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WARRANT AGREEMENT
THIS AGREEMENT, dated as of December 16, 1993, between Xxx Xxxx
Marketing, Inc., a Delaware corporation (the "Company"), and Trust Company Bank,
a Georgia corporation (the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, in settlement of certain litigation the Company has agreed to
issue up to 700,000 warrants (the "Warrants"); and
WHEREAS, the Company wishes to appoint the Warrant Agent to act as
agent for the Company, and the Warrant Agent is willing to act as agent for the
Company, in connection with the issuance, transfer, exchange and replacement of
the certificates evidencing the Warrants ("Warrant Certificates") and the
exercise of the Warrants;
NOW, THEREFORE, the Company and the Warrant Agent agree as follows:
Section 1. Appointment of Warrant Agent. The Company appoints Trust
Company Bank to act as Warrant Agent on the terms set forth in this Agreement.
The Company may from time to time appoint Co-Warrant Agents.
Section 2. Form of Warrant Certificate. The Warrant Certificates will
be substantially in the form of Exhibit A to this Agreement and may have any
letters, number or other marks of identification or designation and any legends
or endorsements on them which the Company deems appropriate and are not
inconsistent with this Agreement, or which may be required to comply with any
law or any rule or regulation of any government agency or stock exchange on
which the Warrants may be listed. Subject to the provisions of Section 10(d),
each Warrant Certificate will be dated the date it is issued by the Warrant
Agent, either upon initial issuance or upon transfer or exchange, and will show
the number of shares of common stock the holder is entitled to purchase and the
purchase price per share for those shares, subject to adjustment as provided in
this Agreement.
Pending the preparation of definitive Warrant Certificates, the Company
may execute and the Warrant Agent will countersign temporary Warrant
Certificates, substantially in the form of the definitive Warrant Certificates,
but with any omissions, insertions or variations which may be determined to be
appropriate by the Board of Directors of the Company. Each temporary Warrant
Certificate will be executed and countersigned in the same manner as the
definitive Warrant Certificates. If the Company issues temporary Warrant
Certificates, it will prepare and execute definitive Warrant Certificates as
promptly as practicable, and when they are prepared all temporary Warrant
Certificates may be exchanged for definitive Warrant Certificates at the
principal office of the Warrant Agent. The holder of a temporary Warrant
Certificate will be entitled to the same benefits as the holder of a definitive
Warrant Certificate.
Section 3. Countersignature and Registration. The Warrant
Certificates will be executed on behalf of the Company by its Chairman of the
Board, its President or a Vice President, by facsimile signature, and will have
affixed to them a facsimile of the Company's seal which will be attested by the
Secretary or an Assistant Secretary of the Company by facsimile signature. The
Warrant Certificates will be manually countersigned by the Warrant Agent and
will not be valid for any purpose unless countersigned. If an officer of the
Company who signed any of the Warrant Certificates ceases to be that officer of
the Company before the Warrant Certificates are countersigned by the Warrant
Agent and issued and delivered by the Company, the Warrant Certificates may
still be countersigned by the Warrant Agent and issued and delivered with the
same effect as if the person who signed the Warrant Certificates was still that
officer of the Company.
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The Warrant Agent will keep at its principal office, books for
registration and transfer of the Warrant Certificates issued under this
Agreement. These books will show the names and addresses of the holders of the
Warrant Certificates, the number of Warrants evidenced by each of the Warrant
Certificates, and the date of each of the Warrant Certificates.
Section 4. Transfer, Split Up, Combination and Exchange of Warrant
Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates. Subject
to the provisions of Section 6 and Section 11, at any time after October, 1995,
Warrant Certificates may be transferred, split up, combined or exchanged for
other Warrant Certificates which entitle the holders to purchase the same number
of shares of Common Stock as the surrendered Warrant Certificates. Any
registered holder who wants to transfer, split up, combine or exchange Warrant
Certificates must deliver a written request to the warrant Agent, and surrender
the Certificates at the principal office of the Warrant Agent after October,
1995. Then the Warrant Agent will countersign and deliver new Warrant
Certificates to the people entitled to them. The Company may require payment of
a sum sufficient to cover all taxes and other governmental charges that may be
imposed in connection with a transfer, split up, combination or exchange of
Warrant Certificates.
