EXHIBIT 4.6
WARRANT AGREEMENT ("AGREEMENT")
Xxxxxxx.xxx, Inc., 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx,
Xxxxxxxx 00000 (the "Company"), and UMB Bank, N.A. ("Warrant Agent"), agree as
follows:
1. PURPOSE. The Company proposes to publicly offer and issue up to
368,000 units, which includes 48,000 units to cover over-allotments, if any
(collectively, the "Units" and individually, a "Unit"), in an initial public
offering evidenced by a Form SB-2 Registration Statement No. 333-37932 ("Initial
Public Offering"). Each Unit will entitle the registered holder of a Unit ("Unit
Holder") to (i) four (4) shares of the Company's $0.01 par value common stock
(collectively, the "Shares" and individually, a "Share") and (ii) two (2)
warrants, each warrant permitting the purchase of one (1) Share ("Warrant").
2. WARRANTS. Each Warrant will entitle the registered holder of a Warrant
("Warrant Holder") to purchase from the Company one (1) Share at $_______, which
is one hundred thirty percent (130%) of the Initial Public Offering price of one
of the Units divided by four (4) ("Exercise Price"). A Warrant Holder may
exercise all or any number of Warrants resulting in the purchase of a whole
number of Shares.
3. EXERCISE PERIOD. The Warrants may be exercised at any time during the
period commencing thirty (30) days after the closing of the Initial Public
Offering ("Exercise Date") and ending at 4:00 p.m., Oklahoma City, Oklahoma time
on the fifth (5th) anniversary date of the closing of the offering ("Expiration
Date") except as changed by Section 10 and Section 15 of this Agreement.
4. NON-DETACHABILITY. A Warrant Certificate (as defined below) may not be
detached from a Share certificate contained in a Unit for at least thirty (30)
days following the Initial Public Offering. Until such time a Warrant
Certificate may be split up, combined, exchanged or transferred on the books of
the Warrant Agent only together with a Share certificate. Institutional Equity
Corporation will then determine when the Units separate, after which the common
stock and public warrants will trade separately.
5. CERTIFICATES. The Warrant certificates shall be in registered form
only and shall be substantially in the form set forth in Exhibit A attached to
this Agreement ("Warrant Certificate"). Warrant Certificates shall be signed by,
or shall bear the facsimile signature of, the President or a Vice President of
the Company and the Secretary or an Assistant Secretary of the Company and shall
bear a facsimile of the Company's corporate seal. If any person, whose facsimile
signature has been placed upon any Warrant Certificate or the signature of an
officer of the Company, shall have ceased to be such officer before such Warrant
Certificate is countersigned, issued and delivered, such Warrant Certificate
shall be countersigned, issued and delivered with the same effect as if such
person had not ceased to be such officer. Any Warrant Certificate may be signed
by, or made to bear the facsimile signature of, any person who at the actual
date of the preparation of such Warrant Certificate shall be a proper officer of
the Company to sign such Warrant Certificate, even though such person was not
such an officer upon the date of the Agreement.
6. ISSUANCE OF NEW CERTIFICATES. Notwithstanding any of the provisions of
this Agreement or the several Warrant Certificates to the contrary, the Company
may, at its option, issue new Warrant Certificates in such form as may be
approved by its Board of Directors to reflect any adjustment or change in the
Exercise Price or the number or kind of shares purchasable under the several
Warrant Certificates made in accordance with the provisions of this Agreement.
7. COUNTERSIGNING. Warrant Certificates shall be manually countersigned
by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent hereby is authorized to countersign and
deliver to, or in accordance with the instructions of, any Warrant Holder any
Warrant Certificate, respectively, which is properly issued.
8. REGISTRATION OF TRANSFER AND EXCHANGES. The Warrant Agent will keep
or cause to be kept books for registration of ownership or transfer of Warrant
Certificates issued hereunder. Such registers shall show the names and addresses
of the respective holders of the Warrant Certificates and the number of Warrants
evidenced by each such Warrant Certificate. Subject to the provisions of Section
4, the Warrant Agent shall from time to time register the transfer of any
outstanding Warrant Certificate upon records maintained by the Warrant Agent
for such purpose upon surrender of such Warrant Certificate to the Warrant
Agent for transfer, accompanied by appropriate instruments of transfer in form
satisfactory to the Company and the Warrant Agent and duly executed by the
Warrant Holder or a duly authorized attorney. Upon any such registration of
transfer, a new Warrant Certificate shall be issued in the name of and to the
transferee and the surrendered Warrant Certificate shall be cancelled.
9. EXERCISE OF WARRANTS.
a. Subject to Section 10, any one Warrant or any multiple of one
Warrant evidenced by any Warrant Certificate may be exercised on
or after the Exercise Date, and on or before the Expiration Date.
