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EXHIBIT 10.17
COLLEGIATE PACIFIC INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
Warrant Agent
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WARRANT AGREEMENT
Dated as of May 26, 2000
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TABLE OF CONTENTS*
Page
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PARTIES ....................................................................................... 1
RECITALS ....................................................................................... 1
Section 1. Representations and Warranties of the Company.................................... 1
Section 2. Appointment of Warrant Agent..................................................... 2
Section 3. Form of Warrant.................................................................. 2
Section 4. Countersignature and Registration................................................ 2
Section 5. Transfers and Exchanges.......................................................... 3
Section 6. Duration and Exercise of Warrants................................................ 3
Section 7. Mutilated or Missing Warrants.................................................... 4
Section 8. Reservation and Registration of Common Stock..................................... 5
Section 9. Warrant Price; Adjustments....................................................... 5
Section 10. Fractional Interests............................................................. 8
Section 11. Notice to Warrantholders......................................................... 8
Section 12. Disposition of Proceeds on Exercise of Warrants.................................. 9
Section 13. Extension of Expiration Date..................................................... 9
Section 14. Cancellation of Warrants......................................................... 9
Section 15. Merger or Consolidation or Change of Name of Warrant Agent....................... 11
Section 16. Duties of Warrant Agent.......................................................... 11
Section 17. Change of Warrant Agent.......................................................... 13
Section 18. Identity of Transfer Agent....................................................... 14
Section 19. Notices.......................................................................... 14
Section 20. Supplements and Amendments....................................................... 15
Section 21. Successors....................................................................... 15
Section 22. Merger or Consolidation of the Company........................................... 15
Section 23. Delaware Contract................................................................ 15
Section 24. Benefits of this Agreement....................................................... 16
Section 25. Counterparts..................................................................... 16
SIGNATURES ...................................................................................... 17
EXHIBIT A (Forms of Warrant, Election to Purchase, and Assignment).............................. A-1
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* This Table of Contents does not constitute a part of this Agreement or
have any bearing upon the interpretation of any of its terms or
provisions.
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WARRANT AGREEMENT
THIS WARRANT AGREEMENT, is dated as of May 26, 2000, by and between
Collegiate Pacific Inc., a Delaware corporation (the "Company"), and Continental
Stock Transfer & Trust Company, a New York corporation, or its successor in
interest, as warrant agent (the "Warrant Agent").
WHEREAS, the Company desires to issue Common Stock Purchase Warrants
(the "Warrants") as a special dividend to its stockholders on a pro rata basis
which Warrants would entitle the holders thereof to purchase shares of the
Company's common stock, $.01 par value per share (the "Common Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
registration, transfer, exchange, and exercise of Warrants;
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
(a) The Company has all requisite corporate power and
authority, and has taken all necessary corporate action, to:
(i) Execute, deliver and perform this Warrant
Agreement;
(ii) Issue and deliver the Warrants; and
(iii) Authorize and reserve for issuance, and, upon
payment from time to time of the Warrant Price (as defined
below), to issue and deliver the shares of Common Stock
issuable upon exercise of the Warrants.
(b) This Agreement has been duly executed and delivered by the
Company, and is a valid and binding agreement of the Company,
enforceable in accordance with its terms.
(c) The Warrants, upon delivery in accordance with this
Warrant Agreement, will be fully authorized, executed, and delivered,
and will be legal, valid, and binding obligations of the Company,
enforceable in accordance with their terms. The shares of Common Stock
issuable upon exercise of the Warrants will, upon issuance, be duly
authorized and validly issued and outstanding, fully paid and
nonassessable, and free of preemptive rights.
(d) The execution and delivery of this Warrant Agreement and
the consummation of the transactions contemplated hereby will not
result in a breach or violation of, or constitute a default or an event
permitting acceleration under, any statute,
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the Certificate of Incorporation, the Bylaws of the Company, or any
mortgage, lease, indenture or any other agreement, order, rule, or
regulation to which the Company is subject or a party.
2. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as the exclusive agent for the Company with respect to the
Warrants in accordance with the instructions set forth in this Agreement, and
the Warrant Agent hereby accepts such appointment.
3. Form of Warrant.
(a) The text of the Warrant, the form of Election to Exercise
Warrant and Purchase Shares of Common Stock (the "Election to
Purchase"), and the form of assignment to be printed on the reverse
thereof, shall be substantially as set forth in Exhibit A attached
hereto.
(b) The Warrant Price to purchase one share of Common Stock
shall be as provided and defined in Section 9.
(c) The Warrants shall be executed on behalf of the Company by
the manual or facsimile signature of the present or any future Chairman
of the Board, President, or Vice President of the Company, under its
corporate seal, affixed or in facsimile, attested by the manual or
facsimile signature of the present or any future Secretary or Assistant
Secretary of the Company.
