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EXHIBIT 1.2
WARRANT AGREEMENT
By and Between
XXXXXXXXXXX.XXX INCORPORATED
and
CRUTTENDEN XXXX INCORPORATED
Dated as of January , 2000
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of January ,2000, by and between
XXXXXXXXXXX.XXX INCORPORATED, a Delaware corporation (the "Company"), and
CRUTTENDEN XXXX INCORPORATED (the "Underwriter").
The Company proposes to issue to the Underwriter warrants as
hereinafter described (the "Underwriter Warrants") to purchase up to an
aggregate of 220,000 shares, subject to adjustment as provided in Section 8
hereof (such shares, as adjusted, being hereinafter referred to as the "Shares")
of the Company's common stock, par value $.001 per share (the "Common Shares"),
each Underwriter Warrant entitling the holder thereof to purchase one Common
Share. All capitalized terms used herein and not otherwise defined herein shall
have the same meanings as in that certain underwriting agreement, of even date
herewith, by and between the Company and the Underwriter (the "Underwriting
Agreement"). In this Agreement, the singular includes the plural and the plural
includes the singular.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. Issuance of Warrants; Form of Warrant. The Company will issue, sell
and deliver the Underwriter Warrants to the Underwriter or its bona fide
officers for an aggregate price of $250.00. The form of the Underwriter Warrants
and the form of election to purchase Shares to be attached thereto shall be
substantially as set forth on Exhibit A attached hereto. The Underwriter
Warrants shall be executed on behalf of the Company by the manual or facsimile
signature of the present or any future Chief Executive Officer, President or any
Vice President of the Company, under its corporate seal, affixed or in
facsimile, and attested by the manual or facsimile signature of the present or
any future Secretary or Assistant Secretary of the Company.
2. Registration. The Underwriter Warrants shall be numbered and shall
be registered in an Underwriter Warrant register (the "Underwriter Warrant
Register"). The Company shall be entitled to treat the registered holder of any
Underwriter Warrant on the Underwriter Warrant Register (the "Holder") as the
owner in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Underwriter Warrant on the part
of any other person, and shall not be liable for any registration of transfer of
Underwriter Warrants which are registered or are to be registered in the name of
a fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration of transfer, or with such knowledge of such facts that its
participation therein amounts to bad faith. The Underwriter Warrants shall be
registered initially in the name of "Cruttenden Xxxx Incorporated" in such
denominations as the Underwriter may request in writing to the Company;
provided, however, that the Underwriter may designate in writing that all or a
portion of the Underwriter Warrants be issued in varying amounts directly to its
bona fide officers, and not to the Underwriter. Such designation will only be
made by the Underwriter if it determines that such issuances would not violate
the interpretation of the Board of Governors of the National Association of
Securities Dealers, Inc. (the "NASD") relating to the review of corporate
financing arrangements.
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3. Transfer of Warrants. The Underwriter Warrants will not be sold,
transferred, assigned, pledged or hypothecated, in part or in whole (other than
by will or pursuant to the laws of descent and distribution), except to officers
of the Underwriter and thereafter only upon delivery thereof duly endorsed by
the Holder or by his duly authorized attorney or representative, or accompanied
by proper evidence of succession, assignment or authority to transfer. In all
cases of transfer by an attorney, the original power of attorney, duly approved,
or an official copy thereof, duly certified, shall be deposited with the
Company. In case of transfer by executors, administrators, guardians or other
legal representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Underwriter Warrant or Underwriter Warrants to the persons entitled thereto. The
Underwriter Warrants may be exchanged at the option of the Holder thereof for
another Underwriter Warrant, or other Underwriter Warrants, of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Common Shares upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Underwriter Warrants to be transferred on its books to any
person if such transfer would violate the Securities Act of 1933, as amended
(the "Act").
4. Term of Warrants, Exercise of Warrants. Each Underwriter Warrant
entitles the registered owner thereof to purchase one Share at a purchase price
of $6.60 per Share (the "Exercise Price") at any time from the first anniversary
of the effective date of the Registration Statement until 5:00 p.m., New York
City time, on _____________, 2005) (the "Warrant Expiration Date").