When the Company and the Warrant Agent receive evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Warrant
Certificate, and receive indemnity or security reasonably satisfactory to them
and reimbursement of all reasonable expenses incidental to the replacement of
the Warrant Certificate, and when the Warrant Certificate if mutilated has been
surrendered and cancelled, the Warrant Agent will countersign and deliver to the
registered holder a new Warrant Certificate evidencing the right to purchase the
same number of shares of Common Stock as the Warrant Certificate which was lost,
stolen, destroyed or mutilated.
Section 5. Subsequent Issue of Warrant Certificate. Subsequent to
their original issuance, no Warrant Certificates will be issued except (a)
Warrant Certificates issued upon transfer, combination, split up or exchange of
Warrants as provided in Section 4, (b) Warrant Certificates issued in
replacement of mutilated, destroyed, lost or stolen Warrant Certificates as
provided in Section 4, (c) Warrant Certificates issued as provided in Section 6
of this Agreement to evidence the unexercised portion of Warrant Certificates
which are partially exercised and (d) Warrant Certificates issued as provided in
Section 10(d).
Section 6. Exercise of Warrants; Purchase Price; Transferability;
Expiration of Warrants.
(a) The registered holder of any Warrant Certificate may exercise
the Warrants it evidences in whole or in part at any time, but only in multiples
which permit the Company to issue one or more full shares of Common Stock, by
surrendering the Warrant Certificate with the form of election to purchase on
the reverse side of the Warrant Certificate duly executed, to the Warrant Agent
at the principal office of the Warrant Agent in Atlanta and State of Georgia, at
or before 5:00 P.M. Atlanta time on December 16, 1998 (the "Expiration Date")
together with payment of the Purchase Price for each share of Common Stock as to
which the Warrants are exercised.
(b) At any time after December 16, 1995, the registered holder of
any Warrant Certificate may transfer the Warrants it evidences in whole or in
part, but only in multiples which would permit the Company to issue one or more
full shares of Common Stock, by surrendering the Warrant Certificate with the
duly executed form of assignment on the reverse side of the Warrant Certificate
to the Warrant Agent in Atlanta and State of Georgia, at or before the
Expiration Date in accordance with the provisions of Section 4.
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(c) The Purchase Price for each share of Common Stock issuable on
the exercise of a Warrant will be $24.70. The Purchase Price will be subject to
adjustment as provided in Section 10 and will be payable in lawful money of the
United States of America.
(d) When the Warrant Agent receives a Warrant Certificate, with the
form of election to purchase duly executed, accompanied by payment of the
Purchase Price for the shares to be purchased and an amount equal to any
applicable transfer tax in cash, or by certified check, bank draft or postal or
express money order payable to the order of the Company, the Warrant Agent will
(i) promptly obtain from a transfer agent of the Common Stock of the Company,
certificates for the number of whole shares of Common Stock to be purchased and
the Company irrevocably authorizes its transfer agent to comply with all these
requests and (ii) promptly after receipt of those certificates, deliver them to
or as directed by the registered holder of the Warrant Certificate registered in
the name or names designated by the holder.
(e) At any time after December 16, 1995, when the Warrant Agent
receives a Warrant Certificate, with the form of assignment duly executed,
accompanied by payment of an amount equal to any applicable transfer tax in
cash, or by certified check, bank draft or postal or express money order payable
to the order of the Company as the Company may require, the Warrant Agent will
promptly after receipt of those certificates, deliver a Warrant Certificate to
or as directed by the registered holder of the Warrant Certificate registered in
the name or names designated by the holder.
(f) If the registered holder of a Warrant Certificate exercises or
transfers less than all the Warrants evidenced by the Warrant Certificate, a new
Warrant Certificate evidencing the unexercised or untransferred Warrants will be
issued by the Warrant Agent to or, after December 16, 1995, as directed by the
registered holder of the Warrant Certificate, subject to the provisions of
Section 11.
Section 7. Cancellation and Destruction of Warrant Certificates. All
Warrant Certificates surrendered for exercise, exchange, substitution or
transfer will, if surrendered to the Company or to any of its agents, be
delivered to the Warrant Agent for cancellation or in cancelled form, or if
surrendered to the Warrant Agent be cancelled by it, and no Warrant Certificates
will be issued in place of cancelled Warrant Certificates except as expressly
permitted by this Agreement. The Company will deliver to the Warrant Agent for
cancellation and retirement, and the Warrant Agent will cancel and retire, any
Warrant Certificate which is purchased or acquired by the Company other than
upon the exercise of the Warrant. The Warrant Agent may deliver all cancelled
Warrant Certificates to the Company, or will, at the written request of the
Company, destroy the cancelled Warrant Certificates, in which case the Warrant
Agent will deliver a certificate of destruction of the Warrant Certificates to
the Company.
