the fair market value.
5. RESERVATION OF WARRANT SHARES. The Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock to
provide for the exercise of the rights to purchase the Warrant Shares
represented by the Warrants as provided in this Warrant Agreement. All of the
Warrant Shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and nonassessable, and free and clear of
all preemptive rights.
6. NO FRACTIONAL WARRANT SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of a Warrant.
7. NO RIGHTS AS SHAREHOLDER. Neither the Warrants nor this Warrant
Agreement shall entitle the Warrant Holder to any voting rights or other rights
as a shareholder of the Company prior to the exercise of the Warrant.
- 2 -
3
8. ADJUSTMENT RIGHTS. The Exercise Price and the number of shares of
Common Stock purchasable under the Warrants issued hereunder are subject to
adjustment from time to time, as follows:
(a) Merger. If at any time there shall be a merger or
consolidation of the Company with or into another corporation when the Company
is not the surviving corporation, then, as part of such merger or
consolidation, lawful provision shall be made so that the Warrant Holder shall
thereafter be entitled to receive upon exercise of the Warrants, during the
period specified herein and upon payment of the aggregate Exercise Price due
therefor, the number of shares of stock or other securities or property of the
successor corporation resulting from such merger or consolidation, to which a
holder of the stock deliverable upon exercise of the Warrants issued pursuant
to this Warrant Agreement would have been entitled in such merger or
consolidation if such Warrants had been exercised immediately before such
merger or consolidation. In any such case, appropriate adjustment shall be made
in the application of the provisions of this Warrant Agreement with respect to
the rights and interests of the Warrant Holder after the merger or
consolidation. The Company will not effect any such merger or consolidation
unless, prior to the consummation thereof, the successor corporation shall
assume, by written instrument reasonably satisfactory in form and substance to
the Warrant Holder, the obligations of the Company under the Warrants and this
Warrant Agreement.
(b) Reclassification, Etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities which may then be purchased under the Warrants into the
same or a different number of securities of any other class or classes, then
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 which were subject to the Warrants immediately
prior to such subdivision, combination, reclassification or other change.
(c) Split, Subdivision or Combination of Warrant Shares. If the
Company at any time shall split or subdivide its Common Stock, the Exercise
Price shall be proportionately decreased and the number of Warrant Shares
issuable pursuant to the Warrants shall be proportionately increased. If the
Company at any time shall combine or reverse split its Common Stock, the
Exercise Price shall be proportionately increased and the number of Warrant
Shares issuable pursuant to the Warrants shall be proportionately decreased.
The adjustment shall be such as will give the Warrant Holder upon exercise for
the same aggregate Exercise Price the total number, class and kind of shares as
the Warrant Holder would have owned had the Warrants been exercised prior to
the event and had the Warrant Holder continued to hold such shares until after
the event requiring adjustment under this Section 8(c).
(d) Stock Dividends. If the Company at any time shall pay a
dividend payable in Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of shareholders entitled to receive
such dividend, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend and (ii) the denominator of
which shall be the total number of shares of Common Stock outstanding
immediately after such dividend. The Warrants shall thereafter entitle their
respective holders to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Common Stock (calculated to the nearest
whole share) obtained by multiplying (x) the Exercise Price in effect
immediately prior to such adjustment by (y) the number of shares of Common
Stock issuable upon the exercise hereof immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting from such
adjustment.
(e) Other Changes. If any change in the outstanding Common Stock
or any other event occurs as to which the other provisions of this Section 8
are not strictly applicable or if strictly applicable, would not fairly protect
the purchase rights of the Warrant Holder in accordance with such provisions,
then the Board of Directors of the Company shall make an adjustment in the
number of and class of shares available under the Warrants, the Exercise Price
or the application of such provisions, so all adjustments shall be made so that
the holders of the Warrant shall not be adversely affected by such transaction.
The adjustment shall be such as will give the Warrant Holder upon exercise for
the same aggregate Exercise Price the total number, class and kind of shares
- 3 -
4
as the Warrant Holder would have owned had the Warrants been exercised prior to
the event and had the Warrant Holder continued to hold such shares until after
the event requiring adjustment.
(f) Notice of Adjustments; Notices. Whenever the Exercise Price
or number or kind of securities purchasable under the Warrants shall be
adjusted pursuant to Section 8 hereof, the Company shall issue a certificate
signed by its Chief Executive Officer President or Chief Financial Officer
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated
and the Exercise Price and the kind and number of securities purchasable
hereunder after giving effect to such adjustment, and shall cause a copy of
such certificate to be mailed (by first class mail, postage prepaid) to the
Warrant Holder. The Company shall give written notice to the Warrant Holder at
least ten (10) business days prior to the date on which the Company closes its
books or takes a record for determining rights to receive any dividends or
distributions. The Company shall also give written notice to the Warrant Holder
at least thirty (30) business days prior to the date on which a merger or
consolidation of the Company with or into another corporation when the Company
is not the surviving corporation shall take place.
