Exhibit 10.8
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement"), dated as of
September 13, 2000, between CAROUSEL FINANCE LIMITED, a limited liability
company organized and validly existing under the laws of the Isle of Man, with
its principal executive office located at Xxxxxxxxxxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx Road, Xxxxxxx, British Isles 1M24RB ("Buyer") and XXXXXXXXXXXX.XXX,
INC., a Florida Corporation, with its principal executive offices located at
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Issuer").
RECITALS
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WHEREAS. the Issuer and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 of Regulation D ("Regulation D") as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended and regulations of the SEC promulgated there under (the "1933 Act");
and
WHEREAS, the Issuer has authorized the issuance of up to One Million
(1,000,000) shares of its common stock, par value $.001 per share (the "Common
Stock") at a per share fair market price of Five and no/100 Dollars ($5.00) per
share; and
WHEREAS, the Issuer has authorized the issuance of five year Warrants
to Purchase Common Stock, in substantially the form attached hereto as Exhibit A
(the "Warrant"), to purchase up to One Million (1,000,000) shares of Common
Stock (as exercised, collectively, the "Warrant Shares") at an exercise price of
Ten and no/100 Dollars ($10.00) per share; and
WHEREAS, Buyer desires to purchase, and the Issuer desires to issue and
sell to Buyer units (the "Units") consisting of 20,000 shares of Common Stock
and Warrants to purchase 20,000 shares of Common Stock for a purchase price (the
"Purchase Price") of $100,000 per Unit, all upon the terms and conditions stated
in this Agreement; and
WHEREAS, Mr. W.I. Xxxxxx Xxxxx, Esq., has agreed to act as escrow agent
(the "Escrow Agent") pursuant to an Escrow Agreement between the Buyer and the
Issuer dated as of the date hereof (the "Escrow Agreement").
NOW THEREFORE, in consideration of the mutual covenants of the parties
set forth in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Issuer and Buyer
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF COMMON STOCK
1.1 Sale and Purchase. Subject to the satisfaction (or waiver) of the
conditions set forth in Article 5 and Article 6 below, from time to time the
Issuer shall issue and sell to Buyer, and Buyer shall purchase from the Issuer,
the Units (each, a "Closing"). The Units shall be delivered to the Buyer in
exchange for the Purchase Price following the Closing according to the timing
and manner established in the Escrow Agreement.
1.2 Closing Date. The date and time of each Closing shall be subject to (i
delivery of the Purchase Price into escrow pursuant to the Escrow Agreement and
(ii) notification of satisfaction (or waiver) of the conditions to the Closing
set forth in Article 5 and Article 6 hereof, (or such other date as is mutually
agreed to by the Issuer and the Buyer), but in any event shall be prior to
October 2, 2000.
ARTICLE 2
BUYER'S REPRESENTATIONS AND WARRANTIES
--------------------------------------
Buyer hereby represents and warrants to the Issuer that:
2.1 Investment Purpose. Buyer (i) is acquiring the Common Stock and the
Warrant, and (ii) upon exercise of the Warrant, will acquire the Warrant Shares
issuable upon exercise (the Units, Common Stock, the Warrant and the Warrant
Shares are referred to collectively herein as the "Securities"), for its own
account for investment only, and not with a view towards or for resale in
connection with the public sale or distribution thereof, except pursuant to
sales registered or exempted under the 0000 Xxx.
2.2 Accredited Investor Status. Buyer is an "accredited investor" as that
term is defined in Rule 501(a) of Regulation D.
2.3 Reliance on Exemptions. Buyer understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Issuer is relying in part upon the truth and accuracy of, and Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of Buyer set forth herein in order to determine the availability
of such exemptions and the eligibility of Buyer to acquire such Securities.
2.4 Information. Buyer and its advisors, if any, have been furnished with
all materials relating to the business, finances and operations of the Issuer
and materials relating to the purchase and sale of the Securities that have been
requested by Buyer. Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Issuer. Neither such inquiries nor any other
due diligence investigations conducted by Buyer or its advisors, if any, or its
representatives shall modify, amend or affect Buyer's right to rely on the
Issuer's representations and warranties as set forth herein. Buyer understands
that its investment in the Securities involves a high degree of risk. Buyer has
sought such accounting, legal and tax advice as it has considered necessary to
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make an informed investment decision with respect to its acquisition of the
Securities. Buyer specifically acknowledges that the Issuer is presently engaged
in discussions with another investor on substantially the same terms as are
represented by this Agreement. The investment by the Buyer in the Securities is
independent of whether the other transaction occurs and the Issuer has given no
assurance to the Buyer with regard to whether the other transaction will occur.
2.5 No Governmental Review. Buyer understands that no United States federal
or state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Securities or the fairness or
suitability of the investment in the Securities nor have such authorities passed
upon or endorsed the merits of the offering of the Securities.