4. Countersignature and Registration.
(a) The Warrant Agent shall maintain books for the transfer
and registration of the Warrants.
(b) The Warrants shall be countersigned by the Warrant Agent
(or by any successor to the Warrant Agent then acting as warrant agent
pursuant to this Agreement) and shall not be valid for any purpose
unless so countersigned. The Warrants may be so countersigned, however,
by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose
manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature or delivery.
(c) Prior to due presentment for registration of transfer of
the Warrant, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Warrant
(notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company or the Warrant Agent) for the
purpose of any exercise thereof, or any distribution to the holder
thereof and for all other
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purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
5. Transfers and Exchanges.
(a) The Warrant Agent shall transfer, from time to time, any
outstanding Warrants upon the books to be maintained by the Warrant
Agent for that purpose (the "Warrant Register"), upon surrender thereof
for transfer properly endorsed or accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Warrant shall
be issued to the transferee and the surrendered warrant shall be
cancelled by the Warrant Agent. Warrants so cancelled shall be
delivered by the Warrant Agent to the Company from time to time.
(b) The Warrants may be exchanged at the option of the holder
thereof when surrendered at the office in New York, New York of the
Warrant Agent for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the
right to purchase a like number of shares of Common Stock. The Warrant
Agent is hereby irrevocably authorized to countersign in accordance
with Section 4 the new Warrants required pursuant to the provisions of
this Section 5, and the Company, whenever required by the Warrant
Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
(c) The Company or the Warrant Agent may require the payment
of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange or transfer of any Warrants.
6. Duration and Exercise of Warrants.
(a) Upon issuance by the Company, the Warrants will be
immediately exercisable and will cease to be exercisable at the close
of business on May 26, 2005 (the "Expiration Date"), except as provided
herein, at which time all rights evidenced by the Warrants shall cease
and the Warrants shall become void.
(b) Subject to the provisions of this Agreement, each
registered holder of Warrants shall have the right to purchase from the
Company (and the Company shall issue and sell to such registered holder
of Warrants) the number of fully paid and nonassessable shares of
Common Stock specified in such Warrants, upon surrender of such
Warrants to the Company at the principal office in New York, New York
of the Warrant Agent, with the form of Election to Purchase on the
reverse thereof duly completed and executed, and upon payment to the
Warrant Agent, as provided in Section 6(b)(i), for the account of the
Company of the Warrant Price for the number of shares of Common Stock
in respect of which such Warrants are then exercised and any applicable
taxes.
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(i) Payment shall be made by cashier's check, payable
in United States dollars, to the order of "Continental Stock
Transfer & Trust Co." or, if a successor to the Warrant Agent
is then acting as warrant agent pursuant to this Agreement, as
directed by such successor Warrant Agent. No adjustment shall
be made for any cash dividends on any shares of Common Stock
issuable upon exercise of the Warrants.
(ii) Upon such surrender of the Warrants, and payment
of the Warrant Price, the Company shall issue and cause to be
delivered to or upon the written order of the registered
holder of such Warrants and in such name or names as such
registered holder may designate, a certificate or certificates
for the number of shares of Common Stock so purchased upon the
exercise of such Warrants, together with cash as provided in
Section 10 in respect of any fraction of a share of such
Common Stock otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall
be deemed to have become a holder of record of such shares of
Common Stock as of the date of the surrender of such Warrants
and payment of the Warrant Price. If, at the date of surrender
of such Warrants and payment of the Warrant Price, the
transfer books for the Common Stock or other class of stock
purchasable upon the exercise of such Warrants shall be
closed, the certificates for the shares in respect of which
such Warrants are then exercised shall be issuable as of the
date on which such books shall next be opened and until such
date the Company shall be under no duty to deliver any
certificate for such shares; provided, however, that the
transfer books, unless otherwise required by law, shall not be
closed at any one time for a period longer than 20 days.
(iii) The rights of purchase represented by the
Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or from time
to time for part only of the shares specified therein and, in
the event that any Warrant is exercised in respect of less
than all of the shares specified therein, a new Warrant or
Warrants will be issued for the remaining number of shares
specified in the Warrant so surrendered, and the Warrant Agent
is hereby irrevocably authorized to countersign and to deliver
the required new Warrants pursuant to the provisions of this
Section 6 and of Section 4 and the Company, whenever required
by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such
purpose.
