Exhibit 4.03
WARRANT AGENT AGREEMENT
VALUERICH, INC.
AND
INTERWEST TRANSFER COMPANY, INC.
WARRANT AGENT
, 2006
THIS WARRANT AGENT AGREEMENT dated as of ________________ , 2006, between
ValueRich, Inc., a Delaware corporation (the "Company"), and Interwest Transfer
Company, Inc., a transfer agency located in Salt Lake City, Utah (the "Warrant
Agent").
RECITALS
WHEREAS, in connection with a public offering (the "Public Offering") of
2,000,000 Units consisting of 2,000,000 shares of Common Stock of the Company,
("Common Stock") and 2,000,000 warrants ("Firm Warrants"), each Warrant
entitling the Registered Owner thereof to purchase one share of Common Stock, or
an aggregate of 2,000,000 shares of Common Stock of the Company on exercise of
all Firm Warrants; and
WHEREAS, the Company also has granted the several underwriters (the
"Underwriters") of the Company's Public Offering pursuant to an underwriting
agreement (the "Underwriting Agreement"), the option to purchase up to an
additional 300,000 Units consisting of 300,000 shares of Common Stock and
300,000 Warrants (the "Over-Allotment Warrants") exercisable to purchase up to
an aggregate of 300,000 shares of Common Stock; and
WHEREAS, the Company desires to provide for the issuance, registration,
transfer, exchange and exercise of certificates (the "Warrant Certificates")
representing the Firm Warrants and the Over-Allotment Warrants (collectively,
herein, the "Warrants") and for the exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Warrant Certificates and the Warrants, and the respective rights and
obligations thereunder of the Company, the registered holders of the Warrant
Certificates and the Warrant Agent, the parties hereto agree as follows:
1. Definitions. As used herein:
(a) "Common Stock" shall mean Common Stock, of the Company, whether
now or hereafter authorized, holders of which have the right to
participate in the distribution of earnings and assets of the Company
without limit as to amount or percentage.
(b) "Corporate Office" shall mean the place of business of the
Warrant Agent (or its successor) located in Salt Lake City, Utah, which
office is presently located at 0000 Xxxx Xxxxxx Xxxxxxxx Xxxx, Xxxxx 000,
Xxxx Xxxx Xxxx, Xxxx 00000.
(c) "Effective Date" shall mean , 2006, the date on which the
Company's Registration Statement is declared effective by the Securities
and Exchange Commission.
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(d) "Exercise Date" shall mean the date of surrender for exercise of
any Warrant Certificate, provided the exercise form on the back of the
Warrant Certificate or a form substantially similar thereto has been
completed in full by the Registered Owner or a duly appointed attorney and
the Warrant Certificate is accompanied by payment in full of the Exercise
Price.
(e) "Exercise Period" shall mean the period commencing on the
Separation Date and extending to and through the Expiration Date.
(f) "Exercise Price" shall mean a purchase price of $3.85 per share
of Common Stock; provided, however, that in the event the Company reduces
the Exercise Price in accordance with Section 9(i) hereof, the Exercise
Price shall be as established by the Company in accordance with such
Section.
(g) "Expiration Date" shall mean 5:00 P.M. Eastern Time on the last
day of the 4 year period commencing on the Effective Date, subject to the
terms provided in Section 5 herein for redemption and subject to extension
by the Board of Directors of the Company; provided however, if such date
shall be a holiday or a day on which banks are authorized to close, then
Expiration Date shall mean 5:00 p.m., Eastern Time on the next following
day which in the State of Utah is not a holiday or a day on which banks
are authorized to close. The Expiration Date may be extended from time to
time, by resolution of the Board of Directors of the Company, to a later
date upon giving notice to the Warrant Agent and the Registered Owners;
provided, however, that notice to the Registered Owners of an extension of
the Expiration Date may be made by publication or by release to Dow Xxxxx,
X.X. Newswire or other means of general distribution. If the Company
redeems the Warrants as provided in Section 5 of this agreement, the
Expiration Date shall be the date fixed for redemption.