2.6 Transfer or Resale. Buyer understands that: (i) the Securities have not
been and are not being registered under the 1933 Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, (B) Buyer shall have delivered to the Issuer
an opinion of counsel, in a generally acceptable form, to the effect the such
Securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, or (C) Buyer
provides the Issuer with reasonable assurance that such Securities can be sold,
assigned or transferred pursuant to Rule 144 promulgated under the 1933 Act, as
amended (or a successor rule thereto) ("Rule 144"); (ii) any sale of the
Securities made in reliance upon Rule 144 may be made only in accordance with
the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of
the Securities under circumstances in which the seller (or person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in
the 0000 Xxx) may require compliance with some other exemption under the 1933
Act or the rules and regulations of the SEC thereunder; and (iii) neither the
Issuer nor any other person is under any obligation to register any Securities
under the 1933 Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder.
2.7 Legends. Buyer understands that the certificates or other instruments
representing the Common Stock, the Warrant and the Warrant Shares, except as set
forth below, shall bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of such stock
certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
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The legend set forth above shall be removed and the Issuer shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped, if, unless otherwise required by state securities laws, (i) such
Securities are registered for sale under the 1933 Act, (ii) in connection with a
sale transaction, such holder provides the Issuer with an opinion of counsel, in
a generally acceptable form, to the effect that a public sale, assignment or
transfer of the Securities may be made without registration under the 1933 Act,
or (iii) such holder provides the Issuer with reasonable assurances that the
Securities can be sold pursuant to Rule 144.
2.8 Validity; Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of Buyer and is a valid and binding
agreement of Buyer enforceable against Buyer in accordance with its terms,
subject as to enforceability to general principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
--------------------------------------------
The Issuer represents and warrants to Buyer that:
3.1 Organization and Qualification. The Issuer is a corporation duly
organized and validly existing in good standing under the laws of the State of
Florida, and has the requisite corporate power and authorization to own its
properties and to carry on its business as now being conducted. The Issuer is
duly qualified as a foreign corporation to do business and is in good standing
in every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect"
means any material adverse effect on the business, properties, assets,
operations, results of operations, financial condition or prospects of the
Issuer, on the instruments to be entered into an connection herewith, or on the
authority or ability of the Issuer to perform its obligations under the
Transaction Documents (as defined below).
3.2 Authorization; Enforcement; Validity. (i) The Issuer has the requisit
corporate power and authority to enter into and perform this Agreement, the
Warrant, letters constituting irrevocable direction to the Transfer Agent to
issue up to One Million Shares of the Issuer's Common Stock in the name of the
Buyer (the "Transfer Agent Letters"), the Escrow Agreement and each of the other
agreements entered into by the parties hereto in connection with the
transactions contemplated by this Agreement (collectively, the "Transaction
Documents"), and to issue the Securities in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by the
Issuer and the consummation by it of the transactions contemplated hereby and
thereby, including without limitation the issuance of the Common Stock and the
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Warrant and the reservation for issuance and the issuance of the Warrant Shares
issuable upon exercise thereof, have been duly authorized by the Issuer's Board
of Directors and no further consent or authorization is required by the Issuer,
its Board of Directors or its stockholders, (iii) the Transaction Documents have
been duly executed and delivered by the Issuer, and (iv) the Transaction
Documents constitute the valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with their terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of creditors' rights and remedies.
3.3 Capitalization. As of the date hereof, the authorized capital stock of
the Issuer consists of (i) 75,000,000 shares of Common Stock, of which as of the
date hereof, 39,153,006 are issued and outstanding, 2,603,200 shares are
reserved for issuance pursuant to the Issuer's employee stock option plan,
50,000 shares are reserved for issuance under the Issuer's non-employee director
stock option plan, and 321,932 are reserved for issuance upon exercise of a
warrant; and (ii) 2,000,000 shares of "blank check" Preferred Stock, of which as
of the date hereof, no shares are outstanding. All of such outstanding shares
have been, or upon issuance will be, validly issued and are fully paid and
non-assessable.
3.4 Issuance of Securities. Upon exercise in accordance with the Warrant,
the Warrant Shares will be validly issued, fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issuance thereof,
with the holders being entitled to all rights accorded to a holder of Common
Stock. The issuance by the Issuer of the Securities is exempt from registration
under the 1933 Act.
3.5 No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Issuer and the consummation by the Issuer of the
transactions contemplated hereby and thereby (including, without limitation, the
reservation for issuance and issuance of the Warrant Shares) will not (i) result
in a violation of the Issuer's Articles of Incorporation or the By-laws or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, any material agreement,
indenture or instrument to which the Issuer is a party, or result in a violation
of any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations) applicable to the Issuer or by which any
property or asset of the Issuer is bound or affected. The Issuer is not in
violation of any term of or in default under its Articles of Incorporation or
By-laws or their organizational charter or by-laws, respectively. The Issuer is
not in violation of any term of or in default under any contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment, decree or order or any
statute, rule or regulation applicable to Issuer. The business of the Issuer is
not being conducted, and shall not be conducted, in violation of any law,
ordinance, regulation of any governmental entity. Except as specifically
contemplated by this Agreement and as required under the 1933 Act and state
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securities laws, the Issuer is not required to obtain any consent, authorization
or order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under or contemplated by this
Agreement or any other of the Transaction Documents, in each case in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings
and registrations which the Issuer is required to obtain pursuant to the
preceding sentence have been obtained or effected on or prior to the date
hereof. The Issuer is unaware of any facts or circumstances, which might give
rise to any of the foregoing.
