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EXHIBIT 4.4
WARRANT AGREEMENT
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FACTUAL DATA CORP.
AND
AMERICAN SECURITIES TRANSFER & TRUST, INC.
WARRANT AGENT
MARCH ___, 1998
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WARRANT AGREEMENT
THIS AGREEMENT dated as of March ___, 1998, between Factual Data Corp.,
a Colorado corporation (the "Company"), and American Securities Transfer &
Trust, Inc., a transfer agency located in Denver, Colorado (the "Warrant
Agent").
WHEREAS:
In connection with a public offering (the "Public Offering") of
1,200,000 shares (the "Firm Shares") of Common Stock of the Company, ("Common
Stock") and 1,200,000 warrants ("Firm Warrants"), each Warrant entitling the
Registered Owner thereof to purchase one share of Common Stock, or an aggregate
of 1,200,000 shares of Common Stock of the Company on exercise of all Firm
Warrants; and
The Company also has granted the several underwriters (the
"Underwriters") of the Company's Public Offering pursuant to an underwriting
agreement (the "Underwriting Agreement"), the option to purchase up to an
additional 180,000 shares (the "Over- Allotment Shares") and 180,000 warrants
(the "Over-Allotment Warrants") exercisable to purchase up to an aggregate of
180,000 shares of Common Stock; and
The Company desires to provide for the issuance, registration,
transfer, exchange and exercise of certificates (the "Warrant Certificates")
representing the Firm Warrants and the Over-Allotment Warrants (collectively,
herein, the "Warrants") and for the exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrant Certificates and the Warrants, and the respective
rights and obligations thereunder of the Company, the registered holders of the
Warrant Certificates and the Warrant Agent, the parties hereto agree as follows:
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1. Definitions. As used herein:
(a) "Common Stock" shall mean Common Stock, of the Company,
whether now or hereafter authorized, holders of which have the right to
participate in the distribution of earnings and assets of the Company without
limit as to amount or percentage.
(b) "Corporate Office" shall mean the place of business of the
Warrant Agent (or its successor) located in Denver, Colorado, which office is
presently located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
(c) "Effective Date" shall mean ___________________, 1998, the
date on which the Company's Registration Statement is declared effective by the
Securities and Exchange Commission.
(d) "Exercise Date" shall mean the date of surrender for
exercise of any Warrant Certificate, provided the exercise form on the back of
the Warrant Certificate or a form substantially similar thereto has been
completed in full by the Registered Owner or a duly appointed attorney and the
Warrant Certificate is accompanied by payment in full of the Exercise Price.
(e) "Exercise Period" shall mean the period commencing on the
Effective Date and extending to and through the Expiration Date.
(f) "Exercise Price" shall mean a purchase price of $_________
per share of Common Stock (130% of the offering price for one Firm Share);
provided, however, that in the event the Company reduces the Exercise Price in
accordance with Section 9(i) hereof, the Exercise Price shall be as established
by the Company in accordance with such Section.
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(g) "Expiration Date" shall mean 5:00 P.M. Mountain Standard
or Daylight Time on the last day of the 3 year period commencing on the
Effective Date, subject to the terms provided in Section 5 herein for redemption
and subject to extension by the Board of Directors of the Company; provided
however, if such date shall be a holiday or a day on which banks are authorized
to close, then Expiration Date shall mean 5:00 p.m., Mountain Standard or
Daylight Time on the next following day which in the State of Colorado is not a
holiday or a day on which banks are authorized to close. The Expiration Date may
be extended from time to time, by resolution of the Board of Directors of the
Company, to a later date upon giving notice to the Warrant Agent and the
Registered Owners; provided, however, that notice to the Registered Owners of an
extension of the Expiration Date may be made by publication or by release to Dow
Xxxxx, X.X. Newswire or other means of general distribution. If the Company
redeems the Warrants as provided in Section 5 of this agreement, the Expiration
Date shall be the date fixed for redemption.
(h) "Firm Warrants" shall mean 1,200,000 Warrants to purchase
1,200,000 shares of Common Stock, all of which will be purchased by the several
Underwriters from the Company and sold in the Public Offering in accordance with
the Underwriting Agreement.