Notwithstanding the foregoing, if at 5:00 p.m. New York time on the Warrant
Expiration Date, any Holder or Holders of the Underwriter Warrants have not
exercised their Underwriter Warrants and the "current market price" (as such
term is defined in Section 8(d) below) for the Common Shares on the Warrant
Expiration Date is greater than the Exercise Price, then each such unexercised
Underwriter Warrant shall automatically be converted into a number of Common
Shares equal to: the number of Common Shares then issuable upon exercise of an
Underwriter Warrant, multiplied by a fraction, the numerator of which is the
difference between (A) the "current market price" for Common Shares on the
Warrant Expiration Date and (B) the Exercise Price, and the denominator of which
is the "current market price" on the Warrant Expiration Date. Prior to the
Warrant Expiration Date, the Company will not take any action which would
terminate the Underwriter Warrants. The Exercise Price and the Shares issuable
upon exercise of the Underwriter Warrants are subject to adjustment upon the
occurrence of certain events pursuant to the provisions of Section 8 of this
Agreement. Subject to the provisions of this Agreement, each Holder shall have
the right, which may be exercised as set forth in such Underwriter Warrants, to
purchase from the Company (and the Company shall issue and sell to such Holder)
the number of fully paid and nonassessable Common Shares specified in such
Underwriter Warrants, upon surrender to the Company, or its duly authorized
agent, of such Underwriter Warrants with the form of election to purchase
attached thereto duly completed and signed, with signatures guaranteed by a
participant in the Medallion Signature Guarantee Program and upon payment to the
Company of the Exercise Price, as adjusted in accordance with the provisions of
Section 8 of this Agreement, for the number of Shares in respect of which such
Underwriter Warrants are then exercised.
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Payment of such Exercise Price may be made at the Holder's election (i)
by certified or official bank check, (ii) in the event that the Holder holds
Common Shares of the Company and such Common Shares are listed on a domestic
stock exchange or quoted in the domestic over-the-counter market, by
transferring to the Company an amount of such Common Shares which, when
multiplied by, the current market price of the Common Shares at the time of
exercise of such Underwriter Warrant, equals the aggregate amount of the
consideration payable upon such exercise, (iii) by surrendering to the Company
the right to receive a portion of the number of Shares with respect to which
such Underwriter Warrant is then being exercised equal to the product obtained
by multiplying such number of Shares by a fraction, the numerator of which is
the Exercise Price in effect on the date of such exercise and the denominator of
which is the current market price of the Common Shares in effect on such date,
or (iv) by a combination of the foregoing methods of payment selected by the
Holder. For purposes of this paragraph, the current market price of the Common
Shares shall be calculated either (a) on the date which the form of election to
purchase attached hereto is deemed to have been sent to the Company pursuant to
Section 12 hereof ("Notice Date") or (b) as the average of the last reported
sale price for each of the five trading days preceding the Notice Date,
whichever of (a) or (b) is greater. In any case where the consideration payable
upon such exercise is being paid in whole or in part pursuant to the provisions
of clause (ii) or clause (iii) of the preceding sentence, such exercise shall be
accompanied by written notice from the Holder specifying the manner of payment
thereof, and in the case of clause (ii), stating the amount of Common Shares of
the Company to be applied to such payment, and in the case of clause (iii),
containing a calculation showing the number of Shares with respect to which
rights are being surrendered thereunder and the net number of Shares to be
issued after giving effect to such surrender. No adjustment shall be made for
any dividends on any Shares issuable upon exercise of an Underwriter Warrant.
Upon each surrender of Underwriter Warrants and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder of such Underwriter Warrants
and in such name or names as such Holder may designate, a certificate or
certificates for the number of full Shares so purchased upon the exercise of
such Underwriter Warrants, together with cash, as provided in Section 9 of this
Agreement, in respect of any fractional Shares otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Shares as of the date of the surrender of Underwriter
Warrants and payment of the Exercise Price as aforesaid; provided, however, that
if, at the date of surrender of such Underwriter Warrants and payment of such
Exercise Price, the transfer books for the Common Shares or other class of
securities issuable upon the exercise of such Underwriter Warrants shall be
closed, the certificates for the Shares shall be issuable as of the date on
which such books shall next be opened (whether before, on or after the Warrant
Expiration Date) and until such date the Company shall be under no duty to
deliver any certificate for such Shares; provided, further, however, that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than twenty (20) days. The rights of
purchase represented by the Underwriter Warrants shall be exercisable, at the
election of the Holders thereof, either in full or from time to time in part
and, in the event that any Underwriter Warrant is exercised in respect of less
than all of the Shares issuable upon such exercise at any time prior to the
Warrant Expiration Date, a new Underwriter
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Warrant or Underwriter Warrants will be issued for the remaining number of
Shares specified in the Underwriter Warrant so surrendered.
5. Payment of Taxes. The Company will pay all documentary stamp taxes,
if any, attributable to the issuance of Shares upon the exercise of Underwriter
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a name other than that of
the Holder of Underwriter Warrants in respect of which such Shares are issued.