7. Mutilated or Missing Warrants. In case any of the Warrants shall be
mutilated, lost, stolen, or destroyed, the Company will issue and the Warrant
Agent will countersign and deliver in exchange and substitution for and upon
cancellation of the mutilated warrant, or in lieu of and substitution for the
Warrant lost, stolen, or destroyed, a new Warrant of like tenor and representing
an equivalent right or interest, but only upon receipt of an affidavit of lost
warrant certificate and indemnity bond issued and delivered by a recognized
surety company satisfactory to the Company and the Warrant Agent of such loss,
theft, or destruction of such Warrant.
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Applicants for such substitute Warrants shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe.
8. Reservation and Registration of Common Stock.
(a) There have been reserved, and the Company shall at all
times keep reserved, out of the authorized and unissued shares of
Common Stock, a number of shares sufficient to provide for the exercise
of the rights to purchase represented by the Warrants, and the transfer
agent for the Common Stock and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any
of the rights to purchase represented by the Warrants are hereby
irrevocably authorized and directed at all times to reserve such number
of authorized and unissued shares as shall be requisite for such
purpose.
(i) The Company will keep a copy of this Agreement on
file with the transfer agent for the Common Stock and with
every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrants.
(ii) The Warrant Agent is hereby irrevocably
authorized to requisition from time to time such transfer
agent for stock certificates required to honor outstanding
Warrants. The Company will supply such transfer agent with
duly executed stock certificates for such purpose and will
itself provide or otherwise make available any cash which may
be payable as provided in Section 10.
(iii) All Warrants surrendered in the exercise of the
rights thereby evidenced shall be cancelled by the Warrant
Agent and shall thereafter be delivered to the Company, and
such cancelled Warrants shall constitute sufficient evidence
of the number of shares of stock which have been issued upon
the exercise of such Warrants.
(b) The Company covenants and agrees that it shall register, under the
Securities Act of 1933, as amended, the shares of Common Stock issuable upon
exercise of the Warrants and use all reasonable efforts to maintain the
effectiveness of such registration during the entire period in which the
Warrants are exercisable, and that it will use all reasonable efforts to qualify
such Common Stock for sale under the securities laws of such states of the
United States as may be necessary to permit the free exercise of the Warrants
and sale of the Common Stock purchased upon such exercise and to maintain such
qualifications during the entire period in which the Warrants are exercisable.
9. Warrant Price; Adjustments.
(a) The price at which Common Stock shall be purchasable upon
exercise of the Warrants (the "Warrant Price") shall be $10.00 per
share of Common Stock or, if adjusted as provided in this section,
shall be such price as so adjusted.
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(b) In case the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares or
effect a stock dividend or stock split, the Warrant Price in effect
immediately prior to such subdivision, dividend, or split shall be
proportionately reduced and, in case the outstanding shares of the
Common Stock of the Company shall be combined into a smaller number of
shares (through a reverse stock split or otherwise), the Warrant Price
in effect immediately prior to such combination shall be
proportionately increased.
(c) Upon each adjustment of the Warrant Price pursuant to the
provisions of this Section 9, the number of shares issuable upon the
exercise of each Warrant shall be adjusted to a number of shares equal
to the Warrant Price in effect prior to the adjustment multiplied by
the number of shares of Common Stock covered by the Warrant and
dividing the product so obtained by the adjusted Warrant Price.
(d) Irrespective of any adjustment or change in the Warrant
Price or the number of shares of Common Stock actually purchasable
pursuant to the Warrants, the Warrants theretofore and thereafter
issued may continue to express the Warrant Price per share and the
number of shares purchasable thereunder as the Warrant Price per share
and the number of shares purchasable were expressed in the Warrants
when initially issued.
(e) If any reorganization or reclassification of the shares of
Common Stock of the Company (other than a stock dividend or stock split
as set forth in Section 9(b)) shall be effected, then, at the option of
the Company, adequate provision may be made whereby the holder of each
Warrant then outstanding will thereafter have the right to purchase and
receive on exercise of such Warrant such shares of stock, securities,
or assets as may be issued or payable with respect to or in exchange
for that number of outstanding shares of Common Stock equal to the
number of shares of such Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented
by each such Warrant had such reorganization or reclassification not
taken place.
(f) In the event of a consolidation or merger of the Company
with another corporation, as a condition to such consolidation or
merger, lawful and adequate provision shall be made whereby the holder
of each Warrant then outstanding shall thereafter solely have the right
to purchase and receive upon the basis and upon the terms and
conditions specified herein and in the Warrants, and in lieu of the
shares of Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented
by each such Warrant, such shares of stock, securities, or assets as
may be issued or payable with respect to or in exchange for that number
of shares of Common Stock equal to the number of shares of Common Stock
immediately theretofore purchasable and receivable upon the exercise of
the rights represented by each such Warrant had such consolidation or
merger not taken place, and in any such case appropriate provisions
shall be made with respect to the rights and interests of the holder of
each Warrant then outstanding to the end that the provisions hereof
(including without limitation provisions for adjustment of the Warrant
Price and of the number of shares
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purchasable upon the exercise of each Warrant then outstanding) shall
thereafter be applicable, as nearly as might be in relation to any
shares of stock, securities, or assets thereafter deliverable upon the
exercise of each Warrant.