(i) "Over-Allotment Warrants" shall mean 180,000 Warrants to
purchase 180,000 shares of Common Stock, any or all of which may be purchased by
the Representative for the several Underwriters from the Company in accordance
with the Underwriting Agreement. The Over-Allotment Warrants shall have
identical terms and conditions to those established for the Firm Warrants,
subject to their issuance in accordance with Section 2 hereof.
(j) "Representative" shall mean Xxxxxxxxx Securities, Inc.,
the representative of the several Underwriters.
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(k) "Registered Owner" shall mean the person in whose name any
Warrant Certificate shall be registered on the books maintained by the Warrant
Agent pursuant to Section 6 of this Agreement.
(l) "Registration Statement" shall mean the Company's
Registration Statement on Form SB-2 (S.E.C. File No. 333-____), as amended.
(m) "Subsidiary" shall mean any corporation of which shares
having ordinary voting power to elect a majority of the Board of Directors of
such corporation (regardless of whether the shares of any other class or classes
of such corporation shall have or may have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by the
Company or one or more subsidiaries of the Company.
(n) "Warrant" or the "Warrants" shall mean and include up to
1,380,000 Warrants to purchase 1,380,000 authorized and unissued Shares of
Common Stock of the Company and, unless otherwise noted, shall include 1,200,000
Firm Warrants and 180,000 Over-Allotment Warrants.
(o) "Warrant Agent" shall mean American Securities Transfer &
Trust, Inc., or its successor, as the transfer agent and registrar of the
Warrants.
(p) "Warrant Shares" shall mean and include up to 1,380,000
authorized and unissued shares of Common Stock reserved for issuance on exercise
of the Warrants, and unless otherwise noted, shall include 1,200,000 shares of
Common Stock issuable upon exercise of the Firm Warrants and 180,000 shares of
Common Stock issuable upon exercise of the Over-Allotment Warrants and any
additional shares of Common Stock or other property which may hereafter be
issuable or deliverable on exercise of the Warrants pursuant to Section 9 of
this Agreement.
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2. Warrants and Issuance of Warrant Certificates. Each Warrant
shall initially entitle the Registered Owner of the Warrant Certificates
representing such Warrant to purchase one share of Common Stock on exercise
thereof, subject to modification and adjustment as hereinafter provided in
Section 9. Warrant Certificates representing 1,200,000 Firm Warrants and
evidencing the right to purchase an aggregate of 1,200,000 shares of Common
Stock of the Company shall be executed by the proper officers of the Company and
delivered to the Warrant Agent for countersignature. Certificates representing
the Firm Warrants to be delivered to the Warrant Agent shall be in direct
relation to the Firm Shares sold in the Company's Public Offering and shall be
attached to certificates representing an equal number of Firm Shares. The
Warrant Certificates representing the Firm Warrants will be issued and delivered
on written order of the Company signed by its President and attested by its
Secretary or Assistant Secretary. The Warrant Agent shall deliver Warrant
Certificates in required whole number denominations to the persons entitled
thereto in connection with any transfer or exchange permitted under this
Agreement.
The Over-Allotment Warrants shall carry identical terms and conditions
to those established for the Firm Warrants and outlined herein. Up to 180,000
Over-Allotment Warrants may be issued and such Over-Allotment Warrants shall
evidence the right of the Registered Owners thereof to purchase an aggregate of
up to 180,000 shares of Common Stock of the Company. Any Warrant Certificates
for Over-Allotment Warrants to be issued will be executed by the proper officers
of the Company and delivered to the Warrant Agent for countersignature on
exercise of the option to purchase Over-Allotment Warrants by the several
Underwriters in accordance with the Underwriting Agreement. Certificates
representing Over-Allotment Warrants will be initially attached to certificates
representing an equal number of Over-Allotment Shares.
Except as provided in Section 8 hereof, share certificates representing
the Warrant Shares shall be issued only on or after the Exercise Date on
exercise of the Warrants or
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on transfer or exchange of the Warrant Shares. The Warrant Agent, if other than
the Company's Transfer Agent, shall arrange with the Transfer Agent for the
issuance and registration of all Warrant Shares.
3. Form and Execution of Warrant Certificates. The Warrant
Certificates shall be substantially in the form attached as Exhibit "A" and may
have such letters, numbers or other marks of identification and such legends,
summaries or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement. The Warrant Certificates shall be dated as of the date of
issuance, whether on initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates.
