Exhibit A
Warrant Agreement
WARRANT AGREEMENT
This Warrant Agreement, dated as of ______________, _______, by and
between American Capital Holdings, Inc., a Florida corporation
(the "Company"), and _________________________, the registered holder of
the Warrants (as defined below) (the "Holder").
BACKGROUND INFORMATION
The Company is offering (the "Offering") to sell up to 20,000,000 shares
of our Common Stock at a purchase price of $5.00 per share, and 2,000,000
common stock purchase warrants in a Florida Corporation known as the American
Capital Holdings, Inc. ("ACH") Warrants (the "Warrants"). For every ten
shares purchased in the offering, the purchaser will be entitled to one
detachable warrant. Each Warrant will entitle the Holder to purchase one
share of the Company's common capital stock (the "Common Stock"), at an
exercise price of Six dollars ($6.00) per share if exercised within two years
of the date of issuance. The shares of Common Stock issuable upon exercise
of the Warrants are sometimes hereinafter referred to as the "Warrant Shares".
The Company desires to fix the form and provisions of each certificate
that will represent one or more issued Warrants (each a "Certificate"); the
terms of the Warrants themselves with respect to issuance, exercise,redemption
and expiration, and the respective rights, limitations, obligations and duties
of the Company and each holder which will be established upon any such issuance;
and to make each Warrant when represented by a Certificate that has been duly
executed by the Company (or by any substitute or replacement Certificate issued
under the terms set forth below), the valid, binding and legally enforceable
obligation of the Company.
Accordingly, the Company and the Holder hereby agree as follows:
OPERATIVE PROVISIONS
1. Warrant Certificates: Each Certificate to be delivered
pursuant to this Agreement shall be in registered form only, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. The form of Certificate is attached
as Exhibit "WA-1" hereto.
2.
Warrants Governed by Agreement: This Warrant Agreement governs
an issue of up to 2,000,000 Warrants, each of which will entitle its Holder to
purchase one Warrant Share on the terms and subject to the conditions and
possible adjustments set forth herein.
3. Execution and Date of Warrant Certificates:
3.1 General: Each Certificate shall be
executed on behalf of the Company by its President or Vice President, whose
signature thereon will be attested to by the Secretary of the Company.
3.2 Warrant Agent: If the Company shall hereafter appoint
a "Warrant Agent" as shall be its right pursuant to this Agreement, then each
such signature upon the Certificate may be in the form of a facsimile
signature of the present or any future president, vice president, corporate
secretary or assistant secretary and may be imprinted or otherwise reproduced
on the Certificates, and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been president, vice president,
corporate secretary or assistant secretary, notwithstanding the fact that at
the time any Certificate shall be countersigned and delivered or disposed of,
he or she shall have ceased to hold such office. No Certificate issued after
the appointment of a Warrant Agent pursuant to this Agreement shall be valid
unless manually countersigned by the Warrant Agent; however, any Certificate
issued prior to such time shall not become invalid by reason of such
appointment. In case any officer of the Company who shall have signed any of
the Certificates shall cease to be such officer before the Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by
the Company, such Certificates nevertheless may be countersigned and delivered
or disposed of as though such person had not ceased to be such officer of the
Company; and any Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Certificate, shall be
a proper officer of the Company to sign such Certificate, although at the date
of the execution of this Warrant Agreement any such person was not such
an officer.
3.3 Date of Certificate: Each Certificate shall be
dated as of the date of execution by the Company officers described above,
except that after the appointment of a Warrant Agent pursuant to this
Agreement it shall be dated the date of countersignature by the Warrant Agent.
4. Registration: The Company shall acknowledge each
registered Holder of a Warrant Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made
by anyone), in connection with its sale, transfer or exercise, any
distribution to the holder thereof and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
5. Right to Exercise Warrants.
5.1 Expiration Date: Each Warrant shall expire at
5:00 p.m., Eastern Standard Time, on the date two years after the date of
the Certificate (the "Expiration Date") and may be exercised at any time
prior thereto.