3.6 SEC Documents; Financial Statements. The Issuer's Registration
Statement on Form-10 was filed on December 7, 1999, and became effective on
February 7, 2000. Following the effective date, the Issuer filed its annual
report on Form 10K for the year ended December 31, 1999, and its quarterly
report on Form 10-Q for the quarter ended March 30, 2000. The Issuer cleared all
comments by the staff of the SEC as of June 1, 2000. Since then, the Issuer has
filed a quarterly report on Form 10-Q on August 14, 2000 with the SEC pursuant
to the requirements of the Securities Exchange Act of 1934, as amended and the
rules and regulations of the SEC promulgated thereunder (the "1934 Act") (the
"SEC Documents"). The Issuer has delivered to Buyer true and complete copies of
the SEC Documents. As of their respective dates, to the best knowledge of the
Issuer, the SEC Documents complied in all material respects with the
requirements of the 1934 Act, and none of the SEC Documents, at the time they
were filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. As of their respective dates, to the best
knowledge of the Issuer, the financial statements of the Issuer included in the
SEC Documents complied as to form with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods involved except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may exclude footnotes or may be condensed or summary statements) and fairly
present in all respects the financial position of the Issuer as of the dates
thereof and the results of its operations and cash flows for the periods then
ended (subject, in the case of the unaudited statements, to normal year-end
audit adjustments).
3.7 Employee Relations. The Issuer is not involved in any labor disput
nor, to the knowledge of the Issuer, is any such dispute threatened. None of the
Issuer's employees is a member of a union. The Issuer is not a party to any
collective bargaining agreement. The Issuer believes that its relations with its
employees are good.
3.8 Leased Property. Any real property, facilities and personal property
held under lease or other rental agreement by the Issuer are held under valid,
subsisting and enforceable agreements with such exceptions as are not material
and do not interfere with the use made or proposed to be made of such property,
facilities and personal property by the Issuer.
3.9 Insurance. The Issuer is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Issuer believes to be prudent and customary in the business in which the
Issuer is engaged.
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3.10 Tax Status. The Issuer has made or filed all federal and state income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject (unless and only to the extent that the Issuer has set
aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes) and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Issuer know of no basis for any such claim.
ARTICLE 4
COVENANTS
---------
4.1 Best Efforts. Each party shall use its best efforts timely to satisfy
each of the conditions to be satisfied by it as provided in Article 5 and
Article 6 of this Agreement.
4.2 Use of Proceeds. The Issuer will use the proceeds from the sale of the
Units for the purposes of acquiring inventory, for working capital and for
general corporate purposes.
4.3 Reservation of Shares. The Issuer shall take all action necessary at
all times have to authorized and reserved for the purpose of issuance the number
of shares of Common Stock needed to provide for the issuance of the shares of
Common Stock upon exercise of the Warrant.
ARTICLE 5
CONDITIONS TO THE ISSUER'S OBLIGATION TO SELL
---------------------------------------------
The obligation of the Issuer hereunder to issue and sell the Units to
Buyer at each Closing is subject to the satisfaction, as of each Closing, of
each of the following conditions, provided that these conditions are for the
Issuer's sole benefit and may be waived by the Issuer at any time in its sole
discretion by providing Buyer with prior written notice thereof:
5.1 Delivery of Documents. Buyer shall have executed each of the
Transaction Documents to which it is a party and delivered the same to the
Escrow Agent.
5.2 Purchase Price. Buyer shall have delivered to the Escrow Agent the
Purchase Price for the Units being purchased by Buyer at such Closing.
5.3 Representations and Warranties. The representations and warranties of
Buyer shall be true and correct in all material respects as of the date when
made and as of the date of each Closing as though made at that time (except for
representations and warranties that speak as of a specific date), and Buyer
shall have performed, satisfied and complied in all material respects with the
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covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by Buyer on or prior to the date of such Closing.
ARTICLE 6
CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE
--------------------------------------------
The obligation of Buyer hereunder to purchase the Units at any Closing
is subject to the satisfaction, at or before the date of such Closing, of each
of the following conditions, provided that these conditions are for Buyer's sole
benefit and may be waived by Buyer at any time in its sole discretion by
providing the Issuer with prior written notice thereof:
6.1 Delivery of Documents. The Issuer shall have executed each of the
Transaction Documents and delivered the same to the Escrow Agent.
6.2 Representations and Warranties. The representations and warranties of
the Issuer shall be true and correct as of the date when made and as of the date
of such Closing as though made at that time (except for representations and
warranties that speak as of a specific date) and the Issuer shall have
performed, satisfied and complied with the covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by the Issuer at or prior to the date of such Closing.
6.3 Common Stock/Warrant. The Issuer shall have executed and delivered to
the Escrow Agent the Warrant and the Transfer Agent Letter, each as related to
the Units being purchased by Buyer at such Closing.
6.4 Board Approval. The Board of Directors of the Issuer shall have adopted
resolutions consistent with Section 3.2 above and in a form reasonably
acceptable to Buyer.
6.5 Other. The Issuer shall have delivered to such Buyer such other
documents relating to the transactions contemplated by this Agreement as such
Buyer or its counsel may reasonably request.