(g) No Change of Warrant Necessary. Irrespective of any
adjustment in the Exercise Price or in the number or kind of securities
issuable upon exercise of the Warrants, unless the Warrant Holder otherwise
requests, the Warrants and this Warrant Agreement may continue to express the
same price and number and kind of shares of Common Stock as are stated in this
Warrant Agreement as initially executed.
9. REDEMPTION. The Warrants represented by this Warrant Agreement are
not redeemable by the Company at any time.
10. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT AND
WARRANT SHARES.
(a) Compliance with Securities Act. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the securities to be issued
upon exercise of the Warrants, are being acquired for investment and that such
Warrant Holder will not offer, sell or otherwise dispose of the Warrants or any
securities to be issued upon exercise of the Warrants except under
circumstances which will not result in a violation of the Securities Act of
1933, as amended (the "Securities Act"), or any applicable state securities
laws. The Warrants and all securities issued upon exercise of the Warrants
(unless registered under) the Securities Act and any applicable state
securities laws) shall be stamped or imprinted with a legend in substantially
the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT
BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS OR UNLESS SUCH REGISTRATION IS NOT REQUIRED TO EFFECTUATE
SUCH TRANSACTION, AND IF REASONABLY REQUESTED BY THE COMPANY, THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT."
(b) Transfer. Subject to the provisions of the Securities Act and
any applicable state securities laws, the Warrants and any related rights
hereunder may be sold, transferred, pledged or otherwise disposed of, in whole
or in part, to any person. Any transfer or sale or attempted transfer or sale
of rights under this Warrant Agreement or any of the Warrants in violation of
any provision of this Agreement shall be void, and the Company shall not record
such transfer on its books or treat any purported transferee of the Warrant as
the owner of the Warrant or any other rights related to this Agreement for any
purpose.
(c) Exchange, Transfer, Assignment or Loss of Warrants. The
Warrants cannot be exchanged, transferred or assigned otherwise than in
accordance with the provisions of this Agreement. If the provisions of this
Agreement are complied with, upon surrender of the Warrants to the Company with
the Assignment Form annexed hereto as Exhibit B duly executed, and funds
sufficient to pay any transfer tax, the
- 4 -
5
Company shall, without charge, execute and issue a new Warrant in the name of
the heir, devisee or assignee named in such instrument of assignment and the
assigned Warrant shall promptly be canceled.
11. RESTRICTED SECURITIES. The Warrant Holder understands that the
Warrants hereunder are exempt pursuant to Section 4(2) of the Securities Act
based on the representations of the Warrant Holder set forth herein. The
Warrant Holder also understands that if the securities issued pursuant to the
exercise of Warrants have not been registered under the Securities Act as of
their issue, they will be issued pursuant to the same exemption. The Warrant
Holder represents that it is experienced in evaluating companies such as the
Company, has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of its investment and has the
ability to suffer the total loss of the investment. The Warrant Holder further
represents that it has had the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions of this Agreement,
the Warrants the shares, the business of the Company, and to obtain additional
information to such Warrant Holder's satisfaction. The Warrant Holder is an
"Accredited Investor" within the meaning of Rule 501 of Regulation D under the
Securities Act, as presently in effect.
12. REGISTRATION RIGHTS.
(a) Certain Definitions. As used in this Section 12, the
following terms shall have the following respective meanings:
(i) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(ii) "Holder" shall mean any holder of outstanding
Registrable Securities.
(iii) The terms "Register", "Registered" and "Registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act ("Registration Statement"), and
the declaration or ordering by the Commission of the effectiveness of such
Registration Statement.
(iv) "Registrable Securities" shall mean the Warrant
Shares so long as certificates representing the same are required to bear the
restrictive legend set forth in Section 10.
(v) "Registration Expenses" shall mean all expenses
incurred by the Company in complying with Section 12, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, and the expense of any special audits incident to or
required by any such Registration.
(vi) "Restriction Termination Date' shall mean, with
respect to any Registrable Securities, the earliest of (A) the date that such
Registrable Securities shall have been registered and sold or otherwise
disposed of in accordance with the intended method of distribution by the
seller or sellers thereof set forth in the registration statement covering such
Registrable Securities or transferred in compliance with Rule 144, (B) the date
that an opinion of counsel to the Company (reasonably satisfactory in both form
and substance to the Company) containing reasonable assumptions shall have been
rendered to the effect that neither the legend nor the restrictions on transfer
contained in this agreement are required to insure compliance with the
Securities Act and, based upon such opinion, the legend referred to in Section
10 shall have been removed and (C) the date as of which the Company shall have
notified the Holder of such Registrable Securities in writing that it has
determined that such Registrable Securities may be sold pursuant to Rule 144
(or any successor provision) without restriction under Rule 144(e) thereof,
and, based upon such determination, the legend shall have been removed.
