1
EXHIBIT 4.3
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") dated as of _________, 1997,
between Xxxxxx Enterprises, Inc., a Florida corporation (the "Company"), and
Florida Atlantic Stock Transfer, Incorporated, a ________ corporation (the
"Warrant Agent").
The Company proposes to make a public offering (the "Offering") of up
to 920,000 Units (the "Units") (including 120,000 Units issuable upon exercise
of the Underwriters' over-allotment option), each Unit consisting of one share
of the Company's Common Stock, par value $0.01 per share (the "Common Stock"),
and one warrant to purchase one share of Common Stock (the "Common Shares") at
an exercise price of $5.25 per share (the "Common Stock Purchase Warrants"),
pursuant to the Underwriting Agreement dated _________, 1997 among the Company
and Xxxxxx Xxxxxxx & Associates, Inc. as representative of the several
underwriters (the "Underwriting Agreement");
The Company proposes to issue to Xxxxxx Xxxxxxx & Associates, Inc. (the
"Representative") warrants (the "Representative's Warrants") to purchase up to
an aggregate of 80,000 Units. The 80,000 Common Stock Purchase Warrants issuable
upon exercise of the Representative's Warrants are referred to herein as the
"Representative Underlying Warrants";
The Company proposes to issue certificates (the "Warrant Certificates")
evidencing the Common Stock Purchase Warrants issuable in the Offering and upon
exercise of the Representative's Warrants (collectively, the "Warrants");
The Company desires the Warrant Agent, and the Warrant Agent agrees, to
act on behalf of the Company in connection with the issuance, transfer,
exchange, replacement and surrender of the Warrant Certificates; and
The Company and the Warrant Agent desire to set forth in this Warrant
Agreement, among other things, the form and provisions of the Warrant
Certificates and the terms and conditions under which they may be issued,
transferred, exchanged, replaced and surrendered in connection with the exercise
of the Warrants.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
2
ARTICLE I
DISTRIBUTION OF WARRANT CERTIFICATES
Section 1.1 Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act on behalf of the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 1.2 Form of Warrant Certificates. The Warrant Certificates for
the Warrants issuable in the offering shall be issued in registered form only
and, together with the purchase and assignment forms to be printed on the
reverse thereof, shall be substantially in the form of Exhibit A attached hereto
and, in addition, may have such letters, numbers or other marks of
identification or designation and such legends, summaries, or endorsements
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement or
as, in any particular case, may be required, in the opinion of counsel for the
Company, to comply with any law or with any rule or regulation of any regulatory
authority or agency, or to conform to customary usage. The Representative
Underlying Warrants shall be identical to the Warrants issuable in the Offering,
except that the Representative Underlying Warrants shall not be subject to
redemption pursuant to Section 6.
Section 1.3 Execution of Warrant Certificates. The Warrant Certificates
shall be executed on behalf of the Company by its Chief Executive Officer or
Chairman of the Board, or President or any Vice President, and by its Chief
Financial Officer or any Assistant Treasurer or Secretary or any Assistant
Secretary, either manually or by facsimile signature printed thereon. The
Warrant Certificates shall be manually countersigned and dated the date of
countersignature by the Warrant Agent and shall not be valid for any purpose
unless so countersigned and dated. In case any authorized officer of the Company
who shall have signed any of the Warrant Certificates shall cease to be such
officer of the Company either before or after delivery thereof by the Company to
the Warrant Agent, the signature of such person on such Warrant Certificates,
nevertheless, shall be valid and such Warrant Certificates may be countersigned
by the Warrant Agent and issued and delivered to those persons entitled to
receive the Warrants represented thereby with the same force and effect as
though the person who signed such Warrant Certificates had not ceased to be such
officer of the Company.
Section 1.4 Issuance and Distribution of Warrant Certificates. Upon
completion of the Offering, the Company shall deliver to the Warrant Agent an
adequate supply of Warrant Certificates for the Warrants executed on behalf of
the Company as described in Section 1.3 hereof. Upon receipt of an order from
the Company, the Warrant Agent shall within three (3) business days complete and
countersign Warrant Certificates representing the total number of Warrants to be
issued hereunder and shall deliver such Warrant Certificates pursuant to written
instructions of the Company. Upon receipt of an order from the Company
acknowledging the exercise of the Representative's Warrants, the Warrant Agent
shall within three (3) business days complete and countersign Warrant
Certificates representing the total number of Warrants to be
-2-
3
issued upon such exercise, and shall deliver such Warrant Certificates pursuant
to written instructions of the Company.
ARTICLE II
WARRANT EXERCISE PRICE AND EXERCISE OF WARRANTS
Section 2.1 Exercise Price. Each Warrant Certificate for the Warrants
shall, when signed by the Chief Executive Officer or Chairman of the Board, or
President or any Vice President, and by the Chief Financial Officer or any
Assistant Treasurer or Secretary or any Assistant Secretary of the Company and
countersigned by the Warrant Agent, entitle the registered holder thereof, to
purchase from the Company one Common Share for each Warrant evidenced thereby,
at the purchase price of $5.25 per share (the "Initial Exercise Price"), or such
adjusted number of shares at such adjusted purchase price as may be established
from time to time pursuant to the provisions of Article III hereof, payable in
full at the time of exercise of the Warrant. Except as the context otherwise
requires, the term "Exercise Price" as used in this Agreement shall mean the
purchase price of one Common Share upon the exercise of the Warrant reflecting
all appropriate adjustments made in accordance with the provisions of Article
III hereof. At any time and from time to time prior to the Exercise Deadline (as
defined in Section 2.2 below), the Company in its discretion may permanently or
temporarily (for such period as the Company may determine) reduce the Exercise
Price. In case the Company shall determine to reduce the Exercise Price, it
shall so notify the Warrant Agent and the registered holders of the outstanding
Warrants, by mailing, first class, postage prepaid, notice of the reduced
Exercise Price (and if temporarily reduced, of the period during which the
Warrants may be exercised at such reduced price) to such registered holders at
their addresses as they shall appear on the records of the Warrant Agent. Any
notice mailed in the manner provided herein shall be conclusively presumed to
have been duly given whether or not the registered holder actually receives such
notice.