A Warrant shall be exercised by the Warrant Holder by
surrendering to the Warrant Agent the Warrant Certificate
evidencing such Warrant with the exercise form on the reverse of
such Warrant Certificate duly completed and executed and
delivering to the Warrant Agent, by certified or official bank
check payable in lawful money of the United States of America to
the order of the Company, the Exercise Price for each Share to be
purchased.
b. Upon receipt of a Warrant Certificate with the exercise form
thereon duly executed together with payment in full of the
Exercise Price (and an amount equal to any applicable taxes or
government charges, pursuant to Section 11 hereof) for the Shares
for which Warrants are then being exercised, the Warrant Agent
shall requisition from any transfer agent for the Shares, and
upon receipt shall make delivery of, certificates evidencing the
total number of whole Shares for which Warrants are then being
exercised in such names and denominations as are required for
delivery to, or in accordance with the instructions of, the
Warrant Holder. Such certificates for the Shares shall be
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deemed to be issued, and the person whom such Shares are issued
of record shall be deemed to have become a holder of record of
such Shares, as of the date of the surrender of such Warrant
Certificate and payment of the Exercise Price (and an amount
equal to any applicable taxes or government charges), whichever
shall last occur, provided that if the books of the Company with
respect to the Shares shall be deemed to be issued, and the
person to whom such Shares are issued of record shall be deemed
to have become a record holder of such Shares, as of the date on
which such books shall next be open (whether before, on or after
the Expiration Date) but at the Exercise Price (and an amount
equal to any applicable taxes or government charges), whichever
shall have last occurred, to the Warrant Agent. The Company
covenants and agrees that it shall not cause its stock transfer
books to be closed for a period of more than twenty (20)
consecutive business days except upon consolidation, merger, sale
of all of its assets, dissolution or liquidation or as otherwise
provided by law.
c. In addition, if it is required by law and upon instruction by the
Company, the Warrant Agent will deliver to each Warrant Holder a
prospectus that complies with the provisions of Section 5 of the
Securities Act of 1933, as amended, and the Company agrees to
supply the Warrant Agent with a sufficient number of
prospectuses to effectuate that purpose.
d. Any Warrant Certificate or Certificates may be exchanged at the
option of the holder thereof for another Warrant Certificate or
Certificates of different denominations, of like tenor and
representing in the aggregate the same number of Warrants, upon
surrender of such Warrant Certificate or Certificates, with the
Form of Assignment duly filled in and executed, to the Transfer
Agent, at any time or from time-to-time after the close of
business on the date hereof and prior to the close of business on
the Expiration Date. The Warrant Agent shall promptly cancel the
surrendered Warrant Certificate and deliver the new Warrant
Certificate pursuant to the provisions of this Section.
e. If less than all the Warrants evidenced by a Warrant Certificate
are exercised upon a single occasion, a new Warrant Certificate
for the balance of the Warrants not so exercised shall be issued
and delivered to, or in accordance with, transfer instructions
properly given by the Warrant Holder until the Expiration Date.
f. All Warrant Certificates surrendered upon exercise of the
Warrants shall be cancelled.
g. Upon the exercise, or conversion of any Warrant, the Transfer
Agent shall account promptly to the Company with respect to
Warrants exercised and
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concurrently pay to the Company all moneys received by the
Warrant Agent for the purchase of securities or other property
through the exercise of such Warrants.
h. Out-of-pocket expenses incurred by the Warrant Agent while
acting in the capacity as Warrant Agent, in accordance with this
Agreement, will be paid by the Company. A detailed accounting
statement relating to the number of shares exercised, names of
registered Warrant Holder(s) and the net amount of exercised
funds remitted will be given to the Company with the payment of
each exercise amount.
10. REDEMPTION. Following eighteen (18) months after the closing of the
Company's Initial Public Offering, the Warrants outstanding at the time of a
redemption may be redeemed at the option of the Company, in whole or in part on
a pro-rata basis, at any time if, at the time notice of such redemption is given
by the Company as provided in subsection a. below, the Daily Price (as defined)
equals or exceeds _____ which is 200% of the Initial Public Offering price of
one of the Units divided by four, for more than ten (10) consecutive trading
days immediately preceding the date of such notice, at a price of $0.05 per
Warrant (the "Redemption Price"). For the purpose of the foregoing sentence, the
term "Daily Price" shall mean, for any relevant day, the closing bid price on
that day as reported by the principal exchange or quotation system on which
prices for the Common Stock are reported. On the redemption date the holders of
record of redeemed Warrants shall be entitled to payment of the Redemption Price
upon surrender of such redeemed Warrants to the Company at the principal office
of the Warrant Agent in Kansas City, Missouri.
a. Notice of redemption of Warrants shall be given at least thirty
(30) days prior to the redemption date by mailing, by registered
or certified mail, return receipt requested, a copy of such
notice to the Warrant Agent and by first class mail to all of
the holders of record of Warrants at their respective addresses
appearing on the books or transfer records of the Company or such
other address designated in writing by the holder of record to
the Warrant Agent not less than forty (40) days prior to the
redemption date.
b. From and after the close of business on the business day next
preceding the redemption date, all rights of the Warrant Holders
regarding the Warrants which have been called for redemption
(except the right to receive the Redemption Price) shall
terminate, but only if (i) no later than one day prior to the
redemption date the Company shall have irrevocably deposited with
the Warrant Agent as paying agent a sufficient amount to pay on
the redemption date the Redemption Price for all Warrants called
for redemption and (ii) the notice of redemption shall have
stated the name and address of the Warrant Agent and the
intention of the Company to deposit such amount with the Transfer
Agent no later than one day prior to the redemption date.