Section 8. Reservation and Availability of Shares of Common Stock.
The Company will reserve out of its authorized and unissued shares of Common
Stock, the number of shares of Common Stock which will be sufficient to permit
the exercise of full of all outstanding Warrants.
If the Common Stock is listed on any national securities exchange, the
Company will obtain authorization for listing upon official notice of issuance
with regard to all shares reserved for issuance on exercise of Warrants.
The Company will take all actions necessary to ensure that all shares
of Common Stock issued upon exercise of Warrants will, when they are issued as
provided in this Agreement, be duly and validly authorized and issued and fully
paid and nonassessable shares.
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The Company will pay when due any federal or state taxes or charges
payable in resect of the issuance or delivery of the Warrant Certificates or of
any shares of Common Stock upon the exercise of Warrants. The Company will not,
however, be required to pay any transfer tax payable upon the transfer or
delivery of Warrant Certificates or the issuance or delivery of certificates for
Common Stock in a name other than that of the registered holder of exercised
Warrants or to issue any Common Stock upon the exercise of Warrants until any
such tax has been paid (the tax being payable by the holder of the Warrant
Certificate when it is surrendered for exercise) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 9. Common Stock Record Date. Each person in whose name a
certificate for shares of Common Stock is issued upon the exercise of Warrants
will for all purposes be deemed to have become the holder of record of the
Common Stock on, and the certificate will be dated, the date when the Warrant
Certificate evidencing the Warrants was surrendered for exercise, except that if
the date of the surrender is a date when the Common Stock transfer books of the
Company are closed, the person will be deemed to have become the record holder
of the shares on, and the certificate will be dated, the next succeeding
business day when the Common Stock transfer books of the Company are open. The
holder of a Warrant Certificate will not, until the warrants are exercised, be
entitled to any rights of a shareholder of the Company with respect to shares
for which the Warrants are exercisable, including, without limitation, the right
to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and will not be entitled to receive any notice of any
proceedings of the Company, except as provided in this Agreement.
Section 10. Adjustment of Purchase Price, Number of Shares or Number
of Warrants. The Purchase Price, the number of shares covered by each Warrant
and the number of Warrants outstanding are subject to adjustment from time to
time upon the occurrence of the events enumerated in this Section 10.
(a)(1) If the Company issues Additional Shares at any time for
consideration which is less than the Current Market Price on the day the
Additional Shares are issued (or deemed issued, as provided below), the Purchase
Price will be reduced, effective immediately prior to the opening of business on
the day after the day on which the Additional Shares are issued or deemed
issued, to the amount which is
(i) the Purchase Price immediately prior to the
adjustment times a fraction of which
(ii) the numerator is the sum equal to (a) the
number of shares of Common Stock outstanding immediately before the
issuance of the Additional Shares, plus (b) the number of shares which
could be purchased at the Current Market Price on the day the
Additional Shares are issued for a sum equal to the consideration paid
for the Additional Shares, and
(iii) the denominator is the total number of shares
of Common Stock which will be outstanding after the Additional Shares
are issued.
(2) Notwithstanding what is stated in paragraph (1) of this Section
10(a), no adjustment in the Purchase Price will occur unless the adjustment
would change the purchase price by at least 25c.. However, adjustments which
are not made because of this paragraph (2) will be carried forward and taken
into account in any subsequent adjustment.
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(3) The term "Additional Shares" as used in this Section 10(a)
means shares of Common Stock issued by the Company after the date of this
Agreement, whether or not subsequently reacquired or retired by the Company,
except shares issued or issuable (i) upon exercise of Warrants, (ii) upon
exercise of options granted under employee stock option plans to employees of
the Company or its subsidiaries, (iii) under any other types of employee benefit
plans for employees of the Company or its subsidiaries, or (iv) in a subdivision
or combination to which paragraph (9) of this Section 10(a) applies.