Section 2.2 Registration of Common Shares and Exercisability of
Warrants. Each Warrant may be exercised at any time provided that the Common
Shares issuable upon exercise of such Warrants have been effectively registered
under the Securities Act of 1933, as amended (the "Securities Act"), and such
other action as may be required by federal or state law relating to the issuance
or distribution of securities shall have been taken, but not after 5:00 P.M.,
Florida time, on ________, 2002. The term "Exercise Deadline" as used in this
Agreement shall mean the latest time and date at which the Warrants may be
exercised. The Company shall use its best efforts to secure the effective
registration of the aforementioned Common Shares under the Securities Act and to
register or qualify such shares under applicable state laws; the Company further
agrees, from and after the time such registration has become effective, to use
its best efforts to maintain such registration or qualification in effect and to
keep available for delivery upon the exercise of Warrants a prospectus that
meets the requirements of Section 10 of the Securities Act, until the earlier of
the date by which all Warrants are exercised or the Exercise Deadline; provided
however, that the Company shall have no obligation to register such Common
Shares or maintain the effectiveness of such registration or qualification or to
keep available a prospectus, as aforesaid, in the event that, by amendment to
the Securities Act or
-3-
4
otherwise, such registration or qualification or the delivery of such prospectus
is not required at the time said Common Shares are to be issued; and provided
further, that in the event, by amendment to the Securities Act or otherwise,
some other or different requirement shall be imposed by act of the Congress of
the United States which shall relate to the issuance of Common Shares upon
exercise of the Warrants, the Company shall use its best efforts to comply with
such requirements so long as the same shall not be more burdensome to the
Company than the registration statement under the Securities Act. The Exercise
Deadline may be extended by the Company by notice to the registered holders of
the Warrants and shall be extended if such holders are unable to exercise the
Warrants at what would otherwise be the Exercise Deadline because the Common
Shares issuable upon exercise of such Warrants have not been effectively
registered under the Securities Act. Such extension shall continue until such
registration has been effective for 30 days after notice to such holders.
Section 2.3 Procedure for Exercise of Warrants. During the period
specified in and subject to the provisions of Section 2.2 hereof, Warrants may
be exercised by surrendering the Warrant Certificates representing such Warrants
to the Warrant Agent at its principal office (the "Principal Office"), which is
presently at _____________________________________________ with the election to
purchase form set forth on the Warrant Certificate duly completed and executed,
with signatures guaranteed by an eligible guarantor institution which is a
participant in a signature guarantee program (as such terms are defined in Reg.
240.17Ad-15 under the Securities Exchange Act of 1934, as amended) acceptable to
the Warrant Agent ("Signatures Guaranteed"), accompanied by payment in full of
the Exercise Price as provided in Section 2.1 in effect at the time of such
exercise, together with such taxes as are specified in Section 7.1 hereof, for
each Common Share with respect to which such Warrants are being exercised. Such
Exercise Price and taxes shall be paid in full by certified check or money order
payable in United States currency to the order of the Company. The date on which
Warrants are exercised in accordance with this Section 2.3 is sometimes referred
to herein as the Date of Exercise of such Warrants.
Section 2.4 Issuance of Common Shares. Promptly after the Date of
Exercise of any Warrants, the Company shall issue, or cause the transfer agent
for the Common Stock to issue, a certificate or certificates for the number of
full Common Shares to which such holder is entitled, registered in accordance
with the instructions set forth in the election to purchase. The Company has
deposited and will at all times maintain with the transfer agent for the Common
Stock a number of Common Shares sufficient for issuance and delivery upon
exercise of the Warrants. In the event that the Company fails promptly to
deliver or cause the delivery of certificates for Common Shares in accordance
with the first sentence of this Section, the Warrant Agent is hereby irrevocably
designated the Company's agent to instruct the transfer agent for the Common
Stock to issue and deliver such certificates and to take any other actions it
deems necessary or appropriate in connection with the issuance and delivery of
such certificates. All Common Shares issued upon the exercise of any Warrants
shall be validly authorized and issued, fully paid and nonassessable, and free
from all taxes, liens and charges created by the Company in respect of the issue
thereof, and shall be previously unissued shares. Each person in whose name any
such certificate for Common Shares is issued shall for all purposes be deemed to
have become the holder of record of the Common Shares represented thereby on the
Date of Exercise
-4-
5
of the Warrants resulting in the issuance of such shares, irrespective of the
date of issuance or delivery of such certificate for Common Shares.
Section 2.5 Certificate for Unexercised Warrants. In the event that
less than all of the Warrants represented by a Warrant Certificate are
exercised, the Warrant Agent shall execute and mail, by first-class mail, within
30 days of the Date of Exercise, to the registered holder of such Warrant
Certificate, or such other person as shall be designated in the election to
purchase, a new Warrant Certificate representing the number of full Warrants not
exercised. In no event shall a fraction of a Warrant be exercised, and the
Warrant Agent shall distribute no Warrant Certificates representing fractions of
Warrants under this or any other section of this Agreement. Final fractions of
shares shall be treated as provided in Section 2.8.
Section 2.6 Reservation of Shares. The Company shall at all times
reserve and keep available for issuance upon the exercise of Warrants and on
deposit with the transfer agent for the Common Stock a number of its authorized
but unissued Common Shares that will be sufficient to permit the exercise in
full of all Warrants.
Section 2.7 Disposition of Proceeds. The Warrant Agent shall account at
least monthly (or more frequently upon the request of the Company, provided that
in no event shall the Warrant Agent be required to account more frequently than
weekly) to the Company with respect to Warrants exercised and concurrently
deliver to the Company all funds received in connection therewith.
