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Exhibit 4.3
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of August 1, 2001 by and between Active IQ
Technologies, Inc., a Minnesota corporation (the "Company"), and Firstar Bank,
N.A., as Warrant Agent (the "Warrant Agent").
A. In connection with the Company's merger transaction with activeIQ
Technologies Inc., the Company is obligated to issue to the former shareholders
of such corporation up to 5,008,101 Redeemable Class B Warrants (the "Warrants")
evidencing the right to purchase an aggregate of up to 5,008,101 authorized but
previously unissued shares of Common Stock, $.01 par value per share, of the
Company (the "Common Stock").
B. The Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent desires so to act, in connection with the
issuance, registration, transfer, exchange and exercise of the Warrants.
NOW THEREFORE, it is agreed as follows:
ARTICLE I.
APPOINTMENT OF WARRANT AGENT; ISSUANCE,
FORM AND EXECUTION OF WARRANT CERTIFICATES
Section 1.1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company, and the Warrant Agent hereby
accepts the agency established herein and agrees to perform its agency duties in
accordance with the terms and conditions of this Warrant Agreement.
Section 1.2. Warrant Certificates. The Company shall execute and
deliver to the Warrant Agent certificates which the Company has authorized to
represent the Warrants ("Warrant Certificates"). The Warrant Certificates shall
be substantially as set forth in Exhibit A hereto and may have 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 Warrant Agreement, or as may be required to comply with any law or with any
rule or regulation relating to listing of the Warrants on the Nasdaq Stock
Market, including the Nasdaq Small Cap Market System, or on any stock exchange
or to conform to usage. The Warrant Certificates shall be dated with the date of
their issuance.
Section 1.3. Execution of Warrant Certificates. The Warrant
Certificates shall be executed on behalf of the Company by a duly authorized
officer of the Company, either manually or by facsimile signature printed
thereon. The Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. Any
Warrant Certificate may be signed on behalf of the Company by the person who at
the actual date of the signing of such Warrant Certificate shall have been the
proper officer of the Company, although at the date of issuance of such Warrant
Certificate any such person has ceased to be such officer of the Company.
ARTICLE II.
EXERCISE OF WARRANTS
Section 2.1. Exercise. Any or all of the Warrants represented by each
Warrant Certificate may be exercised, in whole or in part, by the holder thereof
on or before 5:00 p.m., Minneapolis time, on April 30, 2006, unless extended by
the Company, by surrender of the Warrant Certificate with the Purchase Form,
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which is printed on the reverse thereof (or a reasonable facsimile thereof) duly
executed by such holder, to the Warrant Agent at its principal office in
Milwaukee, Wisconsin, accompanied by payment, in cash or by certified or
official bank check payable to the order of the Company, in an amount equal to
the product of the number of shares of Common Stock issuable upon exercise of
the Warrants represented by such Warrant Certificate, as adjusted pursuant to
the provisions of Article III hereof, multiplied by the exercise price of Five
and 50/100 Dollars ($5.50), as adjusted pursuant to the provisions of Article
III hereof (such price as so adjusted from time to time being herein called the
"Exercise Price"), and such holder shall be entitled to receive such number of
fully paid and nonassessable shares of Common Stock, as so adjusted, at the time
of such exercise.
Section 2.2. Time of Exercise. Each exercise of Warrants shall be
deemed to have been effective immediately prior to the close of business on the
business day on which the Warrant Certificate relating to such Warrants shall
have been surrendered to the Warrant Agent as provided in Section 2.1, and at
such time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise as
provided in Section 2.3, shall be deemed to have become the holder or holders of
record thereof.
Section 2.3. Issuance of Shares of Common Stock; No Fractional Shares.