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c. The Warrant Agent shall pay to the holders of record of redeemed
Warrants all monies received by the Warrant Agent for the
redemption of Warrants to which the holders of record of such
redeemed Warrants who shall have surrendered their Warrants are
entitled.
d. Any amounts deposited with the Warrant Agent that are not
required for redemption of Warrants may be withdrawn by the
Company. Any amounts deposited with the Warrant Agent that shall
be unclaimed after six (6) months after the redemption date may
be withdrawn by the Company, and thereafter the holders of the
Warrants called for redemption for which such funds were
deposited shall look solely to the Company for payment. The
Company shall be entitled to the interest, if any, on funds
deposited with the Warrant Agent and the holders of redeemed
Warrants shall have no right to any such interest.
e. If the Company fails to make a sufficient deposit with the
Warrant Agent as provided above, the holder of any Warrants
called for redemption may at the option of the holder (i) by
notice to the Company declare the notice of redemption a nullity
as to such holder, or (ii) maintain an action against the Company
for the Redemption Price. If the holder brings such an action,
the Company will pay reasonable attorneys' fees of the holder. If
the holder fails to bring an action against the Company for the
Redemption Price within sixty (60) days after the redemption
date, the holder shall be deemed to have elected to declare the
notice of redemption to be a nullity as to such holder and such
notice shall be without any force or effect as to such holder.
Except as otherwise specifically provided in this subsection e.,
a notice of redemption, once mailed by the Company, as provided
in subsection a., shall be irrevocable.
11. TAXES. The Company will pay all taxes attributable to the initial
issuance of Shares upon exercise of Warrants. The Company shall not, however, be
required to pay any tax which may be payable in respect to any transfer involved
in any issue of Warrant Certificates or in the issue of any certificates of
Shares in the name other than that of the Warrant Holder upon the exercise of
any Warrant, as the case may be.
12. MUTILATED OR MISSING CERTIFICATES. If any Warrant Certificate is
mutilated, lost, stolen or destroyed, the Company and the Warrant Agent may, on
such terms as to indemnity or otherwise as they may in their discretion impose
(which shall, in the case of a mutilated Warrant Certificate, include the
surrender thereof), and upon receipt of evidence satisfactory to the Company and
the Warrant Agent of such mutilation, loss, theft or destruction, issue a
substitute Warrant Certificate, respectively, of like denomination or tenor as
the Warrant Certificate so mutilated, lost, stolen or destroyed. Applicants for
substitute Warrant Certificates shall comply with such other reasonable
regulations and pay any reasonable charges as the Company or the Warrant Agent
may prescribe.
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13. SUBSEQUENT ISSUE OF CERTIFICATES. Subsequent to their original
issuance, no Warrant Certificates shall be reissued except (i) such Certificates
issued upon transfer thereof in accordance with Section 8 hereof, (ii) such
Certificates issued upon any combination, split-up or exchange of Warrant or
Unit Certificates pursuant to Section 8 hereof, (iii) such Certificates issued
in replacement of mutilated, destroyed, lost or stolen Warrant Certificates
pursuant to Section 12 hereof, (iv) Warrant Certificates issued upon the partial
exercise of Warrant Certificates pursuant to Section 9 hereof, and (v) Warrant
Certificates issued to reflect any adjustment or change in the Exercise Price or
the number or kind of shares purchasable thereunder pursuant to Section 6
hereof. The Warrant Agent is hereby irrevocably authorized to countersign and
deliver, in accordance with the provisions of said Sections 6, 8, 9 and 12, the
new Warrant Certificates, as the case may be, required for purposes thereof, and
the Company, whenever required by the Warrant Agent, will supply the Transfer
Agent with Warrant Certificates duly executed on behalf of the Company for such
purposes.
14. RESERVATION OF SHARES. For the purpose of enabling the Company to
satisfy all obligations to issue Shares upon exercise of Warrants, the Company
will at all times reserve and keep available free from preemptive rights, out of
the aggregate of its authorized but unissued shares, the full number of Shares
which may be issued upon the exercise of the Warrants. The Company covenants all
shares which shall be so issuable upon exercise of the Warrants, will upon issue
be fully paid and nonassessable by the Company and free from all taxes, liens,
charges and security interests with respect to the issue thereof.
15. GOVERNMENTAL RESTRICTIONS. If any Shares issuable upon the exercise of
Warrants require registration or approval of any governmental authority, the
Company will use commercially reasonable efforts to secure such registration or
approval and, to the extent practicable, take action in anticipation of and
prior to the exercise of the Warrants necessary to permit a public offering of
the securities underlying the Warrants during the term of this Agreement;
provided that in no event shall such Shares be issued, and the Company shall
have the authority to suspend the exercise of all Warrants, until such
registration or approval shall have been obtained; but all Warrants, the
exercise of which is requested during any such suspension, shall be exercisable
at the Exercise Price. If any such period of suspension continues past the
Expiration Date, all Warrants, the exercise of which have been requested on or
prior to the Expiration Date, shall be exercisable upon the removal of such
suspension until the close of business on the business day immediately following
the expiration of such suspension. In the case of a Warrant exercisable solely
for securities listed on a securities exchange or for which there are at least
two (2) independent market makers, in lieu of obtaining such registration or
approval, the Company may elect to redeem Warrants submitted to the Warrant
Agent for exercise for a price equal to the difference between the aggregate low
asked price, or closing price, as the case may be, of the securities for which
such Warrant is exercisable on the date of such submission and the Exercise
Price of such Warrants; in the event of such redemption, the Company will pay to
the holder of such Warrants the above-described redemption price in cash within
ten (10) business days after receipt of notice from the Warrant Agent that such
Warrants have been submitted for exercise.
