1
EXHIBIT 4.17
WARRANT AGREEMENT
Agreement made as of June __, 1999, between Objective Communications,
Inc., a Delaware corporation with offices at 00 Xxxxxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 ("Company"), and Continental Stock Transfer &
Trust Company, a New York corporation with offices at 0 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (herein called "Warrant Agent").
WHEREAS, the Company is engaged in a public offering of Units ("Public
Offering") and in connection therewith, has determined to issue and deliver up
to (i) 4,600,000 (including up to 600,000 that may be issued pursuant to the
Underwriters' over-allotment option) Redeemable Common Stock Purchase Warrants
("Public Warrants") to investors in the public offering, and (ii) an aggregate
of 400,000 Redeemable Common Stock Purchase Warrants to Southeast Research
Partners, Inc. ("SERP" or the "Representative") or its designees upon exercise
of the Unit Purchase Options to be issued to them ("Representative's Warrants"
and, together with the Public Warrants, the "Warrant(s)"), each of such
Warrants evidencing the right of the holder thereof to purchase one share of
the Company's common stock, $.01 par value per share ("Common Stock"), for an
initial exercise price of $4.00; and
WHEREAS, each Unit consists of three shares of Common Stock and two
Warrants; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission ("Commission") a Registration Statement, No. 333-72429 on Form SB-2
("Registration Statement") for the registration, under the Securities Act of
1933, as amended ("Securities Act"), of, among other things, the sale of the
Warrants and the Common Stock issuable upon exercise of the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of
the Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed that are
necessary to make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided herein, the
valid, binding and legal obligations of the Company, and to authorize the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant
Agent to act as agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such appointment and agrees to perform the same in accordance
with the terms and conditions set forth in this Agreement.
2
2. Warrants.
2.1. Form of Warrant. Each Warrant certificate shall be issued in
registered form only, shall be in substantially the form of Exhibit A hereto,
the provisions of which are incorporated herein and shall be signed by, or bear
the facsimile signature of, the Chairman of the Board or President and
Secretary or Assistant Secretary of the Company and shall bear a facsimile of
the Company's seal. In the event the person whose facsimile signature has been
placed upon any Warrant certificate shall have ceased to be Chairman of the
Board or President and Secretary or Assistant Secretary of the Company before
such Warrant certificate is issued, it may be issued with the same effect as if
he had not ceased to be such at the date of issuance. The Warrants represented
by a Warrant certificate may not be exercised until such certificate has been
countersigned by the Warrant Agent as provided in Section 2.3 hereof.
2.2. Effect of Countersignature. Unless and until countersigned by
the Warrant Agent pursuant to this Agreement, a Warrant certificate shall be
invalid and of no effect.
2.3. Events for Countersignature. The Warrant Agent shall
countersign a Warrant certificate only upon the occurrence of either of the
following events:
(i) if the Warrant certificate is to be issued in
exchange or substitution for one or more previously countersigned Warrant
certificates, as hereinafter provided, or
(ii) if the Company instructs the Warrant Agent to do so.
2.4. Registration.
2.4.1. Warrant Register. The Warrant Agent shall maintain
books ("Warrant Register") for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Registered Holder. Prior to due presentment for
registration of transfer of any Warrant certificate, the Company and the
Warrant Agent may deem and treat the person in whose name such Warrant
certificate shall be registered upon the Warrant Register ("registered holder")
as the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
certificate made by anyone other than the Company or the Warrant Agent), for
the purpose of any exercise thereof, and for all other purposes, and neither
the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.5. Detachability of Warrants. The Warrant Agent understands that
the Warrants are being issued as part of Units, together with shares of the
Company's Common Stock, and that the Warrants are neither detachable nor
separately tradable from the Common Stock with which they are issued for a
period of 90 days from the date hereof (unless earlier consented to by the
Representative).
2
3
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each Warrant certificate shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Warrant certificate and of this Agreement, to
purchase from the Company the number of shares of Common Stock stated therein,
at the initial exercise price of $4.00 per whole share, subject to the
adjustments provided in Section 4 hereof. The term "Warrant Price" as used in
this Agreement refers to the price per share at which Common Stock may be
purchased at the time a Warrant is exercised.