5.2 Exercise Price and the Payment for the Warrants:
Subject to the provisions of this Agreement, Holder shall have the right to
purchase from the Company (and the Company shall issue and sell to such
Holder) that number of fully paid and non-assessable Warrant Shares, at the
per share price of $6.00 if exercised on or before the Expiration Date
(the "Exercise Price") as shall be designated in a completed and executed
Election to Purchase form appearing on each Certificate, and upon surrender
to the Company of the Certificate evidencing each such Warrant being
exercised, and payment of a monetary amount equal to the product of the
Exercise Price and the number of Warrant Shares being purchased (the
"Exercise Price Multiple"). The Exercise Price Multiple may be paid in cash
or by certified check payable to the order of the Company. Subject to
Section 6, upon such surrender of a Certificate and payment of the Exercise
Price Multiple, the Company shall cause to be issued and delivered promptly
to the Holder a certificate for the Warrant Shares being purchased, as
evidenced by the Election to Purchase. Such Warrant Share certificate shall
be deemed to have been issued and the person so designated to be named therein
shall be deemed to have become the Holder of such Warrant Shares as of the
date of the surrender of the applicable Warrant Certificate and payment of
the Exercise Price Multiple. The Warrants evidenced by a Certificate shall
be exercisable, at the election of the Holder, either as an entirety or
from time to time for only part of the number of Warrants specified in the
Certificate. In the event that less than all of the Warrants evidenced
by a Certificate surrendered upon the exercise of Warrants are exercised
at any time prior to the date of expiration of the Warrants, a new
Certificate shall be issued for the remaining number of Warrants evidenced
by the Certificate so surrendered. All Certificates surrendered upon exercise
of the Warrants shall be cancelled by the Company.
6. Payment of Taxes: The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided that the Company shall not be required to pay
any such taxes which may be payable in respect of any transfer involved in
the issue of any Certificates or any certificates for Warrant Shares in a
name other than that of the Holder of a Certificate surrendered upon the
exercise of a Warrant.
7. Reservation and Issuance of Shares: The Company will
at all times reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but un-issued shares of Common Stock, for the
purpose of enabling it to satisfy any obligation to issue Warrant Shares upon
exercise of Warrants, the full number of Warrant Shares deliverable upon the
exercise of all outstanding Warrants. Before taking any action which would
cause an adjustment pursuant to Section 9 reducing the Exercise Price below
the then par value (if any) of the Warrant Shares issuable upon exercise of
the Warrants, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and non-assessable Warrant Shares at the
Exercise Price as so adjusted. The Company covenants that all Warrant
Shares, which may be issued upon exercise of Warrants, will be validly
issued, fully paid and non-assessable outstanding Warrant Shares of the
Company or any successor.
8. Mutilated or Missing Warrant Certificates: In case any
Certificate shall be mutilated, lost, stolen or destroyed, the Company shall
issue in exchange and substitution for and upon cancellation of the mutilated
Certificate, or in lieu of and substitution for the Certificate lost, stolen
or destroyed, a new Certificate, of the same series and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory
to the Company of such loss, theft or destruction of such Certificate and
indemnity, if requested, also satisfactory to it. Applicants for such
substitute Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may
prescribe.
9. Adjustment of Exercise Price and Number of Shares Purchasable:
The Exercise Price and the number of Warrant Shares purchasable upon the
exercise of each Warrant are subject to adjustment from time to time as
set forth in this Section 9.
9.1 Decrease or Increase in Exercise Price Upon Subdivision or
Combination: If the Company shall at any time subdivide or combine the
outstanding shares of its Common Stock, the Exercise Price in effect
immediately prior to such subdivision or combination shall be
proportionately increased in the case of a combination or decreased in the
case of a subdivision, effective at the close of business on the date of such
subdivision or combination, as the case may be. Upon each adjustment of the
Exercise Price pursuant to this Section 9.1, the Holder shall thereafter
(until another such adjustment) be entitled to purchase, at the adjusted
Exercise Price, the number of shares of Common Stock, calculated to the
nearest full share, obtained by multiplying the number of shares of Common
Stock purchasable hereunder immediately prior to such adjustment by the
Exercise Price in effect immediately prior to such adjustment and dividing
the product so obtained by the adjusted Exercise Price.