As soon as practicable after the exercise of any Warrant, and in any event
within ten (10) days after receipt by the Warrant Agent of the notice of
exercise under Section 2.1, the Company at its expense (including the payment by
it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the holder thereof or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct,
(a) a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be
entitled upon such exercise plus, in lieu of any fractional share to
which such holder would otherwise be entitled, an amount in cash equal
to such fraction multiplied by the then current value of a share of
Common Stock, such current value to be determined as follows:
(i) if the Common Stock shall be listed or
admitted to unlisted trading privileges on any single
national securities exchange, then such current value
shall be computed on the basis of the last reported
sale price of the Common Stock on such exchange on
the last business day prior to the date of the
exercise of such Warrant upon which a sale shall have
been effected; or
(ii) if the Common Stock shall not be so listed
or admitted to unlisted trading privileges and bid
and asked prices therefor in the over-the-counter
market shall be reported by Nasdaq, including the
SmallCap Market System, then such current value shall
be the last reported sale on the last business day
prior to the date of the exercise of such Warrant,
or, in the event the last reported sale is
unavailable, the average of the closing bid and asked
prices on the last business day prior to the date of
the exercise of such Warrant as so reported; or
(iii) if the Common Stock shall be listed or
admitted to unlisted trading privileges on more than
one national securities exchange or one or more
national securities exchanges and in the
over-the-counter market, then such current value
shall, if different as a result of calculation under
the applicable method(s) described above in this
Section, be deemed to be the higher number calculated
in connection therewith; or
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(iv) if the Common Stock shall not be so listed
or admitted to unlisted trading privileges and such
bid and asked prices shall not be so reported, then
such current value shall be computed on the basis of
the book value of Common Stock as of the close of
business on the last day of the month immediately
preceding the date upon which such Warrant was
exercised, as determined by the Company,
and
(b) in case such exercise includes only part of the Warrants
represented by any Warrant Certificate, a new Warrant Certificate or
Warrant Certificates of like tenor, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of such Warrant Certificate minus the
number of such shares designated by the holder for such exercise as
provided in Section 2.1. Warrants, represented by a properly assigned
Warrant Certificate, may be exercised by a new holder without first
having a new Warrant Certificate issued.
Section 2.4. Extension of Exercise Period; Change of Exercise Price.
The Company may, upon notice given to the Warrant Agent, and without the consent
of the holders of the Warrant Certificates, (i) reduce the Exercise Price during
all or any portion of the originally stated exercise period, or (ii) extend the
period over which the Warrants are exercisable beyond April 30, 2006, and
increase the Exercise Price for any period the Warrant exercise period is
extended. In the case of the extension of the exercise period or a change in the
Exercise Price, the Company must provide the Warrant Agent and the
Warrantholders of record notice of such extension of the exercise period,
specifying, as the case may be, the time to which such exercise period is
extended, or specifying the new Exercise Price and the periods for which such
new Exercise Price is in effect, a reasonable time prior to the date such
extension or new Exercise Price is to take effect, such reasonable time to be
commercially reasonable and consistent with applicable securities laws and
regulations.
ARTICLE III.
ANTIDILUTION PROVISIONS
Section 3.1. Adjustment of Exercise Price.
(a) The Exercise Price shall be subject to the following adjustments.
In the event that:
(i) any dividends on any class of stock of the
Company payable in Common Stock or securities convertible into
Common Stock shall be paid by the Company;
(ii) the Company shall subdivide its then outstanding
shares of Common Stock into a greater number of shares; or
(iii) the Company shall combine outstanding shares of
Common Stock, by reclassification or otherwise;
then, in any such event, the Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full
cent) determined by dividing (A) the number of shares of Common Stock
outstanding immediately prior to such event, multiplied by the then
existing Exercise Price, by (B) the total number of shares of Common
Stock outstanding immediately after such event (including the
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maximum number of shares of Common Stock issuable in respect of any
securities convertible into Common Stock), and the resulting quotient
shall be the adjusted Exercise Price per share.
(b) No adjustment of the Exercise Price shall be made if the
amount of such adjustments shall be less than one cent per share, but
in such case any adjustment that would otherwise be required to be made
shall be carried forward and shall be made at the time and together
with the next subsequent adjustment which, together with any adjustment
or adjustments so carried forward, shall amount to not less than one
cent per share.