3.2. Duration of Warrants. A Warrant may be exercised only during
the period ("Exercise Period") commencing on June __, 2000, and terminating on
the earlier of June __, 2004, or the date fixed for redemption of the Warrant
as provided in Section 6 of this Agreement ("Expiration Date"). Each Warrant
not exercised on or before its Expiration Date shall become void, and all
rights thereunder and all rights in respect thereof under this Agreement shall
cease at the close of business on its Expiration Date. The Company in its sole
discretion may extend the duration of the Warrants by delaying the Expiration
Date.
3.3. Exercise of Warrants.
3.3.1. Payment. A Warrant, when countersigned by the
Warrant Agent, may be exercised by the registered holder thereof by
surrendering the certificate representing such Warrant, at the office of the
Warrant Agent, or at the office of its successor as Warrant Agent, in the
Borough of Manhattan, City and State of New York, with the subscription form,
as set forth on the Warrant certificate and in substantially the form of
Exhibit A hereto, duly executed, and by paying in full, in lawful money of the
United States, in cash, good certified check or bank draft payable to the order
of the Company, the Warrant Price for each full share of Common Stock as to
which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for
the Common Stock, and the issuance of the Common Stock.
3.3.2. Issuance of Certificates. As soon as practicable
after the exercise of any Warrant and the clearance of the funds in payment of
the Warrant Price, the Company shall issue to the registered holder of such
Warrant a certificate or certificates for the number of full shares of Common
Stock to which he is entitled, registered in such name or names as may be
directed by him, and if such Warrant shall not have been exercised in full, a
new countersigned Warrant certificate for the number of shares as to which such
Warrant shall not have been exercised. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant unless a registration statement under the Securities Act
with respect to the securities is effective. Warrants may not be exercised by,
or securities issued to, any registered holder in any state in which such
exercise would be unlawful.
3.3.3. Valid Issuance. All shares of Common Stock issued
upon the proper exercise of a Warrant in conformity with this Agreement shall
be validly issued.
3.3.4. Date of Issuance. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant certificate was surrendered and payment of the Warrant Price was
made, irrespective of the date of delivery of such certificate, except that, if
the date of such surrender and payment is a date when the stock transfer books
of
3
4
the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which
the stock transfer books are open.
3.3.5. Warrant Solicitation and Warrant Solicitation Fee.
(a) The Company has engaged the Representative,
on a non-exclusive basis, as its agent for the solicitation of the exercise of
the Warrants. The Company, at its cost, will (i) assist the Representative
with respect to such solicitation, if requested by the Representative and (ii)
provide the Representative, and direct the Company's transfer and warrant agent
to deliver to the Representative, lists of the record, and to the extent known,
beneficial owners of the Company's Warrants. Accordingly, the Company hereby
instructs the Warrant Agent to cooperate with the Representative in every
respect in connection with the Representative's solicitation activities,
including, but not limited to, providing to the Representative, at the
Company's cost and at the Representative's request made from time to time, a
list of record and beneficial holders of the Warrants, and circulating a
prospectus or offering circular disclosing the compensation arrangements
referenced in Section 3.4.5(b) to holders of the Warrants at the time of
exercise of the Warrants.
(b) In each instance in which a Warrant is
exercised, the Warrant Agent shall promptly give written notice of such
exercise to the Company and the Representative ("Warrant Agent's Exercise
Notice"). The Representative and the Company may, at any time during business
hours, examine the records of the Warrant Agent, including its ledger of
original Warrant certificates returned to the Warrant Agent upon exercise of
Warrants. If, upon the exercise of any Warrant more than one year from the
Effective Date, (i) the market price of the Company's Common Stock is greater
than the Warrant Price, (ii) disclosure of compensation arrangements was made
both at the time of the original offering and at the time of exercise (by
delivery of the Prospectus or as otherwise required by applicable law, rule or
regulation), (iii) the exercise of the Warrant was solicited by the
Representative, (iv) the Warrant was not held in a discretionary account, and
(v) the solicitation of the exercise of the Warrant was not in violation of
Regulation M (as such rule or any successor rule may be in effect as of such
time of exercise) promulgated under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), then the Warrant Agent, simultaneously with the
distribution of proceeds to the Company received upon exercise of the
Warrant(s) so exercised, shall, on behalf of the Company, pay from the proceeds
received upon exercise of the Warrant(s), a fee of 5% of the Warrant Price to
the Representative, provided that the Representative delivers to the Warrant
Agent within ten (10) business days from the date on which the Representative
has received the Warrant Agent's Exercise Notice, a certificate that the
conditions set forth in the preceding clauses (iii), (iv) and (v) have been
satisfied. The Representative shall accept payment of the warrant solicitation
fee provided in this Section 3.4.5(b) only if it has provided bona fide
services in connection with the exercise of the Warrants. In addition to
soliciting, either orally or in writing, the exercise of Warrants by a Warrant
holder, such services may also include disseminating information, either orally
or in writing, to Warrant holders about the Company or the market for the
Company's securities, or assisting in the processing of the exercise of
Warrants.