6. Mutilated or Missing Warrants. In case any of the Underwriter
Warrants shall be mutilated, lost, stolen or destroyed, the Company may, in its
discretion, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Underwriter Warrant, or in lieu of and
substitution for the Underwriter Warrant lost, stolen or destroyed, a new
Underwriter Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence reasonably satisfactory to the
Company of such mutilation, loss, theft or destruction of such Underwriter
Warrant and indemnity, unless mutilated, also reasonably satisfactory to the
Company. An applicant for such substitute Underwriter Warrants shall also comply
with such other reasonable regulations and pay such other reasonable charges as
the Company may prescribe.
7. Reservation of Shares, etc. There have been reserved and the Company
shall at all times keep reserved, out of the authorized and unissued Common
Shares, a number of Common Shares sufficient to provide for the exercise of the
rights of purchase represented by the outstanding Underwriter Warrants. American
Securities Transfer & Trust Incorporated, transfer agent for the Common Shares
(the "Transfer Agent"), and every subsequent transfer agent, if any, for the
Company's securities issuable upon the exercise of the Underwriter Warrants will
be irrevocably authorized and directed at all times until the Warrant Expiration
Date to reserve such number of authorized and unissued Common Shares as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with the Transfer Agent and with every subsequent transfer agent of the
Company's securities issuable upon the exercise of the Underwriter Warrants. The
Company will supply the Transfer Agent or any subsequent transfer agent with
duly executed certificates for such purpose and will itself provide or otherwise
make available any cash which may be distributable as provided in Section 9 of
this Agreement. All Underwriter Warrants surrendered in the exercise of the
rights thereby evidenced shall be canceled, and such canceled Underwriter
Warrants shall constitute sufficient evidence of the number of Shares that have
been issued upon the exercise of such Underwriter Warrants. No Common Shares
shall be subject to reservation in respect of unexercised Underwriter Warrants
subsequent to the Warrant Expiration Date.
8. Adjustments of Exercise Price and Number of Shares. The Exercise
Price and the number and kind of securities issuable upon exercise of each
Underwriter Warrant shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) In case the Company shall (i) declare a dividend on its
Common Shares in Common Shares or make a distribution of Common Shares,
(ii) subdivide its outstanding Common Shares, (iii) combine its
outstanding Common Shares into a smaller number of
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Common Shares or (iv) issue by reclassification of the Common Shares
other securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation), the number of Shares purchasable upon exercise
of each Underwriter Warrant immediately prior thereto shall be adjusted
so that the Holder of each Underwriter Warrant shall be entitled to
receive the kind and number of Shares or other securities of the
Company which he would have owned or have been entitled to receive
after the happening of any of the events described above, had such
Underwriter Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. An adjustment
made pursuant to this paragraph (a) shall become effective immediately
after the effective date of such event retroactive to immediately after
the record date, if any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its Common Shares, entitling them to
subscribe for or to purchase Common Shares at a price per share that is
lower at the record date mentioned below than the then current market
price per Common Share (as defined in paragraph (d) below), the number
of Shares thereafter purchasable upon exercise of each Underwriter
Warrant shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of each Underwriter Warrant by a
fraction, of which the numerator shall be the number of Common Shares
outstanding on such record date plus the number of additional Common
Shares offered for subscription or purchase, and of which the
denominator shall be the number of Common Shares outstanding on such
record date plus the number of shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at
the then current market price per Common Share. Such adjustment shall
be made whenever such rights, options or warrants are issued, and shall
become effective retroactively to immediately after the record date for
the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In case the Company shall distribute to all holders of its
Common Shares stock other than Common Shares or evidences of its
indebtedness or assets (excluding cash dividends payable out of
consolidated earnings or retained earnings and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase Common Shares (excluding those referred to
in paragraph (b) above), then in each case the number of Shares
thereafter issuable upon the exercise of each Underwriter Warrant shall
be determined by multiplying the number of Shares theretofore issuable
upon the exercise of each Underwriter Warrant, by a fraction, of which
the numerator shall be the current market price per Common Share (as
defined in paragraph (d) below) on the record date mentioned below in
this paragraph (c), and of which the denominator shall be the current
market price per Common Share on such record date, less the then fair
value of the portion of the shares of capital stock other than Common
Shares or assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one Common Share. Such adjustment
shall be made whenever any such distribution is made, and shall become
effective on the date of distribution retroactive to immediately after
the record date for the determination of shareholders entitled to
receive such distribution.