(4) The term "Current Market Price" as used in this Section 10(a)
means (i) the last reported sale price of the Common Stock on the principal
stock exchange on which the Common Stock is listed, or (ii) if the Common Stock
is not listed on a stock exchange, the last reported sale price of the Common
Stock on the principal automated securities price quotation system on which sale
prices of the Common Stock are quoted, or (iii) if the Common Stock is not
listed on a stock exchange and sale prices of the Common Stock are not reported
on an automated quotation system, the mean of the high bid and low asked price
quotations for the Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and asked
quotations on at least five of the preceding ten trading days, or (iv) if the
Common Stock is not traded or quoted as described in any of clause (i), (ii) or
(iii), the Current Market Price will be the fair market value of the Common
Stock as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Board of Directors of the Company.
(5) If Additional Shares are issued for consideration part or all
of which is cash, the consideration will be deemed to include the cash received
by the Company for the shares (or, if Additional Shares are offered by the
Company for subscription, the subscription price, or, if Additional Shares are
sold to underwriters or dealers for public offering without a subscription
offering the initial public offering price), minus any commission or discount in
the sale, underwriting or purchase of the shares by underwriters or dealers or
others performing similar services.
(6) If Additional Shares are issued (other than as dividend or
other distribution on any stock of the Company or upon conversion or exchange of
other securities of the Company) for a consideration part or all of which is not
cash, except as provided in paragraph (12) of this Section 10(a), the amount of
the non-cash consideration will be determined by the Board of Directors,
irrespective of the accounting treatment of that consideration. The
reclassification of securities other than Common Stock into securities including
Common Stock will be deemed to involve the issuance for non-cash consideration
of the Common Stock immediately prior to the close of business on the date fixed
for the determination of stockholders entitled to receive the Common Stock.
(7) Additional Shares issuable by way of dividend or other
distribution on any class of capital stock of the Company will be deemed to have
been issued without consideration, and will be deemed to have been issued
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive the dividend or other
distribution, except that if the number of shares constituting the dividend or
other distribution exceeds fifteen percent of the total number of shares of
Common Stock outstanding at the close of business on the date fixed for the
determination of stockholders entitled to receive the dividend or other
distribution, the Additional Shares will be deemed to have been issued
immediately after the opening of business on the day following the date fixed
for determination of the stockholders entitled to receive the dividend or other
distribution.
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(8) If Additional Shares are issued upon conversion or exchange of
other securities of the Company, the consideration received by the Company for
the Additional Shares will be deemed to be the total of (a) the consideration,
if any, received by the Company upon the issuance of the other securities, plus
(b) the consideration, if any, other than the other securities, received by the
Company (except in adjustment of interest or dividends) upon the conversion or
exchange. In determining the consideration received by the Company upon the
issuance of the other securities, (i) the consideration in cash and other than
cash will be determined as provided in paragraphs (3), (4) and (5) of this
Section 10(a), and (ii) if securities of the same class or series of a class as
the other securities were issued for different amounts of consideration, or if
some were issued for no consideration, the amount of the consideration received
by the Company upon the issuance of each of the securities of the class or
series will be deemed to be the weighted average amount of the consideration
received by the Company upon issuance of all the securities of the class or
series.
(9) If the outstanding shares of Common Stock are subdivided into a
greater number of shares of Common Stock, the Purchase Price in effect at the
opening of business on the day following the day when the subdivision becomes
effective will be proportionately reduced, and, conversely, if the outstanding
shares of Common Stock are combined into a smaller number of shares of Common
Stock, the Purchase Price in effect at the opening of business on the day
following the day when the combination becomes effective will be proportionately
increased. The reductions or increases will become effective immediately after
the opening of business on the day following the day when the subdivision or
combination becomes effective.
(10) If the Company issues options, rights or warrants to subscribe
for or purchase shares of Common Stock (other than Warrants and other than
options issued to employees of the Company or subsidiaries under employee stock
option plans) at a price per share less than the Current Market Price on the day
before the day on which the Company issues the options, rights or warrants, the
shares issuable upon exercise of the options, rights or warrants will be deemed
Additional Shares issued at the time the options, rights or warrants are issued
for (i) the consideration paid for the options, rights or warrants plus (ii) the
then lowest price at which the options, rights or warrants may be exercised at
any time while they are outstanding. If options, rights or warrants are issued
as part of units which include other securities, the consideration for the
options, rights or warrants will be the portion of the consideration for the
units attributed in good faith by the Board of Directors of the Company to the
options, rights or warrants in a resolution adopted within 10 days after the
issuance of the units. If no such resolution is adopted within that period, no
portion of the consideration will be attributed to the options, rights or
warrants.