Section 3.2. Adjustment of Number of Shares Purchasable on Exercise of
Warrants. Upon each adjustment of the Exercise Price pursuant to Section 3.1,
the registered holder of each Warrant shall thereafter (until another such
adjustment) be entitled to purchase at the adjusted Exercise Price the number of
shares, calculated to the nearest full share, obtained by multiplying the number
of shares specified in such Warrant (as adjusted as a result of all adjustments
in the Exercise Price in effect prior to such adjustment) by the Exercise Price
in effect prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
Section 3.3. Notice as to Adjustment. Upon any adjustment of the
Exercise Price and an increase or decrease in the number of shares of Common
Stock purchasable upon the exercise of the Warrants, then, and in each such
case, the Company shall within twenty (20) days after the effective date of such
adjustment give written notice thereof, by first class mail, postage prepaid,
addressed to each registered Warrantholder at the address of such Warrantholder
as shown on the books of the Company, which notice shall state the adjusted
Exercise Price and the increased or decreased number of shares purchasable upon
the exercise of the Warrants, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
Section 3.4. Effect of Reorganization, Reclassification, Merger, Etc.
If at any time while any Warrant is outstanding there should be any capital
reorganization or reclassification of the capital stock of the Company (other
than the issue of any shares of Common Stock in subdivision of outstanding
shares of Common Stock by reclassification or otherwise and other than a
combination of shares provided for in Section 3.1 hereof) or any consolidation
or merger of the Company with another corporation or any sale, conveyance, lease
or other transfer by the Company of all or substantially all of its assets to
any other corporation, the holder of any Warrant shall, during the remainder of
the period such Warrant is exercisable, be entitled to receive, upon payment of
the Exercise Price, the number of shares of stock or other securities or
property of the Company, or of the successor corporation resulting from such
consolidation or merger, or of the corporation to which the assets of the
Company has been sold, conveyed, leased or otherwise transferred, as the case
may be, to which the Common Stock (and any other securities and property) of the
Company, deliverable upon the exercise of such Warrant, would have been entitled
upon such capital reorganization, reclassification of capital stock,
consolidation, merger, sale, conveyance, lease or other transfer if such Warrant
had been exercised immediately prior to such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance,
lease or other transfer; and, in any such case, appropriate adjustment (as
determined by the Board of Directors of the Company) shall be made in the
application of the provisions set forth in this Warrant Agreement with respect
to the rights and interests thereafter of the Warrantholders to the end that the
provisions set forth in this Warrant Agreement (including the adjustment of the
Exercise Price and the number of shares issuable upon the exercise of the
Warrants) shall thereafter be applicable, as near as may be reasonably
practicable, in relation to any shares or other property thereafter deliverable
upon the exercise of the Warrants as if the Warrants had been exercised
immediately prior to such capital reorganization, reclassification of capital
stock, such consolidation, merger, sale, conveyance, lease or other transfer and
the Warrantholders had carried out the terms of the exchange as provided for by
such capital reorganization, reclassification, consolidation or merger. The
Company shall
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not effect any such capital reorganization, consolidation, merger or transfer
unless, upon or prior to the consummation thereof, the successor corporation or
the corporation to which the property of the Company has been sold, conveyed,
leased or otherwise transferred shall assume by written instrument the
obligation to deliver to the holder of each Warrant such shares of stock,
securities, cash or property as in accordance with the foregoing provisions such
holder shall be entitled to purchase.
Section 3.5. Prior Notice as to Certain Events. In case at any time:
(a) The Company shall pay any dividend upon its Common Stock
payable in stock or make any distribution (other than cash dividends)
to the holders of its Common Stock; or
(b) The Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class
or any other rights; or
(c) There shall be any capital reorganization or reclassification
of the capital stock of the Company, or consolidation or merger of the
Company with, or sale, conveyance, lease or other transfer of all or
substantially all of its assets to, another corporation; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then in any one or more of such cases, the Company shall give prior written
notice, by first class mail, postage prepaid, addressed to each registered
Warrantholder at the address of such Warrantholder as shown on the books of the
Company, of the date on which (i) the books of the Company shall close or a
record shall be taken for such stock dividend, distribution or subscription
rights or (ii) such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
Common Stock of record shall participate in such dividend, distribution or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least
twenty (20) days prior to the action in question and not less than twenty (20)
days prior to the record date or the date on which the Company's transfer books
are closed in respect thereto.