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(d) For the purpose of any computation under paragraphs (b)
and (c) of this Section 8, the current market price per Common Share at
any date shall be the greater of (i) the average of the daily closing
prices for five (5) consecutive trading days commencing ten (10)
trading days before the date of such computation and (ii) the last sale
price on the date before the date of such computation. The closing
price for each day shall be the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average
of the closing bid and asked prices regular way for such day, in either
case on the principal national securities exchange on which the shares
are listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, but are traded
in the over-the-counter market, the closing sale price of the Common
Shares or, in case no sale is publicly reported, the average of the
representative closing bid and asked quotations for the Common Shares
on the Nasdaq SmallCap Market or any comparable system, or if the
Common Shares are not listed on the Nasdaq SmallCap Market or a
comparable system, the closing sale price of the Common Shares or, in
case no sale is publicly reported, the average of the closing bid and
asked prices as furnished by two members of the NASD selected from time
to time by the Company for that purpose.
(e) No adjustment in the number of Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of
Shares purchasable upon the exercise of each Underwriter Warrant;
provided, however, that any adjustments which by reason of this
paragraph (e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment, but not later than
three years after the happening of the specified event or events. All
calculations shall be made to the nearest one thousandth of a share.
Anything in this Section 8 to the contrary notwithstanding, the Company
shall be entitled, but shall not be required, to make such changes in
the number of Shares purchasable upon the exercise of each Underwriter
Warrant, in addition to those required by this Section 8, as it in its
discretion shall determine to be advisable in order that any dividend
or distribution in shares of Common Shares, subdivision,
reclassification or combination of Common Shares, issuance of rights,
warrants or options to purchase Common Shares, or distribution of
shares of capital stock other than Common Shares, evidences of
indebtedness or assets (other than distributions of cash out of
consolidated earnings or retained earnings) or convertible or
exchangeable securities hereafter made by the Company to the holders of
its Common Shares, shall not result in any tax to the holders of its
Common Shares or securities convertible into Common Shares.
(f) Whenever the number of Shares purchasable upon the
exercise of each Underwriter Warrant is adjusted, as herein provided,
the Exercise Price shall be adjusted by multiplying the Exercise Price
in effect immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Shares purchasable upon the
exercise of each Underwriter Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(g) For the purpose of this Section 8, the term "Common
Shares" shall mean (i) the class of stock designated as the Common
Shares of the Company at the date of this
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Agreement or (ii) any other class of stock resulting from successive
changes or reclassifications of such shares consisting solely of
changes in par value, or from no par value to par value, or from par
value to no par value. In the event that at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Holders shall
become entitled to purchase any shares of capital stock of the Company
other than Common Shares, thereafter the number of such other shares so
purchasable upon exercise of each Underwriter Warrant and the Exercise
Price of such shares shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Shares contained in paragraphs (a)
through (f), inclusive, and paragraphs (h) through (m), inclusive, of
this Section 8, and the provisions of Sections 4, 5, 7 and 10, with
respect to the Shares, shall apply on like terms to any such other
shares.
(h) Upon the expiration of any rights, options, warrants or
conversion rights or exchange privileges, if any thereof shall not have
been exercised, the Exercise Price and the number of Common Shares
purchasable upon the exercise of each Underwriter Warrant shall, upon
such expiration, be readjusted and shall thereafter be such as it would
have been had it originally been adjusted (or had the original
adjustment not been required, as the case may be) as if (i) the only
Common Shares so issued were the Common Shares, if any, actually issued
or sold upon the exercise of such rights, options, warrants or
conversion rights or exchange privileges and (ii) such Common Shares,
if any, were issued or sold for the consideration actually received by
the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant
of all of such rights, options, warrants or conversion rights or
exchange privileges whether or not exercised; provided, however, that
no such readjustment shall have the effect of increasing the Exercise
Price by an amount in excess of the amount of the adjustment initially
made in respect to the issuance, sale or grant of such rights, options,
warrants or conversion rights or exchange privileges.
(i) The Company may, at its option, at any time during the
term of the Underwriter Warrants, reduce the then current Exercise
Price to any amount deemed appropriate by the Board of Directors of the
Company.
(j) Whenever the number of Shares issuable upon the exercise
of each Underwriter Warrant or the Exercise Price of such Shares is
adjusted, as herein provided, the Company shall promptly mail by first
class mail postage prepaid to each Holder notice of such adjustment or
adjustments. The Company shall retain a firm of independent public
accountants (who may be the regular accountants employed by the
Company) to make any computation required by this Section 8 and shall
cause such accountants to prepare a certificate setting forth the
number of Shares issuable upon the exercise of each Underwriter Warrant
and the Exercise Price of such Shares after such adjustment, setting
forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made. Such
certificate shall be conclusive on the correctness of such adjustment
and each Holder shall have the right to inspect such certificate during
reasonable business hours.
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(k) Except as provided in this Section 8, no adjustment in
respect of any dividends shall be made during the term of the
Underwriter Warrants or upon the exercise of the Underwriter Warrants.