(11) If Additional Shares are issued in connection with the
acquisition of, or merger with, another company, other than a subsidiary of the
Company in which the Company already directly or indirectly owns all of the
outstanding voting stock ("wholly owned subsidiary"), the consideration for the
Additional Shares will be deemed to be the fair market value of the entity
acquired or merged with, less any consideration other than the Additional Shares
paid by the Company, without consideration of the market value of the Additional
Shares issued in connection with the acquisition or merger. The fair market
value of an entity acquired or merged with will be (i) if it is less than $5
million, as determined in good faith by the Board of Directors of the Company,
and (ii) if it is $5 million or more, as determined by a member firm of the New
York Stock Exchange, Inc. selected by the Board of Directors of the Company.
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(12) There will be no adjustment because of a merger of the Company
with a wholly owned subsidiary if as a result of the merger the holders of the
Warrants then outstanding would receive, upon exercise of the Warrants
immediately after the merger, the same proportion of the outstanding shares of
the surviving corporation as they would have received in the Company if they had
exercised all the Warrants immediately prior to the merger. Otherwise, the
purchase price will be adjusted in the manner provided in paragraph (11) of this
Section 10(a) with regard to a merger with a company which is not a wholly owned
subsidiary.
(13) If by reason of a merger, consolidation, reclassification or
similar corporate event, the holders of the Common Stock receive securities or
assets other than Common Stock, upon exercise of a Warrant after that corporate
event, the holder of the Warrant will be entitled to receive the securities or
assets the holder would have received if the holder had exercised the Warrant
immediately before the first such corporate event and not disposed of the
securities or assets received as a result of that or any subsequent corporate
event.
(14) If the Corporation makes any distribution of assets or
securities, other than shares of Common Stock or options, warrants or rights to
purchase shares of Common Stock, to the holders of its Common Stock (other than
a cash dividend payable out of retained earnings or earnings in the year in
which the dividend is paid or the prior year), including but not limited to a
spinoff of a portion of its business, upon exercise of a Warrant after that
corporate event, the holder of the Warrant will be entitled to receive, in
addition to the shares of Common Stock issuable upon the exercise of the
Warrant, either (i) the assets or securities the holder would have received if
the holder had exercised the Warrant immediately before the first such corporate
event and not disposed of the Common Stock, assets or securities received as a
result of that or any subsequent corporate event or (ii) cash equal to the fair
market value of those assets or securities on the day on which they are
distributed, as determined in good faith by the Board of Directors of the
Company.
(b) Except as provided in Section 10(c), upon each adjustment of
the Purchase Price as a result of the calculations made in Section 10(a) (other
than Section 10(a) (13) or (14)), each Warrant outstanding immediately prior to
the making of the adjustment will after the adjustment evidence the right to
purchase, at the adjusted Purchase Price, that number of shares (calculated to
the nearest hundredth) obtained by (i) multiplying the number of shares covered
by the Warrants immediately prior to the adjustment by the Purchase Price in
effect immediately prior to the adjustment and (ii) dividing the product
obtained by the Purchase Price in effect immediately after the adjustment.
(c) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Warrants, instead of adjusting the
number of shares covered by a Warrant as provided in Section 10(b), except that
in the event of a three-for-two or greater split of the Common Stock, the
Company will adjust the number of Warrants rather than adjusting the number of
shares covered by a Warrant.
(d) Irrespective of any adjustment or change in the Purchase Price
or the number of shares of the Common Stock issuable upon the exercise of the
Warrants, the Warrant Certificates issued after the adjustment or change may
continue to describe the Purchase Price per share and the numbers of shares
which were described in the Warrant Certificates when initially issued.
(e) Before taking any action which would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the Common
Stock, the Company will take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock at the adjusted
Purchase Price.
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(f) Whenever the Purchase Price and the number of shares of Common
Stock issuable upon the exercise of a Warrant are adjusted as provided in this
Section 10, the Company will (a) promptly file with the Warrant Agent and with
each transfer agent for the Common Stock a copy of a certificate of the Chief
Financial Officer of the Company setting forth the Purchase Price as adjusted,
the number of shares of Common Stock issuable upon the exercise of each Warrant
as adjusted and a brief statement of the facts accounting for the adjustment,
and (b) mail a brief summary of the certificate to each holder of a Warrant
Certificate.