(h) "Firm Warrants" shall mean 2,000,000 Warrants to purchase
2,000,000 shares of Common Stock, all of which will be purchased as part
of the Units by the several Underwriters from the Company and sold in the
Public Offering in accordance with the Underwriting Agreement.
(i) "Over-Allotment Warrants" shall mean 300,000 Warrants to
purchase 300,000 shares of Common Stock, any or all of which may be
purchased as part of the Units by the Representatives for the several
Underwriters from the Company in accordance with the Underwriting
Agreement. The Over-Allotment Warrants shall have identical terms and
conditions to those established for the Firm Warrants, subject to their
issuance in accordance with Section 2 hereof.
(j) "Representatives" shall mean Lane Capital Markets, LLC, the
representatives of the several Underwriters.
(k) "Registered Owner" shall mean the person in whose name any
Warrant Certificate shall be registered on the books maintained by the
Warrant Agent pursuant to Section 6 of this Agreement.
(l) "Registration Statement" shall mean the Company's Registration
Statement on Form SB-2 (S.E.C. File No. 333-________ ), as amended.
(m) "Separation Date" shall mean the date on which the Company
notifies holders of its Units and the Warrant Agent that the shares of
Common Stock and Warrants comprising the Units may be detached, and sold
separately.
(n) "Subsidiary" shall mean any corporation of which shares having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (regardless of whether the shares of any other class or
classes of such corporation shall have or may have voting power by reason
of the happening of any contingency) is at the time directly or indirectly
owned by the Company or one or more subsidiaries of the Company.
(o) "Warrant" or the "Warrants" shall mean and include up to
2,300,000 Warrants to purchase 2,300,000 authorized and unissued Shares of
Common Stock of the Company and, unless otherwise noted, shall include
2,000,000 Firm Warrants and 300,000 Over-Allotment Warrants.
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(p) "Warrant Agent" shall mean Interwest Transfer Company, Inc., or
its successor, as the transfer agent and registrar of the Warrants.
(q) "Warrant Shares" shall mean and include up to 2,300,000
authorized and unissued shares of Common Stock reserved for issuance on
exercise of the Warrants, and unless otherwise noted, shall include
2,000,000 shares of Common Stock issuable upon exercise of the Firm
Warrants and 300,000 shares of Common Stock issuable upon exercise of the
Over-Allotment Warrants and any additional shares of Common Stock or other
property which may hereafter be issuable or deliverable on exercise of the
Warrants pursuant to Section 9 of this Agreement.
2. Warrants and Issuance of Warrant Certificates. Each Warrant shall
initially entitle the Registered Owner of the Warrant Certificates representing
such Warrant to purchase one share of Common Stock on exercise thereof, subject
to modification and adjustment as hereinafter provided in Section 9. Warrant
Certificates representing 2,000,000 Firm Warrants and evidencing the right to
purchase an aggregate of 2,000,000 shares of Common Stock of the Company shall
be executed by the proper officers of the Company and delivered to the Warrant
Agent for countersignature. Certificates representing the Firm Warrants to be
delivered to the Warrant Agent shall be in direct relation to the Firm Shares
sold as a Unit in the Company's Public Offering and shall be attached to
certificates representing an equal number of Firm Shares. The Warrant
Certificates representing the Firm Warrants will be issued and delivered on
written order of the Company signed by its President and attested by its
Secretary or Assistant Secretary. The Warrant Agent shall deliver Warrant
Certificates in required whole number denominations to the persons entitled
thereto in connection with any transfer or exchange permitted under this
Agreement.
The Over-Allotment Warrants shall carry identical terms and conditions to
those established for the Firm Warrants and outlined herein. Up to 300,000
Over-Allotment Warrants may be issued and such Over-Allotment Warrants shall
evidence the right of the Registered Owners thereof to purchase an aggregate of
up to 300,000 shares of Common Stock of the Company. Any Warrant Certificates
for Over-Allotment Warrants to be issued will be executed by the proper officers
of the Company and delivered to the Warrant Agent for countersignature on
exercise of the option to purchase Over-Allotment Warrants by the several
Underwriters in accordance with the Underwriting Agreement. Certificates
representing Over-Allotment Warrants will be initially attached to certificates
representing an equal number of Over-Allotment Shares.