(g) The Company may, at any time, in its sole discretion
reduce the Warrant Price and such price reduction will be in effect for
a minimum period of 10 business days or such other period as may be
required by applicable law or regulation.
(h) Whenever the Warrant Price is adjusted as herein provided,
the Company shall:
(i) File with the Warrant Agent a certificate signed
by the Chairman of the Board or the President or Vice
President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the
Company:
(A) Stating that the Warrant Price has been
adjusted and the adjusted Warrant Price; and
(B) Showing in detail the facts requiring
such adjustment and the adjusted Warrant Price and
the number of shares of Common Stock purchasable upon
exercise of the Warrant after such adjustment; and
(ii) Cause a notice stating that such adjustment has
been effected and stating the adjusted Warrant Price and the
number of shares of Common Stock purchasable upon exercise of
the Warrants to be sent by first class mail, postage prepaid,
to each registered holder of Warrants at his address appearing
on the Warrant Register.
The Warrant Agent shall have no duty with respect to any such
certificate filed with it except to keep the same on file and available
for inspection by holders of Warrants during the Warrant Agent's
regular business hours. The Warrant Agent shall not at any time be
under any duty or responsibility to any holder of a Warrant to
determine whether any facts exist which may require any adjustment of
the Warrant Price, or with respect to the nature or extent of any
adjustment of the Warrant Price when made, or with respect to the
method employed in making such adjustment. In determining whether any
adjustment to the Warrant Price is appropriate, the Warrant Agent shall
be entitled to rely on the certificate of the Company referred to in
this Section 9(h).
(i) The Company may retain a firm of independent certified
public accountants of recognized standing (which may be the firm that
regularly examines the financial statements of the Company) selected by
the Board of Directors of the Company or a committee thereof and
approved by the Warrant Agent, to make any computation required under
this Section 9, and a certificate signed by such firm shall be
conclusive evidence of the correctness of any computation made under
this Section 9.
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10. Fractional Interests. The Company shall not issue fractions of
shares of Common Stock in connection with the exercise of the Warrants. If any
fraction of a share of Common Stock is issuable on the exercise of any Warrant
(or specified portions thereof), the Company will purchase such fraction for an
amount in cash equal to the current value of such fraction:
(a) Computed, if the Common Stock is listed or admitted to
unlisted trading privileges on any national securities exchange, on the
basis of the closing sale price of the Common Stock on such exchange
(as reported in The Wall Street Journal, Central Edition) on the last
business day prior to the date of exercise upon which sale shall have
been effected (or, if the Common Stock is listed or admitted to
unlisted trading privileges on more than one exchange, on the basis of
such price on the exchange designated from time to time for such
purpose by the Board of Directors of' the Company); or
(b) Computed, if the Common Stock shall not be listed or
admitted to unlisted trading privileges, on the basis of the last
reported sales price, or if the last reported sales price is not
available, on the basis of the average of the high and low bid prices,
for the Common Stock in the over-the-counter market, on the last
business day prior to the date of exercise or conversion as reported by
the National Quotation Bureau, Inc., or any successor thereto.
11. Notice to Warrantholders.
(a) Nothing contained in this Agreement or in any of the
Warrants shall be construed as conferring upon the holders thereof the
right to vote or to consent or to receive notice as stockholders in
respect of any meeting of stockholders for the election of directors of
the Company or any other matters, or any rights whatsoever as
stockholders of the Company; provided, however, that in the event that
a meeting of stockholders shall be called to consider and take action
on a proposal for the voluntary dissolution of the Company, or a
consolidation, merger, or sale of all or substantially all of its
assets (collectively, the "Notice Events"), then and in the event of
each such Notice Event the Company shall cause a notice thereof to be
sent by first-class mail, postage prepaid, at least 15 days prior to
the date fixed as a record date or the date of closing the transfer
books in connection with each Notice Event, to each registered holder
of Warrants at his address appearing on the Warrant Register. Failure
to mail or receive such notice or any defect therein or in the mailing
thereof shall not affect the validity of any action taken in connection
with a Notice Event. If such notice shall have been so given and if a
voluntary dissolution shall be authorized at such meeting or any
adjournment thereof, then from and after the date on which such
voluntary dissolution shall have been duly authorized by the
stockholders, the purchase rights represented by the Warrants and other
rights with respect thereto shall cease and terminate. Until the
Warrant Agent receives written notice from the Company of the
authorization of voluntary dissolution by the stockholders, the Warrant
Agent shall be authorized to act in accordance with the terms of this
Agreement.