Notwithstanding the foregoing sentence, at any time upon the exercise of any
Warrant after the mailing of the notice specified in Section 6.2, the Warrant
Agent shall, on a weekly basis, notify the Representative, its successors or
assigns, of the exercise of any such Warrants and shall, on a weekly basis
(subject to collection of funds constituting the tendered Exercise Price, but in
no event later than five business days after the last day of the calendar week
in which such funds were tendered), remit to the Representative an amount equal
to four percent of the Exercise Price of such Warrants being then exercised
unless the Representative shall have notified the Warrant Agent that the payment
of such amount with respect to such Warrant is violative of the General Rules
and Regulations promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD") or applicable state securities
or "blue sky" laws, or the Warrants are those underlying the Representative's
Warrants in which event, the Warrant Agent shall have to pay such amount to the
Company.
Section 2.8 Fractional Shares. The Company shall not be required upon
the exercise of any Warrant to issue fractional Common Shares; provided that if
more than one Warrant is exercised at one time by the same registered holder,
the number of full Common Shares which shall be deliverable shall be computed
based on the number of shares deliverable in exchange for the aggregate number
of Warrants exercised. With respect to any final fraction of a share called for
upon the exercise of any Warrant or Warrants, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to the same
fraction of the Current Market Price of a share of Common Stock calculated in
accordance with Section 3.2.
-5-
6
ARTICLE III
ADJUSTMENTS AND NOTICE PROVISIONS
Section 3.1 Adjustment of Exercise Price. Subject to the provisions of
this Article III, the Exercise Price in effect from time to time shall be
subject to adjustment, as follows:
(a) In case the Company shall at any time after the date hereof (i)
declare a dividend on the outstanding Common Stock payable in shares of its
capital stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then, in each case, the Exercise
Price, and the number of Common Shares issuable upon exercise of the Warrants in
effect at the time of the record date for such dividend or of the effective date
of such subdivision, combination, or reclassification, shall be proportionately
adjusted so that the holders of the Warrants after such time shall be entitled
to receive the aggregate number and kind of shares which, if such Warrants had
been exercised immediately prior to such time, such holders would have owned
upon such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) In case the Company shall issue or fix a record date for the
issuance to all holders of Common Stock of rights, options, or warrants to
subscribe for or purchase Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share (or having a conversion or
exchange price per share, if a security convertible into or exchangeable for
Common Stock) less than the Current Market Price per share of Common Stock (as
determined pursuant to Section 3.2 hereof) on such record date, then, in each
case, the Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so to be offered (or the
aggregate initial conversion or exchange price of the convertible or
exchangeable securities so to be offered) would purchase at such Current Market
Price and the denominator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of Common
Stock to be offered for subscription or purchase (or into which the convertible
or exchangeable securities so to be offered are initially convertible or
exchangeable). Such adjustment shall become effective at the close of business
on such record date; provided, however, that, to the extent the shares of Common
Stock (or securities convertible into or exchangeable for Common Stock) are not
delivered, the Exercise Price shall be readjusted after the expiration of such
rights, options, or warrants (but only with respect to Warrants exercised after
such expiration), to the Exercise Price which would then be in effect had the
adjustments made upon the issuance of such rights, options, or warrants been
made upon the basis of delivery of only the number of shares of Common Stock (or
securities convertible into or exchangeable for Common Stock) actually issued.
In case any subscription price may be paid
-6-
7
in a consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive absent
manifest error. Shares of Common Stock owned by or held for the account of the
Company or any majority-owned subsidiary shall not be deemed outstanding for the
purpose of any such computation.
(c) In case the Company shall distribute to all holders of Common Stock
(including any such distribution made to the shareholders of the Company in
connection with a consolidation or merger in which the Company is the continuing
corporation) evidences of its indebtedness, cash (other than any cash dividend
which, together with any cash dividends paid within the 12 months prior to the
record date for such distribution, does not exceed 5% of the Current Market
Price at the record date for such distribution) or assets (other than
distributions and dividends payable in Common Stock), or rights, options, or
warrants to subscribe for or purchase Common Stock, or securities convertible
into or exchangeable for Common Stock (excluding those with respect to the
issuance of which an adjustment of the Exercise Price is provided pursuant to
Section 3.1(b) hereof), then, in each case, the Exercise Price shall be adjusted
by multiplying the Exercise Price in effect immediately prior to the record date
for the determination of shareholders entitled to receive such distribution by a
fraction, the numerator of which shall be the Current Market Price per share of
Common Stock on such record date, less the fair market value (as determined in
good faith by the Board of Directors of the Company, whose determination shall
be conclusive absent manifest error) of the portion of the evidences of
indebtedness or assets so to be distributed, or of such rights, options, or
warrants or convertible or exchangeable securities, or the amount of such cash,
applicable to one share, and the denominator of which shall be such Current
Market Price per share of Common Stock. Such adjustment shall become effective
at the close of business on such record date.