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16. ADJUSTMENTS OF NUMBER AND KIND OF SHARES PURCHASABLE AND EXERCISE
PRICE. The number and kind of securities or other property purchasable upon
exercise of a Warrant shall be subject to adjustment from time to time upon the
occurrence, after the date hereof, of any of the following events:
a. In case the Company shall (i) pay a dividend in, or make a
distribution of, shares of capital stock on its outstanding
Common Stock, (ii) subdivide its outstanding shares of Common
Stock into a greater number of such shares or (iii) combine its
outstanding shares of Common Stock into a smaller number of such
shares, the total number of shares of Common Stock purchasable
upon the exercise of each Warrant outstanding immediately prior
thereto shall be adjusted so that the holder of any Warrant
Certificate thereafter surrendered for exercise shall be entitled
to receive at the same aggregate Exercise Price the number of
shares of capital stock (of one or more classes) which such
holder would have owned or have been entitled to receive
immediately following the happening of any of the events
described above had such Warrant been exercised in full
immediately prior to the record date with respect to such event.
Any adjustment made pursuant to this subsection shall, in the
case of a stock dividend or distribution, become effective as of
the record date therefor and, in the case of a subdivision or
combination, be made as of the effective date thereof. If, as a
result of an adjustment made pursuant to this subsection, the
holder of any Warrant Certificate thereafter surrendered for
exercise shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors
of the Company (whose determination shall be conclusive and shall
be evidenced by a Board resolution filed with the Warrant Agent)
shall determine the allocation of the adjusted Exercise Price
between or among shares of such classes of capital stock.
b. If any capital reorganization or a reclassification of the Common
Stock (except as provided in subsection a. above or subsection e.
below), shall be effected, then, as a condition of such
reorganization or reclassification, lawful and adequate provision
shall be made whereby any Warrant Holder, upon exercise of
Warrants, shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions
specified herein and in the Warrants and in substitution for the
Common Stock to which he would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the
shares (of any class or classes) or other securities or property
of the Company (or cash) that he would have been entitled to
receive at the same aggregate Exercise Price upon such
reorganization or reclassification if such Warrants had been
exercised immediately prior to the record date with respect to
such event; and in any such case, appropriate provision (as
determined by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a
certified Board resolution filed with the Warrant Agent) shall
be made for the application of this Section with respect to the
rights and interests thereafter of the Warrant Holders (including
but not limited to the allocation of the Exercise Price between
or among shares of
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classes of capital stock), to the end that this Section
(including the adjustments of the number of shares of Common
Stock or other securities purchasable and the Exercise Price
thereof) shall thereafter be reflected, as nearly as reasonably
practicable, in all subsequent exercises of the Warrants for any
shares or securities or other property (or cash) thereafter
deliverable upon the exercise of the Warrants.
c. Whenever the number of shares of Common Stock or other securities
purchasable upon exercise of a Warrant is adjusted as provided in
this Section, the Company will promptly file with the Warrant
Agent a certificate signed by a Chairman or co-Chairman of the
Board or the President or a Vice President of the Company and by
the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company setting forth the number and
kind of securities or other property purchasable upon exercise of
a Warrant, as so adjusted, stating that such adjustments in the
number or kind of shares or other securities or property conform
to the requirements of this Section, and setting forth a brief
statement of the facts accounting for such adjustments. Promptly
after receipt of such certificate, the Company, or the Transfer
Agent at the Company's request, will deliver, by first-class,
postage prepaid mail, a brief summary thereof (to be supplied by
the Company) to the registered holders of the outstanding Warrant
Certificates; provided, however, that failure to file or to give
any notice required under this subsection, or any defect therein,
shall not affect the legality or validity of any such adjustments
under this Section.
d. In case of any consolidation of the Company with, or merger of
the Company into, another corporation (other than a consolidation
or merger which does not result in any reclassification or change
of the outstanding Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the corporation
formed by such consolidation or merger or the corporation which
shall have acquired such assets, as the case may be, shall
execute and deliver to the Warrant Agent a supplemental warrant
agreement providing that the holder of each Warrant then
outstanding shall have the right thereafter (until the expiration
of such Warrant) to receive, upon exercise of such Warrant,
solely the kind and amount of shares of stock and other
securities and property (or cash) receivable upon such
consolidation, merger, sale or transfer by a holder of the number
of shares of Common Stock of the Company for which such Warrant
might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental
warrant agreement shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided in this Section. The above provision of this subsection
shall similarly apply to successive consolidations, mergers,
sales or transfers. The Warrant Agent shall not be
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under any responsibility to determine the correctness of any
provision contained in any such supplemental warrant agreement
relating to either the kind or amount of shares of stock or
securities or property (or cash) purchasable by holders of
Warrant Certificates upon the exercise of their Warrants after
any such consolidation, merger, sale or transfer or of any
adjustment to be made with respect thereto, but subject to the
provisions of Section 22 hereof, may accept as conclusive
evidence of the correctness of any such provisions, and shall be
protected in relying upon, a certificate of a firm of independent
certified public accountants (who may be the accountants
regularly employed by the Company) with respect thereto.
