WARRANT AGREEMENT
Exhibit
4.2
THIS
WARRANT AGREEMENT, dated ____________, 2007, is by and between XXXXXX
HOLDINGS,
INC., a Nevada corporation (the “Company”) and CAPITAL GROWTH FINANCIAL, LLC
(the “Representative”).
The
Company proposes to issue to the Representative, a warrant as hereinafter
described (the “Representative's Warrant”) to purchase up to an aggregate of
500,000 shares, subject to adjustment as provided in Section 8 hereof
(such
shares, as adjusted, being hereinafter referred to as the “Shares”) of the
Company’s common stock, par value $.001 per share (the “Common Shares”), each
Representative Warrant entitling the holder thereof to purchase one
Common
Share. All capitalized terms used herein and not otherwise defined
herein shall
have the same meanings as in that certain underwriting agreement,
of even date
herewith, by and between the Company and the Representative (the
“Underwriting
Agreement”). In this Agreement, the singular includes the plural and the plural
includes the singular.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
herein set
forth and for other good and valuable consideration, the parties
hereto agree as
follows:
1) Issuance
of Warrants; Form of Warrant.
The
Company will issue, sell and deliver the Representative's Warrant
to the
Representative or their bona fide officers for an aggregate price
of $100.00.
The form of the Representative's Warrant and the form of election
to purchase
Shares to be attached thereto shall be substantially as set forth
on
Exhibit
A
attached
hereto. The Representative's Warrant shall be executed on behalf
of the Company
by the manual or facsimile signature of the present or any future
Chief
Executive Officer, President or any Vice President of the Company,
under its
corporate seal, affixed or in facsimile, and attested by the manual
or facsimile
signature of the present or any future Secretary or Assistant Secretary
of the
Company.
2) Registration.
The
Representative's Warrant shall be numbered and shall be registered
in a
Representative Warrant register (the “Representative Warrant Register”). The
Company shall be entitled to treat the registered holder of any Representative
Warrant on the Representative Warrant Register (the “Holder”) as the owner in
fact thereof for all purposes and shall not be bound to recognize
any equitable
or other claim to or interest in such Representative Warrant on the
part of any
other person, and shall not be liable for any registration of transfer
of
Representative's Warrant which are registered or are to be registered
in the
name of a fiduciary or the nominee of a fiduciary unless made with
the actual
knowledge that a fiduciary or nominee is committing a breach of trust
in
requesting such registration of transfer, or with such knowledge
of such facts
that its participation therein amounts to bad faith. The Representative's
Warrant shall be registered initially in the name of “Capital Growth Financial,
LLC” in such denominations as the Representative may request in writing
to the
Company; provided, however, that the Representative may designate
that all or a
portion of the Representative's Warrant be issued in varying amounts
directly to
its bona fide officers, and not to the Representative. Such
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designation
will only be made by the Representative if it determines that such
issuances
would not violate the interpretation of the Board of Governors
of the National
Association of Securities Dealers, Inc. (the “NASD”) relating to the review of
corporate financing arrangements.
3) Transfer
of Warrants.
The
Representative's Warrant will not be sold, transferred, assigned
or
hypothecated, in part or in whole the (other than by will or pursuant
to the
laws of descent and distribution), for a period of 180 days from
the effective
date of the Registration Statement except to officers of the Representative
and
members of the selling group and their officers and thereafter only
upon
delivery thereof duly endorsed by the Holder or by his duly authorized
attorney
or representative, or accompanied by proper evidence of succession,
assignment
or authority to transfer. In all cases of transfer by an attorney,
the original
power of attorney, duly approved, or an official copy thereof, duly
certified,
shall be deposited with the Company. In case of transfer by executors,
administrators, guardians or other legal representatives, duly authenticated
evidence of their authority shall be produced, and may be required
to be
deposited with the Company in its discretion. Upon any registration
of transfer,
the Company shall deliver a new Representative Warrant or Representative's
Warrant to the persons entitled thereto. The Representative's Warrant
may be
exchanged at the option of the Holder thereof for another Representative
Warrant, or other Representative's Warrant, of different denominations,
of like
tenor and representing in the aggregate the right to purchase a like
number of
Common Shares upon surrender to the Company or its duly authorized
agent.
Notwithstanding the foregoing, the Company shall have no obligation
to cause
Representative's Warrant to be transferred on its books to any person
if such
transfer would violate the Securities Act of 1933, as amended (the
“Act”).
