EXHIBIT 4.2
WARRANT AGREEMENT
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED PRIOR TO
_________________, 1997. THE REGISTERED HOLDER OF THIS PURCHASE OPTION
BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER
OR ASSIGN THIS PURCHASE OPTION PRIOR TO THAT DATE OTHER THAN TO
AN OFFICER OR PARTNER OF SUCH HOLDER.
NOT EXERCISABLE PRIOR TO ________________, 1997. VOID AFTER 5:00 p.m.
EASTERN TIME, _______________, 2001.
WARRANT AGREEMENT dated as of ___________, 199___ between Advanced
Electronics Support Products, Inc., a Florida corporation (the "Company"), and
XX Xxxxxxx Securities, Inc. (the "Underwriter").
The Company proposes to issue to the Underwriter warrants as
hereinafter described (the "Underwriter's Warrants") to purchase up to an
aggregate of 75,000 shares, subject to adjustment as hereinafter provided (the
"Warrant Shares"), of the Company's common stock, par value $.001 per share (the
"Common Stock"), each Underwriter's Warrant entitling the holder thereof to
purchase one share of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue, sell
and deliver the Underwriter's Warrants to the Underwriter or its bona fide
officers and/or directors for the aggregate price of $.001 per Underwriters'
Warrant concurrently with the closing (the "Closing") under the Underwriting
Agreement, dated ___________ , 19___, between the Company and the Underwriter,
relating to the public offering (the "Offering") pursuant to a registration
statement on Form SB-2, as amended (File No. 333-________) (the "Registration
Statement"), of 750,000 Shares (excluding an option to purchase up to an
additional 112,500 Shares to cover over-allotments, if any). The text of the
Underwriter's Warrants and of the form of election to purchase shares to be
attached thereto shall be substantially as set forth in Exhibit A attached
hereto. The Underwriter's Warrants shall be executed on behalf of the Company by
the manual or facsimile signature of the present or any future Chairman of the
Board, President or Vice President of the Company, under its corporate seal,
affixed or in facsimile, attested by the manual or facsimile signature of the
present or any future Secretary or Assistant Secretary of the Company.
2. REGISTRATION. The Underwriter's Warrants shall be numbered and shall
be registered in an Underwriter's Warrant registered as they are issued. The
Company shall be entitled to treat the registered holder (the "Holder") of any
Underwriter's Warrant on the Underwriter's Warrant register as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Underwriter's Warrant on the part of any
other person, and shall not be liable for any registration of transfer of
Warrants
which are registered or are to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a fiduciary or
nominee is committing a breach of trust in requesting such registration or
transfer, or with such knowledge of such facts that its participation therein
amounts to bad faith. The Underwriter's Warrants shall be registered initially
in the name of "XX Xxxxxxx Securities, Inc." in such denominations as the
Underwriter may request in writing to the Company; PROVIDED, HOWEVER, that at
least one business day prior to the Closing, the Underwriter may designate that
the Underwriter's Warrants be issued in varying amounts directly to its bona
fide officers or to other underwriters and their designees, and not to the
Underwriter. Such designation will only be made by the Underwriter if it
determines such issuances would not violate the interpretation of the Board of
Governors of the National Association of Securities Dealers, Inc. (the "NASD")
relating to the review of corporate financing arrangements.
3. TRANSFER OF WARRANTS. For a period of one year from the effective
date of the Registration Statement, the Underwriter's Warrants may not be sold,
assigned, transferred, pledged or hypothecated, in part or in whole, except to
officers of the Underwriter or members of the selling group. Such transfer,
assignment, pledge or hypothecation will be effective only when registered on
the books of the Company upon delivery to the Company of the Warrant
certificate(s) duly endorsed by the Holder or by his duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. Upon any registration or transfer, the Company shall
deliver a new Underwriter's Warrant or Underwriter's Warrants to the persons
entitled thereto. The Underwriter's Warrants may be exchanged at the option of
the Holder thereof, for another Underwriter's Warrant, or other Underwriter's
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares upon surrender to the
Company or its duly authorized agent. Notwithstanding anything herein to the
contrary, the Underwriter's Warrants shall not be transferred to a direct
competitor of the Company without the Company's prior written approval.