e. Irrespective of any adjustments in the number or kind of shares
issuable upon exercise of Warrants, Warrant Certificates
theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the similar
Warrant Certificates initially issuable pursuant to this
Agreement.
f. The Company may retain a firm of independent public accountants
of recognized standing, which may be the firm regularly retained
by the Company, selected by the Board of Directors of the Company
or the Executive Committee of said Board, and not disapproved by
the Warrant Agent, to make any computation required under this
Section, and a certificate signed by such firm shall, in the
absence of fraud or gross negligence, be conclusive evidence of
the correctness of any computation made under this Section.
g. For the purpose of this Section, the term "Common Stock" shall
mean (i) the Common Stock or (ii) any other class of stock
resulting from successive changes or reclassifications of such
Common Stock consisting solely of changes in par value, or from
par value to no par value, or from no par value to par value. In
the event that at any time as a result of an adjustment made
pursuant to this Section, the holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive any
shares of capital stock of the Company other than shares of
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 this Section, and all other provisions
of this Agreement, with respect to the Common Stock, shall apply
on like terms to any such other shares.
h. Company may, from time to time and to the extent permitted by
law, reduce the exercise price of the Warrants by any amount for
a period of not less than twenty (20) days. If the Company so
reduces the exercise price of the Warrants, it will give not less
than fifteen (15) days' notice of such decrease,
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which notice may be in the form of a press release, and shall
take such other steps as may be required under applicable law in
connection with any offers or sales of securities at the reduced
price.
17. REDUCTION OF EXERCISE PRICE BELOW PAR VALUE. Before taking any action
that would cause an adjustment pursuant to Section 16 hereof reducing the
portion of the Exercise Price required to purchase one share of capital stock
below the then par value (if any) of a share of such capital stock, the Company
will use its best efforts to take any corporate action which, in the opinion of
its counsel, may be necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of such capital stock.
18. NO FRACTIONAL WARRANTS OR SHARES. The Company shall not be required to
issue fractions of Warrants upon the reissue of Warrants, any adjustments as
described in Section 16 or otherwise; but the Company in lieu of issuing any
such fractional interest, shall adjust the fractional interest by payment to the
Warrant Holder an amount, in cash, equal to the current market value of any such
fraction or interest. If the total Warrants surrendered by exercise would result
in the issuance of a fractional Share, the Company shall not be required to
issue a fractional Share but rather the resulting fractional interest shall be
adjusted by payment in an amount, in cash, equal to the current market value of
such fractional interest.
19. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall have any
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holders, as such, are limited to those rights expressly provided
in this Agreement or in the Warrant Certificates. The Company and the Warrant
Agent may treat the registered Warrant Holder in respect of any Warrant
Certificates as the absolute owner thereof for all purposes notwithstanding any
notice to the contrary.
20. RIGHT OF ACTION. All rights of action in respect to this Agreement are
vested in the respective registered holders of the Warrant and Unit
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of any other holder of a Warrant Certificate,
may, in his own behalf for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by such
Warrant Certificate, for the purchase of shares of the Common Stock in the
manner provided in the Warrant Certificate and in this Agreement.
21. AGREEMENT OF WARRANT AND UNIT HOLDERS. Every holder of a Warrant
Certificate by accepting the same consents and agrees with the Company, the
Warrant Agent and with every other holder of a Warrant Certificate,
respectively, that:
a. The Warrant Certificates are transferable on the registry books
of the Warrant Agent only upon the terms and conditions set
forth in this Agreement; and
b. The Company and the Warrant Agent may deem and treat the person
in
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whose name the Warrant Certificate is registered as the absolute
owner of the Warrant, as the case may be, (notwithstanding any
notation of ownership or other writing thereon made by anyone
other than the Company or the Warrant Agent) for all purposes
whatever and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
22. TRANSFER AGENT. The Company hereby appoints the Warrant Agent to act
as the agent of the Company and the Warrant Agent hereby accepts such
appointment upon the following terms and conditions by all of which the Company
and every Warrant Holder, by acceptance of his Warrants, shall be bound:
a. Statements contained in this Agreement and in the Warrant
Certificates shall be taken as statements of the Company. The
Warrant Agent assumes no responsibility for the correctness of
any of the same except such as describes the Warrant Agent or
for action taken or to be taken by the Warrant Agent.
b. The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the Company's covenants
contained in this Agreement or in the Warrant Certificates.
c. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the
Company or to any Warrant Holder in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel,
provided the Warrant Agent shall have exercised reasonable care
in the selection and continued employment of such counsel.
d. The Warrant Agent shall incur no liability or responsibility to
the Company or to any Warrant Holder for any action taken in
reliance upon any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument believed by it
to be genuine and to have been signed, sent or presented by the
proper party or parties.
e. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in
the execution of this Agreement, to reimburse the Warrant Agent
for all expenses, taxes and governmental charges and all other
charges of any kind or nature incurred by the Warrant Agent in
the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities,
including judgments, costs and counsel fees, for this Agreement
except as a result of the Warrant Agent's negligence, bad faith
or willful misconduct.