4) Term
of Warrants, Exercise of Warrants.
a) Each
Representative Warrant entitles the registered owner thereof to purchase
one
Share at a purchase price of $3.65 or 125% of the public offering
price per
Share (the “Exercise Price”) at any time from the first anniversary of the
effective date of the Registration Statement until 5:00 p.m., EST
time, on
August __, 2012) (the “Warrant Expiration Date”). Notwithstanding the foregoing,
if at 5:00 p.m. EST time on the Warrant Expiration Date, any Holder
or Holders
of the Representative's Warrant have not exercised their Representative's
Warrant and the “current market price” (as such term is defined in Section 8(d)
below) for the Common Shares on the Warrant Expiration Date is greater
than the
Exercise Price, then each such unexercised Representative Warrant
shall
automatically be converted into a number of Common Shares equal to:
the number
of Common Shares then issuable upon exercise of an Representative
Warrant,
multiplied by a fraction, the numerator of which is the difference
between (A)
the “current market price” for Common Shares on the Warrant Expiration Date and
(B) the Exercise Price, and the denominator of which is the “current market
price” on the Warrant Expiration Date. Prior to the Warrant Expiration Date,
the
Company will not take any action that would terminate the Representative's
Warrant. The Exercise Price and the Shares issuable upon exercise
of the
Representative's Warrant are subject to adjustment upon the occurrence
of
certain events pursuant to the provisions of Section 8 of this Agreement.
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b) Subject
to the provisions of this Agreement, each Holder shall have the right,
which may
be exercised as set forth in such Representative's Warrant, to purchase
from the
Company (and the Company shall issue and sell to such Holder) the
number of
fully paid and nonassessable Common Shares specified in such Representative's
Warrant, upon surrender to the Company, or its duly authorized agent,
of such
Representative's Warrant with the form of election to purchase attached
thereto
duly completed and signed, with signatures guaranteed by a member
firm of a
national securities exchange, a commercial bank or trust company
located in the
United States or a member of the NASD and upon payment to the Company
of the
Exercise Price, as adjusted in accordance with the provisions of
Section 8 of
this Agreement, for the number of Shares in respect of which such
Representative's Warrant are then exercised.
c) Payment
of such Exercise Price may be made at the Holder’s election (i) by certified or
official bank check, (ii) in the event that the Holder holds Common
Shares of
the Company and such Common Shares are listed on a domestic stock
exchange or
quoted in the domestic over-the-counter market, by transferring to
the Company
an amount of such Common Shares which, when multiplied by, the current
market
price of the Common Shares at the time of exercise of such Representative
Warrant, equals the aggregate amount of the consideration payable
upon such
exercise, (iii) by surrendering to the Company the right to receive
a portion of
the number of Shares with respect to which such Representative Warrant
is then
being exercised equal to the product obtained by multiplying such
number of
Shares by a fraction, the numerator of which is the Exercise Price
in effect on
the date of such exercise and the denominator of which is the current
market
price of the Common Shares in effect on such date, or (iv) by a combination
of
the foregoing methods of payment selected by the Holder. For purposes
of this
paragraph, the current market price of the Common Shares shall be
calculated
either (a) on the date which the form of election to purchase attached
hereto is
deemed to have been sent to the Company pursuant to Section 12 hereof
(“Notice
Date”) or (b) as the average of the last reported sale price for each
of the
five trading days preceding the Notice Date, whichever of (a) or
(b) is greater.
In any case where the consideration payable upon such exercise is
being paid in
whole or in part pursuant to the provisions of clause (ii) or clause
(iii) of
the preceding sentence, such exercise shall be accompanied by written
notice
from the Holder specifying the manner of payment thereof, and in
the case of
clause (ii), stating the amount of Common Shares of the Company to
be applied to
such payment, and in the case of clause (iii), containing a calculation
showing
the number of Shares with respect to which rights are being surrendered
thereunder and the net number of Shares to be issued after giving
effect to such
surrender. No adjustment shall be made for any dividends on any Shares
issuable
upon exercise of a Representative Warrant.