Each Warrant Certificate for Firm Warrants shall be initially issued
only when attached to a certificate representing the same number of Firm Shares
of Common Stock as Firm Warrants and shall be separately transferable from the
certificate representing Firm Shares immediately upon issuance. Warrant
Certificates issued for Over-Allotment Warrants shall be issued together with
certificates representing the same number of shares of Common Stock as
Over-Allotment Warrants.
The Warrant Certificates shall be executed on behalf of the Company by
its President and Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the Company's
seal. The Warrant Certifi xxxxx shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates shall
cease to be an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent, such
Warrant Certificates may be countersigned, issued and delivered by the Warrant
Agent with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be an officer of the Company.
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4. Exercise. The exercise of Warrants in accordance with this
Agreement shall only be permitted during the Exercise Period.
Warrants shall be deemed to have been exercised immediately prior to
the close of business on the Exercise Date. The exercise form shall be executed
by the Registered Owner thereof or his attorney duly authorized in writing and
shall be delivered together with payment to the Warrant Agent, in cash or by
official bank or certified check, of an amount in lawful money of the United
States of America. Such payment shall be in an amount equal to the Exercise
Price as hereinabove defined.
The person entitled to receive the number of Warrant Shares deliverable
on such exercise shall be treated for all purposes as the Registered Owner of
such Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares. If Warrants represented by more than one Warrant Certificate
shall be exercised at one time by the same Registered Owner, the number of full
Warrant Shares which shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Warrant Shares issuable on such
exercise.
As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be issued and
delivered by the Transfer Agent to the person or persons entitled to receive the
same, a certificate or certificates for the number of Warrant Shares deliverable
on such exercise. No adjustment shall be made in respect of cash dividends on
Warrant Shares deliverable on exercise of any Warrant. The Warrant Agent shall
promptly notify the Company in writing of any exercise and of the number of
Warrant Shares caused to be delivered and shall cause payment of an amount in
cash equal to the Exercise Price to be made promptly to the order of the
Company. The parties contemplate such payments will be made by the Warrant Agent
to the Company on a weekly basis and will consist of collected funds only. The
Warrant Agent shall hold
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any proceeds collected and not yet paid to the Company in a Federally-insured
escrow account at a commercial bank selected by agreement of the Company and the
Warrant Agent, at all times relevant hereto. Following a determination by the
Warrant Agent that collected funds have been received, the Warrant Agent shall
cause the Transfer Agent to issue share certificates representing the number of
Warrant Shares purchased by the Registered Owner.
Expenses incurred by the Warrant Agent, including administrative costs,
costs of maintaining records and other expenses, shall be paid by the Company
according to the standard fees imposed by the Warrant Agent for such services.
All expenses incurred by the Warrant Agent and to be paid by the Company shall
be deducted from the Escrow Account prior to distribution of funds to the
Company.
A detailed accounting statement setting forth the number of Warrants
exercised, the number of Warrant Shares issued, the net amount of exercised
funds and all expenses incurred by the Warrant Agent shall be transmitted to the
Company on payment of each exercise amount. Such accounting statement shall
serve as an interim accounting for the Company during the Exercise Period. The
Warrant Agent shall render to the Company, at the completion of the Exercise
Period, a complete accounting setting forth the number of Warrants exercised,
the identity of persons exercising such Warrants, the number of Warrant Shares
issued, the amounts distributed to the Company, and all expenses incurred by the
Warrant Agent.
The Company may be required to deliver a prospectus that satisfies the
requirements of Section 10 of the Securities Act of 1933, as amended (the "1933
Act") with delivery of the Warrant Shares and must have a registration statement
(or a post-effective amendment to an existing registration statement) effective
under the 1933 Act in order for the Company to comply with any such prospectus
delivery requirements. The Company will advise the Warrant Agent of the status
of any such registration statement under the
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1933 Act and of the effectiveness of the Company's registration statement or
lapse of effectiveness.
No issuance of Warrant Shares shall be made unless there is an
effective registration statement under the 1933 Act, and registration or
qualification of the Warrant Shares, or an exemption therefrom, has been
obtained from state or other regulatory authorities in the jurisdiction in which
such Warrant Shares are sold. The Company will provide to the Warrant Agent
written confirmation of all such registration or qualification, or an exemption
therefrom, when requested by the Warrant Agent.