Section 11. Fractional Warrants and Fractional Shares.
(a) The Company will not be required to issue fractions of Warrants
or to distribute Warrant Certificates which evidence fractional Warrants.
(b) Notwithstanding an adjustment under Section 10 in the number of
shares covered by a Warrant, the Company will not be required to issue fractions
of shares upon exercise of Warrants or to distribute certificates which evidence
fractional shares.
(c) The holder of a Warrant by the acceptance of the Warrant
expressly waives his right to receive any fractional Warrant or any fractional
share upon exercise of a Warrant.
Section 12. Right of Action. All rights of action in respect of this
Agreement are vested in the registered holders of the Warrant Certificates; and
any registered holder of any Warrant Certificate, without the consent of the
Warrant Agent or of the holder of any other Warrant Certificate, may, in his own
behalf and for his own benefit, enforce, through a suit, action or proceeding
against the Company or in any other legal manner, his right to exercise the
Warrants evidenced by the Warrant Certificate as provided in this Agreement and
Warrant Certificate.
Section 13. Agreement of Warrant Certificate Holders. Every holder of
a Warrant Certificate by accepting the Warrant Certificate agrees with the
Company and the Warrant Agent and with every other holder of a Warrant
Certificate that:
(a) the Warrants are transferable only on the registry books of the
Warrant Agent and only as provided in Section 4; and
(b) the Company and the Warrant Agent may treat the person in whose
name the Warrant Certificate is registered as the absolute owner of the Warrant
Certificate and of the Warrants evidenced by the Warrant Certificate
(notwithstanding any notations of ownership or writing on the Warrant
Certificates made by anyone other than the Company or the Warrant Agent) for all
purposes and neither the Company nor the Warrant Agent will be affected by any
notice to the contrary.
Section 14. Concerning the Warrant Agent. The Company will pay the
Warrant Agent reasonable compensation for the services rendered by it and, on
demand of the Warrant Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the execution of this Agreement and the performance of
its duties under this Agreement. The Company agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability, or expense for
anything done or omitted by the Warrant Agent without gross negligence or
willful misconduct on the part of the Warrant Agent in connection with the
performance of its duties under this Agreement, including the costs and expenses
of defending against any claim against the Warrant Agent.
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Section 15. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent or any successor Warrant
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Warrant Agent or any
successor Warrant Agent is a party, or any corporation succeeding to the
business of the Warrant Agent or any successor Warrant Agent, will be the
successor to the Warrant Agent under this Agreement without the execution of
filing of any paper or any further act on the part of any of the parties to this
Agreement, provided that such corporation would be eligible for appointment as a
successor Warrant Agent under Section 17. If at the time a successor Warrant
Agent succeeds to the agency created by this Agreement any of the Warrant
Certificates have been countersigned but not delivered, the successor Warrant
Agent may adopt the countersignature of the predecessor Warrant Agent and
deliver the countersigned Warrant Certificates; and if at that time any of the
Warrant Certificates have not been countersigned, any successor Warrant Agent
may countersign the Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; and in all those
cases the Warrant Certificates will have the full force provided in the Warrant
Certificates and on this Agreement.
If at any time the name of the Warrant Agent is changed and at that
time any of the Warrant Certificates have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver the countersigned Warrant Certificates; and if at that time any of the
Warrant Certificates have not been countersigned, the Warrant Agent may
countersign the Warrant Certificates either in its prior name or in its changed
name; and in all those cases the Warrant Certificates will have the full force
provided in the Warrant Certificates and in this Agreement.
Section 16. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrant Certificates,
by their acceptance of the Warrant Certificates, will be bound:
(a) The Warrant Agent may consult with legal counsel (who
may be legal counsel for the Company), and the Warrant Agent will be
fully protected as to any action taken or omitted by it in good faith
in accordance with the opinion of that counsel.
(b) Whenever in the performance of its duties under this
Agreement the Warrant Agent wants any fact or matter to be proved or
established by the Company before the Warrant Agent takes or omits any
action under this Agreement, unless this Agreement specifically
prescribes other evidence of that fact or matter, the fact or matter
will be deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the President or Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company and delivered to the
Warrant Agent; and that certificate will be full authorization to the
Warrant Agent for any action taken or omitted by it in good faith in
reliance upon that certificate.