4. TERM OF WARRANTS; EXERCISE OF WARRANTS. Each Underwriter's Warrant
entitles the registered owner thereof to purchase one Share of Common Stock at a
purchase price of $6.00 per Share (the "Exercise Price"). The total number of
Underwriter's Warrants which may be purchased is equal to ten percent (10%) of
the number of Shares sold in the Offering, excluding Shares sold as part of the
over-allotment option. The Underwriter's Warrants are non-exercisable and
non-transferable for a period of twelve (12) months following the effective date
of the Registration Statement and will thereafter be exercisable until the date
which is four years from the effective date of the Registration Statement (the
"Expiration Date"). The Exercise Price and the amount of Shares of Common Stock
issuable upon exercise of the Underwriter's Warrants are subject to adjustment
upon the occurrence of certain events, pursuant to the provisions of Section 8
of this Agreement. Subject to the provisions of this Agreement, each Holder
shall have the right, which may be exercised as set forth in such Underwriter's
Warrants, to purchase from the Company (and the Company shall issue and sell to
such Holder) the number of fully paid and nonassessable Shares of Common Stock
specified in such Underwriter's Warrants, upon surrender to the Company, or its
duly authorized agent, of such Underwriter's
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Warrants, with the form of election to purchase attached thereto duly completed
and signed, and upon payment to the Company of the Exercise Price, as adjusted
in accordance with the provisions of Section 8 of this Agreement, for the number
of Warrant Shares in respect of which such Underwriter's Warrants are then
exercised. Payment of the Exercise Price may be made in cash or by check payable
to the order of the Company. No adjustment shall be made for any dividends on
any shares of Common Stock issuable upon exercise of an Underwriter's Warrants.
Upon each surrender of Underwriter's Warrants and payment of the Exercise Price
as aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Holder of such
Underwriter's Warrants and (subject to receipt of evidence of compliance with
the Act in accordance with the provisions of Section 10 of this Agreement) in
such name or names as such Holder may designate, a certificate or certificates
for the number of full Warrant Shares so purchased upon the exercise of such
Underwriter's Warrants, together with cash, as provided in Section 9 of this
Agreement, in respect of any fractional Warrant Shares otherwise issuable upon
such surrender. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such Warrant Shares as of the date of the surrender
of such Underwriter's Warrants and payment of the Exercise Price as aforesaid;
PROVIDED, HOWEVER, that if, at the date of surrender of such Underwriter's
Warrants and payment of such Exercise Price, the transfer books for the Common
Stock or other class of stock purchasable upon the exercise of such
Underwriter's Warrants shall be closed, the certificates for the Warrant Shares
shall be issuable as of the date on which such books shall next be opened
(whether before, on or after the Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such shares;
PROVIDED, FURTHER, HOWEVER, that such transfer books, unless otherwise required
by law, shall not be closed at any one time for a period longer than 20 days.
The rights of purchase represented by the Underwriter's Warrants shall be
exercisable, at the election of the Holders thereof, either in full or from time
to time in part and, if any Underwriter's Warrant is exercised in respect of
less than all of the Warrant Shares purchasable on such exercise, a new
Underwriter's Warrant or Underwriter's Warrants will be issued for the remaining
number of Warrant Shares specified in the Underwriter's Warrant so surrendered.
5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes,
if any, attributable to the issuance of Warrant Shares upon the exercise of the
Underwriter's Warrants. The Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for Warrant Shares in a name other than that of the
Holder of Underwriter's Warrants in respect of which such Warrant Shares are
issued.
