EXHIBIT 4.6
FORM OF
WARRANT AGREEMENT
To Purchase _________ Shares of Common Stock
Dated as of December 21, 1999
DEMANDSTAR. COM, INC.
a Florida Corporation
Issue Date: December 21, 1999
THIS CERTIFIES THAT, [NAME OF HOLDER] ("Warrant Holder"), with an address
at ______________________________________, is entitled, upon the terms and
subject to the conditions of this Warrant Agreement (the "Warrant Agreement"),
to warrants granting the right to subscribe for and purchase fully-paid and non-
assessable shares of common stock, par value $.0001 per share (the "Common
Stock"), of XxxxxxXxxx.xxx, Inc., a Florida corporation (the "Company").
1. ISSUANCE OF WARRANTS. On the Issue Date, the Company will issue to the
Warrant Holder warrants (the "Warrants") to acquire __________ shares of the
Common Stock (the "Warrant Shares") on the terms and conditions set forth
herein.
2. EXERCISE PRICE. The Warrants shall have an exercise price of $2.00 per
share of Common Stock, as adjusted pursuant to the provisions of Section 8 of
this Warrant Agreement (the "Exercise Price").
3. VESTING AND TERM.
(a) Vesting. Except as otherwise provided for herein, the term of the
Warrants and the right to purchase Warrant Shares as granted herein shall
automatically vest on the Issue Date.
(b) Term. Warrants may be exercised at any time and from time to time
up to 5:00 p.m., Eastern Standard Time, on the second anniversary of the Issue
Date (the "Expiration Date").
4. EXERCISE OF WARRANTS.
(a) Exercise. The Warrants and the purchase rights represented
thereby are exercisable by the Warrant Holder, in whole or in part, at any time
after they vest until 5:00 p.m., Eastern Standard Time, on the Expiration Date
in accordance with the procedures set forth in Section 4(b) below. Upon receipt
of the items required under Section 4(b) and the Warrant Holder's fulfillment of
the other terms of Section 4(b), the Company shall issue to the Warrant Holder a
certificate for the number of shares of Common Stock purchased. The Warrant
Holder, upon exercise of the Warrants, shall be deemed to have become the holder
of the Warrant Shares represented thereby (and such Warrant Shares shall be
deemed to have been issued) immediately prior to the close of business on the
date or dates upon which the Warrants are exercised. In the event of any
exercise of the rights represented by the Warrants, certificates for the Warrant
Shares so purchased shall be delivered to the Warrant Holder as soon as
practical and in any event within ten (10) business days after receipt of such
notice and, unless the Warrants have been fully exercised or expired, new
Warrants representing the remaining portion of the Warrants and the underlying
Warrant Shares, if any, with respect to which this Warrant Agreement shall not
then have been exercised shall also be issued to the Warrant Holder as soon as
possible and in any event within such ten (10) day period.
(b) Method of Exercise. The Warrants may be exercised, at the
election of the Warrant Holder, by the tender of the Notice of Exercise in the
form attached hereto as Exhibit A (the "Notice of Exercise") and the surrender
of the Warrants at the principal office of the Company and by the payment to the
Company, by check, cancellation of indebtedness or other form of payment
acceptable to the Company, of an amount equal to the then applicable Exercise
Price per share multiplied by the number of Warrant Shares then being purchased.
Notwithstanding any provisions herein to the contrary, if the fair market value
of one share of Common Stock is greater than the Exercise Price (at the date of
calculation as set forth below), in lieu of exercising the Warrants for cash,
the Warrant Holder may elect to receive Warrant Shares equal to the value (as
determined below) of the Warrants (or portion thereof being canceled) by
surrender of the Warrants at the principal office of the Company together with
the duly executed Notice of Exercise in which event the Company shall issue to
the Warrant Holder a number of shares of the Common Stock computed using the
following formula:
X= Y (A-B)
----------------------
A
WHERE X= the number of shares of Common Stock to be issued to the
Warrant Holder;
Y= the number of shares of the Common Stock purchasable under the
Warrants or, if only a portion of the Warrants is being exercised, the
portion of the Warrants being canceled (at the date of such
calculation);
A= the fair market value of one share of the Company's Common Stock (at
the date of such calculation); and
B= Exercise Price (at the date of such calculation).