Except as provided in Section 8 hereof, share certificates representing
the Warrant Shares shall be issued only on or after the Separation Date on
exercise of the Warrants or on transfer or exchange of the Warrant Shares. The
Warrant Agent, if other than the Company's Transfer Agent, shall arrange with
the Transfer Agent for the issuance and registration of all Warrant Shares.
3. Form and Execution of Warrant Certificates. The Warrant Certificates
shall be substantially in the form attached as Exhibit "A" and may have such
letters, numbers or other marks of identification and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement.
The Warrant Certificates shall be dated as of the date of issuance, whether on
initial issuance, transfer, exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
Each Warrant Certificate for Firm Warrants shall be initially issued only
when attached to a certificate representing the same number of Firm Shares of
Common Stock as Firm Warrants and shall be separately transferable from the
certificate representing Firm Shares only on and after the Separation Date.
Warrant Certificates issued for Over-Allotment Warrants shall be issued together
with certificates representing the same number of shares of Common Stock as
Over-Allotment Warrants and shall be separately transferable only on and after
the Separation Date.
The Warrant Certificates shall be executed on behalf of the Company by its
President and Secretary, by manual signatures or by facsimile signatures printed
thereon, and shall have imprinted thereon a facsimile of the Company's seal. The
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In the event any
officer of the Company who executed the Warrant Certificates shall cease to be
an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent, such
Warrant Certificates may be countersigned, issued and delivered by the Warrant
Agent with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be an officer of the Company.
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4. Exercise. The exercise of Warrants in accordance with this Agreement
shall only be permitted during the Exercise Period.
Warrants shall be deemed to have been exercised immediately prior to the
close of business on the Exercise Date. The exercise form shall be executed by
the Registered Owner thereof or his attorney duly authorized in writing and
shall be delivered together with payment to the Warrant Agent, in cash or by
official bank or certified check, of an amount in lawful money of the United
States of America. Such payment shall be in an amount equal to the Exercise
Price as hereinabove defined.
The person entitled to receive the number of Warrant Shares deliverable on
such exercise shall be treated for all purposes as the Registered Owner of such
Warrant Shares as of the close of business on the Exercise Date. The Company
shall not be obligated to issue any fractional share interests in Warrant
Shares. If Warrants represented by more than one Warrant Certificate shall be
exercised at one time by the same Registered Owner, the number of full Warrant
Shares which shall be issuable on exercise thereof shall be computed on the
basis of the aggregate number of full Warrant Shares issuable on such exercise.
As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be issued and
delivered by the Transfer Agent to the person or persons entitled to receive the
same, a certificate or certificates for the number of Warrant Shares deliverable
on such exercise. No adjustment shall be made in respect of cash dividends on
Warrant Shares deliverable on exercise of any Warrant. The Warrant Agent shall
promptly notify the Company in writing of any exercise and of the number of
Warrant Shares caused to be delivered and shall cause payment of an amount in
cash equal to the Exercise Price to be made promptly to the order of the
Company. The parties contemplate such payments will be made by the Warrant Agent
to the Company on a weekly basis and will consist of collected funds only. The
Warrant Agent shall hold any proceeds collected and not yet paid to the Company
in a Federally-insured escrow account at a commercial bank selected by agreement
of the Company and the Warrant Agent, at all times relevant hereto. Following a
determination by the Warrant Agent that collected funds have been received, the
Warrant Agent shall cause the Transfer Agent to issue share certificates
representing the number of Warrant Shares purchased by the Registered Owner.
Expenses incurred by the Warrant Agent, including administrative costs,
costs of maintaining records and other expenses, shall be paid by the Company
according to the standard fees imposed by the Warrant Agent for such services.
All expenses incurred by the Warrant Agent and to be paid by the Company shall
be deducted from the Escrow Account prior to distribution of funds to the
Company.