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ARTICLE 7
GOVERNING LAW; MISCELLANEOUS
----------------------------
7.1 Governing Law; Jurisdiction. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of Florida, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Florida or
any other jurisdictions) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
7.2 Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile signature shall be
considered due execution and shall be binding upon the signatory thereto with
the same force and effects as if the signature were an original, not a facsimile
signature.
7.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
7.4 Severability. If any provision of this Agreement shall be invalid of
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
7.5 Entire Agreement; Amendments. This Agreement supersedes all other prior
oral or written agreements between the Buyer, the Issuer, their affiliates and
persons acting on their behalf with respect to the matters discussed herein, and
this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Issuer nor the Buyer makes any representation, warranty, covenant or undertaking
with respect to such matters. No provision of this Agreement may be amended
other than by an instrument in writing signed by the Issuer and the Buyer, and
no provision hereof may be waived other than by an instrument in writing signed
by the party against whom enforcement is sought.
7.6 Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
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If to the Issuer:
Xxxxxxxxxxxx.xxx, Inc..
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to the Buyer:
Carousel Finance Limited
Attn: Xxxxxx Xxxxxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx Road
Xxxxxxx, British Isles 1M24RB
Fax:
-------------------------
If to the Escrow Agent:
W.I. Xxxxxx Xxxxx, Esq.
Acuff, Wilson, Xxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party five days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by a
nationally recognized overnight delivery service shall be reputable evidence of
personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
7.7 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns. The
Issuer shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of Buyer. Buyer may assign some or all of its
rights hereunder without the consent of the Issuer; provided, however, that any
such assignment shall not release Buyer from its obligations hereunder unless
such obligations are assumed by such assignee and the Issuer has consented to
such assignment and assumption. Notwithstanding anything to the contrary
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contained in the Transaction Documents, the Buyer shall be entitled to pledge
the Securities in connection with a bona fide margin account.
7.8 No Third Party Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any other person hereof enforce any provision.
7.9 Survival. Unless this Agreement is terminated without a Closing, the
representations, warranties agreements and covenants of the Issuer and Buyer
respectively contained herein shall survive the Closing.
7.10 Further Assurances. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transaction contemplated
hereby.
IN WITNESS WHEREOF, the Buyer and the Issuer have caused this Agreement
to be duly executed and delivered as of the date first written above.
ISSUER: BUYER:
------- -----
XXXXXXXXXXXX.XXX, INC. CAROUSEL FINANCE LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------- --------------------------
Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx
President Director
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Exhibit A.
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Form of Warrant to Purchase Common Stock
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NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT. NEITHER SUCH WARRANTS
NOR SUCH SHARES MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH SUCH ACT.
WARRANT TO PURCHASE
[XXX] SHARES OF COMMON STOCK,
PAR VALUE $0.001 PER SHARE,
OF
XXXXXXXXXXXX.XXX, INC.
This Certifies that, for and in consideration of $10.00 and other good
and valuable consideration, Carousel Finance Limited, or its assigns
(collectively, the "Warrantholder"), is entitled to purchase from
XXXXXXXXXXXX.XXX, INC., a corporation incorporated under the laws of the State
of Florida (the "Corporation"), subject to the terms and conditions hereof, the
number of fully paid and nonassessable shares of Common Stock, par value $0.001
per share, of the Corporation stated above at the Exercise Price (as defined
herein).
ARTICLE I
Section 1.01: Definition of Terms. As used in this Warrant, the
following capitalized terms shall have the following respective meanings:
(a) Business Day: A day other than a Saturday, Sunday or other day
on which banks in the State of Florida are authorized by law to remain closed.
(b) Common Stock: Common Stock, $0.001 par value per share, of the
Corporation.
(c) Common Stock Equivalents: Securities that are convertible
into, or exercisable or exchangeable for, shares of Common Stock.
(d) Exercise Price: TEN DOLLARS ($10.00) per Warrant Share as such
price may be adjusted from time to time pursuant to Article III hereof.
(e) Expiration Date: 5:00 P.M., September 1, 2005, Florida time.
(f) Initial Investment Date: September 13, 2000.
(g) Person: An individual, partnership, joint venture,
corporation, trust, unincorporated organization or government of any department
or agency thereof.
Exhibit "A"
(h) Sale of the Corporation: A consolidation or merger of the
Corporation with or into any other corporation or corporations (other than a
consolidation or merger in which the Corporation is the continuing corporation),
or a sale, conveyance or disposition of all or substantially all of the assets
of the Corporation or the effectuation by the Corporation of a transaction or
series of related transactions in which more than fifty (50%) percent of the
voting power of the Corporation is disposed of.
(i) Warrant Shares: Shares of Common Stock purchased or
purchasable upon exercise of this Warrant.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
Section 2.01: Duration of Warrant. The Warrantholder may exercise this
Warrant at any time and from time to time after 9:00 A.M on the Initial
Investment Date and before 5:00 P.M., on the Expiration Date. If this Warrant is
not exercised on the Expiration Date, it shall become void, and all rights
hereunder shall thereupon cease.
Section 2.02: Exercise of Warrant.