5. Redemption. Commencing one year from the Effective Date, the
Company may, at its option, redeem the Warrants in whole, but not in part, for a
redemption price of $.05 per Warrant, on not less than 30 days' notice to the
Registered Owners. The right to redeem the Warrants may be exercised by the
Company following such one year period and during the Exercise Period only in
the event (i) the closing bid price for Company's shares of Common Stock has
equalled or exceeded $_________ (150% of the Warrant Exercise Price) for 20
consecutive trading days, (ii) any notice of the call for redemption is given
not more than five (5) business days after the conclusion of the 20 consecutive
trading days referred to in the foregoing (i), (iii) the Company has a
registration statement (or a post-effective amendment to an existing
registration statement) pertaining to the Warrant Shares effective with the
Securities and Exchange Commission, which registration statement would enable a
Registered Owner to exercise the Warrants, and (iv) the expiration of the 30 day
notice period is within the Exercise Period. In the event the Company exercises
its right to redeem the Warrants, the Expiration Date will be deemed to be, and
the Warrants will be exercisable until the close of business on, the date fixed
for redemption in such notice. If any Warrant called for redemption is not
exercised by such time, it will cease to be exercisable and the Registered Owner
thereof will be entitled only to the redemption price.
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6. Reservation of Shares and Payment of Taxes. The Company
covenants that it will at all times reserve and have available from its
authorized shares of Common Stock such number of shares of Common Stock as shall
then be issuable on exercise of all outstanding Warrants. The Company covenants
that all Warrant Shares issuable shall be duly and validly issued, fully paid
and nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof.
The Registered Owner shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect to the issuance of
the Warrants, or the issuance, transfer or delivery of any Warrant Shares on
exercise of the Warrants. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered Owner of the Warrant Certificates,
no such delivery shall be made unless the person requesting the same has paid to
the Warrant Agent or Transfer Agent the amount of any such taxes or charges
incident thereto.
The Company will supply the Warrant Agent with blank Warrant
Certificates, so as to maintain an inventory satisfactory to the Warrant Agent.
The Company will file with the Warrant Agent a statement setting forth the name
and address of its Transfer Agent for Warrant Shares and of each successor
Transfer Agent, if any.
7. Registration of Transfer. The Warrant Certificates may be
transferred in whole or in part and may be separately transferred from the
Common Stock share certificate to which such Warrant Certificate is attached
upon initial issuance, if any, at any time during the Exercise Period. Warrant
Certificates to be exchanged shall be surrendered to the Warrant Agent at its
corporate office. The Company shall execute and the Warrant Agent shall
countersign, issue and deliver in exchange therefor, the Warrant Certificate or
Certificates which the holder making the transfer shall be entitled to receive.
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The Warrant Agent shall keep transfer books at its corporate office on
which Warrant Certificates and the transfer thereof shall be registered. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and deliver
to the transferee or transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or
exercise shall be duly endorsed or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Warrant
Agent.
Prior to due presentment for registration of transfer thereof, the
Company and the Warrant Agent may treat the Registered Owner of any Warrant
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company or the
Warrant Agent) and the parties hereto shall not be affected by any notice to the
contrary.
8. Loss or Mutilation. On receipt by the Company and the Warrant
Agent of evidence satisfactory as to the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate, the Company shall execute
and the Warrant Agent shall countersign and deliver in lieu thereof, a new
Warrant Certificate representing an equal aggregate number of Warrants. In the
case of loss, theft or destruction of any Warrant Certificate, the Registered
Owner requesting issuance of a new Warrant Certificate shall be required to
secure an indemnity bond in favor of the Company and Warrant Agent in an amount
satisfactory to each of them. In the event a Warrant Certificate is mutilated,
such Certificate shall be surrendered and cancelled by the Warrant Agent prior
to delivery of a new Warrant Certificate. Applicants for a substitute Warrant
Certificate shall also comply with such other regulations and pay such other
reasonable charges as the Company may prescribe.
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9. Adjustment of Exercise Price and Shares.