For purposes of this Section 4(b), fair market value means, with respect to
Common Stock, awards or other property, as of a particular date, (i) if the
Common Stock is listed on a national securities exchange, the closing sales
price per share of Common Stock on the consolidated transaction reporting system
for the principal such national securities exchange on that date, or, if there
shall have been no such sale so reported on that date, on the last preceding
date on which such a sale was so reported, (ii) if the Common Stock is not so
listed, but is quoted in the Nasdaq National Market System, the closing sales
price per share of Common Stock on the Nasdaq National Market System on that
date, or, if there shall have been no such sale so reported on that date, on the
last preceding date on which such a sale was so reported, (iii) if the Common
Stock is not so listed or quoted, the mean between the closing bid and asked
price on that date, or, if there are no quotations available for such date, on
the last preceding date on which such quotations shall be available, as reported
by Nasdaq, or, if not reported by Nasdaq, by the National Quotation Bureau,
Inc., (iv) if the date on which shares of Common Stock are first issued and sold
pursuant to a registration statement filed with and declared effective by the
Securities and Exchange Commission, the initial public offering price of the
shares so issued and sold, as set forth in the first final prospectus used in
such offering and (v) if such date is prior to the date of the initial public
offering, the price shall be as determined by the Board to be the fair market
value.
5. RESERVATION OF WARRANT SHARES. The Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock to provide
for the exercise of the rights to purchase the Warrant Shares represented by the
Warrants as provided in this Warrant Agreement. All of the Warrant Shares shall
be duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and nonassessable, and free and clear of all preemptive rights.
6. NO FRACTIONAL WARRANT SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of a Warrant.
7. NO RIGHTS AS SHAREHOLDER. Neither the Warrants nor this Warrant
Agreement shall entitle the Warrant Holder to any voting rights or other rights
as a shareholder of the Company prior to the exercise of the Warrant.
8. ADJUSTMENT RIGHTS. The Exercise Price and the number of shares of
Common Stock purchasable under the Warrants issued hereunder are subject to
adjustment from time to time, as follows:
(a) Merger. If at any time there shall be a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation, then, as part of such merger or consolidation, lawful
provision shall be made so that the Warrant Holder shall thereafter be entitled
to receive upon exercise of the Warrants, during the period specified herein and
upon payment of the aggregate Exercise Price due therefor, the number of shares
of stock or other securities or property of the successor corporation resulting
from such merger or consolidation, to which a holder of the stock deliverable
upon exercise of the Warrants issued pursuant to this Warrant Agreement would
have been entitled in such merger or consolidation if such Warrants had been
exercised immediately before such merger or consolidation. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Warrant Agreement with respect to the rights and interests of the Warrant
Holder after the merger or consolidation. The Company will not effect any such
merger or consolidation unless, prior to the consummation thereof, the successor
corporation shall assume, by written instrument reasonably satisfactory in form
and substance to the Warrant Holder, the obligations of the Company under the
Warrants and this Warrant Agreement.
(b) Reclassification, Etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities which may then be purchased under the Warrants into the
same or a different number of securities of any other class or classes, then the
Warrants shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities which were subject to the Warrants immediately prior to such
subdivision, combination, reclassification or other change.
(c) Split, Subdivision or Combination of Warrant Shares. If the
Company at any time shall split or subdivide its Common Stock, the Exercise
Price shall be proportionately decreased and the number of Warrant Shares
issuable pursuant to the Warrants shall be proportionately increased. If the
Company at any time shall combine or reverse split its Common Stock, the
Exercise Price shall be proportionately increased and the number of Warrant
Shares issuable pursuant to the Warrants shall be proportionately decreased. The
adjustment shall be such as will give the Warrant Holder upon exercise for the
same aggregate Exercise Price the total number, class and kind of shares as the
Warrant Holder would have owned had the Warrants been exercised prior to the
event and had the Warrant Holder continued to hold such shares until after the
event requiring adjustment under this Section 8 (c).