(c) The Representative shall be entitled at any
time to assign any or all of its rights or duties hereunder, without the
consent of the Company, the Warrant Agent or any other person, to any
registered broker-dealer a majority of the outstanding equity securities of
which is owned by Research Partners International, Inc.
4
5
4. Adjustments.
4.1. Stock Dividends - Split-Ups. If after the date hereof, and
subject to the provisions of Section 4.5 below, the number of outstanding
shares of Common Stock is increased by a stock dividend payable in shares of
Common Stock or by a split-up of shares of Common Stock or other similar event,
then, on the effective date thereof, the number of shares issuable on exercise
of each Warrant shall be increased in proportion to such increase in
outstanding shares and the then applicable Warrant Price shall be
correspondingly decreased.
4.2. Aggregation of Shares. If after the date hereof, and subject
to the provisions of Section 4.5, the number of outstanding shares of Common
Stock is decreased by a consolidation, combination or reclassification of
shares of Common Stock or other similar event, then, upon the effective date of
such consolidation, combination or reclassification, the number of shares
issuable on exercise of each Warrant shall be decreased in proportion to such
decrease in outstanding shares and the then applicable Warrant Price shall be
correspondingly increased.
4.3. Replacement of Securities Upon Reorganization, etc. If after
the date hereof any capital reorganization or reclassification of the Common
Stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation or other similar event shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger, or sale, lawful
and fair provision shall be made whereby the Warrant holders shall thereafter
have the right to purchase and receive, upon the basis and upon the terms and
conditions specified in the Warrants and in lieu of the shares of Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented thereby, such shares of stock, securities,
or assets as may be issued or payable with respect to or in exchange for the
number of outstanding shares of such Common Stock equal to the number of shares
of such stock immediately theretofore purchasable and receivable upon the
exercise of the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests of the Warrant holders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Warrant Price
and of the number of shares purchasable upon the exercise of the Warrants)
shall thereafter be applicable, as nearly as may be in relation to any share of
stock, securities, or assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any such consolidation, merger, or sale unless
prior to the consummation thereof the successor corporation (if other than the
Company) resulting from such consolidation or merger, or the corporation
purchasing such assets, shall assume by written instrument executed and
delivered to the Warrant Agent the obligation to deliver to the Warrant holders
such shares of stock, securities, or assets as, in accordance with the
foregoing provisions, such holders may be entitled to purchase.
4.4. Notices of Changes in Warrant. Upon every adjustment of the
Warrant Price or the number of shares issuable on exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1., 4.2., or 4.3., then, in any
such event, the Company shall give written notice in the manner set forth above
of the record date for such dividend, distribution, or subscription rights, or
the effective date of such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding up or issuance. Such notice
shall also specify the date as of which the holders of Common Stock
5
6
of record shall participate in such dividend, distribution, or subscription
rights, or shall be entitled to exchange their Common Stock for stock,
securities, or other assets deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding up or issuance. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
4.5. No Fractional Shares. Notwithstanding any provision contained
in this Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants. If, by reason of any adjustment made
pursuant to this Section 4, the holder of any Warrant would be entitled, upon
the exercise of such Warrant, to receive a fractional interest in a share, the
number of shares of Common Stock to be received shall be rounded off to the
nearest whole number.
4.6. Form of Warrant. The form of Warrant need not be changed
because of any adjustment pursuant to this Section 4, and Warrants issued after
such adjustment may state the same Warrant Price and the same number of shares
as is stated in the Warrants initially issued pursuant to this Agreement.