(a) The Warrantholder may exercise this Warrant, in whole or in part,
by presentation and surrender of this Warrant to the Corporation at its
principal corporate office or at the office of its stock transfer agent, if any,
with the subscription form attached hereto as Exhibit A (the "Subscription
Form") duly executed and accompanied by payment of the full Exercise Price for
each Warrant Share to be purchased.
(b) Upon receipt of this Warrant with the Subscription Form fully
executed and accompanied by payment of the aggregate Exercise Price for the
Warrant Shares for which this Warrant is then being exercised, the Corporation
shall cause to be issued certificates for the total number of whole shares of
Common Stock for which this Warrant is being exercised in such denominations as
are requested for delivery to the Warrantholder registered in the name of the
Warrantholder or its nominee, and the Corporation shall thereupon deliver such
certificates to the Warrantholder. The Warrantholder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Corporation shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Warrantholder.
(c) In lieu of exercising the Warrant in the manner set forth in
sub-paragraph 2.02(a) and (b) above, and subject to the last sentence of this
sub-paragraph 2.02(c), this Warrant may be exercised without payment of any
other consideration, commission, or remuneration, by presentation and surrender
of the Warrant to the Corporation, together with a written notice of the
Warrantholder's intention to effect a cashless exercise ("Notice of Cashless
Exercise") and the Subscription Form, duly executed. In the event of a Cashless
Exercise, the number of shares to be issued in exchange for the Warrant will be
computed using the following formula:
2
X = Y (A-B)
-------
A
where:
X = the number of shares of Common Stock to be issued to the
Warrantholder.
Y = the number of shares of Common Stock for which this
Warrant is being exercised.
A = the Closing Bid Price. The Closing Bid Price means the
closing bid price per share of the Common Stock on the
last business day prior to the date of receipt of the
Warrant, the Notice of Cashless Exercise, and the
Subscription Form, on the principal national securities
exchange in the United States on which the Common Stock
is listed or admitted to trading, or if the Common Stock
is not listed or admitted to trading on any such
national securities exchange, the average of the highest
reported bid and lowest reported asked price, on such
day, as furnished by the National Association of
Securities Dealers, Inc. ("Nasdaq") through its
automated quotation system or a similar organization if
Nasdaq is no longer reporting such information.
B = the Warrant Exercise Price
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is intended,
understood and acknowledged that the Common Stock issuable upon exercise of this
Warrant in a cashless exercise transaction shall be deemed to have been acquired
at the time this Warrant was issued. Moreover, it is intended, understood and
acknowledged that the holding period for the Common Stock issuable upon exercise
of this Warrant in a cashless exercise transaction shall be deemed to have
commenced on the date this Warrant was issued. Notwithstanding anything to the
contrary contained herein, this Warrant may not be exercised in a cashless
exercise transaction if, on the Date of Exercise, the shares of Common Stock to
be issued upon exercise of this Warrant would upon such issuance be then
registered pursuant to an effective and current registration statement.
(d) In case the Warrantholder shall exercise this Warrant with respect
to less than all of the Warrant Shares that may be purchased under this Warrant,
the Corporation shall execute a new warrant in the form of this Warrant for the
balance of such Warrant Shares and deliver such new warrant to the
Warrantholder.
(e) The Corporation shall pay any and all stock transfer and similar
taxes which may be payable in respect of the issue of any Warrant Shares to the
Warrantholder.
Section 2.03: Reservation of Shares. The Corporation hereby agrees that
at all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of shares of Common Stock from time to time issuable
upon exercise of this Warrant. All such shares shall be duly authorized, and
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights.
3
Section 2.04: Fractional Shares. The Corporation shall not be required
to issue any fraction of a share of its capital stock in connection with the
exercise of this Warrant, and in any case where the Warrantholder would, except
for the provisions of this Section 2.04, be entitled under the terms of this
Warrant to receive a fraction of a share upon the exercise of this Warrant, the
Corporation shall, upon the exercise of this Warrant and receipt of the Exercise
Price, issue the largest number of whole shares purchasable upon exercise of
this Warrant. The Corporation shall, in lieu of issuing any fractional share,
pay the Warrantholder a sum in cash equal to the fair market value of any such
fractional interest as determined in good faith by the Corporation.
ARTICLE III
ADJUSTMENT OF SHARES OF COMMON STOCK
PURCHASABLE AND OF EXERCISE PRICE
The Exercise Price and the number and kind of Warrant Shares shall be
subject to adjustment from time to time upon the happening of certain events as
provided in this Article III.
Section 3.01: Mechanical Adjustments.
(a) In case the Corporation shall at any time or from time to time
after the date hereof (i) pay any dividend, or make any distribution, on the
outstanding shares of Common Stock (or Common Stock Equivalents) in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, (iii)
combine the outstanding shares of Common Stock into a smaller number of shares
or (iv) issue by reclassification of the shares of Common Stock any shares of
capital stock of the Corporation, then and in each such case, the Exercise Price
in effect immediately prior to such event or the record date therefor, whichever
is earlier, shall be adjusted so that the Warrantholder shall be entitled to
receive the number and type of shares of Common Stock which such Warrantholder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been converted into Common Stock
immediately prior to the happening of such event or the record date therefor,
whichever is earlier. An adjustment made pursuant to this Section 3.01(a) shall
become effective (x) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of shares of Common Stock entitled to receive such dividend or
distribution, or (y) in the case of such subdivision, reclassification or
combination, at the close of business on the day upon which such corporate
action becomes effective.