(d) Stock Dividends. If the Company at any time shall pay a dividend
payable in Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of shareholders entitled to receive such
dividend, to that price determined by multiplying the Exercise Price in effect
immediately prior to such date of determination by a fraction (1) the numerator
of which shall be the total number of shares of Common Stock outstanding
immediately prior to such dividend and (ii) the denominator of which shall be
the total number of shares of Common Stock outstanding immediately after such
dividend. The Warrants shall thereafter entitle their respective holders to
purchase, at the Exercise Price resulting from such adjustment, the number of
shares of Common Stock (calculated to the nearest whole share) obtained by
multiplying (x) the Exercise Price in effect immediately prior to such
adjustment by (y) the number of shares of Common Stock issuable upon the
exercise hereof immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(e) Other Changes. If any change in the outstanding Common Stock or
any other event occurs as to which the other provisions of this Section 8 are
not strictly applicable or if strictly applicable, would not fairly protect the
purchase rights of the Warrant Holder in accordance with such provisions, then
the Board of Directors of the Company shall make an adjustment in the number of
and class of shares available under the Warrants, the Exercise Price or the
application of such provisions, so all adjustments shall be made so that the
holders of the Warrant shall not be adversely affected by such transaction. The
adjustment shall be such as will give the Warrant Holder upon exercise for the
same aggregate Exercise Price the total number, class and kind of shares as the
Warrant Holder would have owned had the
Warrants been exercised prior to the event and had the Warrant Holder continued
to hold such shares until after the event requiring adjustment.
(f) Notice of Adjustments; Notices. Whenever the Exercise Price or
number or kind of securities purchasable under the Warrants shall be adjusted
pursuant to Section 8 hereof, the Company shall issue a certificate signed by
its Chief Executive Officer President or Chief Financial Officer setting forth,
in reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the Exercise
Price and the kind and number of securities purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the Warrant Holder. The Company
shall give written notice to the Warrant Holder at least ten (10) business days
prior to the date on which the Company closes its books or takes a record for
determining rights to receive any dividends or distributions. The Company shall
also give written notice to the Warrant Holder at least thirty (30) business
days prior to the date on which a merger or consolidation of the Company with or
into another corporation when the Company is not the surviving corporation shall
take place.
(g) No Change of Warrant Necessary. Irrespective of any adjustment in
the Exercise Price or in the number or kind of securities issuable upon exercise
of the Warrants, unless the Warrant Holder otherwise requests, the Warrants and
this Warrant Agreement may continue to express the same price and number and
kind of shares of Common Stock as are stated in this Warrant Agreement as
initially executed.
9. REDEMPTION. The Warrants represented by this Warrant Agreement are not
redeemable by the Company at any time.
10. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT AND WARRANT
SHARES.
(a) Compliance with Securities Act. The Warrant Holder, by acceptance
hereof, agrees that the Warrants, and the securities to be issued upon exercise
of the Warrants, are being acquired for investment and that such Warrant Holder
will not offer, sell or otherwise dispose of the Warrants or any securities to
be issued upon exercise of the Warrants except under circumstances which will
not result in a violation of the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws. The Warrants and all
securities issued upon exercise of the Warrants (unless registered under) the
Securities Act and any applicable state securities laws) shall be stamped or
imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT
BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS OR UNLESS SUCH REGISTRATION IS NOT REQUIRED TO EFFECTUATE
SUCH TRANSACTION, AND IF REASONABLY REQUESTED BY THE COMPANY, THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT."