Section 3.6. Certain Obligations of the Company. The Company will not,
by amendment of its articles of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant Agreement or the Warrant
Certificate, but will at all times in good faith assist in the carrying out of
all such terms. Without limiting the generality of the foregoing, the Company
(a) will take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
such stock upon the exercise of all Warrants from time to time outstanding, and
(b) will not (i) transfer all or substantially all of its properties and assets
to any other person or entity, or (ii) consolidate with or merge into any other
entity where the Company is not the continuing or surviving entity, or (iii)
permit any other entity to consolidate with or merge into the Company where the
Company is the continuing or surviving entity but, in connection with such
consolidation or merger, the Common Stock then issuable upon the exercise of the
Warrants shall be changed into or exchanged for shares or other securities or
property of any other entity unless, in any such case, the other entity
acquiring such properties and assets, continuing or surviving after such
consolidation or merger or issuing or distributing such shares or other
securities or property, as the case may be, shall expressly assume in writing
and be bound by all the terms of this Warrant Agreement and the Warrant
Certificates.
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Section 3.7. Reservation and Listing of Common Stock. The Company will
at all times reserve and keep available, solely for issuance and delivery upon
the exercise of the Warrants, all shares of Common Stock from time to time
issuable upon such exercise. All such shares shall be authorized and, when
issued upon such exercise, shall be validly issued, fully paid and nonassessable
with no liability on the part of the holder thereof. The Company, at its
expense, will list on each national securities exchange on which any Common
Stock may at any time be listed, subject to official notice of issuance, and
will maintain such listing of, the shares of Common Stock from time to time
issuable upon the exercise of the Warrants.
Section 3.8. Registration Rights; Registration or Exemption for Common
Stock.
(a) If at any time the Company shall propose to file any
registration statement (other than a registration statement on Form
X-0, Xxxx X-0 or any similarly inappropriate form, or any successor
forms thereto) under the Securities Act of 1933, as amended (the
"Securities Act") covering a public offering of the Company's Common
Stock (a "Registration Statement"), it will notify the holder of the
Warrants at least twenty (20) days prior to each such filing (a
"Registration Notice") and will use its best efforts to include in such
Registration Statement (to the extent permitted by applicable
regulation), the shares of Common Stock issuable to the Warrantholders
upon exercise of the Warrants to the extent requested by such holder
within ten (10) days after receipt of notice of such filing (which
request shall specify the interest in the Warrants or the shares
issuable upon exercise thereof intended to be sold or disposed of by
such holder and describe the nature of any proposed sale or other
disposition thereof); provided, however, that if a greater number of
shares of Common Stock issuable upon exercise of the Warrants is
offered for participation in the proposed offering that in the
reasonable opinion of the managing underwriter(s) of the proposed
offering can be accommodated without adversely affecting the proposed
offering, then the amount of shares of Common Stock issuable upon
exercise of the Warrants proposed to be offered by such holders for
registration, as well as the number of securities of any other selling
shareholders participating in the registration, shall be
proportionately reduced to a number deemed satisfactory by the managing
underwriter(s). The Company shall bear all expenses incurred in
connection with the preparation, filing and amendment of any
Registration Statements, except that the Warrantholders shall pay all
fees, disbursements and expenses of any counsel or expert retained by
such holders and all underwriting discounts and commissions, filing
fees and any transfer or other taxes relating to the shares of Common
Stock issuable upon exercise of the Warrants included in such
Registration Statements. The Warrantholders agree to cooperate with the
Company in the preparation and filing of any such Registration
Statements, and in the furnishing of information concerning the
Warrantholder for inclusion therein, or in any efforts by the Company
to establish that the proposed sale is exempt from the Securities Act
as to any proposed distribution. Notwithstanding the foregoing, the
Company shall be under no obligation to include any of the shares of
Common Stock issuable upon exercise of the Warrants with respect to any
Warrantholder that has not provided such information requested by the
Company in the registration notice within ten (10) days after any such
holders' receipt thereof, the Company shall have no obligation to
include any of such holders' shares of Common Stock issuable upon
exercise of the Warrants in the Registration Statement.