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d) Upon
each
surrender of Representative's Warrant and payment of the Exercise
Price as
aforesaid, the Company shall issue and cause to be delivered within
three
business days of such notice to or upon the written order of the
Holder of such
Representative's Warrant and in such name or names as such Holder
may designate
a certificate or certificates for the number of full Shares so purchased
upon
the exercise of such Representative's Warrant, together with cash,
as provided
in Section 9 of this Agreement, in respect of any fractional Shares
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 as of the
date of the
surrender of Representative's Warrant and payment of the Exercise
Price as
aforesaid. The rights of purchase represented by the Representative's
Warrant
shall be exercisable, at the election of the Holders thereof, either
in full or
from time to time in part and, in the event that any Representative
Warrant is
exercised in respect of less than all of the Shares issuable upon
such exercise
at any time prior to the Warrant Expiration Date, a new Representative
Warrant
or Representative's Warrant will be issued for the remaining number
of Shares
specified in the Representative Warrant so surrendered.
5) Payment
of Taxes.
The
Company will pay all documentary stamp taxes, if any, attributable
to the
issuance of Shares upon the exercise of Representative's Warrant;
provided,
however, that the Company shall not be required to pay any tax or
taxes which
may be payable in respect of any transfer involved in the issue or
delivery of
any certificates for Shares in a name other than that of the Holder
of
Representative's Warrant in respect of which such Shares are
issued.
6) Mutilated
or Missing Warrants.
In case
any of the Representative's Warrant shall be mutilated, lost, stolen
or
destroyed, the Company may, in its discretion, issue and deliver
in exchange and
substitution for and upon cancellation of the mutilated Representative
Warrant,
or in lieu of and substitution for the Representative Warrant lost,
stolen or
destroyed, a new Representative Warrant of like tenor and representing
an
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company of such mutilation, loss, theft or destruction
of
such Representative Warrant and indemnity, unless mutilated, also
reasonably
satisfactory to the Company. An applicant for such substitute Representative's
Warrant shall also comply with such other reasonable regulations
and pay such
other reasonable charges as the Company may prescribe.
7) Reservation
of Shares, etc.
There
have been reserved and the Company shall at all times keep reserved,
out of the
authorized and unissued Common Shares, a number of Common Shares
sufficient to
provide for the exercise of the rights of purchase represented by
the
outstanding Representative's Warrant. Computershare Investor Services,
transfer
agent for the Common Shares (the “Transfer Agent”), and every subsequent
transfer agent, if any, for the Company’s securities issuable upon the exercise
of the Representative's Warrant will be irrevocably authorized and
directed at
all times until the Warrant Expiration Date to reserve such number
of authorized
and unissued Common Shares as shall be required for such purpose.
The Company
will keep a copy of this Agreement on file with the Transfer Agent
and with
every subsequent transfer agent of the Company’s securities issuable upon the
exercise of the Representative's Warrant. The Company will supply
the Transfer
Agent or any subsequent
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8) Adjustments
of Exercise Price and Number of Shares.
The
Exercise Price and the number and kind of securities issuable upon
exercise of
each Representative Warrant shall be subject to adjustment from time
to time
upon the happening of certain events, as follows:
a) In
case
the Company shall (i) declare a dividend on its Common Shares in
Common Shares
or make a distribution of Common Shares, (ii) subdivide its outstanding
Common
Shares, (iii) combine its outstanding Common Shares into a smaller
number of
Common Shares or (iv) issue by reclassification of the Common Shares
other
securities of the Company (including any such reclassification in
connection
with a consolidation or merger in which the Company is the continuing
corporation), the number of Shares purchasable upon exercise of each
Representative Warrant immediately prior thereto shall be adjusted
so that the
Holder of each Representative Warrant shall be entitled to receive
the kind and
number of Shares or other securities of the Company which he would
have owned or
have been entitled to receive after the happening of any of the events
described
above, had such Representative Warrant been exercised immediately
prior to the
happening of such event or any record date with respect thereto.