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(b) If the Company shall make any distribution on, or to
holders of, its Common Stock (or other property which may be
purchasable in lieu thereof upon the exercise of Warrants) of any
property (other than cash dividends or dividends payable solely in
Common Stock), the Company shall cause a notice of its intention to
make such distribution to be sent by first-class mail, postage prepaid,
at least 15 days prior to the date fixed as a record date or the date
of closing the transfer books in connection with such distribution, to
each registered holder of Warrants at his address appearing on the
Warrant Register. Failure to mail or to receive such notice or any
defect therein or in the mailing thereof shall not affect the validity
of any action taken in connection with such distribution.
12. Disposition of Proceeds on Exercise of Warrants. The Warrant Agent
shall account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all moneys received by the Warrant Agent for the
purchase of shares of the Company's Common Stock through the exercise of such
Warrants.
13. Extension of Expiration Date. The Company may, at any time at its
sole discretion, extend the Expiration Date. Notice of any change in the
Expiration Date shall be given by first-class mail, postage prepaid, mailed not
less than 10 days prior to the Expiration Date to each registered holder of
Warrants, at his address appearing in the Warrant Register and to the Warrant
Agent. Notice of changes in the Expiration Date of Warrants at the election of
the Company shall be given by the Company, or, at the Company's request, by the
Warrant Agent in the name and at the expense of the Company.
14. Cancellation of Warrants.
(a) At any time the Company may, at its option, call for
cancellation of all or a portion of the outstanding Warrants by payment
of $.10 for each share of Common Stock purchasable upon exercise of
such Warrants (the "Cancellation Price"). In the event of an adjustment
in the Warrant Price pursuant to Section 9, the Cancellation Price
shall also be automatically adjusted in a proportionate amount (rounded
to the nearest one cent).
(b) The election of the Company to call for cancellation of
the Warrants shall be evidenced by a duly authorized resolution of the
Board of Directors of the Company.
(c) Warrants may be exercised at any time prior to the close
of business on the business day preceding the date fixed for
cancellation (the "Cancellation Date").
(d) Notice of cancellation shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 90 days prior to
the Cancellation Date, to each registered holder of Warrants, at his
address appearing in the Warrant Register. All notices of cancellation
shall state:
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(i) The Cancellation Date;
(ii) That on the Cancellation Date the Cancellation
Price will become due and payable;
(iii) The place where such Warrants are to be
surrendered for cancellation and payment of the Cancellation
Price; and
(iv) The current Warrant Price of the Warrants, the
place or places where such Warrants may be surrendered for
exercise, and the time at which the right to exercise the
Warrants will terminate in accordance with this Agreement.
(e) Notice of cancellation of the Warrants at the election of
the Company shall be given by the Company, or, at the Company's
request, by the Warrant Agent in the name and at the expense of the
Company.
(f) The Company may pay the Cancellation Price in cash or
Common Stock, at its option.
(i) If the Cancellation Price is paid in cash, prior
to any Cancellation Date, the Company shall deposit with the
Warrant Agent an amount of money sufficient to pay the
Cancellation Price of all the Warrants that are to be
cancelled on that date.
(ii) If the Cancellation Price is paid with Common
Stock, the Company shall issue and cause to be delivered to or
upon the written order of the registered holder of such
Warrants and in such name or names as such registered holder
may designate, a certificate or certificates for the number of
shares of Common Stock so issued, together with cash as
provided in Section 10 in respect of any fraction of a share
of such Common Stock otherwise issuable upon such
cancellation. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named
therein shall be deemed to have become a holder of record of
such shares of Common Stock as of the Cancellation Date. In
addition, if required under applicable law, the Company's
registration obligations under Section 8(b) shall extend to
shares of Common Stock used to pay the Cancellation Price.
(iii) If any Warrant is exercised pursuant to Section
6, any money so deposited with the Warrant Agent for the
cancellation of such Warrant shall be paid to the Company.
(g) Notice of cancellation having been given, the Warrants to
be cancelled shall, on the Cancellation Date, become cancellable at the
Cancellation Price therein specified, and on such date (unless the
Company shall default in the payment of the
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Cancellation Price), such Warrants shall cease to be exercisable and
thereafter represent only the right to receive the Cancellation Price.