(d) In case the Company shall issue shares of Common Stock or rights,
options, or warrants to subscribe for or purchase Common Stock, or securities
convertible into or exchangeable for Common Stock (excluding (i) shares, rights,
options, warrants, or convertible or exchangeable securities issued or issuable
in any of the transactions with respect to which an adjustment of the Exercise
Price is provided pursuant to Section 3.1(a), 3.1(b) or 3.1(c) above, (ii)
securities issued or issuable pursuant to the Offering, (iii) Common Shares
issued or issuable upon exercise of the Warrants, (iv) Representative Underlying
Warrants issued or issuable upon exercise of the Representative's Warrants and
(v) options to purchase up to 285,000 shares of Common Stock issued or issuable
under the Company's employee stock option plan and shares of Common Stock issued
or issuable pursuant thereto), at a price per share (determined, in the case of
such rights, options, warrants, or convertible or exchangeable securities, by
dividing (x) the total amount received or receivable by the Company in
consideration of the sale and issuance of such rights, options, warrants, or
convertible or exchangeable securities, plus the minimum aggregate consideration
payable to the Company upon exercise, conversion, or exchange thereof, by (y)
the maximum number of shares covered by such rights, options, warrants, or
convertible or exchangeable securities) lower than the Current Market Price per
share of Common Stock in effect immediately prior to such issuance, then the
Exercise Price shall be reduced on the date of such issuance to a price
(calculated to the nearest cent) determined by multiplying the Exercise Price in
effect immediately prior to such issuance by a fraction, (a) the numerator of
-7-
8
which shall be an amount equal to the sum of (A) the number of shares of Common
Stock outstanding immediately prior to such issuance plus (B) the quotient
obtained by dividing the aggregate consideration received by the Company upon
such issuance by such Current Market Price, and (b) the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
after such issuance. For the purposes of such adjustments, the maximum number of
shares which the holders of any such rights, options, warrants, or convertible
or exchangeable securities shall be entitled to initially subscribe for or
purchase or convert or exchange such securities into shall be deemed to be
issued and outstanding as of the date of such issuance, and the consideration
received by the Company for such rights, options, warrants, or convertible or
exchangeable securities, plus the minimum aggregate consideration or premiums
stated in such rights, options, warrants or convertible or exchangeable
securities to be paid for the shares covered thereby. No further adjustment of
the Exercise Price shall be made as a result of the actual issuance of Common
Stock on exercise of such rights, options, or warrants or on conversion or
exchange of such convertible or exchangeable securities. On the expiration or
the termination of such rights, options, or warrants, or the termination of such
rights to convert or exchange, the Exercise Price shall be readjusted (but only
with respect to Warrants exercised after such expiration or termination) to such
Exercise Price as would have been obtained had the adjustments made upon the
issuance of such rights, options, warrants, or convertible or exchangeable
securities been made upon the basis of the delivery of only the number of shares
of Common Stock actually delivered upon the exercise of such rights, options, or
warrants or upon the conversion or exchange of any such securities; and on any
change of the number of shares of Common Stock deliverable upon the exercise of
any such rights, options, or warrants or conversion or exchange of such
convertible or exchangeable securities or any change in the consideration to be
received by the Company upon such exercise, conversion, or exchange, including,
but not limited to, a change resulting from the antidilution provisions thereof,
the Exercise Price, as then in effect, shall forthwith be readjusted (but only
with respect to Warrants exercised after such change) to such Exercise Price as
would have been obtained had an adjustment been made upon the issuance of such
rights, options, or warrants not exercised prior to such change, on the basis of
such change. In case the Company shall issue Common Stock or any such rights,
options, warrants, or convertible or exchangeable securities for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then the "price per share" and the "consideration received by the Company" for
purposes of the first sentence of this Section 3.1(d) shall be as determined in
good faith by the Board of Directors of the Company, whose determination shall
be conclusive absent manifest error. Shares of Common Stock owned by or held for
the account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any such computation.
Section 3.2 Current Market Price. For the purpose of any computation
under this Article III, the Current Market Price per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices for the
30 consecutive trading days immediately preceding the date in question. The
closing price for each day shall be the last reported sales price or, in case no
such reported sale takes place on such day, the closing bid price, in either
case on the principal national securities exchange (including, for purposes
hereof, the Nasdaq National Market) on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted to trading
on any national securities exchange, the highest
-8-
9
reported bid price for the Common Stock as furnished by the National Association
of Securities Dealers, Inc. through Nasdaq or a similar organization if Nasdaq
is no longer reporting such information. If on any such date the Common Stock is
not listed or admitted to trading on any national securities exchange and is not
quoted by Nasdaq or any similar organization, the fair value of a shares of
Common Stock on such date as determined in good faith by the Board of Directors
of the Company, whose determination shall be conclusive absent manifest error
shall be used.
Section 3.3 No Adjustments to Exercise Price. No adjustment of the
exercise price shall be required in connection with (a) the private placement or
underwritten public offering of Common Stock for cash, provided the gross
proceeds per share received by the Company upon issuance are at least 90% of the
Current Market Price in effect immediately prior to such sale or issuance; (b)
the operation of anti-dilution provisions applicable to any other security
provided such provisions are no more favorable than those contained in this
Warrant Agreement; or (c) if such adjustment is less than $.05; provided,
however, that any adjustments which by reason of this Section 3.3(c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article III shall be made to
the nearest cent or to the nearest one thousandth of a share, as the case may
be.
Section 3.4 Deferral of Adjustments to Exercise Price. In any case in
which this Article III shall require that an adjustment in the Exercise Price be
made effective as of a record date for a specified event, the Company may elect
to defer, until the occurrence of such event, issuing to the holders of the
Warrants, if any holder has exercised a Warrant after such record date, the
Common Shares issuable upon such exercise over and above the Common Shares
issuable upon such exercise on the basis of the Exercise Price in effect prior
to such adjustment; provided, however, that the Company shall deliver to such
exercising holder a due xxxx or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
Section 3.5 Adjustment to Number of Shares. Upon each adjustment of the
Exercise Price as a result of the calculations made in Sections 3.1(b), 3.1(c),
or 3.1(d) hereof the Warrants shall thereafter evidence the right to purchase,
at the adjusted Exercise Price, that number of shares (calculated to the nearest
thousandth) obtained by dividing (A) the product obtained by multiplying the
number of shares purchasable upon exercise of the Warrants prior to adjustment
of the number of shares by the Exercise Price in effect prior to adjustment of
the Exercise Price by (B) the Exercise Price in effect after such adjustment of
the Exercise Price.
Section 3.6 Reorganization. In case of any capital reorganization,
other than in the cases referred to in Section 3.1 hereof, or the consolidation
or merger of the Company with or into another corporation (other than a merger
or consolidation in which the Company is the surviving or continuing corporation
and which does not result in any reclassification of the outstanding Common
Stock or the conversion of such outstanding Common Stock into shares of other
stock or other securities or property), or the sale of the property of the
Company as an entirety or substantially as an entirety (collectively such
actions being hereinafter referred to as "Reorganizations"), there shall
thereafter be deliverable upon exercise of any Warrant (in lieu
-9-
10
of the number of Common Shares theretofore deliverable) the number of shares of
stock or other securities or property to which a holder of the number of Common
Shares which would otherwise have been deliverable upon the exercise of such
Warrant would have been entitled upon such Reorganization if such warrant had
been exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of Warrant holders so
that the provisions set forth herein shall thereafter be applicable, as nearly
as possible, in relation to any shares or other property thereafter deliverable
upon exercise of Warrants. Any such adjustment shall be made by and set forth in
a supplemental agreement between the Company, or any successor thereto, and the
Warrant Agent and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization,
unless upon or prior to the consummation thereof the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of the Common Stock outstanding at the effective time
thereof, then such issuer, shall assume by written instrument the obligation to
deliver to the registered holder of any Warrant Certificate such shares of
stock, securities, cash or other property as such holder shall be entitled to
purchase in accordance with the foregoing provisions. In the event of sale or
conveyance or other transfer of all or substantially all of the assets of the
Company as a part of a plan for liquidation of the Company, all rights to
exercise any Warrant shall terminate 30 days after the Company gives written
notice to each registered holder of a Warrant Certificate that such sale or
conveyance of other transfer has been consummated.