An adjustment
made pursuant to this paragraph (a) shall become effective immediately
after the
effective date of such event retroactive to immediately after the
record date,
if any, for such event.
b) In
case
the Company shall distribute to all holders of its Common Shares
stock other
than Common Shares or evidences of its indebtedness or assets (excluding
cash
dividends payable out of consolidated earnings or retained earnings
and
dividends or distributions referred to in paragraph (a) above) or
rights,
options or warrants or convertible or exchangeable securities containing
the
right to subscribe for or purchase Common Shares (excluding those
referred to in
paragraph (b) above), then in each case the number of Shares thereafter
issuable
upon the exercise of each Representative Warrant shall be determined
by
multiplying the number of Shares theretofore issuable upon the exercise
of each
Representative Warrant, by a fraction, of which the numerator shall
be the
current market price per Common Share (as defined in paragraph (d)
below) on the
record date mentioned below in this paragraph (c), and of which the
denominator
shall be the current market price per Common Share on such record
date, less the
then fair value (as determined by the Board of Directors of the Company,
whose
determination shall be conclusive) of the portion of the shares of
capital stock
other than Common Shares or assets or evidences of indebtedness so
distributed
or of such subscription rights, options or
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i) For
the
purpose of any computation under paragraph (c) of this Section 8,
the current
market price per Common Share at any date shall be the greater of
(i) the
average of the daily closing prices for five consecutive trading
days commencing
ten trading days before the date of such computation; and (ii) the
last sale
price on the date before the date of such computation. The closing
price for
each day shall be the last reported sale price regular way or, in
case no such
reported sale takes place on such day, the average of the closing
bid and asked
prices regular way for such day, in either case (A) if the Common
Stock is
listed on the American Stock Exchange ("AMEX") or other national
securities
exchange or quoted on the NASDAQ Stock Market or OTC Bulletin Board
maintained
by the National Association of Securities Dealers, Inc. (the “OTCBB”) (or a
successor exchange or quotation service), the last sale price of
the Common
Stock in the principal trading market for the Common Stock as reported
by the
AMEX, such exchange, the NASDAQ Stock market or the OTCBB, as the
case may be;
and (B) if the Common Stock is not listed on AMEX or a national securities
exchange or quoted on the NASDAQ Stock Market or the OTCBB (or a
successor
exchange or quotation service), but is traded in the residual over-the-counter
market, the closing bid price for the Common Stock on the last trading
day
preceding the date in question for which such quotations are reported
by the
Pink Sheets, LLC or similar publisher of such quotations; and (C)
if the current
market value of the Common Stock cannot be determined pursuant to
clause (A) or
(B) above, such price as the Board of Directors of the Company shall
determine,
in good faith.
c) No
adjustment in the number of Shares purchasable hereunder shall be
required
unless such adjustment would require an increase or decrease of at
least one
percent (1%) in the number of Shares purchasable upon the exercise
of each
Representative Warrant; provided, however, that any adjustments which
by reason
of this paragraph (d) are not required to be made shall be carried
forward and
taken into account in any subsequent adjustment, but not later than
three years
after the happening of the specified event or events. All calculations
shall be
made to the nearest one thousandth of a share. Anything in this Section
8 to the
contrary notwithstanding, the Company shall be entitled, but shall
not be
required, to make such changes in the number of Shares purchasable
upon the
exercise of each Representative Warrant, in addition to those required
by this
Section 8, as it in its discretion shall determine to be advisable
in order that
any dividend or distribution in shares of Common Shares, subdivision,
reclassification or combination of Common Shares, issuance of rights,
warrants
or options to purchase Common Shares, or distribution of shares of
capital stock
other than Common Shares, evidences of indebtedness or assets (other
than
distributions of cash out of consolidated earnings or retained earnings)
or
convertible or exchangeable securities hereafter made by the Company
to the
holders of its Common Shares, shall not result in any tax to the
holders of its
Common Shares or securities convertible into Common
Shares.
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d) Whenever
the number of Shares purchasable upon the exercise of each Representative
Warrant is adjusted, as herein provided, the Exercise Price shall
be adjusted by
multiplying the Exercise Price in effect immediately prior to such
adjustment by
a fraction, of which the numerator shall be the number of Shares
purchasable
upon the exercise of each Representative Warrant immediately prior
to such
adjustment, and of which the denominator shall be the number of Shares
so
purchasable immediately thereafter.
e) For
the
purpose of this Section 8, the term “Common Shares” shall mean (i) the class of
stock designated as the Common Shares of the Company at the date
of this
Agreement or (ii) any other class of stock resulting from successive
changes or
reclassifications of such shares consisting solely of changes in
par value, or
from no par value to par value, or from par value to no par value.