15. Merger or Consolidation or Change of Name of Warrant Agent.
(a) Any corporation into which the Warrant Agent may be merged
or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Warrant Agent shall be a
party, or any corporation succeeding to the corporate trust business of
the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant
agent under the provisions of Section 17. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by
this Agreement and at such time any of the Warrants shall have been
countersigned but not delivered, any such successor to the Warrant
Agent may adopt the countersignature of the original Warrant Agent and
deliver such Warrants so countersigned; and in case at the time any of
the Warrants shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrants either in the name of the
predecessor warrant agent or in the name of the successor warrant
agent; and in all such cases such Warrants shall have the full force
provided in the Warrant and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrants shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrants so
countersigned; and in case at that time any of the Warrants shall not
have been countersigned, the Warrant Agent may countersign such
Warrants whether in its prior name or in its changed name; and in all
such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
16. Duties of Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed on it by this Agreement upon the following terms and
conditions:
(a) The statements contained herein and in the Warrants shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility and shall incur no liability for the correctness of any
of the same except such as describe the Warrant Agent or action taken
or to be taken by it. The Warrant Agent assumes no responsibility with
respect to the distribution of the Warrants except as herein otherwise
provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrants to be complied with by the Company.
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(c) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it to perform any duty hereunder
either itself or by or through its attorneys, agents, or employees.
(d) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or to
any holder of any Warrant in respect of any action taken, suffered, or
omitted by it hereunder in good faith and in accordance with the
opinion or the advice of such counsel, provided the Warrant Agent shall
have exercised reasonable care in the selection and continued
employment of such counsel.
(e) The Warrant Agent shall incur no liability or
responsibility to the Company, or to any holder of any Warrant for any
action taken in reliance on any notice, resolution, waiver, consent,
order, certificate, or other paper, document, or instrument believed by
it to be genuine and to have been signed, sent, or presented by the
proper party or parties.
(f) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent pursuant to
this Agreement, to reimburse the Warrant Agent for all reasonable
expenses, taxes, and governmental charges and other charges of any kind
and nature incurred by the Warrant Agent pursuant to this Agreement
(except for taxes, governmental charges and other charges imposed on or
measured by the compensation paid to the Warrant Agent pursuant to this
Section 16(f)), and to indemnify and hold harmless the Warrant Agent,
its officers, directors, employees, and agents against any and all
liabilities, joint or several, including, without limitation,
judgments, costs, losses, claims, and damages and reasonable counsel
fees, as and when incurred, for anything done or omitted by the Warrant
Agent or such other persons pursuant to this Agreement or otherwise,
except as a result of the Warrant Agent's or such other persons' gross
negligence or bad faith. Notwithstanding the foregoing, to the extent
that a court in which any action or suit is brought to determine such
liability or indemnity shall determine upon application by the Warrant
Agent that, despite the adjudication of the liability resulting from
the Warrant Agent's or such other persons' negligence, and in view of
all circumstances of the case, the Warrant Agent or such other persons
are fairly and reasonably entitled to indemnity for such liabilities
which such court shall deem proper, the indemnity provided for herein
will be enforceable.
(g) The Warrant Agent shall be under no obligation to
institute any action, suit, or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity for any cost and expense which may be
incurred, and the failure by the Warrant Agent to take any such action
without such security and indemnity shall not be an act of negligence
or bad faith. However, this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All
rights or action under this Agreement or under any of the Warrants may
be enforced by the
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15
Warrant Agent without the possession of any of the Warrants or the
production thereof at any trial or other proceeding relative thereto,
and any such action, suit, or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent, and any recovery
of judgment shall be for the ratable benefit of the registered holders
of the Warrants, as their respective rights or interests may appear.
(h) The Warrant Agent and any stockholder, director, officer,
or employee of the Warrant Agent may buy, sell, or deal in any of the
Warrants or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to or otherwise act as fully and freely
as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Warrant Agent shall act hereunder solely as agent, and
its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for any thing which it may do or
refrain from doing in connection with this Agreement except for its own
gross negligence or bad faith.
(j) The Warrant Agent shall keep copies of' this Agreement
available for inspection by holders of warrants during normal business
hours at its principal office in New York, New York.
17. Change of Warrant Agent.
(a) The Warrant Agent may resign its duties under this
Agreement by giving to the Company and to the registered holders of
Warrants notice of such resignation in writing, specifying a date when
such resignation shall take effect, at least 30 days prior to the date
so specified. The Warrant Agent may be discharged from its duties under
this Agreement by the Company by like notice to the Warrant Agent and
to the holders of Warrants from the Company.
(b) If the Warrant Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it
has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the registered holder of
a Warrant (who shall with such notice submit his Warrant for inspection
by the Company), then the registered holder of a Warrant may apply to
any court of competent jurisdiction for the appointment of a successor
to the Warrant Agent.
(c) Any successor warrant agent, whether appointed by the
Company or by a court of competent jurisdiction, shall:
(i) Be a bank or trust company; and
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(ii) Have capital and surplus as shown by its last
published report to its stockholders of at least $10,000,000.