Section 3.7 Reclassifications. In case of any reclassification or
change of the Common Shares issuable upon exercise of the Warrants (other than a
change in par value or from no par value to a specified par value, or as a
result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), the holders of the Warrants shall
have the right thereafter to receive upon exercise of the Warrants solely the
kind and amount of shares of stock and other securities, property, cash, or any
combination thereof receivable upon such reclassification or change by a holder
of the number of Common Shares for which the Warrants might have been exercised
immediately prior to such reclassification or change. Thereafter, appropriate
provision shall be as nearly equivalent as practicable to the adjustments in
Article III. The above provisions of this Section 3.7 shall similarly apply to
successive reclassifications and changes of the Common Stock.
Section 3.8 Verification of Computations. Whenever the Exercise Price
is adjusted as provided in this Article III, the Company will promptly obtain a
certificate of a firm of independent public accountants of recognized standing
selected by the Board of Directors of the Company (who may be the regular
auditors of the Company) setting forth the exercise price as so adjusted and a
brief statement of the facts accounting for such adjustment, and will make
available a brief summary thereof to the Warrant Agent and to the holders of the
Warrant Certificates, at their addresses listed on the register maintained for
the purpose by the Warrant Agent.
-10-
11
Section 3.9 Notice of Certain Actions. In case at any time the Company
shall propose:
(a) to pay any dividend or make any distribution on the Common
Stock in shares of Common Stock or make any other distribution (other
than regularly scheduled cash dividends which are not in a greater
amount per share than the most recent such cash dividend) to all
holders of Common Stock; or
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional
shares of Common Stock or any other rights, warrants, or other
securities; or
(c) to effect any reclassification or change of outstanding
Common Stock, or any consolidation, merger, sale, lease, or conveyance
of property, described in Section 3.7; or
(d) to effect any liquidation, dissolution, or winding-up of
the Company; or
(e) to take any other action which would cause an adjustment
to the Exercise Price;
then, in each such case, the Company shall cause notice of such proposed action
to be mailed to the Warrant Agent. Such notice shall specify the date on which
the books of the Company shall close, or a record be taken, for determining
holders of Common Stock entitled to receive such stock dividend or other
distribution of such rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, lease, other disposition,
liquidation, dissolution, winding-up or exchange or other action shall take
place or commence, as the case may be, and the date as of which it is expected
that holders of record of Common Stock shall be entitled to receive securities
or other property deliverable upon such action, if any such date has been fixed.
The Company shall cause copies of such notice to be mailed to each registered
holder of a Warrant Certificate. Such notice shall be mailed, in the case of any
action covered by Subsection 3.9(a) or 3.9(b) above, at least 10 days prior to
the record date for determining holders of the Common Stock for purposes of
receiving such payment or offer; in the case of any action covered by Subsection
3.9(c) or 3.9(d) above, at least 10 days prior to the earlier of the date upon
which such action is to take place or any record date to determine holders of
Common Stock entitled to receive such securities or other property; and in the
case of any action covered by Section 3.9(e) above, no more than 30 days after
such action.
Section 3.10 Notice of Adjustments. Whenever any adjustment is made
pursuant to this Article III, the Company shall cause notice of such adjustment
to be mailed to the Warrant Agent within 15 days thereafter, such notice to
include in reasonable detail (i) the events precipitating the adjustment, (ii)
the computation of any adjustments, and (iii) the Exercise Price, the number of
shares or the securities or other property purchasable upon exercise of each
Warrant after giving effect to such adjustment. The Warrant Agent shall within
15 days after receipt of such notice from the Company cause a similar notice to
be mailed to each registered holder of a Warrant Certificate.
-11-
12
Section 3.11 Warrant Certificate Amendments. Irrespective of any
adjustments pursuant to this Article III, Warrant Certificates theretofore or
thereafter issued need not be amended or replaced, but certificates thereafter
issued shall bear an appropriate legend or other notice of any adjustments.
ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF REGISTERED HOLDERS
OF WARRANT CERTIFICATES
Section 4.1 Rights of Warrant Holders. No Warrant Certificate shall
entitle the registered holder thereof to any of the rights of a shareholder of
the Company, including without limitation the right to vote, to receive
dividends and other distributions, to receive any notice of, or to attend,
meetings of shareholders or any other proceedings of the Company.
Section 4.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
If any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company in its discretion may direct the Warrant Agent to execute and deliver,
in exchange and substitution for and upon cancellation of a mutilated Warrant
Certificate, or in lieu of or in substitution for a lost, stolen or destroyed
Warrant Certificate, a new Warrant Certificate for the number of Warrants
represented by the Warrant Certificate so mutilated, lost, stolen or destroyed
but only upon receipt of evidence of such loss, theft or destruction of such
Warrant Certificate, and of the ownership thereof, and indemnity, if requested,
all satisfactory to the Company and the Warrant Agent. Applicants for such
substitute Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges incidental thereto as the
Company or Warrant Agent may prescribe. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at
any time enforceable by anyone.