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f. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action
likely to involve expense unless the Company or one or more
Warrant Holders shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be
incurred in connection with such action, suit or legal
proceeding, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may
consider proper, whether with or without any such security or
indemnity. All rights of action under this Agreement or under any
of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and
any such action, suit or proceeding instituted by the Warrant
Agent shall be brought in its name as Warrant Agent, and any
recovery of judgment shall be for the ratable benefit of the
Warrant Holders as their respective rights or interest may
appear.
g. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of
the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
23. SUCCESSOR WARRANT AGENT. Any corporation into which the Warrant
Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to the corporate
trust business of the Warrant Agent, shall be the successor to the Warrant
Agent hereunder without the execution or filing of any paper or any further act
of a party or the parties hereto provided such corporation is eligible to be
appointed under Section 24 below. In any such event or if the name of the
Warrant Agent is changed, the Warrant Agent or such successor may adopt the
countersignature of the original Warrant Agent and may countersign such Warrant
Certificates either in the name of the predecessor Warant Agent or in the name
of the successor Warrant Agent.
24. CHANGE OF WARRANT AGENT. The Warrant Agent may resign or be
discharged by the Company from its duties under this Agreement by the Warrant
Agent or the Company, as the case may be, giving notice in writing to the other,
and by giving a date when such resignation or discharge shall take effect, which
notice shall be sent at least thirty (30) days prior to the date so specified.
If the Warrant Agent shall resign, be discharged or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of
thirty (30) days after it has been notified in
12
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by any Warrant Holder or after discharging the Warrant Agent,
then the Company agrees to perform the duties of the Warrant Agent hereunder
until a successor Warrant Agent is appointed. Any successor Warrant Agent
shall be a bank or a trust company, in good standing, organized under the laws
of any state of the United States of America, having a combined capital and
surplus of at least $4,000,000.00 at the time of its appointment as Warrant
Agent. After appointment, the successor Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed, and the former Warrant
Agent shall deliver and transfer to the successor Warrant Agent any property at
the time held by it thereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for effecting the delivery or transfer.
Failure to give any notice provided for in this Section, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
25. NOTICES. Any notice or demand authorized by this Agreement to be given
or made by the Warrant Agent or by any Warrant Holder to or on the Company
shall be sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Xxxxxxx.xxx, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx, A Professional Corporation
One Leadership Square
000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Any notice or demand authorized by this Agreement to be given or made by any
Warrant Holder or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
UMB Bank, N.A.
000 Xxxxx Xxxxxxxxx, 00/xx/ Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Warrant Agent to or on the Warrant
Holders shall be sufficiently given or made if sent by mail, first class,
certified or registered, postage prepaid, addressed to the Warrant Holders at
their last known addresses as they shall appear on the registration books for
the Warrant Certificates maintained by the Warrant Agent.
13
26. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may
from time to time supplement or amend this Agreement without the approval of any
Warrant Holders in order to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable.
27. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
28. TERMINATION. This Agreement shall terminate at the close of business
on the Expiration Date or such earlier date upon which all Warrants have been
exercised; provided, however, that if exercise of the Warrants is suspended
pursuant to Section 15 and such suspension continues past the Expiration Date,
this Agreement shall terminate at the close of business on the business day
immediately following expiration of such suspension. The provisions of Section
22 shall survive such termination.
29. GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Oklahoma and for all purposes shall be construed in accordance with the laws of
said State.
30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give any person or corporation other than the Company, the Warrant
Agent and the Warrant Holders any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and the Warrant Holders.
31. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same instrument.
32. INTEGRATION. As of the date hereof, this Agreement contains the entire
and only agreement, understanding, representation, condition, warranty or
covenant between the parties hereto with respect to the matters herein,
supersedes any and all other agreements between the parties hereto relating to
such matters, and may be modified or amended only by a written agreement signed
by both parties hereto pursuant to the authority granted by Section 26.
33. DESCRIPTIVE HEADINGS. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
14
Date: ___________, 2000
XXXXXXX.XXX, INC., an Oklahoma corporation
By: __________________________
Xxxxxx X. Xxxxx, Chief Executive Officer
SEAL
ATTEST:
___________________________
Xxxxx X. Xxxxxxx, Secretary
_____________________________, a _________corporation
By: ______________________
______________________
SEAL
ATTEST:
___________________________
Secretary:
15
XXXXXXX.XXX, INC.