(b) The Company will use its best efforts (a) at all times the
Warrants are exercisable to maintain an effective registration
statement under the Securities Act covering Common Stock issuable upon
exercise of the Warrants, (b) from time to time to amend or supplement
the prospectus contained in such registration statement to the extent
necessary in order to comply with applicable law, (c) to qualify for
exemption from the registration requirements of the Act the Common
Stock issuable upon exercise of the Warrants, and (d) to maintain
exemptions or qualifications, in those jurisdictions in which the
original registration statement relating to the Warrants was initially
qualified, to permit the exercise of the Warrants and the issuance of
the Common Stock pursuant to such exercise. The Warrant Agent shall
have no responsibility for the maintenance of such exemptions or
qualifications or for liabilities arising from the exercise or
attempted exercise of Warrants in jurisdictions where exemptions or
qualifications have not been maintained or are otherwise unavailable.
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ARTICLE IV.
REDEMPTION OF WARRANTS
Section 4.1. Redemption Price. The Warrants may be redeemed at the
option of the Company, at any time after April 30, 2002 following a period of 14
consecutive trading days where the per share average closing bid price of the
Common Stock exceeds Seven and 50/100 Dollars ($7.50), on notice as set forth in
Section 4.2, and at a redemption price equal to $.01 per Warrant; provided,
however, that the Warrants may not be redeemed by the Company unless the Common
Stock issuable upon exercise of the Warrants has been registered with the
Securities and Exchange Commission or are otherwise freely tradable. For
purposes of this Section, the closing bid price of the Common Stock shall be
determined by the closing bid price as reported by Nasdaq so long as the Common
Stock is quoted on the Nasdaq National Market or Small Cap Market Systems and,
if the Common Stock is listed on a national securities exchange, shall be
determined by the last reported sale price on the primary exchange on which the
Common Stock is traded.
Section 4.2. Notice of Redemption. In the case of any redemption of
Warrants, the Company or, at its request, the Warrant Agent in the name of and
at the expense of the Company shall give notice of such redemption to the
holders of the Warrants to be redeemed as hereinafter provided in this Section
4.2. Notice of redemption to the holders of Warrants shall be given by mailing
by first-class mail a notice of such redemption not less than thirty (30) days
prior to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the holder receives the notice. In any case, failure duly to give such
notice, or any defect in such notice, to the holder of any Warrant Certificate
shall not affect the validity of the proceedings for the redemption of Warrants
represented by any other Warrant Certificate. Each such notice shall specify the
date fixed for redemption, the place of redemption and the redemption price of
$.01 at which each Warrant is to be redeemed, and shall state that payment of
the redemption price of the Warrants will be made on surrender of the Warrants
at such place of redemption, and that if not exercised by the close of business
on the date fixed for redemption, the exercise rights of the Warrants identified
for redemption shall expire unless extended by the Company. Such notice shall
also state the current Exercise Price and the date on which the right to
exercise the Warrants will expire unless extended by the Company.
Section 4.3. Payment of Warrants on Redemption; Deposit of Redemption
Price. If notice of redemption shall have been given as provided in Section 4.2,
the redemption price of $.01 per Warrant shall, unless the Warrant is
theretofore exercised pursuant to the terms hereof, become due and payable on
the date and at the place stated in such notice. On and after such date of
redemption, provided that cash sufficient for the redemption thereof shall then
be deposited by the Company with the Warrant Agent for that purpose, the
exercise rights of the Warrants identified for redemption shall expire. On
presentation and surrender of Warrant Certificates at such place of payment in
such notice specified, the Warrants identified for redemption shall be paid and
redeemed at the redemption price of $.01 per Warrant. Prior to the date fixed
for redemption, the Company shall deposit with the Warrant Agent an amount of
money sufficient to pay the redemption price of all the Warrants identified for
redemption. Any monies which shall have been deposited with the Warrant Agent
for redemption of Warrants and which are not required for that purpose by reason
of exercise of Warrants shall be repaid to the Company upon delivery to the
Warrant Agent of evidence satisfactory to it of such exercise.