(l) In case of any consolidation of the Company with or merger
of, the Company with or into another corporation or in case of any sale
or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, the Company or such
successor or purchasing corporation (or an affiliate of such successor
or purchasing corporation), as the case may be, agrees that each Holder
shall have the right thereafter upon payment of the Exercise Price in
effect immediately prior to such action to purchase upon exercise of
each Underwriter Warrant the kind and amount of shares and other
securities and property (including cash) which he would have owned or
have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Underwriter Warrant
been exercised immediately prior to such action. The provisions of this
paragraph (1) shall similarly apply to successive consolidations,
mergers, sales or conveyances.
(m) Notwithstanding any adjustment in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the
Underwriter Warrants pursuant to this Agreement, certificates for
Underwriter Warrants issued prior or subsequent to such adjustment may
continue to express the same price and number and kind of Shares as are
initially issuable pursuant to this Agreement.
9. Fractional Interests. The Company shall not be required to issue
fractions of Shares on the exercise of Underwriter Warrants. If more than one
Underwriter Warrant shall be presented for exercise in full at the same time by
the same Holder, the number of Shares which shall be issuable upon the exercise
thereof shall be computed on the basis of the number of Shares issuable on
exercise of the Underwriter Warrants so presented. If any fraction of a Share
would, except for the provisions of this Section 9, be issuable on the exercise
of any Underwriter Warrant (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
current market price per Common Share (determined as provided in the second
sentence of Section 8(d) of this Agreement) on the date of exercise.
10. Registration Rights.
(a) Demand Registration Rights. The Company covenants and
agrees with the Underwriter and any other or subsequent Holders of the
Registrable Securities (as defined in paragraph (e) of this Section 10) that,
upon written request of the then Holder(s) of at least a majority of the
aggregate of the Registrable Securities which were originally issued on the date
hereof to the Underwriter or its designees, made at any time within the period
commencing one year and ending five years after the Effective Date, the Company
will file as promptly as practicable and, in any event, within 45 days after
receipt of such written request, at its sole expense, no more than once, a
post-effective amendment (the "Amendment") to the Registration Statement, or a
new Registration Statement or a Regulation A Offering Statement (an "Offering
Statement") under the Act, registering or qualifying the Registrable Securities
for sale. Within fifteen (15) days after receiving any such notice, the Company
shall give notice to the other
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Holders of the Registrable Securities advising that the Company is proceeding
with such Amendment, Registration Statement or Offering Statement and offering
to include therein the Registrable Securities of such Holders. The Company shall
not be obligated to any such other Holder unless such other Holder shall accept
such offer by notice in writing to the Company within ten (10) days thereafter.
No other securities of the Company shall be entitled to be included in such
Amendment, Registration Statement or Offering Statement. The Company will use
its best efforts, through its officers, directors, auditors and counsel in all
matters necessary or advisable, to file and cause to become effective such
Amendment, Registration Statement or Offering Statement as promptly as
practicable and for a period of two years thereafter to reflect in the
Amendment, Registration Statement or Offering Statement financial statements
which are prepared in accordance with Section 10(a)(3) of the Act and any facts
or events arising that, individually, or in the aggregate, represent a
fundamental and/or material change in the Amendment, Registration Statement or
Offering Statement to enable information set forth in Amendment, Registration
Statement or Offering Statement to enable any Holders of the Underwriter
Warrants to either sell such Underwriter Warrants or to exercise such
Underwriter Warrants and sell Shares, or to enable any holders of Shares to sell
such Shares, during said two-year period. The Holders may sell the Registrable
Securities pursuant to the Amendment, Registration Statement or the Offering
Statement without exercising the Underwriter Warrants. If any registration
pursuant to this paragraph (a) is an underwritten offering, the Holders of a
majority of the Registrable Securities to be included in such registration shall
be entitled to select the underwriter or managing underwriter (in the case of a
syndicated offering) of such offering.
(b) Piggyback Registration Rights. The Company covenants and
agrees with the Underwriter and any other Holders or subsequent Holders of the
Registrable Securities that if, at any time within the period commencing one
year and ending five years after the Effective Date, it proposes to file a
Registration Statement or Offering Statement with respect to any class of
security (other than in connection with an offering to the Company's employees)
under the Act in a primary registration on behalf of the Company and/or in a
secondary registration on behalf of holders of such securities and the
registration form or Offering Statement to be used may be used for registration
of the Registrable Securities, the Company will give prompt written notice
(which. in the case of a Registration Statement or notification pursuant to the
exercise of demand registration rights other than those provided in Section
10(a) of this Agreement, shall be within ten (10) business days after the
Company's receipt of notice of such exercise, in any event, shall be at least 45
days prior to such filing) to, the Holders of Registrable Securities (regardless
of whether some of the Holders shall have theretofore availed themselves of the
right provided in Section 10(a) of this Agreement) at the addresses appearing on
the records of the Company of its intention to file a Registration Statement or
Offering Statement and will offer to include in such registration statement or
Offering Statement to the maximum extent possible, and limited, in the case of a
Regulation A offering, to the amount of the available exemption, subject to
sub-paragraphs (i) and (ii) of this paragraph (b), such number of Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten (10) days after the giving of notice by the
Company. All registrations requested pursuant to this Section 10(b) are referred
to herein as "Piggyback Registrations," All Piggyback Registrations pursuant to
this Section 10(b) will be made solely at the Company's expense. This paragraph
is not applicable to
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a Registration Statement filed by the Company with the Commission on Forms S-4
or S-8 or any successor forms.