(b) Transfer. Subject to the provisions of the Securities Act and any
applicable state securities laws, the Warrants and any related rights hereunder
may be sold, transferred, pledged or otherwise disposed of, in whole or in part,
to any person. Any transfer or sale or attempted transfer or sale of rights
under this Warrant Agreement or any of the Warrants in violation of any
provision of this Agreement shall be void, and the Company shall not record such
transfer on its books or treat any purported transferee of the Warrant as
purpose.
(c) Exchange, Transfer, Assignment or Loss of Warrants. The Warrants
cannot be exchanged, transferred or assigned otherwise than in accordance with
the provisions of this Agreement. If the provisions of this Agreement are
complied with, upon surrender of the Warrants to the Company with the Assignment
Form annexed hereto
as Exhibit B duly executed, and funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and issue a new Warrant in the name of
the heir, devisee or assignee named in such instrument of assignment and the
assigned Warrant shall promptly be canceled.
11. RESTRICTED SECURITIES. The Warrant Holder understands that the
Warrants hereunder are exempt pursuant to Section 4(2) of the Securities Act
based on the representations of the Warrant Holder set forth herein. The Warrant
Holder also understands that if the securities issued pursuant to the exercise
of Warrants have not been registered under the Securities Act as of their issue,
they will be issued pursuant to the same exemption. The Warrant Holder
represents that it is experienced in evaluating companies such as the Company,
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment and has the ability
to suffer the total loss of the investment. The Warrant Holder further
represents that it has had the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions of this Agreement,
the Warrants the shares, the business of the Company, and to obtain additional
information to such Warrant Holder's satisfaction. The Warrant Holder is an
"Accredited Investor" within the meaning of Rule 501 of Regulation D under the
Securities Act, as presently in effect.
12. REGISTRATION RIGHTS.
(a) Certain Definitions. As used in this Section 12, the following
terms shall have the following respective meanings:
(i) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(ii) "Holder" shall mean any holder of outstanding Registrable
Securities.
(iii) The terms "Register", "Registered" and "Registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act ("Registration Statement"), and
the declaration or ordering by the Commission of the effectiveness of such
Registration Statement.
(iv) "Registrable Securities" shall mean the Warrant Shares so
long as certificates representing the same are required to bear the restrictive
legend set forth in Section 10.
(v) "Registration Expenses" shall mean all expenses incurred by
the Company in complying with Section 12, including, without limitation, all
federal and state registration, qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such Registration.
(vi) "Restriction Termination Date' shall mean, with respect to
any Registrable Securities, the earliest of (A) the date that such Registrable
Securities shall have been registered and sold or otherwise disposed of in
accordance with the intended method of distribution by the seller or sellers
thereof set forth in the registration statement covering such Registrable
Securities or transferred in compliance with Rule 144, (B) the date that an
opinion of counsel to the Company (reasonably satisfactory in both form and
substance to the Company) containing reasonable assumptions shall have been
rendered to the effect that neither the legend nor the restrictions on transfer
contained in this agreement are required to insure compliance with the
Securities Act and, based upon such opinion, the legend referred to in Section
10 shall have been removed and (C) the date as of which the Company shall have
notified the Holder of such Registrable Securities in writing that it has
determined that such Registrable Securities may be sold pursuant to Rule 144 (or
any successor provision) without restriction under Rule 144(e) thereof, and,
based upon such determination, the legend shall have been removed.
(vii) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable Securities
pursuant to this Agreement.
(b) Company Registration. If (but without any obligation to do so)
the Company proposes to Register at any time prior to the Restriction
Termination Date (including for this purpose a Registration effected by the
Company for shareholders other than the Holder) any of its stock or other
securities under the Securities Act in connection with the underwritten public
offering of such securities solely for cash (other than a Registration of
securities in connection with mergers, acquisitions, exchange offers,
distributions to the Company's shareholders, or stock option or other employee
benefit plans or a Registration in any form which does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at each such time, promptly give Holder written notice of such Registration.