6. MUTILATED OR MISSING WARRANTS. In case any of the Underwriter's
Warrants shall be mutilated, lost, stolen or destroyed, the Company may, in its
discretion, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Underwriter's Warrant, or in lieu of and
substitution for the Underwriter's Warrant lost, stolen or destroyed, a new
Underwriter's Warrant of like tenor and representing an equivalent right or
interest, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Underwriter's Warrant and
indemnity, if requested, also reasonably
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satisfactory to the Company. An applicant for such substitute Underwriter's
Warrants shall also comply with such other reasonable regulations and pay such
other reasonable charges as the Company may prescribe.
7. RESERVATION OF SHARES, ETC. There have been reserved, and the
Company shall at all times keep reserved, out of the authorized and unissued
Common Stock, a number of shares of Common Stock sufficient to provide for the
exercise of the rights of purchase represented by the outstanding Underwriter's
Warrants. ________________, transfer agent for the Common Stock (the "Transfer
Agent"), and every subsequent Transfer Agent, if any, for shares of the Company
issuable upon the exercise of any of such rights of purchase will be irrevocably
authorized and directed at all times until the Expiration Date to reserve such
number of authorized and unissued shares of Common Stock as shall be required
for such purpose. The Company will keep a copy of this Agreement on file with
the Transfer Agent and with every subsequent Transfer Agent for any shares of
the Company's Common Stock issuable upon the exercise of such rights of
purchase. The Company will supply any such Transfer Agent with duly executed
stock and warrant certificates for such purpose and will itself provide or
otherwise make available any cash which may be distributable as provided in
Section 9 of this Agreement. All Underwriter's Warrants surrendered in the
exercise of the rights thereby evidenced shall be cancelled, and such cancelled
Underwriter's Warrants shall constitute sufficient evidence of the number of
shares of Common Stock that have been issued upon the exercise of such
Underwriter's Warrants. No shares of Common Stock shall be subject to
reservation in respect of unexercised Underwriter's Warrants subsequent to the
Expiration Date.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise
Price and the number and kind of securities purchasable upon exercise of each
Underwriter's Warrant shall be subject to adjustment from time to time upon the
happening of certain events that may occur after the date hereof and prior to
the Expiration Date, as follows:
A. If the Company shall (i) declare a dividend on its Common
Stock in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (iv)
issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation), the number of Warrant Shares purchasable upon
exercise of each Underwriter's Warrant immediately prior thereto shall
be adjusted so that the Holder of each Underwriter Warrant shall be
entitled to receive the number of Warrant Shares of the Company which
he would have owned or have been entitled to receive after the
happening of any of the events described above, had such Underwriter's
Warrants been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made
pursuant to this Paragraph A shall become effective immediately after
the effective date of such event retroactive to immediately after any
record date for such event.
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B. Anything in this Section 8 to the contrary notwithstanding,
the Company shall be entitled, but shall not be required, to make such
changes in the number of Warrant Shares purchasable upon the exercise
of each Underwriter's Warrant, in addition to those required by this
Section 8, as it in its discretion shall determine to be advisable in
order that any dividend or distribution in shares of Common Stock,
subdivision, combination or reclassification of shares of Common Stock,
issuance of rights, options or warrants to purchase Common Stock, or
distribution of shares of stock other than Common Stock, evidences of
indebtedness or assets (other than distributions of cash out of
consolidated earnings or retained earnings) or convertible or
exchangeable securities hereafter made by the Company to the holders of
its Common Stock shall not result in any tax to the holders of its
Common Stock or securities convertible into Common Stock.
C. Whenever the number of Warrant Shares purchasable upon the
exercise of each Underwriter's Warrant is adjusted, as herein provided,
the Exercise Price thereof shall be adjusted by multiplying each such
Exercise Price immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of Warrant Shares purchasable
upon the exercise of each Underwriter's Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of
Warrant Shares so purchasable immediately thereafter.