ARTICLE V
SPLIT UP, COMBINATION, EXCHANGE, TRANSFER,
AND CANCELLATION OF WARRANT CERTIFICATES
Section 5.1 Split Up, Combination, Exchange and Transfer of Warrant
Certificates. Prior to the Exercise Deadline, Warrant Certificates, subject to
the provisions of Section 5.2, may be split up, combined or exchanged for other
Warrant Certificates representing a like aggregate number of Warrants or may be
transferred in whole or in part. Any holder desiring to split up, combine or
exchange a Warrant Certificate or Warrant Certificates shall make such request
in writing delivered to the Warrant Agent at its Principal Office and shall
surrender the Warrant Certificate or Warrant Certificates so to be split up,
combined or exchanged at said office. Subject to any applicable laws, rules or
regulations restricting transferability, any restriction on transferability that
may appear on a Warrant Certificate in accordance with the terms hereof, or any
"stop-transfer" instructions the Company may give to the Warrant Agent
-12-
13
to implement any such restrictions (which instructions the Company is expressly
authorized to give), transfer of outstanding Warrant Certificates may be
effected by the Warrant Agent from time to time upon the books of the Company to
be maintained by the Warrant Agent for that purpose, upon a surrender of the
Warrant Certificate to the Warrant Agent at its Principal Office, with the
assignment form set forth in the Warrant Certificate duly executed and with
Signatures Guaranteed. Upon any such surrender for split up, combination,
exchange or transfer, the Warrant Agent shall execute and deliver to the person
entitled thereto a Warrant Certificate or Warrant Certificates, as the case may
be, as so requested. The Warrant Agent may require the holder to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any split up, combination, exchange or transfer of Warrant
Certificates prior to the issuance of any new Warrant Certificate.
Section 5.2 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered upon the exercise of Warrants or for split up,
combination, exchange or transfer, or purchased or otherwise acquired by the
Company, shall be cancelled and shall not be reissued by the Company; and,
except as provided in Section 2.5 in case of the exercise of less than all of
the Warrants evidenced by a Warrant Certificate or in Section 5.1 in case of a
split up, combination, exchange or transfer, no Warrant Certificate shall be
issued hereunder in lieu of such cancelled Warrant Certificate. Any Warrant
Certificate so cancelled shall be destroyed by the Warrant Agent unless
otherwise directed by the Company.
Section 5.3 Agreement of Warrant Certificate Holders. Every holder of
a Warrant Certificate by accepting the same consents and agrees with the
Company and the Warrant Agent and with every other holder of a Warrant
Certificate that:
(a) transfer of the Warrant Certificates shall be registered
on the books of the Company maintained for that purpose by the Warrant
Agent only if surrendered at the Principal Office of the Warrant Agent,
duly endorsed or accompanied by a proper instrument of transfer, with
Signatures Guaranteed; and
(b) prior to due presentment for registration of transfer, the
Company and the Warrant Agent may deem and treat the person in whose
name the Warrant Certificate is registered as the absolute owner
thereof and of the Warrants evidenced thereby (notwithstanding any
notations of ownership or writing on the Warrant Certificates made by
anyone other than the Company or the Warrant Agent) for all purposes
whatsoever, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
-13-
14
ARTICLE VI
REDEMPTION
Section 6.1 Redemption. All, but not less than all, of the Warrants
(excluding the Representative Underlying Warrants) are subject to redemption by
the Company, at $0.01 per Warrant, at any time before the Exercise Deadline on
30 days written notice to the Warrant holders if the per share closing bid price
of the Common Stock as reported by the Nasdaq SmallCap Market (or, if
applicable, the Nasdaq National Market or the principal national securities
exchange on which the Common Stock is then traded) equals or exceeds $7.50 for
20 consecutive trading days ending within five days of the notice of redemption.
The date fixed for redemption of the Warrants is referred to herein as the
"Redemption Date".
Section 6.2 Mailing of Notice. If the conditions set forth in Section
6.1 are met, and the Company desires to exercise its right to redeem the
Warrants, it shall request the Representative to mail a notice of redemption to
each of the registered holders of the Warrants to be redeemed, first class,
postage prepaid, not later than the thirtieth day before the date fixed for
redemption, at their last address as shall appear on the records maintained
pursuant to Section 7.7. Any notice mailed in the manner provided herein shall
be conclusively presumed to have been duly given whether or not the registered
holder receives such notice.
Section 6.3 Contents of Notice. The notice of redemption shall specify
(i) the redemption price, (ii) the Redemption Date, (iii) the place where the
Warrant Certificates shall be delivered and the redemption price paid, (iv) that
the Representative will assist each registered holder of a Warrant in connection
with the exercise thereof and (v) that the right to exercise the Warrant shall
terminate at 5:00 P.M. (Florida time) on the business day immediately preceding
the Redemption Date. No failure to mail such notice nor any defect therein or in
the mailing thereof shall affect the validity of the proceedings for such
redemption except as to a registered holder (a) to whom notice was not mailed or
(b) whose notice was defective. An affidavit of the Warrant Agent or of the
Secretary or an Assistant Secretary of the Representative or the Company that
notice of redemption has been mailed shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
Section 6.4 Termination of Exercise Right. Any right to exercise a
Warrant other than an Representative Underlying Warrant shall terminate at 5:00
P.M. (Florida time) on the business day immediately preceding the Redemption
Date. On and after the Redemption Date, Holders of the Warrants other than
Representative Underlying Warrants shall have no further rights except to
receive, upon surrender of the Warrant, the Redemption Price.
Section 6.5 Payment of Redemption Price. From and after the Redemption
Date, the Company shall, at the place specified in the notice of redemption,
upon presentation and surrender to the Company by or on behalf of the registered
holder thereof of one or more Warrant Certificates evidencing Warrants to be
redeemed, deliver or cause to be delivered to or upon the written order of such
Holder a sum in cash equal to the redemption price of each such Warrant. From
and after the Redemption Date and upon the deposit or setting aside by the
-14-
15
Company of a sum sufficient to redeem all the Warrants called for redemption,
such Warrants shall expire and become void and all rights hereunder and under
such Warrant Certificates, except the right to receive payment of the redemption
price, shall cease.
Section 6.6 Certain Adjustments. If the Common Stock is subdivided or
combined into a greater or smaller number of shares of Common Stock, the Target
Price shall be proportionally adjusted by the ratio which the total number of
shares of Common Stock outstanding immediately prior to such event bears to the
total number of shares of Common Stock to be outstanding immediately after such
event.