(a) If at any time prior to the expiration of the Warrants by
their terms or by exercise, the Company increases or decreases the number of its
issued and outstanding shares of Common Stock, or changes in any way the rights
and privileges of such shares of Common Stock, by means of (i) the payment of a
share dividend or the making of any other distribution on such shares of Common
Stock payable in its shares of Common Stock, (ii) a split or subdivision of
shares of Common Stock, or (iii) a consolidation or combination of shares of
Common Stock, then the Exercise Price in effect at the time of such action and
the number of Warrants required to purchase each Warrant Share at that time
shall be proportionately adjusted so that the numbers, rights and privileges
relating to the Warrant Shares then purchasable upon the exercise of the
Warrants shall be increased, decreased or changed in like manner, for the same
aggregate purchase price set forth in the Warrants, as if the Warrant Shares
purchasable upon the exercise of the Warrants immediately prior to the event had
been issued, outstanding, fully paid and nonassessable at the time of that
event. Any dividend paid or distributed on the shares of Common Stock in shares
of any other class of shares of the Company or securities convertible into
shares of Common Stock shall be treated as a dividend paid in shares of Common
Stock to the extent shares of Common Stock are issuable on the payment or
conversion thereof.
(b) In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall be recapitalized by reclassifying
its outstanding shares of Common Stock into shares with a different par value,
or by changing its outstanding shares of Common Stock to shares without par
value or in the event of any other material change in the capital structure of
the Company or of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any Registered Owner of the Warrants
shall thereafter have the right to purchase, on the basis and the terms and
conditions specified
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in this Agreement, in lieu of the Warrant Shares theretofore purchasable on the
exercise of any Warrant, such securities or assets as may be issued or payable
with respect to or in exchange for the number of Warrant Shares theretofore
purchasable on exercise of the Warrants had such reclassification,
recapitalization or conveyance not taken place; and in any such event, the
rights of any Registered Owner of a Warrant to any adjustment in the number of
Warrant Shares purchasable on exercise of such Warrant, as set forth above,
shall continue and be preserved in respect of any stock, securities or assets
which the Registered Owner becomes entitled to purchase.
(c) In the event the Company, at any time while the Warrants
shall remain unexpired and unexercised, shall sell all or substantially all of
its property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part of
the terms of such sale, dissolution, liquidation or winding up such that the
Registered Owner of a Warrant may thereafter receive, on exercise thereof, in
lieu of each Warrant Share which he would have been entitled to receive, the
same kind and amount of any stock, securities or assets as may be issuable,
distributable or payable on any such sale, dissolution, liquidation or winding
up with respect to each share of Common Stock of the Company; provided, however,
that in the event of any such sale, dissolution, liquidation or winding up, the
right to exercise the Warrants shall terminate on a date fixed by the Company,
such date to be not earlier than 5:00 P.M., Mountain Time, on the 30th day next
succeeding the date on which notice of such termination of the right to exercise
the Warrants has been given by mail to the Registered Owners thereof at such
addresses as may appear on the books of the Company.
(d) In the event prior to the expiration of the Warrants by
exercise or by their terms, the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to purchase its shares of
Common Stock at a price per share more than 10% below the then-current market
price per share (as defined below) at the date of taking such record, then, (i)
the number of Warrant Shares purchasable pursuant
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to the Warrants shall be redetermined as follows: the number of Warrant Shares
purchasable pursuant to a Warrant immediately prior to such adjustment (taking
into account fractional interests to the nearest 1,000th of a share) shall be
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock of the Company outstanding (excluding shares of Common Stock
then owned by the Company) immediately prior to the taking of such record, plus
the number of additional shares offered for purchase, and the denominator of
which shall be the number of shares of Common Stock of the Company outstanding
(excluding shares of Common Stock owned by the Company) immediately prior to the
taking of such record, plus the number of shares which the aggregate offering
price of the total number of additional shares so offered would purchase at such
current market price; and (ii) the Exercise Price per Warrant Share purchasable
pursuant to a Warrant shall be redetermined as follows: the Exercise Price in
effect immediately prior to the taking of such record shall be multiplied by a
fraction, the numerator of which is the number of Warrant Shares purchasable
immediately prior to the taking of such record, and the denominator of which is
the number of Warrant Shares purchasable immediately after the taking of such
record as determined pursuant to clause (i) above; provided, however, (i) that
any adjustment in the number of shares issuable as set forth above shall be
effective only to the extent sufficient shares of Common Stock have been
registered through a registration statement effective under the 1933 Act, and
(ii) that any adjustment in the Exercise Price does not cause the Company to
receive proceeds in excess of the amount authorized by any such registration
statement. For the purpose hereof, the current market price per share at any
date shall be deemed to be the average of (i) the highest bid-and-asked prices
as reported by The Nasdaq Stock Market, Inc. if the Common Stock is quoted
thereon, or (ii) if no such quotation is available, the average of the mean
between the bid and asked prices as quoted by any two independent persons or
entities making a market for the Common Stock. Such bid and asked prices shall
be for 10 consecutive business days commencing 30 business days prior to the
record date.