an Oklahoma corporation
(the "Company")
__________, 2000
COMMON STOCK PURCHASE WARRANT
VOID AFTER 4:00 P.M., UNITED STATES CENTRAL STANDARD TIME
ON _____________, 2005
W-______ ______________ Warrants
CUSIP _________________
THIS CERTIFIES THAT _____________________________ or its registered
assigns (the "Warrant Holder"), is the registered holder of the number of
Warrants (the "Warrants") set forth above. Each Warrant entitles the holder
thereof to purchase from Xxxxxxx.xxx, Inc., a corporation incorporated under the
laws of the State of Oklahoma (the "Company"), subject to the terms and
conditions set forth hereinafter and in the Warrant Agreement hereinafter more
fully described (the "Warrant Agreement"), at any time during the period
commencing thirty (30) days after the closing of the Initial Public Offering and
ending at 4:00 p.m. Central Standard time on _____________, 2005 or, if such
Warrant is redeemed as provided in the Warrant Agreement, at any time prior to
the close of business on the business day next preceding the date of such
redemption (the "Expiration Date"), one fully paid and non-assessable shares of
Common Stock of the Company (the "Common Stock") upon presentation and surrender
of this Warrant Certificate, with the instructions for the registration and
delivery of Common Stock filled in, at the stock transfer office in
_______________, of UMB Bank, N.A., Warrant Agent of the Company (the "Warrant
Agent") or of its successor warrant agent or, if there be no successor warrant
agent, at the corporate offices of the Company, and upon payment of the Exercise
Price (as defined in the Warrant Agreement) and any applicable taxes or
government charges paid either in cash, or by certified or official bank check,
payable in lawful money of the United States of America to the order of the
Company. Each Warrant entitles the holder to purchase one share of Common Stock
for $_______, being 130% of the Initial Public Offering price of one of the
Units divided by four (4). The number and kind of securities or other property
for which the Warrants are exercisable are subject to further adjustment in
certain events, such as mergers, splits, stock dividends, recapitalizations and
the like, to prevent dilution.
Upon proper presentation and surrender of this Warrant Certificate,
together with payment of the Exercise Price for the shares of Common Stock
thereby purchased, the Warrant Holder shall be entitled to receive a certificate
or certificates for the shares of Common Stock so purchased (the "Shares"). All
Shares that may be issued upon the exercise of these Warrants will, upon
issuance, be fully paid, nonassessable and free from all taxes, liens and
charges with respect thereto.
The Warrants are subject to the following additional terms and
conditions:
1
1. EXERCISE OF WARRANTS. The purchase rights represented hereby are
exercisable solely at the Warrant Holder's option. If the Warrant Holder does
not exercise its right to purchase the number of shares of Common Stock
designated herein, these Warrants shall automatically expire on the Expiration
Date. In the event the Warrant Holder purchases less than all the shares
purchasable under these Warrants, the Company shall cancel this Warrant
Certificate upon the surrender hereof and execute and deliver a new Warrant
Certificate of like tenor for the balance of the Shares purchasable hereunder.
2. REDEMPTION OF WARRANTS. After eighteen (18) months following the
closing of the Company's Initial Public Offering, the Company may redeem any or
all outstanding and unexercised Warrants at any time if the Daily Price has
exceeded $______, which is 200% of the Initial Public Offering price of one Unit
divided by four (4), for ten (10) consecutive trading days immediately preceding
the date of notice of such redemption, upon 30 days notice, at a price equal to
$0.05 per Warrant. All Warrants not theretofore exercised or redeemed will
expire on _________, 2005.
3. SUBJECT TO WARRANT AGREEMENT. This Warrant Certificate is subject to
all of the terms, provisions and conditions of the Warrant Agreement, dated as
of November ___, 2000 (the "Warrant Agreement"), between the Company and the
Warrant Agent, to all of which terms, provisions and conditions the registered
holder of this Warrant Certificate consents by acceptance hereof. The Warrant
Agreement is incorporated herein by reference and made a part hereof and
reference is made to the Warrant Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Warrant Agent,
the Company and the holders of the Warrant Certificates. Copies of the Warrant
Agreement are available for inspection at the stock transfer office of the
Warrant Agent or may be obtained upon written request addressed to the Company
at 00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer.
4. FRACTIONAL SHARES AND WARRANTS. The Company shall not be required upon
the exercise of the Warrants evidenced by this Warrant Certificate to issue
fractions of Warrants, Common Stock or other securities, but shall make
adjustment therefor in cash on the basis of the current market value of any
fractional interest as provided in the Warrant Agreement.
5. SECURITIES LAWS. In certain cases, the sale of securities by the
Company upon exercise of Warrants would violate the securities laws of the
United States, certain states thereof or other jurisdictions. The Company has
agreed to use commercially reasonable efforts to cause a registration statement
to continue to be effective during the term of the Warrants with respect to such
sales under the Securities Act of 1933, as amended, and to take such action
under the laws of various states as may be required to cause the sale of
securities upon exercise to be lawful. However, the Company will not be required
to honor the exercise of Warrants if, in the opinion of the Board of Directors,
upon advice of counsel, the sale of securities upon such exercise would be
unlawful. In certain cases, the Company may, but is not required to, purchase
Warrants submitted for exercise for a cash price equal to the difference between
the market price of the securities obtainable upon such exercise and the
exercise price of such Warrants.
6. EXCHANGE OF CERTIFICATES. This Warrant Certificate, with or without
other Warrant Certificates, upon surrender to the Warrant Agent, any successor
warrant agent or, in the absence of any successor warrant agent, at the
corporate offices of the Company, may be exchanged for another Warrant
Certificate or Certificates evidencing in the aggregate the same number of
Warrants as
2
the Warrant Certificate or Certificates so surrendered. If the Warrants
evidenced by this Warrant Certificate shall be exercised in part, the holder
hereof shall be entitled to receive upon surrender hereof another Warrant
Certificate or Certificates evidencing the number of Warrants not so exercised.