(b) If the Corporation shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution and shall thereafter, and before such dividend or distribution is
paid or delivered to stockholders entitled thereto, legally abandon its plan to
pay or deliver such dividend or distribution, then no adjustment in the Exercise
Price then in effect shall be made by reason of the taking of such record, and
any such adjustment previously made as a result of the taking of such record
shall be reversed.
4
(c) As used in this Section 3.01 the term "Common Stock" shall mean and
include the Corporation's authorized Common Stock, par value $0.001 per share,
as constituted on the date hereof, and shall also include any capital stock of
any class of the Corporation thereafter authorized which shall neither be
limited to a fixed sum or percentage in respect of the rights of the holders
thereof to participate in dividends nor be entitled to a preference in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
(d) In the case of a Sale of the Corporation or a proposed
reorganization of the Corporation or a proposed reclassification of the capital
stock of the Corporation (except a transaction for which provision for
adjustment is otherwise made in this Section 3.01), the Warrant shall thereafter
be exercisable into the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Corporation deliverable upon exercise of such Warrant would have been entitled
upon such Sale of the Corporation, reorganization or reclassification; and, in
any such case, appropriate adjustment (as determined by the Board of Directors)
shall be made in the application of the provisions herein set forth with respect
to the rights and interest thereafter of the holders of the Warrant, to the end
that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the applicable conversion price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
the Warrant. The Corporation shall not effect any such Sale of the Corporation
unless prior to or simultaneously with the consummation thereof the successor
corporation or purchaser, as the case may be, shall assume by written instrument
the obligation to deliver to the Warrantholder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, each such holder is
entitled to receive.
(e) Except with respect to Excluded Securities (as defined below), in
case the Corporation shall issue any shares of Common Stock (or Common Stock
Equivalents) after the date hereof at a consideration per share (or having a
conversion or exercise price per share) less than the Exercise Price, then in
each such case, the Exercise Price shall be adjusted by multiplying (i) the
Exercise Price in effect on the day immediately prior to the date of issuance of
such shares (or Common Stock Equivalents) by (ii) a fraction, the numerator of
which shall be the sum of (x) the number of shares of Common Stock outstanding
on such date prior to such issuance and (y) the number of shares of Common Stock
purchasable at the then Exercise Price with the aggregate consideration
receivable by the Corporation for the total number of shares of Common Stock so
issued (or issuable upon conversion, exchange or exercise of such Common Stock
Equivalents), and the denominator of which shall be the sum of (x) the number of
shares of Common Stock outstanding on such date prior to such issuance and (y)
the number of additional shares of Common Stock issued (or issuable upon
conversion, exchange or exercise of such Common Stock Equivalents.) An
adjustment made pursuant to this Section 3.01(e) shall be made on the next
Business Day following the date on which any such issuance is made and shall be
effective retroactively to the close of business on the date of such issuance.
5
For purposes of this Section 3.01(e), the aggregate consideration receivable by
the Corporation in connection with the issuance of shares of Common Stock or of
Common Stock Equivalents shall be deemed to be equal to the sum of the aggregate
offering price (e.g., the aggregate consideration received by the Corporation in
connection with the issuance of all such Common Stock and/or Common Stock
Equivalents before deduction of underwriting discounts or commissions and
expenses payable to third parties, if any) of all such Common Stock and/or
Common Stock Equivalents plus the minimum aggregate amount, if any, payable upon
conversion, exchange or exercise of any such Common Stock Equivalents. The
issuance or reissuance of any shares of Common Stock (whether treasury shares or
newly issued shares) pursuant to a dividend or distribution on, or subdivision,
combination or reclassification of, the outstanding shares of Common Stock
requiring an adjustment in the Exercise Price pursuant to Section 3.01(a) shall
not be deemed to constitute an issuance of Common Stock or Common Stock
Equivalents by the Corporation to which this Section 3.01(e) applies. Upon the
expiration of any unconverted, unexchanged or unexercised Common Stock
Equivalents for which an adjustment has been made pursuant to this Section
3.01(e), the adjustments shall forthwith be reversed to effect such Exercise
Price as would have been in effect if at the time of such Common Stock
Equivalents, to the extent outstanding immediately prior to such expiration or
termination, had never been issued. Excluded Securities shall mean all shares of
Common Stock or Common Stock Equivalents (i) issued and outstanding upon the
Initial Investment Date, and (ii) issued or issuable pursuant to the Company's
1999 Stock Incentive Plan or Non-Employee Director Stock Option Plan.
(f) Whenever the Exercise Price payable upon exercise of each Warrant
is adjusted pursuant to paragraph (a) of this Section 3.01, the Warrant Shares
shall simultaneously be adjusted by multiplying the number of Warrant Shares
initially issuable upon exercise of each Warrant (as set forth on the front page
of this Warrant) by $18.00 and dividing the product so obtained by the Exercise
Price, as adjusted.