A detailed accounting statement setting forth the number of Warrants
exercised, the number of Warrant Shares issued, the net amount of exercised
funds and all expenses incurred by the Warrant Agent shall be transmitted to the
Company on payment of each exercise amount. Such accounting statement shall
serve as an interim accounting for the Company during the Exercise Period. The
Warrant Agent shall render to the Company, at the completion of the Exercise
Period, a complete accounting setting forth the number of Warrants exercised,
the identity of persons exercising such Warrants, the number of Warrant Shares
issued, the amounts distributed to the Company, and all expenses incurred by the
Warrant Agent.
The Company may be required to deliver a prospectus that satisfies the
requirements of Section 10 of the Securities Act of 1933, as amended (the "1933
Act") with delivery of the Warrant Shares and must have a registration statement
(or a post-effective amendment to an existing registration statement) effective
under the 1933 Act in order for the Company to comply with any such prospectus
delivery requirements. The Company will advise the Warrant Agent of the status
of any such registration statement under the 1933 Act and of the effectiveness
of the Company's registration statement or lapse of effectiveness.
No issuance of Warrant Shares shall be made unless there is an effective
registration statement under the 1933 Act, and registration or qualification of
the Warrant Shares, or an exemption therefrom, has been obtained from state or
other regulatory authorities in the jurisdiction in which such Warrant Shares
are sold. The Company will provide to the Warrant Agent written confirmation of
all such registration or qualification, or an exemption therefrom, when
requested by the Warrant Agent.
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5. Redemption. Commencing one year from the Effective Date, the Company
may, at its option, redeem the Warrants in whole, but not in part, for a
redemption price of $0.10 per Warrant, on not less than 30 days' notice to the
Registered Owners. The right to redeem the Warrants may be exercised by the
Company following such one year period and during the Exercise Period only in
the event (i) the closing bid price for Company's shares of Common Stock has
equaled or exceeded $5.60 (160% of the offering price of the Units) for 20
consecutive trading days immediately preceding the date of the Company's notice
of redemption, (ii) any notice of the call for redemption is given not more than
five (5) business days after the conclusion of the 20 consecutive trading days
referred to in the foregoing (i), (iii) the Company has a registration statement
(or a post-effective amendment to an existing registration statement) pertaining
to the Warrant Shares effective with the Securities and Exchange Commission,
which registration statement would enable a Registered Owner to exercise the
Warrants, and (iv) the expiration of the 30 day notice period is within the
Exercise Period. In the event the Company exercises its right to redeem the
Warrants, the Expiration Date will be deemed to be, and the Warrants will be
exercisable until the close of business on, the date fixed for redemption in
such notice. If any Warrant called for redemption is not exercised by such time,
it will cease to be exercisable and the Registered Owner thereof will be
entitled only to the redemption price.
6. Reservation of Shares and Payment of Taxes. The Company covenants that
it will at all times reserve and have available from its authorized shares of
Common Stock such number of shares of Common Stock as shall then be issuable on
exercise of all outstanding Warrants. The Company covenants that all Warrant
Shares issuable shall be duly and validly issued, fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issue thereof.
The Registered Owner shall pay all documentary, stamp or similar taxes and
other government charges that may be imposed with respect to the issuance of the
Warrants, or the issuance, transfer or delivery of any Warrant Shares on
exercise of the Warrants. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered Owner of the Warrant Certificates,
no such delivery shall be made unless the person requesting the same has paid to
the Warrant Agent or Transfer Agent the amount of any such taxes or charges
incident thereto.
The Company will supply the Warrant Agent with blank Warrant Certificates,
so as to maintain an inventory satisfactory to the Warrant Agent. The Company
will file with the Warrant Agent a statement setting forth the name and address
of its Transfer Agent for Warrant Shares and of each successor Transfer Agent,
if any.
7. Registration of Transfer. The Warrant Certificates may be transferred
in whole or in part and may be separately transferred from the Common Stock
share certificate to which such Warrant Certificate is attached only during the
Exercise Period. Warrant Certificates to be exchanged shall be surrendered to
the Warrant Agent at its corporate office. The Company shall execute and the
Warrant Agent shall countersign, issue and deliver in exchange therefor, the
Warrant Certificate or Certificates which the holder making the transfer shall
be entitled to receive.
The Warrant Agent shall keep transfer books at its corporate office on
which Warrant Certificates and the transfer thereof shall be registered. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and deliver
to the transferee or transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or
exercise shall be duly endorsed or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Warrant
Agent.