(d) After appointment, the successor warrant agent shall be
vested with the same powers, rights, duties, and responsibilities as if
it had been originally named as warrant agent without further act or
deed; but the former Warrant Agent shall deliver and transfer to the
successor warrant agent any property at the time held by it hereunder,
and execute and deliver any further reasonable assurance, conveyance,
act, or deed necessary for the purpose.
(e) Failure to provide any notice provided for in this
section, however, or any defect therein or in the mailing thereof,
shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent,
as the case may be.
18. Identity of Transfer Agent. Upon the appointment of any transfer
agent for the Common Stock or of any subsequent transfer agent for shares of the
Common Stock or other shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such transfer agent.
19. Notices.
(a) Any notice pursuant to this Agreement to be given or made
by the Warrant Agent or the Company to any registered holder of any
Warrant to the Company shall be sufficiently given or made when sent by
first-class mail, postage prepaid.
(b) Any notice pursuant to this Agreement to be given or made
by the Warrant Agent or the registered holder of any Warrant to the
Company shall be sufficiently given or made when (i) sent by
first-class mail, postage prepaid, (ii) delivered by hand (with written
confirmation of receipt), (iii) telecopier (with written confirmation
of receipt), or (iv) when received by the addressee, if sent by a
nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (until
another address or telecopier number is filed in writing by the Company
with the Warrant Agent) as follows:
Collegiate Pacific Inc.
00000 Xxxxxx Xxxxx, Xx. 000
Xxxxxxx Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
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(c) Any notice pursuant to this Agreement to be given or made
by the Company or the registered holder of any Warrant to the Warrant
Agent shall be sufficiently given or made when (i) sent by first-class
mail, postage prepaid, (ii) delivered by hand (with written
confirmation of receipt), (iii) telecopier (with written confirmation
of receipt), or (iv) when received by the addressee, if sent by a
nationally recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (until
another address or telecopier number is filed in writing by the Warrant
Agent with the Company) as follows:
Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compliance Department
Telecopier: (000) 000-0000
20. Supplements and Amendments. The Company and the Warrant Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Warrants in order to cure any ambiguity or to correct or supplement
any provision contained herein which may, be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not be inconsistent with the provisions
of the Warrants and which shall not adversely affect the interests of the
holders of Warrants.
21. Successors. All the covenants and provisions of this 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.
22. Merger or Consolidation of the Company. The Company shall not
effect any consolidation or merger with any other corporation unless the
corporation resulting from such merger (if not the Company) or consolidation
shall expressly assume, by execution and delivery of a supplemental agreement
satisfactory in form to the Warrant Agent, the due and punctual performance and
observance of each and every covenant and condition of this Agreement to be
performed and observed by the Company.
23. Delaware Contract. THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF DELAWARE
AND FOR ALL PURPOSES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING
EFFECT TO ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT RESULT IN THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
- 15 -
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24. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent, and the registered holders of the Warrants any legal or equitable
right, remedy, or claim under this Agreement. This Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent, and the registered
holders of the warrants.
25. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
COLLEGIATE PACIFIC INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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EXHIBIT A
[FORM OF WARRANT]
For the Purchase
of _______ Shares
CUSIP 194589 20 6
COLLEGIATE PACIFIC INC.
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT _________________________ is entitled to purchase
from COLLEGIATE PACIFIC INC., a Delaware corporation (the "Company"), upon the
surrender of this Warrant to the Company at the principal office in New York,
New York of the Warrant Agent hereinafter mentioned (or of its successor as
Warrant Agent), at any time on and after the date hereof, and before the close
of business on May 26, 2005 (the "Expiration Date"), unless such date is
extended by the Company as provided below, the number of fully paid and
nonassessable shares of Common Stock, par value $.01 per share (the "Common
Stock"), set forth above, evidenced by a certificate therefor, upon payment of
$10.00 per share (the "Warrant Price") for the number of shares in respect of
which this Warrant is exercised; provided, however, that under certain
conditions set forth in the Warrant Agreement, the number of shares of Common
Stock purchasable upon the exercise of this Warrant may be increased or reduced
and the Warrant Price may be adjusted, or property other than shares of Common
Stock may become purchasable pursuant to this Warrant. The Warrant Price shall
be payable by cashier's check, in United States dollars, to the order of the
Warrant Agent. No adjustment shall be made for any cash dividends on any shares
of stock issuable upon exercise of this Warrant. The right of purchase
represented by this Warrant is exercisable, at the election of the registered
holder hereof, either as an entirety or from time to time for part only of the
shares specified herein and, in the event that this Warrant is exercised in
respect of less than all of such shares, a new Warrant for the remaining number
of such shares will be issued on such surrender.