(vii) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities pursuant to this Agreement.
(b) Company Registration. If (but without any obligation to do
so) the Company proposes to Register at any time prior to the Restriction
Termination Date (including for this purpose a Registration effected by
- 5 -
6
the Company for shareholders other than the Holder) any of its stock or other
securities under the Securities Act in connection with the underwritten public
offering of such securities solely for cash (other than a Registration of
securities in connection with mergers, acquisitions, exchange offers,
distributions to the Company's shareholders, or stock option or other employee
benefit plans or a Registration in any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at each such time, promptly give Holder written notice of such
Registration. Upon the written request of Holder given within fifteen (15) days
after mailing of such notice by the Company, the Company shall, subject to the
following provisions, use all reasonable efforts to cause to be included in
such Registration all of the Registrable Securities that Holder has requested
to be included.
The Company shall not be required under this Subsection 12(b) to
include any of the Holder's securities in an underwritten offering of the
Company's securities unless such Holder accepts the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and
then only in such quantity as will not, in the opinion of the managing
underwriters, interfere with the successful marketing of the offering by the
Company.
(c) Blue Sky. In the event of any Registration pursuant to this
Section 12, the Company will exercise its best efforts to Register and qualify
the Registrable Securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders for the distribution of such securities; provided,
however, that the Company shall not be required to qualify to do business, to
file a general consent to service of process or to subject itself to taxation
in any state or jurisdiction in which it is not now qualified. The Company will
furnish to the Holder written advice of its counsel with respect to
registration or exemption of such Registrable Securities in such jurisdictions.
(d) Expenses of Registration. All Registration Expenses incurred
in connection with a Registration pursuant to Subsection 12(b) shall be borne
by the Company. All Selling Expenses associated with the sale of Registrable
Securities attributable to Holder shall be borne by the Holder.
(e) Registration Procedures.
(i) Advice by Company. The Company will keep the Holder
advised as to the initiation and completion of such Registration. At its
expense the Company will (A) use its best efforts to keep such Registration
effective until the earlier of the date on which the Holder has completed the
distribution described in the Registration Statement or the Restriction
Termination Date with respect to such Securities; and (B) furnish such number
of prospectuses (including preliminary prospectuses) and other documents as the
Holder from time to time may reasonably request.
(ii) Amendments. The Company will promptly prepare and file
with the Commission such amendments and prospectus supplements, including
post-effective amendments, to the Registration Statement as the Company
determines may be necessary or appropriate, and use its best efforts to have
such post-effective amendments declared effective as promptly as practicable;
cause the related prospectus to be supplemented by any prospectus supplement,
and as so supplemented, to be filed with the Commission; and notify the Holder
of any securities included in such Registration Statement and the underwriter
thereof, if any, promptly when a prospectus, any prospectus supplement or
post-effective amendment must be filed or has been filed and, with respect to
any post-effective amendment, when the same has become effective.
(iii) Underwritten Offerings. At the request of the Holder
requesting Registration of Registrable Securities pursuant to this Section 12,
on the date that such Registrable Securities are delivered to the underwriters
for sale pursuant to such Registration in an underwritten offering pursuant to
Subsection 12(b), the Company will (A) furnish (i) an opinion, dated as of such
date, of the independent counsel representing the Company for the purposes of
such Registration, addressed to the underwriter, in a customary form and
covering matters of the type customarily covered in such legal opinions; and
(ii) a comfort letter dated as of such date, from the independent certified
public accountants of the Company addressed to the underwriter in a customary
form and covering matters of the type customarily covered by such comfort
letters; such opinion of counsel shall additionally
- 6 -
7
cover such other legal matters with respect to the Registration in respect of
which such opinion is being given as such underwriter may reasonably request
and such letter from the independent certified public accountants shall
additionally cover such other financial matters (including information as to
the period ending not more than five (5) business days prior to the date of
such letter) with respect to the Registration in respect of which such letter
is being given as such underwriter may reasonably request; and (B) with such
Holder, enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities.
(f) Information Furnished by Holder. It shall be a condition
precedent to the Company's obligations under this Agreement that the Holder
furnish to the Company in writing such information regarding such Holder and
the distribution proposed by such Holder as the Company may reasonably request.
(g) Holders' Indemnification of Company. Holder will, if
Registrable Securities held by Holder are included in the Securities as to
which a Registration is being effected pursuant to this Agreement, indemnify
the Company, each of its directors and officers, each underwriter, if any, of
the Company's securities covered by such a Registration Statement, each person
who controls the Company or such underwriter within the meaning of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any such Registration
Statement or related prospectus, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse the Company, such
directors, officers, partners, persons, underwriters or control persons for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made in such
Registration Statement or prospectus in reliance upon and in conformity with
written information furnished to the Company by Holder and stated to be
specifically for use in connection with the offering of Securities of the
Company.