(c) The Warrant Agent will be liable under this Agreement
only for its own gross negligence or willful misconduct.
(d) The Warrant Agent will not be liable because of any of
the statements of fact or recitals contained in this Agreement or in
the Warrant Certificates (except its countersignature of the Warrant
Certificates) or be required to verify them. All these statements and
recitals will be deemed to have been made by the Company only.
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(e) The Warrant Agent will not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery of this Agreement (except the due execution of this Agreement
by the Warrant Agent) or in respect of the validity or execution of any
Warrant Certificate (except its countersignature of the Warrant
Certificates) or the genuineness of any endorsed document of assignment
or other document believed by it to be genuine; nor will it be
responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Warrant Certificates; nor will it
be responsible for the adjustment of the Purchase Price or any change
in the number of shares of Common Stock required under the provisions
of Section 10 or responsible for the manner of computing any such
change or for ascertaining of the existence of facts which would
require any such adjustment of change (except with respect to the
exercise of Warrants after actual notice of an adjustment of the
Purchase Price or number of shares of Common Stock or other assets
issuable on exercise of Warrants); nor will it be deemed to make any
representation or warranty as to the authorization or reservation of
the shares of Common Stock to be issued on exercise of Warrants or as
to whether those shares of Common Stock will, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered
all such further instruments and assurances and other acts, as may
reasonably be required by the Warrant Agent for the carrying out or
performing by the Warrant Agent of the provisions of this Agreement.
(g) The Warrant Agent is authorized and directed to accept
instructions with respect to the performance of its duties under this
Agreement from the Chairman of the Board, the President or a Vice
President or the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer of the Company, and to apply to those
officers for advice or instructions in connection with its duties, and
it will not be liable for any action taken or omitted by it in good
faith in accordance with instructions of any of those officers.
Section 17. Change of Warrant Agents. The Warrant Agent may resign
and be discharged from its duties under this Agreement upon thirty days' notice
in writing mailed to the Company by registered or certified mail, and to the
holders of the Warrants by first-class mail. The Company may remove the Warrant
Agent or any successor Warrant Agent upon thirty days' notice in writing, mailed
to the Warrant Agent or successor Warrant Agent and to each transfer agent of
the Common Stock, by registered or certified mail, and to the holders of the
Warrants by first-class mail. If the Warrant Agent resigns or is removed or
otherwise becomes incapable of acting, the Company will appoint a successor to
the Warrant Agent. If the Company fails to make an appointment within thirty
days after a removal or after it has been notified in writing of a resignation
or incapacity by the resigning or incapacitated Warrant Agent or by the holder
of a Warrant (who must, at the time of the notice, submit his Warrant
Certificate for inspection by the Company), the registered holder of any Warrant
may apply to any court of competent jurisdiction for the appointment of a new
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by a court, will be a corporation organized and doing business, or a partnership
or association formed, under the laws of the United States or a State of the
United States, which is in good standing and has at the time of its appointment
as Warrant Agent a combined capital and surplus of at least $5,000,000. After
appointment, the successor Warrant Agent will be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the predecessor Warrant Agent
will deliver and transfer to the successor Warrant Agent any property at the
time held by it under this Agreement, and execute and deliver any further
assurance, conveyance, act or deed necessary for that purpose. Not later than
the effective date of the appointment
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of a successor Warrant Agent the Company will file notice of the appointment in
writing with the predecessor Warrant Agent and each transfer agent of the Common
Stock, and will mail a notice of the appointment to the registered holders of
the Warrants. Failure to give any notice provided for in this Section 17,
however, or any defect in the notice, will not affect the legality or validity
of the resignation or removal of the Warrant Agent or the appointment of the
successor Warrant Agent.
Section 18. Change of Expiration Date. If the Company changes the
Expiration Date to a later date, as soon as practicable after the Company
determines to make the change, and in any event at least thirty days before the
prior Expiration Date, the Company will notify the holders of the Warrants of
the change.
Section 19. Issuance of Common Stock on Expiration Date. Any Warrants
which remain outstanding and unexercised at 5:01 P.M. on the Expiration Date
will automatically be converted into shares of Common Stock at the rate of one
share of Common Stock for a number of Warrants which immediately before the
Expiration Date entitled the holders to purchase 700 shares of Common Stock.