However, the Company may at any time in its sole discretion make any change in
the form of Warrant that the Company may deem appropriate and that does not
affect the substance thereof, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
or otherwise, may be in the form as so changed.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register
the transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of a Warrant certificate for transfer, properly
endorsed with signatures properly guaranteed and accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Warrant certificate
representing an equal aggregate number of Warrants shall be issued and the old
Warrant certificate shall be canceled by the Warrant Agent. The Warrant
certificate so canceled shall be delivered by the Warrant Agent to the Company
from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrant certificates may
be surrendered to the Warrant Agent, together with a written request for
exchange, and thereupon the Warrant Agent shall issue in exchange therefor one
or more new Warrant certificates as requested by the registered holder of the
Warrant certificates so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant certificate
surrendered for transfer bears a restrictive legend, the Warrant Agent shall
not cancel such Warrant certificate and issue new Warrant certificates in
exchange therefor until the Warrant Agent has received an opinion of counsel
for the Company stating that such transfer may be made and indicating whether
the new Warrant certificates must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required
to effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant. The number of
Warrants to be delivered shall be rounded off to the nearest whole number.
5.4. Service Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
6
7
5.5. Warrant Execution and Countersignature. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with the terms
of this Agreement, the Warrants required to be issued pursuant to the
provisions hereof, and the Company, whenever required by the Warrant Agent,
will supply the Warrant Agent with Warrant certificates duly executed on behalf
of the Company for such purpose.
6. Redemption.
6.1. Redemption. Not less than all of the outstanding Warrants may
be redeemed, at the option of the Company, after they become exercisable and
prior to the Expiration Date, at the office of the Warrant Agent, upon the
notice referred to in Section 6.2., at the price of $.01 per Warrant
("Redemption Price"), provided that the last sale price of the Common Stock has
been at least two hundred percent (200%) of the then effective exercise price
of the Public Warrants on the twenty (20) consecutive trading days ending on
the third day prior to the day on which notice of redemption is given, the
satisfaction of which condition shall be certified by the Company. In the
event of any voluntary reduction of the exercise price, which the Company may
do at any time, the Company shall not be entitled to exercise the foregoing
redemption right unless the last sale price of the Common Stock on the twenty
(20) consecutive trading days ending on the third day prior to the date on
which notice of redemption is given has been at least two hundred percent
(200%) of the exercise price of the Public Warrants prior to such voluntary
reduction, the satisfaction of which condition shall be certified by the
Company.
6.2. Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all or any part of the outstanding Warrants, the
Company shall fix a date for the redemption. Notice of redemption shall be
mailed by first class mail, postage prepaid, by the Company or the Company's
agent at its direction not less than 30 days from the date fixed for redemption
to the registered holders of the outstanding Warrants to be redeemed at their
last address as they shall appear on the registration books. Any notice mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder received such notice.
6.3. Exercise After Notice of Redemption. The outstanding Warrants
may be exercised in accordance with Section 3 of this Agreement at any time
after notice of redemption shall have been given by the Company pursuant to
Section 6.2. hereof and prior to the date fixed for redemption. On and after
the redemption date, the record holder of the outstanding Warrants shall have
no further rights except to receive, upon surrender of the outstanding
Warrants, the redemption price.
6.4. Outstanding Warrants Only. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption is then met.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Stockholder. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends or other
distributions, to exercise any preemptive rights and to vote or to consent
7
8
or to receive notice as a stockholder in respect of the meetings of
stockholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any
Warrant certificate is lost, stolen, mutilated, or destroyed, the Company and
the Warrant Agent may on such terms as to indemnity or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant
certificate, include the surrender thereof), issue a new Warrant certificate of
like denomination and tenor to replace the Warrant certificate so lost, stolen,
mutilated, or destroyed. Any such new Warrant certificate shall constitute a
substitute 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.