(g) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($.01) in
such price; provided, however, that any adjustments which by reason of this
paragraph (h) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
3.01 shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Notwithstanding anything in this Section 3.01 to the
contrary, the Exercise Price shall not be reduced to less than the then existing
par value of the Common Stock as a result of any adjustment made hereunder.
(h) In the event that at any time, as a result of any adjustment made
pursuant to Section 3.01(a), the Warrantholder thereafter shall become entitled
to receive any shares of capital stock of the Corporation other than Common
Stock, thereafter the number of such other shares so receivable upon exercise of
any Warrant 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
Common Stock contained in Section 3.01(a).
Section 3.02: Notices of Adjustment. Whenever the number of Warrant
Shares or the Exercise Price is adjusted as herein provided, the Corporation
shall prepare and deliver forthwith to the Warrantholder a certificate signed by
its President or a Vice President, or by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, setting forth the adjusted number of
shares purchasable upon the exercise of this 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 adjustment
was made.
6
Section 3.03: Form of Warrant After Adjustments. The form of this
Warrant need not be changed because of any adjustments in the Exercise Price or
the number or kind of the Warrant Shares, and Warrants theretofore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in this Warrant, as initially issued.
Section 3.04: Treatment of Warrantholder. Prior to due presentment for
registration of transfer of this Warrant, the Corporation may deem and treat the
Warrantholder as the absolute owner of this Warrant (notwithstanding any
notation of ownership or other writing hereon) for all purposes and shall not be
affected by any notice to the contrary.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDER
Section 4.01: No Rights as Shareholders; Notice to Warrantholders.
Nothing contained in this Warrant shall be construed as conferring upon the
Warrantholder the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Corporation or of any other matter, or any
rights whatsoever as shareholders of the Corporation. The Corporation shall give
notice to the Warrantholder by certified mail if at any time prior to the
expiration or exercise in full of the Warrants, any of the following events
shall occur:
(a) the Corporation shall declare any dividend or distribution with
respect to its capital stock;
(b) a dissolution, liquidation or winding up of the Corporation shall
be proposed; or
(c) a capital reorganization or reclassification of the capital stock
of the Corporation, any consolidation or merger of the Corporation with or into
another corporation, any transaction or series of transactions in which more
than fifty percent (50%) of the voting securities of the Corporation are
transferred to another person, or of any sale or conveyance to another
corporation of the property of the Corporation as an entirety or substantially
as an entirety.
Such giving of notice shall be initiated at least ten Business Days
prior to the date fixed as a record date or effective date or the date of
closing of the Corporation's stock transfer books for the determination of the
shareholders entitled to such dividend or distribution, or for the determination
7
of the shareholders entitled to vote on such proposed merger, consolidation,
sale, conveyance, dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the stock transfer books, as the
case may be.
Section 4.02: Lock Up Period. By accepting this Warrant, the
Warrantholder agrees not to sell any Warrant Shares for up to twelve months
after the effective date of a Registration Statement relating to a public
offering of the Company's Common Stock, registered pursuant to the Securities
Act of 1933, as amended (the "Lock Up Period"), without the prior written
consent of the underwriter.
Section 4.03: Lost, Stolen, Mutilated or Destroyed Warrants. If this
Warrant is lost, stolen, mutilated or destroyed, the Corporation may, on such
reasonable terms as to indemnity or otherwise as it may in its reasonable
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and tenor as, and
in substitution for, this Warrant.
ARTICLE V
SPLIT-UP, COMBINATION,
EXCHANGE AND TRANSFER OF WARRANTS
Section 5.01: Split-Up, Combination, Exchange and Transfer of Warrants.
Subject to the provisions of Section 5.02 hereof, this warrant may be split up,
combined or exchanged for another Warrant or Warrants containing the same terms
to purchase a like aggregate number of Warrant Shares. If the Warrantholder
desires to split up, combine or exchange this Warrant, the Warrantholder shall
make such request in writing delivered to the Corporation and shall surrender to
the Corporation this Warrant and any other Warrants to be so split-up, combined
or exchanged. Upon any such surrender for a split-up, combination or exchange,
the Corporation shall execute and deliver to the person entitled thereto a
Warrant or Warrants, as the case may be, as so requested. The Corporation shall
not be required to effect any split-up, combination or exchange which will
result in the issuance of a Warrant entitling the Warrantholder to purchase upon
exercise a fraction of a share of Common Stock or a fractional Warrant. The
Corporation may require such Warrantholder to pay a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any split-up,
combination or exchange of Warrants.
Section 5.02: Transfer. This Warrant and all rights hereunder may be
sold, transferred or otherwise disposed of, in whole or in part, to any person
in accordance with and subject to the provisions of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations promulgated
thereunder. Upon the delivery to the Corporation at its principal corporate
office of this Warrant along with a duly completed Assignment Form substantially
in the form of Exhibit B hereto, the Corporation shall execute and deliver a new
Warrant in the form of this Warrant, but registered in the name of the
transferee, to purchase the number of Warrant Shares assigned to the transferee.
In case the Warrantholder shall assign this Warrant with respect to less than
all of the Warrant Shares that may be purchased under this Warrant, the
Corporation shall execute a new warrant in the form of this Warrant for the
balance of such Warrant Shares and deliver such new warrant to the
Warrantholder.