(i) Priority on Primary Registrations. If a Piggyback
Registration includes an underwritten primary registration on behalf of
the Company and the underwriter(s) for the offering being registered by
the Company shall determine in good faith and advise the Company in
writing that in its/their opinion the number of Registrable Securities
requested to be included in such registration exceeds the number that
can be sold in such offering without materially adversely affecting the
distribution of such securities by the Company, the Company will
include in such registration (A) first, the securities that the Company
proposes to sell and (B) second, the Registrable Securities requested
to be included in such registration, apportioned pro rata among the
Holders of Registrable Securities and (C) third, securities of the
holders of other securities requesting registration.
(ii) Priority on Secondary Registrations. If a Piggyback
Registration consists only of an underwritten secondary registration on
behalf of holders of securities of the Company (other than pursuant to
Section 10(a)), and the underwriter(s) for the offering being
registered by the Company advise the Company in writing that in
its/their opinion the number of Registrable Securities requested to be
included in such registration exceeds the number which can be sold in
such offering without materially adversely affecting the distribution
of such securities by the Company, the Company will include in such
registration (A) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable
Securities requested to be included in such registration above, pro
rata, among all such holders on the basis of the number of shares
requested to be included by each such holder and (B) second, other
securities requested to be included in such registration.
Notwithstanding the foregoing if any such underwriter shall determine
in good faith and advise the Company in writing that the distribution of the of
the Registrable Securities requested to be included in the registration
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the Company,
then the Holders of such Registrable Securities shall delay their offering for
such period ending on the earliest of (1) 90 days following the effective date
of the Company's registration statement, (2) the day upon which the underwriting
syndicate, if any, for such offering shall have been disbanded or, (3) such date
as the Company, managing underwriter and Holders of Registrable Securities shall
otherwise agree. In the event of such delay, the Company shall file such
supplements, post-effective amendments and take any such other steps as may be
necessary to permit such Holders to make their proposed offering and sale for a
period of 120 days immediately following the end of such period of delay. If any
party disapproves of the terms of any, such underwriting, it may elect to
withdraw therefrom by written notice to the Company, the underwriter, and
Underwriter. Notwithstanding the foregoing, the Company shall not be required to
file a registration statement to include Shares pursuant to this Section 10(b)
if an opinion of independent counsel, reasonably satisfactory to counsel for the
Company and counsel for Underwriter, that the Shares proposed to be disposed of
may be transferred pursuant to the provisions of Rule 144 under the Act, shall
have been delivered to counsel for the Company.
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(c) Other Registration Rights. In addition to the rights above
provided, the Company will cooperate with the then Holders of the
Registrable Securities in preparing and signing any Registration
Statement or Offering Statement, in addition to the Registration
Statements and Offering Statements discussed above, required in order
to sell or transfer the Registrable Securities and will supply all
information required therefor, but such additional Registration
Statement or Offering Statement shall be at the then Holders' cost, and
expense; provided, however, that if the Company elects to register or
qualify additional Common Shares, the cost and expense of such
Registration Statement or Offering Statement will be pro rated between
the Company and the Holders of the Registrable Securities according to
the aggregate sales price of the securities being issued,
Notwithstanding the foregoing, the Company will not be required to file
a Registration Statement or Offering, Statement at a time when the
audited financial statements required to be included therein are not
available, which time shall be limited to the period commencing 45 days
after the end of a fiscal year and ending 90 days after the end of such
fiscal year.