D. For the purpose of this Section 8, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement or (ii) any
other class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes in par
value, or from no par value to par value, or from par value to no par
value. If at any time, as a result of an adjustment made pursuant to
Paragraph A above, the Holders shall become entitled to purchase any
shares of capital stock of the Company other than shares of Common
Stock, the number of such other shares so purchasable upon exercise of
each Underwriter's Warrant and the Exercise Price of such shares shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions contained in
Paragraphs A through C, inclusive, above, and Paragraphs E through G,
inclusive, of this Section 8.
E. Whenever the number of Warrant Shares purchasable upon the
exercise of each Underwriter's Warrant or the Exercise Price of Warrant
Shares is adjusted, as herein provided, the Company shall promptly mail
by first class mail, postage prepaid, to each Holder notice of such
adjustment or adjustments. The Company may retain a firm of independent
public accountants (who may be the regular accountants employed by the
Company) to make any computation required by this Section 8 and shall
cause such accountants to prepare a certificate setting forth the
amount of the adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which
such adjustment was made. Such certificate shall be conclusive of the
correctness of such adjustment and each Holder shall have the right to
inspect such certificate during reasonable business hours.
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F. In case of any consolidation of the Company with or merger
of the Company with or into another corporation or in case of any sale
or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, the Company or such
successor or purchasing corporation (or an affiliate of such successor
or purchasing corporation), as the case may be, agrees that each Holder
shall have the right to purchase upon exercise of each Underwriter's
Warrant the kind and amount of shares and other securities and property
(including cash) which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or
conveyance had such Underwriter's Warrant been exercised immediately
prior to such action. The provisions of this Paragraph F shall
similarly apply to successive consolidations, mergers, sales or
conveyances.
G. Notwithstanding any adjustment in the Exercise Price or the
number or kind of Shares purchasable upon the exercise of the
Underwriter's Warrant pursuant to this Agreement, certificates for
Underwriter's Warrants issued prior or subsequent to such adjustment
may continue to express the same price and number and kind of shares as
are initially issuable pursuant to this Agreement.
9. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractions of shares of Common Stock on the exercise of Underwriter's Warrants.
If more than one Underwriter's Warrant shall be presented for exercise in full
at the same time by the same Holder, the number of Warrant Shares which shall be
issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Underwriter's
Warrants so presented. If any fraction of a share of Common Stock would, except
for the provisions of this Section 9, be issuable on the exercise of any
Underwriter's Warrants (or specified portions thereof), the Company shall
purchase such fraction for an amount in cash equal to the same fraction of the
current market price per share of Common Stock on the date of exercise.
10. RESTRICTIONS ON DISPOSITIONS. The Underwriter's Warrants and the
Warrant Shares have been registered under the Act pursuant to the Registration
Statement filed by the Company with the Securities and Exchange Commission. The
Underwriter represents and warrants to the Company that it understands that
neither the Underwriter's Warrants nor the Warrant Shares may be transferred
except pursuant to (i) a post-effective amendment to the effective Registration
Statement, (ii) another effective registration statement under the Act, or (iii)
any available rule or exemption from registration under the Act permitting such
transfer and an opinion of counsel, reasonably satisfactory to counsel for the
Company, that an exemption from such registration is available.
11. CERTIFICATES TO BEAR LEGENDS. The Warrant Shares issued upon
exercise of the Underwriter's Warrants shall be subject to a stop-transfer
order and the certificate or certificates evidencing any such Warrant Shares
shall bear a legend in substantially the following form:
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"The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act,
or pursuant to an exemption from registration under the Act."
12. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION RIGHTS. The Company covenants and
agrees with the Underwriter and each other Holder of the Underwriter's Warrants
and/or the Warrant Shares (collectively, the "Registrable Securities") that,
subject to the availability of audited financial statements which comply with
Regulation S-X under the Securities Act of 1933 (the "Act") and upon written
request (the "Notice") of the then Holder(s) of at least fifty percent (50%) of
the Registrable Securities, made at any time within the period commencing one
year and ending four years after the effective date of the Registration
Statement, the Company will, up to two (2) times, cause the Registrable
Securities to be the subject of a post-effective amendment to the present
Registration Statement or a new registration statement (collectively, a
"Filing") under the Act, so as to enable the Underwriter and its assigns to
offer publicly the Registrable Securities. The Company shall maintain the
effectiveness of such Filing for at least 120 days and shall qualify or register
the Registrable Securities included therein for sale in up to ten states. All
costs incurred in connection with the preparation of any Filings hereunder shall
be paid by the Company; PROVIDED that fees of counsel for the Underwriter shall
be paid by the Underwriter; PROVIDED FURTHER, that the expenses of any second
such registration statement or post-effective amendment (and matters attended
thereto), shall be borne by the Underwriter or the holders requiring the same.
Within thirty days after receiving a Notice, the Company shall give notice to
the other Holders of the Registrable Securities advising that the Company is
proceeding with such Filing, and offering to include therein the Registrable
Securities of such Holders. The Company shall not be obligated to any such other
Holder unless such other Holder shall accept such offer by notice in writing to
the Company within twenty (20) days thereafter. The Holders of the Registrable
Securities whose Warrants or Shares are included in such offering shall
cooperate with the Company in preparing such Filing. No other securities of the
Company shall be entitled to participate in such Filing. The Company will use
its best efforts, through its officers, directors, auditors and counsel in all
matters necessary or advisable, to file and cause to become effective such
Filing as promptly as practicable and for a period of nine months thereafter to
reflect in such Filing financial statements which are prepared in accordance
with Section 10(a)(3) of the Act and any facts or events arising that,
individually, or in the aggregate, represent a fundamental and/or material
change in the information set forth in such Filing to enable any Holders to sell
the Registrable Securities during said nine month period. The Holder(s) may sell
the Underwriter's Warrants pursuant to such Filing without exercising the
Underwriter's Warrants. If any Filing pursuant to this paragraph (a) is an
underwritten offering, the Holders of a majority of the Registrable Securities
to be included in such Filing will select an underwriter (or managing
underwriter if such offering should be syndicated).
7
(b) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and
agrees with the Underwriter and each other Holder of the Registrable Securities
that if, at any time within the period commencing one year and ending four years
after the effective date of the Registration Statement, it proposes to file a
Regulation A Offering Statement or register any class of security under the Act
in a primary registration on behalf of the Company and/or in a secondary
registration on behalf of holders of such securities and the registration form
or offering statement to be used may be used for registration of the Registrable
Securities, the Company will give prompt written notice (which, in the case of a
registration pursuant to the exercise of demand registration rights other than
those provided in Section 12(a) of this Agreement, shall be within 15 business
days after the Company's receipt of notice of such exercise and, in any event,
shall be at least 30 days prior to such filing) to the Holders of the
Registrable Securities (regardless of whether some of the Holders shall have
theretofore availed themselves of the right provided in Section 12(a)) at the
address(es) appearing on the records of the Company of its intention to effect a
registration and the Holders of the Registrable Securities shall have the right,
subject to Sections (b)(i) and (ii) below, to register all or part of the
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days of receipt/of notice by the
Company, setting forth the intended method of distribution and such other date
or information as the Company or its counsel shall reasonably require. In the
event that such offering is underwritten by a broker/dealer other than the
Underwriter, the Holders' right to register the Registrable Securities shall be
subject to the approval of such underwriter. The Company agrees to use its best
efforts to obtain such approval. This paragraph is not applicable to a
registration filed with the Commission on Form X-0, X-0 on any other
inappropriate forms. The Holders of the Registrable Securities whose securities
are included in such offering shall cooperate with the Company in preparing the
registration statement. All registrations requested pursuant to this Section (b)
are referred to herein as "Piggyback Registrations."