8
Section 5.03: Restrictive Legend. Each Warrant Share issued upon
exercise of this Warrant shall bear a legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH SUCH ACT."
The requirement that the above legend be placed upon certificates evidencing any
such securities shall cease and terminate upon the earliest of the following
events: (i) when such shares are transferred in an underwritten public offering,
(ii) when such shares are transferred pursuant to Rule 144 under the Securities
Act or (iii) when such shares are transferred in any other transaction if the
seller delivers to the Corporation an opinion of its counsel, which counsel and
opinion shall be reasonably satisfactory to the Corporation, or a "no-action"
letter from the Staff of the Securities and Exchange Commission, in either case
to the effect that such legend is no longer necessary in order to protect the
Corporation against a violation by it of the Securities Act upon any sale or
other disposition of such shares without registration thereunder. Upon the
occurrence of such event, the Corporation, upon the surrender of certificates
containing such legend, shall, at its own expense, deliver to the holder of any
such securities as to which the requirement for such legend shall have
terminated, one or more new certificates evidencing such securities not bearing
such legend.
ARTICLE VI
OTHER MATTERS
Section 6.01: Successors and Assigns. The terms and provisions of this
Warrant shall bind and inure to the benefit of the Warrantholder and its
successors and assigns.
Section 6.02: No Inconsistent Agreements. The Corporation will not on
or after the date of this Warrant enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Warrantholder or
otherwise conflicts with the provisions hereof. The rights granted to the
Warrantholder hereunder do not in any way conflict with and are not inconsistent
with the rights granted to holders of the Corporation's securities under any
other agreements.
Section 6.03: Entire Agreement. This Warrant and the Exhibit hereto
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
9
Section 6.04: Amendments and Waivers. The terms and provisions of this
Warrant, including the provisions of this sentence, may be modified or amended,
or any of the provisions hereof waived, temporarily or permanently, pursuant to
the written consent of the Corporation and the Warrantholder.
Section 6.05: Counterparts. This Warrant may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
Section 6.06: Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the principles of conflicts of law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Florida and of the United States of America, in
each case located in the County of Palm Beach, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of or relating to this Warrant and the transactions contemplated
hereby (and agrees not to commence any Litigation relating thereto except in
such courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in this
Warrant shall be effective service of process for any Litigation brought against
it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Warrant or the transactions contemplated hereby in the
courts of the State of Florida or the United States of America, in each case
located in the County of Palm Beach, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
Section 6.07: Notice. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation. to:
Xxxxx Xxxxxxxxx, President
Xxxxxxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
10
(ii) if to the Warrantholder, to:
Carousel Finance Limited
Xxxxxx Xxxxxx
International House
Castle Xxxx, Xxxxxxxx Road
Xxxxxxx, British Isles 1M24RB
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
Section 6.08: Severability. Whenever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid, but if
any provision of this Warrant is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Warrant.
IN WITNESS WHEREOF, this Warrant has been duly executed by the
Corporation under its corporate seal as of the ___ day of September, 2000.
XXXXXXXXXXXX.XXX, INC.
By:
-------------------------------------
Name: XXXXX XXXXXXXXX
Title: President
Attest:
---------------------------
Name: XXXXX XXXXXXXX
Title: Secretary
11
Exhibit A to Warrant
--------------------
FORM OF SUBSCRIPTION
[To be executed only upon exercise of Warrant]
XXXXXXXXXXXX.XXX, INC.
The undersigned registered holder of the within Warrant hereby irrevocably
exercises such Warrant for, and purchases thereunder, _____________1 shares of
Common Stock covered by the within Warrant and requests that the certificates
for such shares be issued in the name of and delivered to, _______________ whose
address is ______________. The undersigned herewith makes payment in full
therefor of the Exercise Price therefor (or $____________ in the aggregate).
CAROUSEL FINANCE LIMITED
By:
----------------------------------
Name:
Title:
-----------
1 Insert here the number of shares called for on the face of this Warrant (or,
in the case of partial exercise, the portion thereof as to which this Warrant is
being exercised). In the case of partial exercise, a new Warrant or Warrants
will be issued and delivered, representing the unexercised portion of the
Warrant, to the holder surrendering the Warrant.
Exhibit B to Warrant
--------------------
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto ____________________ the right
represented by such Warrant to purchase ___________________1 shares of Common
Stock of Xxxxxxxxxxxx.xxx, Inc. to which such Warrant relates and appoints
_________________ Attorney to make such transfer on the books of
Xxxxxxxxxxxx.xxx, Inc., maintained for such purpose, with full power of
substitution in the premises.
Dated:
---------- CAROUSEL FINANCE LIMITED
By:
---------------------------------
Name:
Title:
Signed in the presence of:
--------------------------------
--------------------------------
------------
2 Insert here the number of shares called for on the face of this Warrant (or,
in the case of partial exercise, the portion thereof as to which this Warrant is
being exercised). In the case of partial exercise, a new Warrant or Warrants
will be issued and delivered, representing the unexercised portion of the
Warrant, to the holder surrendering the Warrant.