Prior to due presentment for registration of transfer thereof, the Company
and the Warrant Agent may treat the Registered Owner of any Warrant Certificate
as the absolute owner thereof (notwithstanding any notations of ownership or
writing thereon made by anyone other than the Company or the Warrant Agent) and
the parties hereto shall not be affected by any notice to the contrary.
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8. Loss or Mutilation. On receipt by the Company and the Warrant Agent of
evidence satisfactory as to the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate, the Company shall execute and the Warrant
Agent shall countersign and deliver in lieu thereof, a new Warrant Certificate
representing an equal aggregate number of Warrants. In the case of loss, theft
or destruction of any Warrant Certificate, the Registered Owner requesting
issuance of a new Warrant Certificate shall be required to secure an indemnity
bond in favor of the Company and Warrant Agent in an amount satisfactory to each
of them. In the event a Warrant Certificate is mutilated, such Certificate shall
be surrendered and cancelled by the Warrant Agent prior to delivery of a new
Warrant Certificate. Applicants for a substitute Warrant Certificate shall also
comply with such other regulations and pay such other reasonable charges as the
Company may prescribe.
9. Adjustment of Exercise Price and Shares.
(a) If at any time prior to the expiration of the Warrants by their
terms or by exercise, the Company increases or decreases the number of its
issued and outstanding shares of Common Stock, or changes in any way the
rights and privileges of such shares of Common Stock, by means of (i) the
payment of a share dividend or the making of any other distribution on
such shares of Common Stock payable in its shares of Common Stock, (ii) a
split or subdivision of shares of Common Stock, or (iii) a consolidation
or combination of shares of Common Stock, then the Exercise Price in
effect at the time of such action and the number of Warrants required to
purchase each Warrant Share at that time shall be proportionately adjusted
so that the numbers, rights and privileges relating to the Warrant Shares
then purchasable upon the exercise of the Warrants shall be increased,
decreased or changed in like manner, for the same aggregate purchase price
set forth in the Warrants, as if the Warrant Shares purchasable upon the
exercise of the Warrants immediately prior to the event had been issued,
outstanding, fully paid and nonassessable at the time of that event. Any
dividend paid or distributed on the shares of Common Stock in shares of
any other class of shares of the Company or securities convertible into
shares of Common Stock shall be treated as a dividend paid in shares of
Common Stock to the extent shares of Common Stock are issuable on the
payment or conversion thereof.
(b) In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall be recapitalized by
reclassifying its outstanding shares of Common Stock into shares with a
different par value, or by changing its outstanding shares of Common Stock
to shares without par value or in the event of any other material change
in the capital structure of the Company or of any successor corporation by
reason of any reclassification, recapitalization or conveyance, prompt,
proportionate, equitable, lawful and adequate provision shall be made
whereby any Registered Owner of the Warrants shall thereafter have the
right to purchase, on the basis and the terms and conditions specified in
this Agreement, in lieu of the Warrant Shares theretofore purchasable on
the exercise of any Warrant, such securities or assets as may be issued or
payable with respect to or in exchange for the number of Warrant Shares
theretofore purchasable on exercise of the Warrants had such
reclassification, recapitalization or conveyance not taken place; and in
any such event, the rights of any Registered Owner of a Warrant to any
adjustment in the number of Warrant Shares purchasable on exercise of such
Warrant, as set forth above, shall continue and be preserved in respect of
any stock, securities or assets which the Registered Owner becomes
entitled to purchase.
(c) In the event the Company, at any time while the Warrants shall
remain unexpired and unexercised, shall sell all or substantially all of
its property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as
part of the terms of such sale, dissolution, liquidation or winding up
such that the Registered Owner of a Warrant may thereafter receive, on
exercise thereof, in lieu of each Warrant Share which he would have been
entitled to receive, the same kind and amount of any stock, securities or
assets as may be issuable, distributable or payable on any such sale,
dissolution, liquidation or winding up with respect to each share of
Common Stock of the Company; provided, however, that in the event of any
such sale, dissolution, liquidation or winding up, the right to exercise
the Warrants shall terminate on a date fixed by the Company, such date to
be not earlier than 5:00 P.M., Eastern Time, on the 30th day next
succeeding the date on which notice of such termination of the right to
exercise the Warrants has been given by mail to the Registered Owners
thereof at such addresses as may appear on the books of the Company.