Section 6.7 Indemnification. The Company shall indemnify the
Representative and each person, if any, who controls the Representative within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from the registration statement or prospectus referred
to in Section 2.2 hereof to the same extent and with the same effect (including
the provisions regarding contribution) as the provisions pursuant to which the
Company has agreed to indemnify the Representative contained in Section 7 of the
Underwriting Agreement.
Section 6.8 Redemption Closing Conditions.
(a) Five business days prior to the Redemption Date, the Company shall
furnish to the Representative (i) opinions of counsel to the Company, dated such
date and addressed to the Representative, and (ii) a "cold comfort" letter dated
such date addressed to the Representative, signed by the independent public
accountants who have issued a report on the Company's financial statements
included in the registration statement relating to exercise of the Warrants, in
each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
such accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities, including, without limitation, those matters covered in
Sections 5(c), 5(e), 5(f), 5(h) and 5(k) of the Underwriting Agreement.
(b) The Company shall as soon as practicable after the Redemption Date,
and in any event within 15 months thereafter, make "generally available to its
security holders" (within the meaning of Rule 158 under the Act) an earnings
statement (which need not be audited) complying with Section 11(a) of the Act
and covering a period of at least 12 consecutive months beginning after the
Redemption Date.
-15-
16
ARTICLE VII
PROVISIONS CONCERNING THE WARRANT AGENT
AND OTHER MATTERS
Section 7.1 Payment of Taxes and Charges. The Company will from time to
time promptly pay to the Warrant Agent, or make provisions satisfactory to the
Warrant Agent for the payment of, all transfer taxes and charges that may be
imposed by the United States or any state upon the Company or the Warrant Agent
in connection with the issuance or delivery of Common Shares upon the exercise
of any Warrants, but any such taxes in connection with the issuance of Warrant
Certificates or certificates for Common Shares in any name other than that of
the registered holder of the Warrant Certificate surrendered shall be paid by
such registered holder; and, in such case, the Company shall not be required to
issue or deliver any Warrant Certificate or certificates for Common Shares until
such taxes shall have been paid or it has been established to the Company's
satisfaction that no tax is due.
Section 7.2 Resignation or Removal of Warrant Agent. The Warrant Agent
may resign its duties and be discharged from all further duties and liabilities
hereunder after giving 30 days' notice in writing to the Company, except that
such shorter notice may be given as the Company shall, in writing, accept as
sufficient. Upon comparable notice to the Warrant Agent, the Company may remove
the Warrant Agent; provided, however, that in such event the Company shall
appoint a new Warrant Agent, as hereinafter provided, and the removal of the
Warrant Agent shall not be effective until a new Warrant Agent has been
appointed and has accepted such appointment. If the office of Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a new Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the registered holder of any Warrant Certificate, then the
registered holder of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new Warrant Agent. The Warrant Agent
hereby agrees to take any such action as may be necessary to provide for the
orderly transfer of its responsibilities hereunder to the new Warrant Agent. Any
new Warrant Agent appointed hereunder shall execute, acknowledge and deliver to
the former Warrant Agent last in office, and to the Company, an instrument
accepting such appointment under substantially the same terms and conditions as
are contained herein, and thereupon such new Warrant Agent without any further
act or deed shall become vested with the rights, powers, duties and
responsibilities of the Warrant Agent and the former Warrant Agent shall cease
to be the Warrant Agent; but if for any reason it becomes necessary or expedient
to have the former Warrant Agent execute and delivery any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the former Warrant
Agent.
Section 7.3 Notice of Appointment. Not later than the effective date of
the appointment of a new Warrant Agent, the Company shall cause notice thereof
to be mailed to the former Warrant Agent and the transfer agent for the Common
Stock, and shall forthwith cause a copy of such notice to be mailed to each
registered holder of a Warrant Certificate. Failure to mail
-16-
17
such notice, or any defect contained therein, shall not effect the legality or
validity of the appointment of the successor Warrant Agent.
Section 7.4 Merger of Warrant Agent. Any company into which the Warrant
Agent may be merged or with which it may be consolidated, or any company
resulting from any merger or consolidation to which the Warrant Agent shall be a
party, shall be the successor Warrant Agent under this Agreement without further
act, provided that such company would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 7.2 hereof. Any such successor
Warrant Agent may adopt the prior countersignature of any predecessor Warrant
Agent and distribute Warrant Certificates countersigned but not distributed by
such predecessor Warrant Agent, or may countersign the Warrant Certificates in
its own name.
Section 7.5 Company Responsibilities. The Company agrees that it shall
(i) pay the Warrant Agent reasonable remuneration for its services as Warrant
Agent hereunder and will reimburse the Warrant Agent upon demand for all
expenses, advances, and expenditures that the Warrant Agent may reasonably incur
in the execution of its duties hereunder (including fees and expenses of its
counsel); (ii) provide the Warrant Agent, upon request, with sufficient funds to
pay any cash due pursuant to Section 2.8 upon exercise of Warrants; and (iii)
perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all further and other acts, instruments and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing by the Warrant Agent of the provisions of this Agreement.
Section 7.6 Certification for the Benefit of Warrant Agent. Whenever in
the performance of its duties under this Agreement the Warrant Agent shall deem
it necessary or desirable that any matter be proved or established or that any
instructions with respect to the performance of its duties hereunder be given by
the Company prior to taking or suffering any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established, or such instructions may be
given, by a certificate or instrument signed by the Chairman, Chief Executive
Officer, the President, a Vice President, the Secretary or the Treasurer of the
Company and delivered to the Warrant Agent. Such certificate or instrument may
be relied upon by the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement; but in its discretion the
Warrant Agent may in lieu thereof accept other evidence of such matter or may
require such further or additional evidence as it may deem reasonable.
Section 7.7 Books and Records. The Warrant Agent shall maintain the
Company's books and records for registration and registration of transfer of the
Warrant Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Warrant Certificates, the number of
Warrants evidenced on its face by each Warrant Certificate and the date of each
Warrant Certificate.