Upon the written request of Holder given within fifteen (15) days after mailing
of such notice by the Company, the Company shall, subject to the following
provisions, use all reasonable efforts to cause to be included in such
Registration all of the Registrable Securities that Holder has requested to be
included.
The Company shall not be required under this Subsection 12(b) to include
any of the Holder's securities in an underwritten offering of the Company's
securities unless such Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it, and then only in
such quantity as will not, in the opinion of the managing underwriters,
interfere with the successful marketing of the offering by the Company.
(c) Blue Sky. In the event of any Registration pursuant to this
Section 12, the Company will exercise its best efforts to Register and qualify
the Registrable Securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders for the distribution of such securities; provided,
however, that the Company shall not be required to qualify to do business, to
file a general consent to service of process or to subject itself to taxation in
any state or jurisdiction in which it is not now qualified. The Company will
furnish to the Holder written advice of its counsel with respect to registration
or exemption of such Registrable Securities in such jurisdictions.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with a Registration pursuant to Subsection 12(b) shall be borne by
the Company. All Selling Expenses associated with the sale of Registrable
Securities attributable to Holder shall be borne by the Holder.
(e) Registration Procedures.
(i) Advice by Company. The Company will keep the Holder advised
as to the initiation and completion of such Registration. At its expense the
Company will (A) use its best efforts to keep such Registration effective until
the earlier of the date on which the Holder has completed the distribution
described in the Registration Statement or the Restriction Termination Date with
respect to such Securities; and (B) furnish such number of prospectuses
(including preliminary prospectuses) and other documents as the Holder from time
to time may reasonably request.
(ii) Amendments. The Company will promptly prepare and file
with the Commission such amendments and prospectus supplements, including post-
effective amendments, to the Registration Statement as the Company determines
may be necessary or appropriate, and use its best efforts to have such post-
effective amendments declared effective as promptly as practicable; cause the
related prospectus to be supplemented by any prospectus supplement, and as so
supplemented, to be filed with the Commission; and notify the Holder of any
securities included in such Registration Statement and the underwriter thereof,
if any, promptly when a prospectus, any prospectus supplement or post-effective
amendment must be filed or has been filed and, with respect to any post-
effective amendment, when the same has become effective.
(iii) Underwritten Offerings. At the request of the Holder
requesting Registration of Registrable Securities pursuant to this Section 12,
on the date that such Registrable Securities are delivered to the underwriters
for sale pursuant to such Registration in an underwritten offering pursuant to
Subsection 12(b), the Company will (A) furnish (i) an opinion, dated as of such
date, of the independent counsel representing the Company for the purposes of
such Registration, addressed to the underwriter, in a customary form and
covering matters of the type customarily covered in such legal opinions; and
(ii) a comfort letter dated as of such date, from the independent certified
public accountants of the Company addressed to the underwriter in a customary
form and covering matters of the type
customarily covered by such comfort letters; such opinion of counsel shall
additionally cover such other legal matters with respect to the Registration in
respect of which such opinion is being given as such underwriter may reasonably
request and such letter from the independent certified public accountants shall
additionally cover such other financial matters (including information as to the
period ending not more than five (5) business days prior to the date of such
letter) with respect to the Registration in respect of which such letter is
being given as such underwriter may reasonably request; and (B) with such
Holder, enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities.
(f) Information Furnished by Holder. It shall be a condition
precedent to the Company's obligations under this Agreement that the Holder
furnish to the Company in writing such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request.
(g) Holders' Indemnification of Company. Holder will, if Registrable
Securities held by Holder are included in the Securities as to which a
Registration is being effected pursuant to this Agreement, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a Registration Statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any such Registration Statement or
related prospectus, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse the Company, such directors,
officers, partners, persons, underwriters or control persons for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by Holder and stated to be specifically for
use in connection with the offering of Securities of the Company.