In the event
that at any time, as a result of an adjustment made pursuant to paragraph
(a)
above, the Holders shall become entitled to purchase any shares of
capital stock
of the Company other than Common Shares, thereafter the number of
such other
shares so purchasable upon exercise of each Representative Warrant
and the
Exercise Price of such shares shall be subject to adjustment from
time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions
with respect to the Shares contained in paragraphs (a) through (e),
inclusive,
and paragraphs (g) through (k), inclusive, of this Section 8, and
the provisions
of Sections 4, 5, 7 and 10, with respect to the Shares, shall apply
on like
terms to any such other shares.
f) The
Company may, at its option, at any time during the term of the Representative's
Warrant, reduce the then current Exercise Price to any amount deemed
appropriate
by the Board of Directors of the Company.
g) Whenever
the number of Shares issuable upon the exercise of each Representative
Warrant
or the Exercise Price of such Shares is adjusted, as herein provided,
the
Company shall promptly mail by first class mail postage prepaid to
each Holder
notice of such adjustment or adjustments. The Company shall retain
a firm of
independent public accountants (who may be the regular accountants
employed by
the Company) to make any computation required by this Section 8 and
shall cause
such accountants to prepare a certificate setting forth the number
of Shares
issuable upon the exercise of each Representative Warrant and the
Exercise Price
of such Shares after such adjustment, setting forth a brief statement
of the
facts requiring such adjustment and setting forth the computation
by which such
adjustment was made. Such certificate shall be conclusive on the
correctness of
such adjustment and each Holder shall have the right to inspect such
certificate
during reasonable business hours.
h) Except
as
provided in this Section 8, no adjustment in respect of any dividends
shall be
made during the term of the Representative's Warrant or upon the
exercise of the
Representative's Warrant.
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i) In
case
of any consolidation of the Company with or merger of, the Company
with or into
another corporation or in case of any sale or conveyance to another
corporation
of the property of the Company as an entirety or substantially as
an entirety,
the Company or such successor or purchasing corporation (or an affiliate
of such
successor or purchasing corporation), as the case may be, agrees
that each
Holder shall have the right thereafter upon payment of the Exercise
Price in
effect immediately prior to such action to purchase upon exercise
of each
Representative Warrant the kind and amount of shares and other securities
and
property (including cash) which he would have owned or have been
entitled to
receive after the happening of such consolidation, merger, sale or
conveyance
had such Representative Warrant been exercised immediately prior
to such action.
The provisions of this paragraph shall similarly apply to successive
consolidations, mergers, sales or conveyances.
j) Notwithstanding
any adjustment in the Exercise Price or the number or kind of shares
purchasable
upon the exercise of the Representative's Warrant pursuant to this
Agreement,
certificates for Representative's Warrant issued prior or subsequent
to such
adjustment may continue to express the same price and number and
kind of Shares
as are initially issuable pursuant to this Agreement.
9)
Fractional
Interests.
The
Company shall not be required to issue fractions of Shares on the
exercise of
Representative's Warrant. If more than one Representative Warrant
shall be
presented for exercise in full at the same time by the same Holder,
the number
of Shares which shall be issuable upon the exercise thereof shall
be computed on
the basis of the number of Shares issuable on exercise of the Representative's
Warrant so presented. If any fraction of a Share would, except for
the
provisions of this Section 9, be issuable on the exercise of any
Representative
Warrant (or specified portions thereof), the Company shall purchase
such
fraction for an amount in cash equal to the same fraction of the
current market
price per Common Share (determined as provided in the second sentence
of Section
8(d) of this Agreement) on the date of exercise.
10) Registration
Rights.
For
purposes of this Section 10, (i) the term “Holder” shall include holders of
Shares, and (ii) the term “Registrable Securities” shall mean the Shares, issued
upon exercise of the Representative's Warrant.
a) Demand
Registration Rights.
The
Company covenants and agrees with the Representative and any other
or subsequent
Holders of the Registrable Securities (as defined in paragraph (e)
of this
Section 10) that, upon written request of the then Holder(s) of at
least a
majority of the aggregate of the Registrable Securities which were
originally
issued on the date hereof to the Representative or its designees,
made at any
time within the period commencing one year and ending four years
after the
Effective Date of the Registration Statement, the Company will file
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b) Piggyback
Registration Rights.