(h) Transfer of Rights. As defined herein, the term Transfer
shall mean any sale, hypothecation, transfer or other disposition of
Registrable Securities or any interest therein other than a sale registered
under a Registration Statement. The right to cause the Company to Register
Registrable Securities granted by the Company to Holder under this Section 12
may not be assigned by Holder to any transferee of the Warrants or the Warrant
Shares.
13. MISCELLANEOUS.
(a) No Consequential Damages. No party hereto shall be entitled
to consequential damages as a result of any breach of a covenant,
representation or warranty contained herein.
(b) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
(i) if to the Company, to:
XxxxxxXxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
(ii) if to the Warrant Holder, to:
____________________________________
____________________________________
____________________________________
- 7 -
8
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
(c) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the Warrant Holder
and the Company and their respective successors and permitted assigns. No
person, other than the Warrant Holder and the Company and their respective
successors and permitted assigns, is intended to be a beneficiary of this
Agreement.
(d) Amendment and Waiver.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies provided for herein
are cumulative and are not exclusive of any remedies that may be available to
the Company and the Warrant Holder at law, in equity or otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any provision of this
Warrant Agreement, and any consent to any departure by the Company or the
Warrant Holder from the terms of any provision of this Agreement, shall be
effective only if it is made or given in writing and signed by the Company and
the Warrant Holder.
(e) Counterparts. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Warrant Agreement shall be governed by
and construed in accordance with the laws of the State of Florida, without
regard to the principles of conflicts of law of any jurisdiction.
(h) Venue. Any action or proceeding involving the parties hereto
shall be adjudicated in a court located in Orange County, Florida. The parties
hereto hereby irrevocably consent to the jurisdiction and venue of such courts.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.
(j) Entire Agreement. This Warrant Agreement and the Warrants and
exhibits and schedules hereto is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of he subject
matter contained herein. This Warrant Agreement and the Warrants, together with
the exhibits and schedules hereto, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(k) Charges; Taxes and Expenses. Issuance of certificates for
securities upon the exercise of the Warrants shall be made without charge to
the Warrant Holder for any issue or transfer tax or other incidental
- 8 -
9
expense in respect of the issuance of such certificates, all of which taxes and
expenses shall be paid by the Company.
(l) Saturdays, Sundays, Holidays, Etc. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such action
may be taken or such right may be exercised on the next succeeding day not a
Saturday, Sunday or a legal holiday.
(m) Lost Warrants. The Company covenants to the Warrant Holder
that, upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant Agreement and, in the
case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation,
upon surrender and cancellation of the last Warrant on this Warrant Agreement,
the Company will make and deliver a new Warrant or Warrant Agreement, as
applicable, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
document.
(n) Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority
or any other person, and otherwise fulfilling, or causing the fulfillment of,
the various obligations made herein, as may be reasonably required or desirable
to carry out or to perform the provisions of this Warrant Agreement and to
consummate and make effective as promptly as possible the transactions
contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and
delivered by the authorized individuals of each of the undersigned.
XXXXXXXXXX.XXX, INC.
By:
-----------------------------------------
Name: O. F. Xxxxx
Title: President and Chief Executive Officer
[NAME OF WARRANT HOLDER]
By:
-----------------------------------------
Name:
Title:
- 9 -
10
EXHIBIT A
NOTICE OF EXERCISE
To: XxxxxxXxxx.xxx, Inc.
1. The undersigned hereby elects to purchase __________ shares of the
Common Stock of XxxxxxXxxx.xxx, Inc. in accordance with the Warrants issued
pursuant to the Warrant Agreement, dated as of December 21, 1999, by and
between XxxxxxXxxx.xxx, Inc. and the undersigned, and tenders herewith payment
of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned.
By:
-------------------------------
(Print Name of Signatory)
Date:
A-1
11
EXHIBIT B
ASSIGNMENT FORM
TO: XxxxxxXxxx.xxx, Inc.
The undersigned hereby assigns and transfers unto _____________________
of ______________________________ (please typewrite or print in block letters)
the right to purchase ____________ shares of the common stock of
XxxxxxXxxx.xxx, Inc. subject to the Warrant Agreement, dated as of December 21,
1999, by and between XxxxxxXxxx.xxx, Inc. and the undersigned (the "Warrant
Agreement").
This assignment complies with the provisions of Section 10(c) of the
Warrant Agreement and is accompanied by funds sufficient to pay all applicable
transfer taxes.
By:
-------------------------------
(Print Name of Signatory)
Date:
B-1