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(e) On exercise of the Warrants by the Registered Owners, the
Company shall not be required to deliver fractions of Warrant Shares; provided,
however, that the Company shall make prompt, proportionate, equitable, lawful
and adequate provisions in respect of any such fraction of one Warrant Share
either on the basis of adjustment in the then applicable Exercise Price or a
purchase of the fractional interest at the price of the Company's shares of
Common Stock or such other reasonable basis as the Company may determine.
(f) In the event, prior to expiration of the Warrants by
exercise or by their terms, the Company shall determine to take a record of the
holders of its shares of Common Stock for the purpose of determining
shareholders entitled to receive any stock dividend, distribution or other right
which will cause any change or adjustment in the number, amount, price or nature
of the shares of Common Stock or other stock, securities or assets deliverable
on exercise of the Warrants pursuant to the foregoing provisions, the Company
shall give to the Registered Owners of the Warrants at the addresses as may
appear on the books of the Company at least 30 days' prior written notice to the
effect that it intends to take such a record provided, however, that notice to
the Registered Owners of an extension of the Expiration Date may be made by
publication or by release to Dow Xxxxx, X.X. Newswire or other means of general
distribution. Such notice shall specify the date as of which such record is to
be taken; the purpose for which such record is to be taken; and the number,
amount, price and nature of the shares of Common Stock or other stock,
securities or assets which will be deliverable on exercise of the Warrants after
the action for which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the Registered
Owners of the Warrants of any corporate action hereunder, the failure of the
Company to give notice shall not invalidate such corporate action of the
Company.
(g) The Warrants shall not entitle the Registered Owner
thereof to any of the rights of shareholders or to any dividend declared on the
shares of Common Stock
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unless the Warrant is exercised and the Warrant Shares purchased prior to the
record date fixed by the Board of Directors of the Company for the determination
of holders of shares of Common Stock entitled to such dividend or other right.
(h) No adjustment of the Exercise Price shall be made as a
result of or in connection with (i) the issuance of shares of Common Stock of
the Company pursuant to options, warrants, employee stock ownership plans and
share purchase agreements outstanding or in effect on the date hereof, (ii) the
establishment of additional option plans of the Company, the modification,
renewal or extension of any plan now in effect or hereafter created, or the
issuance of shares of Common Stock on exercise of any options pursuant to such
plans, and (iii) the issuance of shares of Common Stock in connection with
compensation arrangements for officers, employees or agents of the Company or
any subsidiary, and the like.
(i) The Company shall be empowered, in the sole and
unconditional discretion of the Board of Directors, at any time during the
Exercise Period, to reduce the applicable Exercise Price of the Warrants. Any
such reduction in the applicable Exercise Price shall be effective upon written
notice to the Warrant Agent, which notice shall be given pursuant to a duly and
validly authorized resolution of the Board of Directors of the Company. Any such
reduction in the Exercise Price shall not entitle the Registered Owners to
issuance of any additional Common Shares pursuant to the adjustment provisions
set forth elsewhere herein, regardless of whether the reduction in the Exercise
Price was effected either prior to or following exercise of Warrants by the
Registered Owners thereof. A nonexercising Registered Owner shall have no remedy
or rights to receive any additional Warrant Shares as a result of any reduction
in any applicable Exercise Price pursuant to this subsection.
10. Duties, Compensation and Termination of Warrant Agent. The
Warrant Agent shall act hereunder as agent and in a ministerial capacity for the
Company, and its
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duties shall be determined solely by the provisions hereof. The Warrant Agent
shall not, by issuing and delivering Warrant Certificates or by any other act
hereunder, be deemed to make any representations as to the validity, value or
authorization of the Warrant Certifi cate or the Warrants represented thereby or
of the Warrant Shares or other property delivered on exercise of any Warrant.
The Warrant Agent shall not be under any duty or responsibility to any holder of
the Warrant Certificates to make or cause to be made any adjustment of the
Exercise Price or to determine whether any fact exists which may require any
such adjustments.