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(d) On exercise of the Warrants by the Registered Owners, the
Company shall not be required to deliver fractions of Warrant Shares;
provided, however, that the Company shall make prompt, proportionate,
equitable, lawful and adequate provisions in respect of any such fraction
of one Warrant Share either on the basis of adjustment in the then
applicable Exercise Price or a purchase of the fractional interest at the
price of the Company's shares of Common Stock or such other reasonable
basis as the Company may determine.
(e) In the event, prior to expiration of the Warrants by exercise or
by their terms, the Company shall determine to take a record of the
holders of its shares of Common Stock for the purpose of determining
shareholders entitled to receive any stock dividend, distribution or other
right which will cause any change or adjustment in the number, amount,
price or nature of the shares of Common Stock or other stock, securities
or assets deliverable on exercise of the Warrants pursuant to the
foregoing provisions, the Company shall give to the Registered Owners of
the Warrants at the addresses as may appear on the books of the Company at
least 30 days' prior written notice to the effect that it intends to take
such a record provided, however, that notice to the Registered Owners of
an extension of the Expiration Date may be made by publication or by
release to Dow Xxxxx, X.X. Newswire or other means of general
distribution. Such notice shall specify the date as of which such record
is to be taken; the purpose for which such record is to be taken; and the
number, amount, price and nature of the shares of Common Stock or other
stock, securities or assets which will be deliverable on exercise of the
Warrants after the action for which such record will be taken has been
completed. Without limiting the obligation of the Company to provide
notice to the Registered Owners of the Warrants of any corporate action
hereunder, the failure of the Company to give notice shall not invalidate
such corporate action of the Company.
(f) The Warrants shall not entitle the Registered Owner thereof to
any of the rights of shareholders or to any dividend declared on the
shares of Common Stock unless the Warrant is exercised and the Warrant
Shares purchased prior to the record date fixed by the Board of Directors
of the Company for the determination of holders of shares of Common Stock
entitled to such dividend or other right.
(g) The Company shall be empowered, in the sole and unconditional
discretion of the Board of Directors, at any time during the Exercise
Period, to reduce the applicable Exercise Price of the Warrants. Any such
reduction in the applicable Exercise Price shall be effective upon written
notice to the Warrant Agent, which notice shall be given pursuant to a
duly and validly authorized resolution of the Board of Directors of the
Company. Any such reduction in the Exercise Price shall not entitle the
Registered Owners to issuance of any additional Common Shares pursuant to
the adjustment provisions set forth elsewhere herein, regardless of
whether the reduction in the Exercise Price was effected either prior to
or following exercise of Warrants by the Registered Owners thereof. A
non-exercising Registered Owner shall have no remedy or rights to receive
any additional Warrant Shares as a result of any reduction in any
applicable Exercise Price pursuant to this subsection.
10. Duties, Compensation and Termination of Warrant Agent. The Warrant
Agent shall act hereunder as agent and in a ministerial capacity for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not, by issuing and delivering Warrant Certificates or by
any other act hereunder, be deemed to make any representations as to the
validity, value or authorization of the Warrant Certificate or the Warrants
represented thereby or of the Warrant Shares or other property delivered on
exercise of any Warrant. The Warrant Agent shall not be under any duty or
responsibility to any holder of the Warrant Certificates to make or cause to be
made any adjustment of the Exercise Price or to determine whether any fact
exists which may require any such adjustments.
The Warrant Agent shall not (i) be liable for any recital or statement of
fact contained herein or for any action taken or omitted by it in reliance on
any Warrant Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
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The Warrant Agent may at any time consult with counsel satisfactory to it
(who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith in accordance
with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand of
the Company shall be sufficiently evidenced by an instrument signed by its
President and attested by its Secretary or Assistant Secretary. The Warrant
Agent shall not be liable for any action taken or omitted by it in accordance
with such notice, statement, instruction, request, direction, order or demand.