(d) Action to be Taken by the Company. In connection with the
registration of Registrable Securities in accordance with paragraphs
(a), (b), (c) or (g) of this Section 10, the Company agrees to:
(i) Bear the expenses of any registration or
qualification under paragraphs (a), (b) or (g) of this Section
10, including, but not limited to, legal accounting, and
printing fees; provided, however, that in no event shall the
Company be obligated to pay (A) any fees and disbursements of
special counsel for Holders of Registrable Securities, or (B)
any underwriters' discount or commission in respect of such
Registrable Securities, or (C) upon the exercise of any demand
registration right provided for in paragraph (a) of this
Section 10, the cost of any liability or similar insurance
required by an underwriter, to the extent that such costs are
attributable solely to the offering of such Registrable
Securities, payment of which shall, in each case, be the sole
responsibility of the Holders of the Registrable Securities;
(ii) Use its best efforts to register or qualify the
Registrable Securities for offer or sale under state
securities or Blue Sky laws of such jurisdictions as
Underwriter shall reasonably request and to do any and all
other acts and things which may be necessary or advisable to
enable the holders to consummate the proposed sale, transfer
or other disposition of such securities in any jurisdiction;
and
(iii) Enter into a cross-indemnity agreement, in
customary form, with each underwriter, if any, and each holder
of securities included in such Amendment, Registration
Statement or Offering Statement,
(e) For purposes of this Section 10, (i) the term "Holder"
shall include holders of Shares, and (ii) the term "Registrable Securities"
shall mean the Underwriter Warrants and the Shares issued or issuable upon
exercise of the Underwriter Warrants.
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(f) Alternative to Registration. The Company shall have no
obligation to include the Underwriter's or any other Holder's Registrable
Securities in a Registration Statement at any time that, in a written opinion of
the Company's counsel addressed to such Holder, all of the Registrable
Securities then held by such Holder may be sold in a public transaction
immediately without registration, including shares of Common Stock which may be
sold within a period of 90 days under Rule 144.
(g) Form S-3. At any time that the Registrable Securities may
be sold or distributed by, and are included in, a Registration Statement on Form
S-3 which is effective under the Securities Act, the Company shall not be
obligated to file an additional Registration Statement pursuant to Section 10(a)
hereof, nor to include such Registrable Securities in any other Registration
Statement it proposes to file pursuant to Section 10(b) hereof.
11. Notices to Holders.
(a) Nothing contained in this Agreement or in any of the
Underwriter Warrants shall be construed as conferring upon the Holders thereof
the right to vote or to receive dividends or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company; provided, however, that in the event that a meeting
of shareholders shall be called to consider and take action on a proposal for
the voluntary dissolution of the Company, other than in connection with a
consolidation, merger or sale of all, or substantially all, or its property,
assets, business and good will as an entirety. then and in that event the
Company shall cause a notice thereof to be sent by first-class mail, postage
prepaid, at least twenty (20) days prior to the date filed as a record date or
the date of closing of the transfer books in relation to such meeting, to each
registered Holder of Underwriter Warrants at such Holder's address appearing in
the Underwriter Warrant Register; but failure to mail or to receive such notice
or any defect therein or in the mailing thereof shall not affect the validity of
any action taken in connection with such voluntary dissolution. If such notice
shall have been so given and if such a voluntary dissolution shall be authorized
at such meeting or any adjournment thereof, then from and after the date on
which such voluntary dissolution shall have been duly authorized by the
shareholders, the purchase rights represented by the Underwriter Warrants and
all other rights with respect thereto shall cease and terminate.
(b) In the event the Company intends to make any distribution
on its Common Shares (or other securities which may be issuable in lieu thereof
upon the exercise of Underwriter Warrants), including, without limitation, any
such distribution to be made in connection with a consolidation or merger in
which the Company is the continuing corporation, or to issue subscription rights
or warrants to holders of its Common Shares, the Company shall cause a notice of
its intention to make such distribution to be sent by first-class mail, postage
prepaid, at least twenty (20) days prior to the date fixed as a record date or
the date of closing the transfer books in relation to such distribution, to each
registered Holder of Underwriter Warrants at such Holder's address appearing, on
the Underwriter Warrant Register, but failure to mail or to receive such notice
or any defect therein or in the mailing thereof shall not affect the validity of
any action taken in correction with such distribution.
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12. Notices. Any notice pursuant to this Agreement to be given or made
by the Holder of any Underwriter Warrant and/or the holder of any Share to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed as follows or to such other address as the Company
may designate by notice given in accordance with this Section 12, to the Holders
of Underwriter Warrants and/or the holders of Shares:
XxxxxxxXxxx.xxx Incorporated
00 Xxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Chairman
with a copy to: Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Notices or demands authorized by this Agreement to be given or made by
the Company to or on the Holder of any Underwriter Warrant and/or the holder of
any Share shall be sufficiently given or made (except as otherwise provided in
this Agreement) if sent by first-class mail, postage prepaid, addressed to such
Holder or such holder of Shares at the address of such Holder or such holder of
Shares as shown on the Underwriter Warrant Register or the books of the Company,
as the case may be.