ARTICLE V.
CERTAIN OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1. No Rights of Shareholders. The Warrant Certificates shall
be issued in registered form only. No Warrant Certificate shall entitle the
holder thereof to any of the rights of a holder of shares of
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Common Stock of the Company, including, without limitation, the right to vote,
to receive dividends and other distributions, or to receive any notice of, or to
attend, meetings of holders of Common Stock or any other proceedings of the
Company.
Section 5.2. Loss, Theft, Destruction or Mutilation of Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to the Warrant Agent of the loss, theft, destruction or mutilation
of any Warrant Certificate, and (a) in the case of any such loss, theft, or
destruction, upon delivery to the Warrant Agent of an indemnity bond in form and
amount, and issued by a bonding company, reasonably satisfactory to the Company,
or (b) in the case of any such mutilation, upon surrender to and cancellation by
the Warrant Agent of such Warrant Certificate, the Company at its expense will
execute and cause the Warrant Agent to countersign and deliver, in lieu thereof,
a new Warrant Certificate of like tenor.
Section 5.3. Transfer Agent; Cancellation of Warrant Certificates;
Unexercised Warrants. Firstar Bank, N.A. (and any successor), as transfer agent
(the "Transfer Agent"), is hereby irrevocably authorized and directed at all
times to reserve such number of authorized and unissued shares of Common Stock
as shall be sufficient to permit the exercise in full of all Warrants from time
to time outstanding. The Company will keep a copy of this Agreement on file with
the Transfer Agent. The Warrant Agent, and any successor thereto, is hereby
irrevocably authorized to requisition from time to time from the Transfer Agent
certificates for shares of Common Stock required for exercise of Warrants. The
Company will supply the Transfer Agent with duly executed certificates for
shares of Common Stock for such purpose and will make available any cash
required in settlement of fractional share interests. All Warrant Certificates
surrendered upon the exercise or redemption of Warrants shall be cancelled by
the Warrant Agent and shall thereafter be delivered to the Company; such
cancelled Warrant Certificates, with the Purchase Form on the reverse thereof
duly filled in and signed, shall constitute conclusive evidence as between the
parties hereto of the numbers of shares of Common Stock which shall have been
issued upon exercises of Warrants. Promptly after the last day on which the
Warrants are exercisable (set forth in Section 2.1 above), the Warrant Agent
shall certify to the Company the aggregate number of Warrants then outstanding
and unexercised. No shares of Common Stock shall be subject to reservation with
respect to Warrants not exercised prior to the time and date identified in
Section 2.1 above as the last time and date at which Warrants may be exercised.
ARTICLE VI.
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
Section 6.1. Warrant Register; Transfer or Exchange of Warrant
Certificates. The Warrant Agent shall cause to be kept at the principal office
of the Warrant Agent a register (the "Warrant Register") in which, subject to
such reasonable regulations as the Company may prescribe, provisions shall be
made for the registration of transfers and exchanges of Warrant Certificates.
Upon surrender for transfer or exchange of any Warrant Certificates, properly
endorsed, to the Warrant Agent, the Warrant Agent at the Company's expense will
issue and deliver to or upon the order of the holder thereof a new Warrant
Certificate or Warrant Certificates of like tenor, in the name of such holder or
as such holder (upon payment by such holder of any applicable transfer taxes)
may direct, calling in the aggregate on the face or faces thereof for the number
of shares of Common Stock called for on the face of the Warrant Certificate so
surrendered. Any Warrant Certificate surrendered for transfer or exchange shall
be cancelled by the Warrant Agent and shall thereafter be delivered to the
Company.
Section 6.2. Identity of Warrantholders. Until a Warrant Certificate is
transferred in the Warrant Register, the Company and the Warrant Agent may treat
the person in whose name the Warrant Certificate is registered as the absolute
owner thereof and of the Warrants represented thereby for all purposes,
notwithstanding any notice to the contrary, except that, if and when any Warrant
Certificate is properly assigned in blank, the Company and the Warrant Agent may
(but shall not be obligated to) treat the bearer
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thereof as the absolute owner of the Warrant Certificate and of the Warrants
represented thereby for all purposes, notwithstanding any notice to the
contrary.