9.2 Merger: If the Company, at any time while any Warrants
remain outstanding and not expired, determines that it shall consolidate
with or merge into or with any other corporation, the Company shall so
notify the Holder in writing at least thirty (30) days prior to such proposed
merger or consolidation. Prior to the effective date of such merger or
consolidation, the Holder shall have the right to exercise the Warrants then
registered in its name, in whole or in part. If the Holder exercises such
right, the shares of Common Stock issued pursuant to the Warrant exercise
shall thereafter be exchangeable for securities of the surviving corporation
on the same terms as those provided other holders of the Company's Common
Stock. To the extent the Holder does not exercise all Warrants then so held
before a merger or consolidation, such Warrants shall thereafter evidence the
right of the Holder to purchase the number and kind of securities in respect
of the surviving corporation as would have been issuable or distributable to
the Holder had it exercised the unexercised portion of the Warrants
immediately prior to such consolidation or merger.
9.3 Distribution of Company Assets: If the Company shall
make any distribution of its assets to the holders of its Common Stock as a
partial or complete liquidating dividend, a return of capital or otherwise,
the Holder shall be entitled, after occurrence of the record date for
determining shareholders entitled to such distribution, but before the date
of such distribution, to exercise any Warrants then owned and purchase any
or all of the shares of Common Stock then subject hereto, and thereupon to
receive the amount of such assets (or at the option of the Company a sum
equal to the value thereof at the time of such distribution to holders of
Common Stock as such value is determined in good faith by the Company's
Board of Directors) which would have been payable to such Holder had it been
the holder of record of such shares of Common Stock on the referenced record
date.
9.4 Notice of Adjustments: Upon any adjustments of the
Exercise Price aggregating more than $.01 per share, and any resulting
increase or decrease in the number of shares of Common Stock purchasable
upon the exercise of Warrants, then, and in each such case, the Company,
within thirty (30) days thereafter, shall give written notice thereof to
the Holder, which notice shall state the Exercise Price as adjusted and
the increased or decreased number of Warrant Shares purchasable upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation of each.
10. Warrant Agent: The Company may, in its sole discretion,
appoint any licensed securities transfer agent or national banking
association to serve as Warrant Agent hereunder, pursuant to such terms
and conditions as may be negotiated by such parties, but only to the extent
that the same do not conflict with the terms of this Agreement. If such a
Warrant Agent is appointed, the form of Warrant Certificate shall be revised
to reflect such event.
11. Miscellaneous Provisions:
11.1 Limitation of Rights Conferred: This Warrant Agreement
does not confer upon the Holder of a Warrant Certificate any right as a
shareholder of the Company, nor shall anything contained herein be deemed to
affect the right or power of the Company to make adjustments,
reclassifications, reorganizations other changes in and to its capital
stock or business organization or to limit its right to merge or consolidate
or to sell, transfer or liquidate all or any part of its business or assets.
11.2 Shareholder Information: The Company shall send
to the Holder, at the address of such Holder on the books of the Company,
copies of all notices, reports or communications that the Company furnishes
to the holders of shares of its Common Stock and, at least ten days prior to
the record date therefore, written notice of any dividend declared by the
Company (other than dividends payable in stock of the Company).
11.3 Company Covenants: The Company covenants and
agrees that;
(a) it will, from time to time, take all such action as may be
required to assure that the par value per share of the Common Stock is at
all times equal to or less than the then current Exercise Price per share
of the Common Stock issuable upon exercise of each Warrant; and
(b) subject to compliance with federal and state securities law
requirements, all formalities required to permit transfer of title to such
Warrant Shares free and clear of all claims, encumbrances and defects in
title, in accordance with this Agreement, shall have been duly complied with;
the Company shall have the right and power to sell and deliver all Warrant
Shares in accordance with the terms hereof, and such sale and delivery will
be valid in all respects.
11.4 Company Representations and Warranties: The Company
represents and warrants that:
(a) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes its valid, binding and legal obligation,
enforceable in accordance with the terms hereof, subject to bankruptcy and
insolvency laws and laws effecting creditors' rights generally; and
(b) The Warrant Shares have been duly authorized and reserved and,
when issued in accordance with the terms hereof, will be fully paid and
non-assessable.
11.5 Notices: All notices or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as properly given or made if hand delivered, mailed from
within the United States by certified or registered mail, or sent by
facsimile or prepaid delivery or courier service:
(i) if to the Company:
American Capital Holdings, Inc.