7. STATUS OF WARRANT HOLDER. No holder of this Warrant Certificate, as
such, shall be entitled to vote, receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose whatever, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder of this Warrant Certificate, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof or give or withhold
consent to any corporate action (whether upon any matter submitted to
stockholders at any meeting thereof, or give or withhold consent to any merger,
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, conveyance or
otherwise) or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Warrant Agreement) or to receive
dividends or subscription rights or otherwise until the Warrants evidenced by
this Warrant Certificate shall have been exercised and the Common Stock
purchasable upon the exercise thereof shall have become deliverable as provided
in the Warrant Agreement.
8. CERTIFICATE DELIVERY. If this Warrant Certificate shall be surrendered
for exercise within any period during which the transfer books for the Company's
Common Stock or other class of stock purchasable upon the exercise of the
Warrants evidenced by this Warrant Certificate are closed for any purpose, the
Company shall not be required to make delivery of certificates for shares
purchasable upon such transfer until the date of the reopening of said transfer
books.
Every holder of this Warrant Certificate by accepting the same consents and
agrees with the Company, the Warrant Agent, and with every other holder of a
Warrant Certificate that:
(a) This Warrant Certificate is transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement; and
(b) The Company and the Warrant Agent may deem and treat the person in
whose name this Warrant Certificate is registered as the absolute owner hereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for all purposes whatever,
and neither the Company nor the Warrant Agent shall be affected by any notice
to the contrary.
The Company shall not be required to issue or deliver any certificate for
shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax which may be payable in
respect thereof by the holder of this Warrant Certificate pursuant to the
Warrant Agreement shall have been paid, such tax being payable by the holder of
this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
3
10. NOTICES. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed to have been given when
personally delivered, mailed first class (postage prepaid), or delivered to a
telegraph office:
(i) if to a Warrant Holder, at the address of such Warrant Holder
as shown on the books of the Company.
(ii) if to the Company, at if to the Company, at 00000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000, to the attention of the
corporate Secretary, or at such other address as may have been furnished to
the Warrant Holder in writing.
11. Headings. The headings of the Sections and subsections of this Warrant
are inserted for convenience only and shall not be deemed to constitute a part
of this Warrant.
IN WITNESS WHEREOF, this Warrant has been duly executed by its duly
authorized officer as of the date first above written.
XXXXXXX.XXX, INC.
an Oklahoma corporation
By:___________________________
Xxxxxx X. Xxxxx,
Chief Executive Officer
Countersigned
______________________
By:___________________
Authorized Officer
4
FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO EXERCISE THE
WARRANTS IN WHOLE OR IN PART)
To: XXXXXXX.XXX, INC.
The undersigned Registered Holder ( )
______________________________
(Please insert Social Security or other identification number of Registered
Holder)
hereby irrevocably elect(s) to exercise the right of purchase represented by the
within this Warrant Certificate for, and to purchase thereunder, _______________
shares of Common Stock provided for therein and tenders payment herewith to the
order of XXXXXXX.XXX, INC. in the amount of $________________.
The undersigned requests that certificates for such shares of Common Stock be
issued as follows:
Name: _________________________________
Address:_________________________________
Deliver to: _____________________________
Address:_________________________________
and if said number of Warrants being exercised shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Certificate for the balance of
such Warrants as well as the shares of Common Stock represented by this Warrant
Certificate be registered in the name of, and delivered to, the Registered
Holder at the address stated below:
Address:_________________________________
Dated: __________________________________
Signature
_________________________________________
(Signature must conform in all respects to the name
of Registered Holder as on the face of this Unit
Certificate in every particular, without
alteration or any change whatsoever, and the
signature must be guaranteed in the usual manner.)
Signature Guaranteed:
_________________________________________
The signature should be guaranteed by an eligible
institution (Banks, Stockbrokers, Savings and Loan
Association and Credit Union with membership in
an approved signature Medallion Program),
pursuant to S.E.C. Rule 17Ad-15.
5
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY UPON ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned Registered Holder ( )
______________________________
(Please insert Social Security or other identification number of Registered
Holder)
hereby sells, assigns and transfers unto
______________________________
______________________________
______________________________
(Please Print Name and Address including Zip Code)
Warrants evidenced by the within Warrant Certificate, and irrevocably
constitutes and appoints ______________________________________________ Attorney
to transfer this Warrant Certificate on the books of Xxxxxxx.xxx, Inc. with the
full power of substitution in the premises.
Dated: __________________________________
Signature: ______________________________
(Signature must conform in all respects to the name
of Registered Holder as on the face of this Unit
Certificate in every particular, without
alteration or any change whatsoever, and the
signature must be guaranteed in the usual manner.)
Signature Guaranteed:
______________________________
The signature should be guaranteed by an eligible
institution (Banks, Stockbrokers, Savings and Loan
Association and Credit Union with membership in
an approved signature Medallion Program),
pursuant to S.E.C. Rule 17Ad-15.
6