The Warrant is issued under, and the rights represented hereby are
subject to, the terms and provisions contained in a Warrant Agreement dated as
of May 26, 2000, between the Company and Continental Stock Transfer & Trust
Company, a New York corporation, or its successor, as Warrant Agent, to all
terms and provisions of which the registered holder of this Warrant, by
acceptance hereof, assents. Reference is hereby made to the Warrant Agreement
for a more complete statement of the rights and limitations of rights of the
registered holder hereof and the rights and duties of the Warrant Agent and the
rights and obligations of the Company thereunder. Copies of the Warrant
Agreement are on file at the office of the Warrant Agent. The Company shall not,
upon the exercise of this Warrant, issue fractions of shares, but shall make
adjustment therefor in cash as provided in the Warrant Agreement.
The Company may extend the Expiration Date hereof or any subsequent
Expiration Date at any time by giving at least 10 days' written notice to extend
the Expiration Date by first-class mail to the holders of record at such
holder's address as it appears on the Warrant Register.
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This Warrant may be called for cancellation by the Company, at its
option, at any time by giving at least 30 but not more than 90 days' written
notice by first class mail to the holders of record at each such holder's
address as it appears on the Warrant Register and by payment in cash or with
Common Stock in an amount equal to $.10 per share of Common Stock purchasable
upon the exercise hereof. The cancellation price is subject to adjustment based
on adjustments to the Warrant Price. This Warrant may not be exercised after the
close of business on the business day preceding the cancellation date.
The Warrant is transferable at the principal office in New York, New
York of the Warrant Agent (or its successor as Warrant Agent) by the registered
holder hereof in person or by attorney duly authorized in writing, but only in
the manner and subject to the limitations provided in the Warrant Agreement, and
upon surrender of this Warrant. Upon any such transfer, a new Warrant, or new
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Common Stock will be
issued to the transferee in exchange for this Warrant.
This Warrant and similar Warrants when surrendered at the principal
office in New York, New York, of the Warrant Agent (or its successor as Warrant
Agent) by the registered holder in person or by attorney duly authorized in
writing may be exchanged, in the manner and subject to the limitations provided
in the Warrant Agreement, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of shares of Common Stock..
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for the Common Stock or other class of stock
purchasable upon the exercise of this Warrant are closed for any purpose, the
Company shall not be required to make delivery of certificates for shares
purchasable upon such exercise until the date of the reopening of the transfer
books.
This Warrant shall not be valid unless countersigned by the Warrant
Agent.
IN WITNESS WHEREOF, Collegiate Pacific Inc. has caused to be printed
hereon the facsimile signature of its Chief Executive Officer and the facsimile
of its corporate seal attested by the facsimile signature of its Secretary.
Date:
---------------------------
COLLEGIATE PACIFIC INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
A-2
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ATTEST:
-----------------------------------------
Xxxxxxx X. Xxxxxx, Secretary
Countersigned:
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, AS WARRANT AGENT
Authorized Officer
A-3
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TO BE EXECUTED UPON ELECTION TO EXERCISE
WARRANT AND PURCHASE SHARES OF COMMON STOCK
TO: COLLEGIATE PACIFIC INC.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT- ____________, Custodian for ____________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________
(State)
Additional abbreviations may also be used, though not in the above
list, as set forth in the Warrant Agreement.
The undersigned holder of the within Warrant hereby (1) irrevocably
elects to exercise the right of purchase represented by the within Warrant for,
and to purchase hereunder __________ shares of Common Stock which the
undersigned is entitled to purchase thereunder, (2) tenders the full payment
therefor called for by the within Warrant, and (3) directs that the certificates
for such shares be issued as set forth below:
Name
---------------------------------------------------------------------------
Address
------------------------------------------------------------------------
Taxpayer Identification Number
-------------------------------------------------
and be delivered to at
------------------------------------------------- -------
and, if said number of shares shall not be all of the shares purchasable
thereunder, that a new Warrant for the balance remaining of the shares
purchasable under the within Warrant be delivered to the undersigned at the
address below:
Date: , 200
------------------------ --
Address:
-----------------------------------------------------------------------
Signature:
---------------------------------------------------------------------
Note: The signature to the above Election to Purchase must correspond with the
name as written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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FORM OF ASSIGNMENT TO BE EXECUTED UPON TRANSFER OF WARRANT
FOR VALUE RECEIVED_____________________________________________________
hereby sells, assigns, and transfers to [Taxpayer ID Number]____________________
the within Warrant, together with all rights, title, and interest therein, and
does hereby irrevocably constitute and appoint _________________________________
attorney to transfer such Warrant on the books on the warrant register of the
within named Company, with full power of substitution.
Date: , 19 .
------------------------- ------
Signature:
------------------------------------------------------------
Note: The signature to the above Assignment must correspond with the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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