000 Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX. 33410
Attention: Xxxxxx X. Xxxxxxxx
(ii) if to the Holder:
_________________________________________
_________________________________________
_________________________________________
or to such other address as any such party may have designated by like
notice forwarded to the other party hereto. Notwithstanding the foregoing,
notices of change of address shall be furnished only when received.
11.6 Entire Agreement; Amendments: This Agreement, and the
other documents referenced herein, constitute the entire understanding of
the parties hereto with respect to the subject matter hereof, and no
amendment, modification or alteration of the terms hereof shall be binding
unless the same shall be in writing, dated subsequent to the date hereof
and duly approved and executed by each party.
11.7 Headings, Gender, Number: The headings of this
Agreement are inserted for convenience and identification only, and are
in no way intended to describe, interpret, define or limit the scope,
extent or intent hereof. Words of gender used herein may be read as
masculine, feminine, or neuter, as required by context, and words of
number may be read as singularor plural, as similarly required.
11.8 Severability: If any term or other provision of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in any particular respect or under
any particular circumstance, such term or provision shall nevertheless
remain in full force and effect in all other respects and under all other
circumstances, and all other terms, conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner, to the end that the
transactions contemplated hereby are fulfilled to the fullest extent
possible.
11.9 Application of Florida Law; Venue: Notwithstanding the
place of execution of this Agreement, the parties expressly agree, to the
extent not otherwise barred by applicable law, that all terms and provisions
hereof shall be construed in accordance with and governed by the laws of
the State of Florida and waive any objection, constitutional, statutory
or otherwise, to a Florida court's taking jurisdiction of any dispute
between them. By entering into this Agreement, the parties understand
that they might be called upon to answer a claim asserted in a Florida
court. Venue for the prosecution of any legal action brought hereunder
shall lie in Palm Beach County, Florida.
11.10 Counterparts: This Agreement may be executed in any
number of counterparts, by means of multiple signature pages each containing
less than all required signatures, and by means of facsimile signatures,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11.11 Legal Fees and Costs: If a legal action is
initiated by any party to this Agreement against another, arising out
of or relating to the alleged performance or non-performance of any right
or obligation established hereunder, or any dispute concerning the same,
any and all fees, costs and expenses reasonably incurred by each successful
party or his, her or its legal counsel in investigating, preparing for,
prosecuting,defending against, or providing evidence, producing documents
or taking any other action in respect of, such action shall be the joint
and several obligation of and shall be paid or reimbursed by the unsuccessful
party(ies).
AMERICAN CAPITAL HOLDINGS, INC.
By:
Its:
Print Name:
HOLDER
Sign:
Print Name:
Its:
Exhibit WA-1
WARRANT CERTIFICATE NO. ___
of
American Capital Holdings, Inc.
000 Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
_______________________________________
Representing a Right to Purchase _______ Shares of
the Company's Common Stock
_______________________________________
THIS WARRANT CERTIFICATE CERTIFIES THAT ______________ is the
registered owner (the "Holder") of ________ Warrants (the "Warrants"),
issued under a Warrant Agreement as adopted by the Board of Directors of
American Capital Holdings, Inc., a Florida corporation (the "Company"),
which is incorporated by reference in and made a part of this Certificate
(and must be referred to for a description of the rights, limitations,
obligations and duties of the Company and the Holder hereunder), to
purchase from the Company ________ fully paid and non-assessable shares
(the "Shares") of the Company's authorized common capital stock ("Common
Stock"), for the cash price of Six Dollars ($6.00) per share (the "Exercise
Price") if the Warrants are exercised on or before 5:00 p.m., Eastern
Standard Time, on the date two years after the date of this Certificate
(the "Expiration Date"), and, prior thereto, may be exercised at any time
after issuance. The Exercise Price and the number of Shares issuable upon
exercise of Warrants are subject to adjustment as described in the Warrant
Agreement.
The Warrants represented by this Certificate may be exercised by
the Holder as to all or any lesser number of Shares upon surrender of this
Certificate, together with a completed and executed Election to Purchase
in the form attaching to this Certificate, on or before the Expiration Date,
at the principal office of the Company (or at such other address as is
designated in writing by the Company); and upon payment, by cash, certified
check or cashier's check, payable to the Company, of a sum equal to the
product of the Exercise Price multiplied by the number of
Shares being purchased; provided, that no fractional share shall be issuable
upon any such exercise and the Company shall return to the Holder any funds
delivered for the purchase of any fractional Share. If this Certificate
shall be exercised with respect to less than all of the Shares, the Holder
shall be entitled to receive a new Certificate covering the number of Shares
with respect to which this Certificate shall not have been exercised
(if such Shares are then purchasable hereunder).