(h) Transfer of Rights. As defined herein, the term Transfer shall
mean any sale, hypothecation, transfer or other disposition of Registrable
Securities or any interest therein other than a sale registered under a
Registration Statement. The right to cause the Company to Register Registrable
Securities granted by the Company to Holder under this Section 12 may not be
assigned by Holder to any transferee of the Warrants or the Warrant Shares.
13. MISCELLANEOUS.
(a) No Consequential Damages. No party hereto shall be entitled to
consequential damages as a result of any breach of a covenant, representation or
warranty contained herein.
(b) Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(i) if to the Company, to:
XxxxxxXxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
(ii) if to the Warrant Holder, to:
----------------------------------------
----------------------------------------
----------------------------------------
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
(c) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the Warrant Holder
and the Company and their respective successors and permitted assigns. No
person, other than the Warrant Holder and the Company and their respective
successors and permitted assigns, is intended to be a beneficiary of this
Agreement.
(d) Amendment and Waiver.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company and the Warrant Holder at law, in equity or otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any provision of this Warrant
Agreement, and any consent to any departure by the Company or the Warrant Holder
from the terms of any provision of this Agreement, shall be effective only if it
is made or given in writing and signed by the Company and the Warrant Holder.
(e) Counterparts. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Warrant Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
the principles of conflicts of law of any jurisdiction.
(h) Venue. Any action or proceeding involving the parties hereto
shall be adjudicated in a court located in Orange County, Florida. The parties
hereto hereby irrevocably consent to the jurisdiction and venue of such courts.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(j) Entire Agreement. This Warrant Agreement and the Warrants and
exhibits and schedules hereto is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of he subject
matter contained herein. This Warrant Agreement and the Warrants, together with
the exhibits and schedules hereto, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(k) Charges; Taxes and Expenses. Issuance of certificates for
securities upon the exercise of the Warrants shall be made without charge to the
Warrant Holder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.
(l) Saturdays, Sundays, Holidays, Etc. If the last or appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or a legal holiday.
(m) Lost Warrants. The Company covenants to the Warrant Holder that,
upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant Agreement and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation, upon
surrender and cancellation of the last Warrant on this Warrant Agreement, the
Company will make and deliver a new Warrant or Warrant Agreement, as applicable,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated document.
(n) Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority or
any other person, and otherwise fulfilling, or causing the fulfillment of, the
various obligations made herein, as may be reasonably required or desirable to
carry out or to perform the provisions of this Warrant Agreement and to
consummate and make effective as promptly as possible the transactions
contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and
delivered by the authorized individuals of each of the undersigned.
XXXXXXXXXX.XXX, INC.
By: _____________________________
Name: O. F. Xxxxx
Title: President and Chief Executive Officer
[NAME OF WARRANT HOLDER]
By: _____________________________
Name:
Title:
EXHIBIT A
NOTICE OF EXERCISE
To: XxxxxxXxxx.xxx, Inc.
1. The undersigned hereby elects to purchase __________ shares of the
Common Stock of XxxxxxXxxx.xxx, Inc. in accordance with the Warrants issued
pursuant to the Warrant Agreement, dated as of December 21, 1999, by and between
XxxxxxXxxx.xxx, Inc. and the undersigned, and tenders herewith payment of the
purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned.
By: ____________________________
(Print Name of Signatory)
Date:
A-1
EXHIBIT B
ASSIGNMENT FORM
To: XxxxxxXxxx.xxx, Inc.
The undersigned hereby assigns and transfers unto _______________________
of _______________________________ (please typewrite or print in block letters)
the right to purchase _____________ shares of the common stock of
XxxxxxXxxx.xxx, Inc. subject to the Warrant Agreement, dated as of December 21,
1999, by and between XxxxxxXxxx.xxx, Inc. and the undersigned (the "Warrant
Agreement").
This assignment complies with the provisions of Section 10(c) of the
Warrant Agreement and is accompanied by funds sufficient to pay all applicable
transfer taxes.
By: _________________________
(Print Name of Signatory)
Date:
B-1