The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its reasonable
expenses. The Company further agrees to indemnify the Warrant Agent against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the execution of
its duties and powers hereunder, excepting losses, expenses and liabilities
arising as a result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may terminate the
Warrant Agent and the Warrant Agent shall be discharged from all further duties
and liabilities hereunder (except liabilities arising as a result of the Warrant
Agent's own negligence or willful misconduct) on 30 days' prior written notice
to the other party. At least 12 days prior to the date such resignation is to
become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the Registered Owner of each Warrant Certificate. On
such resignation or termination, the Company shall appoint a new Warrant Agent.
If the Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of the resignation by the Warrant Agent,
then the Registered Owner of any Warrant Certificate may apply to any court of
competent jurisdiction for the appointment of a new Warrant Agent. Any new
Warrant Agent, whether appointed by the Company or by such court, shall be a
bank or trust company having a capital and surplus, as shown by its last
published report to its shareholders, of not less than $1,000,000, and having
its principal office in the United States.
After acceptance in writing of an appointment of a new Warrant Agent is
received by the Company, such new Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed. The
Company shall file a notice of appointment of a new Warrant Agent with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Owner of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new Warrant Agent may
be converted or merged, or any corporation resulting from any consolidation to
which the Warrant Agent or any new Warrant Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent. Any
such successor Warrant Agent shall promptly cause notice of its succession as
Warrant Agent to be mailed to the Company and to the Registered Owner of each
Warrant Certificate. No further action shall be required for establishment and
authorization of such successor Warrant Agent.
The Warrant Agent, its officers or directors and it subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company and
otherwise deal with the Company in the same manner and to the same extent and
with like effect as though it were not the Warrant Agent. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company.
11. Modification of Agreement. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement they
shall deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained. Additionally, the
parties may make any changes or corrections deemed necessary which shall not
adversely affect the interests of the Registered Owners of Warrant Certificates;
provided, however, this Agreement shall not otherwise be modified, supplemented
or altered in any respect except with the consent in writing of the Registered
Owners of Warrant Certificates representing not less than a majority of the
Warrants outstanding. Additionally, no change in the number or nature of the
Warrant Shares purchasable on exercise of a Warrant or the Exercise Price
therefor shall be made without the consent in writing of the Registered Owner of
the Warrant Certificate representing such Warrant, other than such changes as
are specifically prescribed by this Agreement.
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12. Notices. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed given sufficiently in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by tested telex, telegram or
cable to, in the case of the Company:
ValueRich, Inc.
0000 X. Xxxxx Xxxxxxx, Xxxxx X
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile (000) 000-0000
with a copy to:
Xxxxxx & Xxxxx LLP
00000 Xxxxx Xxxx 0, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
and in the case of the Warrant Agent:
Interwest Transfer Company, Inc.
0000 Xxxx Xxxxxx Xxxxxxxx Xxxx
Xxxxx 000
X.X. Xxx 00000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
and if to the Registered Owner of a Warrant Certificate, at the address of such
Registered Owner as set forth on the books maintained by the Warrant Agent.
13. Persons Benefiting. This Agreement shall be binding upon and inure to
the benefit of the Company, the Warrant Agent and their respective successors
and assigns, and the Registered Owners and beneficial owners from time to time
of the Warrant Certificates. Nothing in this Agreement is intended or shall be
construed to confer on any other person any right, remedy or claim or to impose
on any other person any duty, liability or obligation.
14. Further Instruments. The parties shall execute and deliver any and all
such other instruments and shall take any and all such other actions as may be
reasonable or necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
16. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other action or
occurrence.
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17. General Provisions. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware. Except as
otherwise expressly stated herein, time is of the essence in performing
hereunder. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement may not be modified or
amended or any term or provision hereof waived or discharged except in writing
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning thereof. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above mentioned.
THE COMPANY:
VALUERICH, INC.
By:
----------------------------
Name:
----------------------------
Its:
----------------------------
THE WARRANT AGENT:
INTERWEST TRANSFER COMPANY, INC.
By:
----------------------------
Name:
----------------------------
Its:
----------------------------
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