Dated: ________________ AMERICAN CAPITAL HOLDINGS, INC.
By:_______________________________________
its:________________________________________
Attest:_____________________________________
Secretary
Exhibit EP-1
ELECTION TO PURCHASE
(To be executed by Holder upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase __________ Shares and
herewith tenders in payment for such Shares cash or a certified check,
payable to the order of American Capital Holdings, Inc. in the amount of
$_________, all in accordance with the terms hereof. The undersigned
requests that a certificate evidencing such Shares be registered in the
name of the undersigned at the address currently maintained by the Company
or otherwise as indicated in any properly completed and executed instruction
which may accompany this Election and that such certificate be delivered to
such addressee at such address.
If the number of Shares being acquired is less than all purchasable
hereunder, the undersigned requests that a new Certificate evidencing the
remaining balance of the Warrants be registered in the name of and delivered
to the undersigned at the address currently maintained by the Company or
otherwise as indicated in any properly completed and executed instruction
which may accompany this Election.
Date: _________________________ Signature: ______________________
(Signature must conform in all respects to Identifying name of
Holder as specified on the face of the Warrant Certificate)
_______________________________ ________________________________
(Insert Social Security or Other Number (Print Name)
of Holder)
Exhibit B
Subscription Agreement
SUBSCRIPTION AGREEMENT
Common Stock
AMERICAN CAPITAL HOLDINGS, INC.
000 Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000
The undersigned hereby irrevocably requests the purchase of the number of
shares of the common stock of American Capital holdings, Inc., a Florida
corporation (the "Company") listed below. The undersigned acknowledges that
subscriptions are not binding on the Company until accepted by the Company,
which reserves the right to reject, in whole or in part, in its sole
discretion, any subscription.
ONCE A SUBSCRIPTION HAS BEEN DELIVERED TO THE COMPANY, THE
SUBSCRIBER MAY NOT WITHDRAW THE SUBSCRIPTION, RECEIVE ANY OF HIS
MONEY ON DEPOSIT IN THE SUBSCRIPTION ACCOUNT, OR REFUSE TO PURCHASE
ANY OF THE SHARES OF COMMON STOCK REQUESTED IN HIS SUBSCRIPTION,
WITHOUT THE APPROVAL OF THE COMPANY, UNLESS THE OFFERING IS
WITHDRAWN, OR EXCEPT IN ACCORDANCE WITH THE TERMS AND CONDITIONS
SET FORTH IN THE PROSPECTUS. SEE "PLAN OF DISTRIBUTION."
If the Company rejects all or a portion of the requested subscription, the
Company will refund to the undersigned by mail the amount remitted with
the subscription.
The undersigned represents and warrants to the Company that he/she/it has
received and had the opportunity to read a copy of the Prospectus for the
offer and sale of the common stock. He/she/it further acknowledges that by
requesting this representation and warranty, the Company does not intend to
state or imply that failure to read the Prospectus will preclude him/her/it
from asserting any rights under the Federal securities laws with respect to
this offering.
To be effective, this Subscription Form, properly completed, must be
actually received at the address listed above, before the expiration date,
together with a check or money order for the appropriate amount, made
payable to "American Capital Holdings, Inc."
Number of Shares _____________X $5.00 Per Share = Total Due $____________
How Shares are to be held:
___________________________________
( ) Individual Print Subscriber's Name
( ) Corporation
( ) Joint Tenants WROS
( ) Other (Specify) ____________________________________
Signature of Subscriber
_____________________________________
Print Subscribers Name [if more than one]
_____________________________________
Signature of Subscriber [if more than one]
____________________________________
Mailing Address
_____________________________________
City, State and Zip Code
Social Security or
Federal I.D. No.
RECEIPT AND ACCEPTANCE
American Capital Holdings, Inc. hereby acknowledges receipt from the
subscriber of $_________ as payment in full for shares of common stock
and accepts such applicant's above subscription.
AMERICAN CAPITAL HOLDINGS, INC.
By:_______________________________
Its President / Vice President