13. Governing Law. THIS AGREEMENT AND EACH UNDERWRITER WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF
LAWS. The Company hereby agrees to accept service of process by notice given to
it pursuant to the provisions of Section 12.
14. 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 together shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
(Corporate Seal)
Attest: XXXXXXXXXXX.XXX INCORPORATED
_______________________________ By: _____________________________
Xxxxxxx X. Xxxxxx
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Secretary Chairman
Attest: CRUTTENDEN XXXX INCORPORATED
________________________________ By: _____________________________
Name:
Title:
16
EXHIBIT A
No.___________ 220,000 Warrants
VOID AFTER 5:00 P.M. NEW YORK CITY TIME
ON _____________, 2005
XXXXXXXXXXX.XXX INCORPORATED
Warrant Certificate
THIS CERTIFIES THAT for value received Cruttenden Xxxx Incorporated or
registered assigns, is the owner of the number of warrants set forth above, each
of which entities the owner thereof to purchase at any time from _____________,
2000, until 5:00 p.m., New York City time on ______________, 2005 (the "Warrant
Expiration Date"), one fully paid and nonassessable Common Share, $.001 par
value per share (the "Common Shares"), of XxxxxxxXxxx.xxx Incorporated, a
Delaware corporation (the "Company"), at the purchase price of $6.60 per share
(the "Exercise Price") upon presentation and surrender of this Warrant
Certificate with the Form of Election to Purchase duly executed. The number of
Warrants evidenced by this Warrant Certificate (and the number of shares which
may be purchased upon exercise thereto set forth above) and the Exercise Price
per share set forth above, are the number and Exercise Price as of the date of
original issuance of the Warrants, based on the Common Shares of the Company as
constituted at such date. As provided in the Warrant Agreement referred to
below, the Exercise Price and the number or kind of shares which may be
purchased upon the exercise of the Warrants evidenced by this Warrant
Certificate are, upon the happening of certain events, subject to modification
and adjustment.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement, dated as of
January , 2000 (the "Warrant Agreement"), between the Company and Cruttenden
Xxxx Incorporated, which Warrant Agreement is hereby incorporated herein by
reference and made a part hereof and to which Warrant Agreement reference is
hereby made for a full description of the rights, limitations of rights, duties
and immunities hereunder of the Company and the holders of the Warrant
Certificates. Copies of the Warrant Agreement are on file at the principal
office of the Company.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number of
Common Shares as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered entitled such holder to purchase. If this Warrant
Certificate shall be exercised in part, the holder hereof shall be entitled to
receive upon surrender hereof another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
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No fractional Common Shares will be issued upon the exercise of any
Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed the holder of Common Shares, any other securities
of the Company which may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained in the Warrant Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issue of stock, reclassification of stock, change of par value or change of
stock to no par value, consolidation, merger, conveyance, or otherwise) or,
except as provided in the Warrant Agreement, to receive notice of meetings, or
to receive dividends or subscription rights or otherwise, until the Warrant or
Warrants evidenced by this Warrant Certificate shall have been exercised and the
shares shall have become deliverable as provided in the Warrant Agreement.
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for the Company's Common Shares or other class
of stock purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates for
shares purchasable upon such exercise until the date of the reopening of said
transfer books.
IN WITNESS WHEREOF, XxxxxxxXxxx.xxx Incorporated, inc. has caused the
signature (or facsimile signature) of its Chairman and its Secretary to be
printed hereon and its corporate seal (or facsimile) to be printed hereon.
Dated: January , 2000
XXXXXXXXXXX.XXX INCORPORATED
By: ______________________________
Xxxxxxx X. Xxxxxx
Chairman
(Corporate Seal)
Attest:
_______________________________
Secretary
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate.)
TO: __________________________________
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase the Common Shares issuable
upon the exercise of such Warrants and requests that certificates for such
shares be issued in the name of: (Please insert social security or other
identifying number)
____________________________________
____________________________________
____________________________________
(Please print name and address)
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of such
Warrants shall be registered in the name of and delivered to:
Please insert social security number or other identifying number
____________________________________
____________________________________
____________________________________
(Please print name and address)
Dated: _____________________________
_____________________________
Signature
(signature must conform in all
respects to name of holder as
specified on the face of
this Warrant Certificate)
Signature Guaranteed:
_________________________________
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FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificates.)
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and
transfers unto ______________________________________ this Warrant Certificate,
together with all right, title and interest herein, and does hereby irrevocably
constitute and appoint ________________, to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: __________________________
Signature: ___________________________
Signature Guaranteed:
_________________________________
NOTICE
The signature of the foregoing Assignment must correspond to the name
as written upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever.
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