ARTICLE VII.
CONCERNING THE WARRANT AGENT
Section 7. 1. Taxes. The Company will, from time to time, promptly pay
to the Warrant Agent, or make provision satisfactory to the Warrant Agent for
the payment of, all taxes and charges that may be imposed by the United States
or any State upon the Company or the Warrant Agent upon the transfer or delivery
of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any tax imposed in connection with any transfer involved
in the delivery of a certificate for shares of Common Stock in any name other
than that of the registered holder of the Warrant Certificate surrendered in
connection with the purchase thereof.
Section 7.2. Replacement of Warrant Agent in Certain Circumstances.
(a) The Warrant Agent may resign its duties and be discharged from
all further duties and liabilities hereunder after giving thirty (30)
days' notice in writing to the Company, except that such shorter notice
may be given as the Company shall, in writing, accept as sufficient.
The Company may discharge the Warrant Agent at any time with or without
reason, effective upon thirty (30) days written notice to the Warrant
Agent or such shorter period as the Warrant Agent shall, in writing,
accept as sufficient. If the office of Warrant Agent becomes vacant by
resignation, discharge, incapacity to act or otherwise, the Company
shall appoint in writing a new Warrant Agent. If the Company shall fail
to make such appointment within a period of thirty (30) days after it
has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the holder of a Warrant
Certificate, then the holder 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 a court, shall be a corporation organized, doing business
and in good standing under the laws of the United States or of the
State of Minnesota, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by
Federal or State authority. Any new Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to the Company an instrument
accepting such appointment hereunder and thereupon such new Warrant
Agent without any further act or deed shall become vested with all the
rights, powers, duties and responsibilities of the Warrant Agent
hereunder with like effect as if it had been named as the Warrant
Agent; but if for any reason it becomes necessary or expedient to have
the former Warrant Agent execute and deliver any further assurance,
conveyance, act or deed, the same shall be done and shall be legally
and validly executed and delivered by the former Warrant Agent. Not
later than the effective date of any such appointment the Company shall
file notice thereof with the former Warrant Agent. The Company shall
promptly give notice of any such appointment to the holders of the
Warrant Certificates by mail to their addresses as shown in the Warrant
Register. Failure to file or give such notice, or any defect therein,
shall not affect the legality or validity of the appointment of the
successor Warrant Agent.
(b) Any company into which the Warrant Agent or any new Warrant
Agent may be merged or converted or with which it may be consolidated
or any company resulting from any merger, conversion or consolidation
to which the Warrant Agent shall be a party shall be the successor
Warrant Agent under this Warrant Agreement without any further act;
provided that if such company would not be eligible for appointment as
a successor Warrant Agent under the provisions of paragraph (a) of this
Section 7.2 the Company shall forthwith appoint a new Warrant Agent in
accordance with such provisions. Any such successor Warrant Agent may
adopt the prior countersignature of any predecessor Warrant Agent and
deliver Warrant Certificates countersigned
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and not delivered by such predecessor Warrant Agent or may countersign Warrant
Certificates either in the name of any predecessor Warrant Agent or the name of
the successor Warrant Agent.
Section 7.3. Remuneration of Warrant Agent. The Company will pay the
Warrant Agent reasonable remuneration for its services as Warrant Agent
hereunder and will reimburse the Warrant Agent upon demand for all expenditures
that the Warrant Agent may reasonably incur in the execution of its duties
hereunder.
Section 7.4. Further Assurances. The Company will perform, exercise,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
by the Warrant Agent of the provisions of this Warrant Agreement.
Section 7.5. Limitations on Liabilities of the Warrant Agent.