Upon surrender of a Warrant Certificate after that time, the Warrant Agent will
(i) promptly obtain from a transfer agent of the Common Stock, certificates for
the number of whole shares of Common Stock into which the Warrants represented
by the Warrant Certificate have been automatically converted, and (ii) promptly
after receipt of those certificates, deliver them to or as directed by the
registered holder of the Warrant Certificate, registered in the name or names
designated by the holder. Each person in whose name certificates for shares of
Common Stock are issued because of automatic conversion of Warrants will for all
purposes be deemed to have become the holders of record of that Common Stock on
and the certificate will be dated, the day following the Expiration Date, except
that if the date following the Expiration Date is a day when the Common Stock
transfer books of the Company are closed the person will be deemed to have been
the record holder of the shares, and the certificate will be dated, the next
such business day when the Common Stock transfer books of the Company are
opened.
No fractional shares of Common Stock will be issuable upon the
automatic conversion of Warrants. Upon surrender of a Warrant Certificate after
conversion, the Company will pay the registered holder of the Warrants evidenced
by the Warrant Certificate cash in lieu of fractional shares based on the market
price of the Common Stock at the close of trading on the Expiration Date.
Section 20. Notices. All notices and other communications under this
Agreement must be in writing. Any notice or communication to the Company will
be effective upon the earlier of actual receipt or the third business day after
mailing by first-class mail, postage prepaid, addressed (until another address
is filed in writing by the Company with the Warrant Agent) as follows:
Xxx Xxxx Marketing, Inc.
00000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
Subject to the provisions of Section 17, any notice or communication to the
Warrant Agent will be effective upon the earlier of actual receipt or the third
business day after mailing by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the
Company) as follows:
Trust Company Bank
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Trust Department
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Notices or communications to the holder of any Warrant will be effective upon
mailing by first-class mail, postage prepaid, addressed to the holder at the
address of the holder as shown on the registry books of the Company.
Section 21. Modification of Agreement. The Warrant Agent may, without
the consent or concurrence of the holders of the Warrants, join with the Company
in making any changes or corrections in this Agreement that they have been
advised by counsel (who may be counsel for the Company) (a) are required to cure
any ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake in this Agreement, or (b) add to the obligation of the
Company under this Agreement, or surrender any right or power of the Company
under this Agreement, and (c) in either case, do not adversely affect the
rights, privileges or immunities of the holders of the Warrant Certificates or
the Warrant Agent.
Section 22. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent will bind
and inure to the benefit of their respective successors and assigns.
Section 23. Benefits of This Agreement. Nothing expressed in this
Agreement and nothing that may be implied from any of the provisions of this
Agreement is intended, or will be construed, to confer upon, or give to, any
person or corporation other than the Company, the Warrant Agent and the holders
of the Warrants any right, remedy or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise or agreement contained in
this Agreement; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the exclusive benefit of the
Company and the Warrant Agent and their respective successors and of the holders
of the Warrants.
Section 24. New York Contract. This Agreement and each Warrant
Certificate issued under this Agreement will be deemed to be a contract made
under the laws of the State of New York and for all purposes will be governed by
and construed under the laws of that State.
Section 25. Descriptive Headings. The descriptive headings of the
Sections of this Agreement are inserted for convenience only and will not affect
the meaning or construction of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be
executed as of the day and year stated on the first page of this Agreement.
XXX XXXX MARKETING, INC.
By:____________________________
TRUST COMPANY BANK
By:_____________________________
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STATE OF FLORIDA )
) SS.:
COUNTY OF BROWARD )
On the ____ day of __________, 1993 before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he resides at _________________________; that he is the ______________ of Xxx
Xxxx Marketing, Inc., one of the parties described in and which executed the
foregoing instrument; that by authority of the Board of Directors of Xxx Xxxx
Marketing, Inc. he signed his name to the foregoing instrument.
____________________________________
Notary Public
(NOTARIAL SEAL)
______________________
STATE OF GEORGIA )
) SS.:
COUNTY OF ATLANTA )
On the ____ day of __________, 1993 before me personally came
____________, to me known, who, being by my duly sworn, did depose and say that
he resides at _________________________; that he is a ________________ of Trust
Company Bank, one of the parties described in and which executed the foregoing
instrument; to me known and known to me to be the individual who executed the
foregoing instrument and acknowledged that he executed and was duly authorized
to execute the same as and for the act and deed of such form.
____________________________________
Notary Public
(NOTARIAL SEAL)