The Warrant Agent shall not (i) be liable for any recital or statement
of fact contained herein or for any action taken or omitted by it in reliance on
any Warrant Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith in accordance
with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by its
President and attested by its Secretary or Assistant Secretary. The Warrant
Agent shall not be liable for any action taken or omitted by it in accordance
with such notice, statement, instruction, request, direction, order or demand.
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The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its reasonable
expenses. The Company further agrees to indemnify the Warrant Agent against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the execution of
its duties and powers hereunder, excepting losses, expenses and liabilities
arising as a result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may terminate
the Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or willful misconduct) on 30 days' prior written
notice to the other party. At least 12 days prior to the date such resignation
is to become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the Registered Owner of each Warrant Certificate. On
such resignation or termination, the Company shall appoint a new Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of the resignation by the Warrant Agent,
then the Registered Owner of any Warrant Certificate may apply to any court of
competent jurisdiction for the appointment of a new Warrant Agent. Any new
Warrant Agent, whether appointed by the Company or by such court, shall be a
bank or trust company having a capital and surplus, as shown by its last
published report to its shareholders, of not less than $1,000,000, and having
its principal office in the United States.
After acceptance in writing of an appointment of a new Warrant Agent is
received by the Company, such new Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and
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validly executed. The Company shall file a notice of appointment of a new
Warrant Agent with the resigning Warrant Agent and shall forthwith cause a copy
of such notice to be mailed to the Registered Owner of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new Warrant Agent
may be converted or merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new Warrant Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent. Any
such successor Warrant Agent shall promptly cause notice of its succession as
Warrant Agent to be mailed to the Company and to the Registered Owner of each
Warrant Certificate. No further action shall be required for establishment and
authorization of such successor Warrant Agent.
The Warrant Agent, its officers or directors and it subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company and
otherwise deal with the Company in the same manner and to the same extent and
with like effect as though it were not the Warrant Agent. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company.
11. Modification of Agreement. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement they
shall deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained. Additionally, the
parties may make any changes or corrections deemed necessary which shall not
adversely affect the interests of the Registered Owners of Warrant Certificates;
provided, however, this Agreement shall not otherwise be modified, supplemented
or altered in any respect except with the consent in writing of the Registered
Owners of Warrant Certificates representing not less than a majority of the
Warrants outstanding. Additionally, no change in the number or nature of
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the Warrant Shares purchasable on exercise of a Warrant or the Exercise Price
therefor shall be made without the consent in writing of the Registered Owner of
the Warrant Certificate representing such Warrant, other than such changes as
are specifically prescribed by this Agreement.
12. Notices. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed given sufficiently in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by tested telex, telegram or
cable to, in the case of the Company:
Factual Data Corp.
0000 XXX Xxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
and in the case of the Warrant Agent:
American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Berliner Xxxxxx Xxxxxx and Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
and if to the Registered Owner of a Warrant Certificate, at the address of such
Registered Owner as set forth on the books maintained by the Warrant Agent.
13. Persons Benefitting. This Agreement shall be binding upon and
inure to the benefit of the Company, the Warrant Agent and their respective
successors and assigns, and the Registered Owners and beneficial owners from
time to time of the Warrant Certificates. Nothing in this Agreement is intended
or shall be construed to confer on any
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other person any right, remedy or claim or to impose on any other person any
duty, liability or obligation.
14. Further Instruments. The parties shall execute and deliver any
and all such other instruments and shall take any and all such other actions as
may be reasonable or necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be
held, declared or pronounced void, voidable, invalid, unenforceable or
inoperative for any reason by any court of competent jurisdiction, government
authority or otherwise, such holding, declaration or pronouncement shall not
affect adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its terms,
and the effect of such holding, declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other action or
occurrence.
17. General Provisions. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of Colorado.
Except as otherwise expressly stated herein, time is of the essence in
performing hereunder. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, and this Agreement may not
be modified or amended or any term or provision hereof waived or
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discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. The headings of this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning thereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above mentioned.
THE COMPANY:
FACTUAL DATA CORP.
(CORPORATE SEAL)
By:
-----------------------------
Xxxxxx X. Xxxxxx, President
ATTEST:
---------------------------------
, Secretary
---------------------
THE WARRANT AGENT:
AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By:
-----------------------------
Title:
--------------------------
ATTEST:
---------------------------------
Title:
---------------------------
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