The
Company covenants and agrees with the Representative and any other
Holders or
subsequent Holders of the Registrable Securities that if, at any
time within the
period commencing one year and ending four years after the Effective
Date, it
proposes to file a Registration Statement with respect to any class
of security
(other than in connection with an offering to the Company’s employees) under the
Act in a primary registration on behalf of the Company and/or in
a secondary
registration on behalf of holders of such securities and the registration
form
to be used may be used for registration of the Registrable Securities,
the
Company will give prompt written notice (which in the case of a Registration
Statement or notification pursuant to the exercise of demand registration
rights
other than those provided in Section 10(a) of this Agreement, shall
be within
ten (10) business days after the Company’s receipt of notice of such exercise,
in any event, shall be at least 30 days prior to such filing) to,
the Holders of
Registrable Securities (regardless of whether some of the Holders
shall have
theretofore availed themselves of the right provided in Section 10(a)
of this
Agreement) at the addresses appearing on the records of the Company
of its
intention to file a registration statement and will offer to include
in such
registration statement, subject to sub-paragraphs (i) and (ii) of
this paragraph
(b), such number of Registrable Securities with respect to which
the Company has
received written requests for inclusion therein within ten (10) days
after the
giving of notice by the Company. All registrations requested pursuant
to this
Section 10(b) are referred to herein as “Piggyback Registrations,” All Piggyback
Registrations pursuant to this Section 10(b) will be made solely
at the
Company’s expense. This paragraph is not applicable to a Registration Statement
filed by the Company with the Commission on Forms S-4 or S-8 or any
successor
forms.
i) Priority
on Primary Registrations.
If a
Piggyback Registration includes an underwritten primary registration
on behalf
of the Company and the underwriter(s) for the offering being registered
by the
Company shall determine in good faith and advise the
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ii) Priority
on Secondary Registrations.
If a
Piggyback Registration consists only of an underwritten secondary
registration
on behalf of holders of securities of the Company (other than pursuant
to
Section 10(a)), and the underwriter(s) for the offering being registered
by the
Company advise the Company in writing that in its/their opinion the
number of
Registrable Securities requested to be included in such registration
exceeds the
number which can be sold in such offering without materially adversely
affecting
the distribution of such securities by the Company, the Company will
include in
such registration the securities requested to be included therein
by the holders
requesting such registration, other securities requested to be included
in such
registration and the Registrable Securities requested to be included
in such
registration above, pro rata, among all such holders on the basis
of the number
of shares requested to be included by each such holder.
Notwithstanding
the foregoing, the Company shall not be required to file a registration
statement to include Shares pursuant to this Section 10(b) if an
opinion of
independent counsel, reasonably satisfactory to counsel for the Company
and
counsel for Representative, that the Shares proposed to be disposed
of may be
transferred pursuant to the provisions of Rule 144 under the Act,
shall have
been delivered to counsel for the Company.
c) Action
to be Taken by the Company.
In
connection with the registration of Registrable Securities in accordance
with
paragraphs (a) or (b) of this Section 10, the Company agrees
to:
i) Bear
the
expenses of any registration or qualification under paragraphs (a)
or (b) of
this Section 10, including, but not limited to, legal accounting,
and printing
fees; provided, however, that in no event shall the Company be obligated
to pay
(A) any fees and disbursements of more than one special counsel for
Holders of
Registrable Securities, or (B) any underwriters’ discount or commission in
respect of such Registrable Securities;
ii) Use
its
best efforts to register or qualify the Registrable Securities for
offer or sale
under state securities or Blue Sky laws of such jurisdictions as
Representative
shall reasonably request and to do any and all other acts and things
which may
be necessary or advisable to enable the holders to consummate the
proposed sale,
transfer or other disposition of such securities in any jurisdiction
except that
the Company shall not for any purpose be required to execute a general
consent
to service of process to qualify to do business in any jurisdiction
where it is
not so qualified; and
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iii) Enter
into a cross-indemnity agreement, in customary form, with each underwriter,
if
any, and each holder of securities included in such registration
statement,
11) Notices
to Holders.
a) Nothing
contained in this Agreement or in any of the Representative's Warrant
shall be
construed as conferring upon the Holders thereof the right to vote
or to receive
dividends or to consent or to receive notice as shareholders in respect
of the
meetings of shareholders or the election of directors of the Company
or any
other matter, or any rights whatsoever as shareholders of the Company;
provided,
however, that in the event that a meeting of shareholders shall be
called to
consider and take action on a proposal for the voluntary dissolution
of the
Company, other than in connection with a consolidation, merger or
sale of all,
or substantially all, or its property, assets, business and good
will as an
entirety, then and in that event, the Company shall cause a notice
thereof to be
sent at least 20 days prior to the date filed as a record date or
the date of
closing, the transfer books in relation to such meeting, to each
registered
Holder of Representative's Warrant at such Holder’s address appearing in the
Representative Warrant Register; but 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 voluntary dissolution. If
such notice
shall have been so given and if such 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
shareholders, the purchase rights represented by the Representative's
Warrant
and all other rights with respect thereto shall cease and
terminate.