7.3. Reservation of Common Stock. The Company shall at all times
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Common Stock. The Company agrees that prior
to the date that the Warrants become exercisable it shall file with the
Commission a post-effective amendment to the Registration Statement, if
possible, or a new registration statement, to register, under the Securities
Act, and it shall take such action as is necessary to qualify for sale, in
those states in which the Warrants were initially offered by the Company, the
Common Stock issuable upon exercise of the Warrants. In either case, the
Company shall cause the same to become effective at or prior to the date the
Warrants become exercisable, and maintain the effectiveness of such
registration statement and keep current a prospectus thereunder and maintain
such qualification until the expiration of the Warrants in accordance with the
provisions of this Agreement.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant
Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities (other than those incurred
prior to such resignation or discharge) hereunder after giving sixty (60) days'
notice in writing to the Company. If the office of the Warrant Agent becomes
vacant by resignation or incapacity to act or otherwise, the Company shall
appoint in writing a successor Warrant Agent in place of the 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
Warrant Agent or by a holder of Warrants (who shall, with such notice, submit
his Warrant for inspection by the Company), then the holder of any Warrant may
apply to the Supreme Court of the State of New York for the County of New York
for the appointment of a successor Warrant Agent. Any successor Warrant Agent,
whether appointed by the Company or by such court, shall be a corporation
organized, existing and in good standing and authorized under the laws of the
state in which it was incorporated to exercise corporate trust powers, shall
maintain an office in the Borough of Manhattan, City and State of New York for
the transfer of the Warrants and, if not incorporated in the State
8
9
of New York, shall be authorized to do business in the State of New York as a
foreign corporation, and subject to supervision or examination by federal or
state authority and shall be authorized to serve as Warrant Agent for the
Warrants under the Exchange Act. After appointment, any successor Warrant
Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon
request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party, if it shall be eligible to serve as
Warrant Agent under Section 8.2.1, shall be the successor Warrant Agent under
this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant
Agent reasonable remuneration for its services as such Warrant Agent hereunder
and will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform,
execute, acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the
performance of its duties under this Agreement, the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a statement signed
by the President of the Company and delivered to the Warrant Agent. The
Warrant Agent may rely upon such statement for any action taken or suffered in
good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable
hereunder only for its own negligence, willful misconduct or bad faith. The
Company agrees to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and reasonable counsel fees,
for anything done or omitted by the Warrant Agent in the execution of this
Agreement except as a result of the Warrant Agent's gross negligence, willful
misconduct, or bad faith.
9
10
8.4.3. Exclusions. Except as provided in clause 8.4.2
above, the Warrant Agent shall have no responsibility with respect to the
validity of this Agreement or with respect to the validity or execution of any
Warrant (except its countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant; nor shall it be responsible to make any
adjustments required under the provisions of Section 4. hereof or responsible
for the manner, method, or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment; nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued
pursuant to this Agreement or any Warrant or as to whether any shares of Common
Stock will when issued be valid and fully paid and nonassessable.
8.5. 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 and, among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise
of Warrants.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Warrant Agent or the
Representative shall bind and inure to the benefit of their respective
successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this
Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant to or on the Company shall be sufficiently given or made if sent by
certified mail, or private courier service, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent), as
follows:
OBJECTIVE COMMUNICATIONS, INC.
00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Vice President
with copies to:
XXXX XXXXXXX
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx Xxxxx, Esq.
and
XXXXXXXX MOLLEN & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
10
11
Any notice, statement or demand authorized by this Agreement to be given or
made by the holder of any Warrant or by the Company to or on the Warrant Agent
shall be sufficiently given or made if sent by certified mail or private
courier service, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
Attention: Compliance Department
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with copies to:
XXXX XXXXXXX
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx Xxxxx, Esq.
and
XXXXXXXX MOLLEN & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
9.3. Applicable Law; Jurisdiction. The validity, interpretation,
and performance of this Agreement and of the Warrants shall be governed in all
respects by the law of the State of New York, without giving effect to
principles of conflicts of law. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
or the United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt requested,
postage prepaid, addressed to it at the address set forth in Section 9.2
hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights Under This Agreement. 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 parties hereto and the registered holders
of the Warrants and, for the purposes of Sections 2.5, 3.4.5, 6.4 and 7.4
hereof, the Representative, any right, remedy, or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. The Representative shall be deemed to be a third-party
beneficiary of this Agreement with respect to such Sections. All covenants,
conditions, stipulations, promises, and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the parties hereto (and the
Representative to the extent set forth above) and their successors and assigns
and of the registered holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this
Agreement shall be available at all reasonable times at the office of the
Warrant Agent in the Borough of Manhattan, City and
11
12
State of New York, for inspection by the registered holder of any Warrant. The
Warrant Agent may require any such holder to submit his or her Warrant for
inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
9.7. Effect of Headings. The Section headings herein are for
convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
9.8. Amendment. This Agreement may not be modified, changed or
amended without the prior written consent of the Company, the Warrant Agent and
the Representative.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto under their respective corporate seals as of the day and year
first above written.
Attest: OBJECTIVE COMMUNICATIONS, INC.
By:
---------------------------------------- --------------------------------------------------
Name: Name:
Title: Title:
Attest: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:
---------------------------------------- --------------------------------------------------
Name: Name:
Title: Title:
12