(a) The Warrant Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and
protection of the Warrant Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever, in the performance of its duties under this
Warrant Agreement, the Warrant Agent shall deem it necessary
or desirable that any matter be proved or established, or that
any instructions with respect to the performance of its duties
hereunder be given, by the Company prior to taking or
suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established, or
such instructions may be given, by a certificate or instrument
signed by an officer of the Company and delivered to the
Warrant Agent; and such certificate or instrument shall be
full authorization to the Warrant Agent for any action taken
or suffered in good faith by it under the provisions of this
Warrant Agreement in reliance upon such certificate or
instrument; but in its discretion the Warrant Agent may in
lieu thereof accept other evidence of such matter or may
require such further or additional evidence as it may deem
reasonable.
(c) The Warrant Agent shall be liable hereunder only for
its own negligence or willful misconduct. The Warrant Agent
shall act hereunder solely as agent, and its duties shall be
determined solely by the provisions hereof. The Company agrees
to indemnify the Warrant Agent and save it harmless against
any and all liabilities, including judgments, costs and
counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Warrant Agreement except as a
result of the Warrant Agent's negligence or willful
misconduct.
(d) The Warrant Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Warrant Agreement or in the Warrant Certificates
(except its countersignature thereof) or be required to verify
the same, but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Warrant Agent shall not be under any
responsibility in respect to the validity or execution of any
Warrant Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Warrant Agreement or
in any Warrant Certificate; nor shall it be responsible for
the making
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of any adjustment in the Exercise Price, or number of shares
issuable upon exercise of the Warrant Certificates or
responsible for the manner, method or amount of any such
adjustment or the facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued
pursuant to this Warrant Agreement or any Warrant Certificate
or as to whether any shares of Common Stock or other
securities are or will be validly authorized and issued and
fully paid and nonassessable.
Section 7.6. Amendment and Modification. The Warrant Agent may, without
the consent or concurrence of the holders of the Warrant Certificates, by
supplemental agreement or otherwise, join with the Company in making any changes
or corrections in this Warrant Agreement that they shall have been advised by
counsel (a) are required to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest error herein
contained, (b) add to the obligations of the Company in this Warrant Agreement
further obligations thereafter to be observed by it, or surrender any right or
power reserved to or conferred upon the Company in this Warrant Agreement, or
(c) do not or will not adversely affect, alter or change the rights, privileges
or immunities of the holders of Warrant Certificates not provided for under this
Warrant Agreement; provided, however, that any term of this Warrant Agreement or
any Warrant Certificate may be changed, waived, discharged or terminated by an
instrument in writing signed by each party against which enforcement of such
change, waiver, discharge or termination is sought, or by which the same is to
be performed or observed.
ARTICLE VIII.
OTHER MATTERS
Section 8.1. Successors and Assigns. All the covenants and provisions
of this Warrant Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective successors and
assigns.
Section 8.2. Notices. Any notice or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any
Warrant Certificate to or on the Company shall be sufficiently given or made if
sent by first class or registered mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent) as
follows:
Active IQ Technologies, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Any notice or demand authorized by this Warrant Agreement to be given or made by
the holder of any Warrant Certificate or by the Company to or on the Warrant
Agent shall be sufficiently given or made if sent by first class or registered
mail, postage prepaid, addressed (until another address is filed in writing by
the Warrant Agent with the Company) as follows:
Firstar Bank, N.A.
Corporate Trust Services
0000 Xxxxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Section 8.3. Governing Law. This Warrant Agreement and the Warrant
Certificates are being delivered in the State of Minnesota and shall be
construed and enforced in accordance with and governed by the laws of such
State.
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Section 8.4. No Benefits Conferred. Nothing in this Warrant Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the Company, the Warrant Agent, and the holders of the
Warrant Certificates, any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
herein; and all covenants, conditions, stipulations, promises and agreements in
this Warrant Agreement contained shall be for the sole and exclusive benefit of
the Company, the Warrant Agent, their respective successors and the holders of
the Warrant Certificates.
Section 8.5. Headings. The descriptive headings used in this Warrant
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties hereto as of the day and year first above written.
ACTIVE IQ TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Its Chairman and Chief Executive Officer
FIRSTAR BANK, N.A.
By /s/ Xxxxxx Xxxxx
--------------------------------------------
Its Trust Officer
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