b) In
the
event the Company intends to make any distribution on its Common
Shares (or
other securities which may be issuable in lieu thereof upon the exercise
of
Representative's Warrant), including, without limitation, any such
distribution
to be made in connection with a consolidation or merger in which
the Company is
the continuing corporation, or to issue subscription rights or warrants
to
holders of its Common Shares, the Company shall cause a notice of
its intention
to make such distribution to be sent by first-class mail, postage
prepaid, at
least 20 days prior to the date fixed as a record date or the date
of closing
the transfer books in relation to such distribution, to each registered
Holder
of Representative's Warrant at such Holder’s address appearing, on the
Representative Warrant Register, but 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 correction with such distribution.
12) Notices.
Any
notice pursuant to this Agreement to be given or made by the Holder
of any
Representative Warrant and/or the holder of any Share to or on the
Company shall
be sufficiently given or made when hand delivered, or mailed by receipted
express mail or private courier service, or if sent by first-class
mail, postage
prepaid, addressed as follows or to such other address as the Company
may
designate by notice given in accordance with this Section 12, to
the Holders of
Representative's Warrant and/or the holders of Shares:
11
Xxxxxx
Holdings, Inc.
0000
Xxx
Xxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx X. Xxxxxx
Notices
or demands authorized by this Agreement to be given or made by the
Company to or
on the Holder of any Representative Warrant and/or the holder of
any Share shall
be sufficiently given or made (except as otherwise provided in this
Agreement)
if sent by first-class mail, postage prepaid, addressed to such Holder
or such
holder of Shares at the address of such Holder or such holder of
Shares as shown
on the Representative Warrant Register or the books of the Company,
as the case
may be.
13) Governing
Law.
THIS
AGREEMENT AND EACH REPRESENTATIVE WARRANT ISSUED HEREUNDER SHALL
BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
FLORIDA
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. The Company
hereby agrees
to accept service of process by notice given to it pursuant to the
provisions of
Section 12.
14) Counterparts.
This
Agreement may be executed in any number of counterparts, each of
which so
executed shall be deemed to be an original; but such counterparts
together shall
constitute but one and the same agreement.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly
executed as of the day, month and year first above written.
| (Corporate Seal) | XXXXXX HOLDINGS, INC. | ||
| Attest: | |||
|
By:
|
|||
| Secretary | Xxxxx X. Xxxxxx | ||
| President & Chief Executive Officer | |||
| CAPITAL GROWTH FINANCIAL, LLC | |||
| By: | |||
| Print Name: | |||
| Title: | |||
12
EXHIBIT
A
No.___________
500,000
Warrants
VOID
AFTER 5:00 P.M. EST TIME
ON
_____________, 2012
XXXXXX
HOLDINGS, INC.
Warrant
Certificate
THIS
CERTIFIES THAT for value received Capital Growth Financial, LLC or
its
registered assigns, is the owner of the number of warrants set forth
above, each
of which entities the owner thereof to purchase at any time from
_____, 2007,
until 5:00 p.m., EST time on ___, 2012 (the “Warrant Expiration Date”), one
fully paid and nonassessable Common Share, without par value (the
“Common
Shares”), of Xxxxxx Holdings, Inc., a Delaware corporation (the “Company”), at
the purchase price of $3.65 per share (the “Exercise Price”) upon presentation
and surrender of this Warrant Certificate with the Form of Election
to Purchase
duly executed, The number of Warrants evidenced by this Warrant Certificate
(and
the number of shares which may be purchased upon exercise thereto
set forth
above, and the Exercise Price per share set forth above, are the
number and
Exercise Price as of the date of original issuance of the Warrants,
based on the
Common Shares of the Company as constituted at such date. As provided
in the
Warrant Agreement referred to below, the Exercise Price and the number
or kind
of shares which may be purchased upon the exercise of the Warrants
evidenced by
this Warrant Certificate are, upon the happening of certain events,
subject to
modification and adjustment.