Section 7.8 Liability of Warrant Agent. The Warrant Agent shall be
liable hereunder for its own gross negligence or willful misconduct. The Warrant
Agent shall act hereunder solely as an agent for the Company and its duties
shall be determined solely by the provisions
-17-
18
hereof. The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its counter-signature thereof) 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. The Warrant Agent will not incur any liability or
responsibility to the Company or to any holder of any Warrant Certificate for
any action taken, or any failure to take action, in reliance on any notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument reasonably believed by the Warrant Agent to be genuine and to have
been signed, sent or presented by the proper party or parties. The Warrant Agent
shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof by the Company or in respect of
the validity or execution of any Warrant Certificate (except its
counter-signature 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 the making of any
adjustment required under the provisions of Article III hereof or responsible
for the manner, method or amount of any such adjustment or the facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Common Shares or other securities to be issued pursuant to this Agreement or any
Warrant Certificate or as to whether any Common Shares or other securities will
when issued be validly authorized and issued and fully paid and nonassessable.
Section 7.9 Use of Attorneys, Agents and Employees. 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, agents
or employees.
Section 7.10 Indemnification. The Company agrees to indemnify the
Warrant Agent and save it harmless against any and all losses, expenses or
liabilities, including judgments, costs and counsel fees arising out of or in
connection with its agency under this Agreement, except as a result of the gross
negligence or willful misconduct of the Warrant Agent.
Section 7.11 Acceptance of Agency. The Warrant Agent hereby accepts the
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth.
Section 7.12 Changes to Agreement. Neither the Company nor the Warrant
Agent may, by supplemental agreement or otherwise, alter or change the rights,
privileges or immunities of the registered holders of the Warrant Certificates
without the prior written consent of the Representative.
Section 7.13 Assignment. 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.
Section 7.14 Successor to Company. The Company will not merge or
consolidate with or into any other corporation or sell or otherwise transfer its
property, assets and business substantially as an entirety to a successor
corporation, unless the corporation resulting from such
-18-
19
merger, consolidation, sale or transfer (if not the Company) shall expressly
assume, by supplemental agreement reasonably satisfactory in form and substance
to the Warrant Agent and delivered to the Warrant Agent, the due and punctual
performance and observance of each and every covenant and condition of this
Agreement to be performed and observed by the Company.
Section 7.15 Notices. Any notice or demand required by this Agreement
to be given or made to or on the Company shall be sufficiently given or made if
sent by certified mail, postage prepaid, addressed (until another address in the
United States is filed in writing by the Company with the Warrant Agent), as
follows:
Xxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxx #000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Any notice or demand required by this Agreement to be given or made to or on the
Warrant Agent shall be sufficiently given or made if sent by certified mail,
postage prepaid, addressed (until another address is filed in writing with the
Company by the Warrant Agent), to its Principal Office.
Any notice or demand required by this Agreement to be given or made to or on the
registered holder of any Warrant Certificate shall be sufficiently given or
made, whether or not such holder receives the notice, if sent by first-class
mail, postage prepaid, addressed to such registered holder at his last address
as shown on the books of the Company maintained by the Warrant Agent with a copy
to the Representative at the address set forth in the Underwriting Agreement
(until another address is filed with the Company and the Warrant Agent by the
Representative). Otherwise such notice or demand shall be deemed given when
received by the party entitled thereto.
Section 7.16 Defects in Notice. Failure to file any certificate or
notice or to mail any notice, or any defect in any certificate or notice
pursuant to this Agreement, shall not affect in any way the rights of any
registered holder of a Warrant Certificate or the legality or validity of any
adjustment made pursuant to Section 3.1 hereof, or any transaction giving rise
to any such adjustment, or the legality or validity of any action taken or to be
taken by the Company.
Section 7.17 Governing Law; Jurisdiction, etc. The internal laws of the
State of Florida shall govern this Warrant Agreement and the Warrant
Certificates. The Company irrevocably consents to the jurisdiction of the courts
of the State of Florida and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Warrant Agreement, any Warrant or Warrant Certificate, or any document or
instrument delivered pursuant to, in connection with or simultaneously with this
Warrant Agreement. In any such action or proceeding, the Company waives personal
service of any summons, complaint or other process and agrees that service
thereof may be made by registered or certified air mail to the Company at its
address as provided in Section 7.15. Within 30 days after such service, or such
other time as may be mutually agreed upon in writing by the attorneys for the
parties
-19-
20
to such action or proceeding, the Company shall appear to answer such summons,
complaint or other process.
Section 7.18 Standing. Subject to the provisions of Section 7.23,
nothing in this Agreement expressed and nothing that may be implied from any of
the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent,
the registered holders of the Warrant Certificates and the Representative's
Warrants and the Representative any right, remedy or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise or agreement
contained herein; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, and the Warrant Agent, the Representative and its
respective successors, and the registered holders of the Warrant Certificates
and the Representative's Warrants.
Section 7.19 Headings. The descriptive headings of the articles and
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 7.20 Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 7.21 Conflict of Interest. The Warrant Agent and any
shareholder, director, officer or employee of the Warrant Agent may buy, sell or
deal in any of the Warrant Certificates 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 the Warrant Agent were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company, including without limitation as trustee under
any indenture or as transfer agent for the Common Stock or any other securities
of the Company, or for any other legal entity.
Section 7.22 Availability of the Agreement. The Warrant Agent shall
keep copies of this Agreement available for inspection by holders of Warrants
during normal business hours at its Corporate Trust Department. Copies of this
Agreement may be obtained upon written request addressed to the Company at its
address as set forth in Section 7.15.
Section 7.23 Third Party Beneficiary. The parties agree that the
provisions of Sections 2.7, 6.2, 6.7, 6.8 and this Section 7.23 are expressly
made for the benefit of the Representative and the persons named in Section 6.7
as third party beneficiaries of this Agreement.
-20-
21
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
XXXXXX ENTERPRISES, INC.
By:
-----------------------------------------
Name:
Title:
FLORIDA ATLANTIC STOCK TRANSFER,
INCORPORATED
By:
-----------------------------------------
Name:
Title:
-21-