This
Warrant Certificate is subject to, and entitled to the benefits of,
all of the
terms, provisions and conditions of an agreement, dated ___________,
2007 (the
“Warrant Agreement”), between the Company and Capital Growth Financial, LLC,
which Warrant Agreement is hereby incorporated herein by reference
and made a
part hereof and to which Warrant Agreement reference is hereby made
for a full
description of the rights, limitations of rights, duties and immunities
hereunder of the Company and the holders of the Warrant Certificates.
Copies of
the Warrant Agreement are on file at the principal office of the
Company.
This
Warrant Certificate, with or without other Warrant Certificates,
upon surrender
at the principal office of the Company, may be exchanged for another
Warrant
Certificate or Warrant Certificates of like tenor and date evidencing
Warrants
entitling the holder to purchase a like aggregate number of Common
Shares as the
Warrants evidenced by the Warrant Certificate or Warrant Certificates
surrendered entitled such holder to purchase. If this Warrant Certificate
shall
be exercised in part, the holder hereof shall be entitled to receive
upon
surrender hereof another Warrant Certificate or Warrant Certificates
for the
number of whole Warrants not exercised.
No
fractional Common Shares will be issued upon the exercise of any
Warrant or
Warrants evidenced hereby, but in lieu thereof a cash payment will
be made, as
provided in the Warrant Agreement.
No
holder
of this Warrant Certificate shall be entitled to vote or receive
dividends or be
deemed the holder of Common Shares, any other securities of the Company
which
may at any time be issuable on the exercise hereof for any purpose,
nor shall
anything contained in the Warrant Agreement or herein be construed
to confer
upon the holder hereof, as such, any of the rights of a stockholder
of the
Company or any right to vote for the election of directors or upon
any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent
to any corporate action (whether upon any recapitalization, issue
of stock,
reclassification of stock, change of par value or change of stock
to no par
value, consolidation, merger, conveyance, or otherwise) or, except
as provided
in the Warrant Agreement, to receive notice of meetings, or to receive
dividends
or subscription rights or otherwise, until the Warrant or Warrants
evidenced by
this Warrant Certificate shall have been exercised and the shares
shall have
become deliverable as provided in the Warrant Agreement.
IN
WITNESS WHEREOF, Xxxxxx Holdings, Inc. has caused the signature (or
facsimile
signature) of its President and Chief Executive Officer and its Secretary
to be
printed hereon and its corporate seal (or facsimile) to be printed
hereon.
Date:
________, 2007
| (Corporate Seal) | XXXXXX HOLDINGS, INC. | ||
|
Attest:
|
|||
| By: | |||
| Secretary |
Xxxxx
X. Xxxxxx
|
||
|
President
& Chief Executive Officer
|
|||
FORM
OF
ELECTION TO PURCHASE
(To
be
executed if Holder desires to exercise the Warrant
Certificate)
|
TO:
|
Xxxxxx
Holdings, Inc.
|
0000
Xxx
Xxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attention:
President
The
undersigned hereby irrevocably elects to exercise Warrants represented
by this
Warrant Certificate to purchase the Common Shares issuable upon the
exercise of
such Warrants and requests that certificates for such shares be issued
in the
name of:
| Print Name | Address | |
| SSN or FEIN | City/State/Zip |
If such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, a new Warrant Certificate for the balance remaining of such Warrants shall be registered in the name of and delivered to:
| Print Name | Address | |
| SSN or FEIN | City/State/Zip |
| Date:___________, 20___ | ||
| Signature | ||
| Print Name | ||
| Signature Guaranteed: | ||
SIGNATURE
MUST CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT
CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
FORM
OF
ASSIGNMENT
(To
be
executed by the registered holder if such holder desires to transfer
the Warrant
Certificates)
FOR
VALUE
RECEIVED, _____________________ hereby sells, assigns and transfers
unto
__________________________________ this Warrant Certificate, together
with all
right, title and interest herein, and does hereby irrevocably constitute
and
appoint ________________, to transfer the within Warrant Certificate
on the
books of the within-named Company, with full power of
substitution.
| Date:___________, 20___ | ||
| Signature | ||
| Print Name | ||
| Signature Guaranteed: | ||
SIGNATURE
MUST CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS WARRANT
CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