(i) PRIORITY ON PRIMARY REGISTRATIONS. If a
Piggyback Registration includes an underwritten primary registration on
behalf of the Company and the underwriter(s) for the offering being registered
by the Company shall determine in good faith and advise the Company in writing
that in its/their opinion that marketing factors require a limitation on the
number of Registrable Securities that can be sold in such offering without
materially adversely affecting the distribution of such securities by the
Company, the Company will include in such registration (i) first, the securities
that the Company proposes to sell and (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the Holders of
Registrable Securities and (iii) third, securities of the holders of other
securities requesting registration. If any party disapproves of the terms of any
such underwriting, it may withdraw therefrom by written notice to the Company
and the Underwriter.
(ii) PRIORITY ON SECONDARY REGISTRATIONS. If a
Piggyback Registration consists only of an underwritten secondary
registration on behalf of holders of securities of the Company (other than
pursuant to Section 12(a)), and the underwriter(s) for the offering being
registered by the Company shall determine in good faith and advise the Company
in writing that in its/their opinion the number of Registrable Securities
requested to be included in such
8
registration exceeds the number which can be sold in such offering without
materially adversely affecting the distribution of such securities, the Company
will include in such registration the securities requested to be included
therein by the holders requesting such registration and the Registrable
Securities requested to be included in such registration above, pro rata among
such holders on the basis of the number of shares requested to be included by
each such holder.
(c) OTHER REGISTRATION RIGHTS. In addition to the rights above
provided, the Company will cooperate with the then Holders of the Registrable
Securities in preparing and signing any registration statement, in addition to
the registration statements discussed above, required in order to sell or
transfer the aforesaid Registrable Securities and will supply all information
required therefor, but such additional registration statement and any expenses
related to such offering shall be at the then Holders' cost and expense unless
the Company elects to register additional shares of the Common Stock in which
case the cost and expense of such registration statement will be prorated
between the Company and the Holders according to the aggregate sales price of
the securities being offered.
(d) ACTION TO BE TAKEN BY THE COMPANY. In connection
with the registration of the Registrable Securities pursuant hereto, the
Company agrees to:
(i) bear the expenses of any registration or
qualification under (a) or (b) of this section, including but not limited
to accounting and printing fees; PROVIDED, HOWEVER, that in no event shall the
Company be obligated to pay (A) any legal fees for Holders of Registrable
Securities, or (B) any underwriters' discount or commission in respect of such
Registrable Securities;
(ii) use its best efforts to register or qualify
the Registrable Securities for offer or sale under state securities or blue
sky laws in such jurisdictions in which the Underwriter shall reasonably request
and to do any and all other acts and things which may be necessary or advisable
to enable the Holders to consummate the proposed sale, transfer or other
disposition of such securities in such jurisdictions; and
(iii) enter into a cross-indemnity agreement,
in customary form, with each underwriter, if any, and each Holder of
securities included in such Registration Statement.
13. NOTICES TO HOLDERS.
(a) Nothing contained in this Agreement or in any of the
Underwriter's Warrants shall be construed as conferring upon the Holders thereof
the right to vote or to receive dividends or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company; PROVIDED, HOWEVER, that if a meeting of
shareholders shall be called to consider and take action on a proposal for the
voluntary dissolution of the Company, other than in connection with a
consolidation, merger or sale of all, or substantially all, of its property,
assets, business and goodwill as an entirety, then and in that
9
event the Company shall cause a notice thereof to be sent by first-class mail,
postage prepaid, at least 15 days prior to the date fixed as a record date or
the date of closing the transfer books in relation to such meeting, to each
registered Holder of Underwriter's Warrants at such Holder's address appearing
on the Underwriter's Warrant register; but failure to mail or to receive such
notice or any defect therein or in the mailing thereof shall not affect the
validity of any action taken in connection with such voluntary dissolution. If
such notice shall have been so given and if such a voluntary dissolution shall
be authorized at such meeting or any adjournment thereof, then from and after
the date on which such voluntary dissolution shall have been duly authorized by
the shareholders, the purchase rights represented by the Underwriter's Warrants
and all other rights with respect thereto shall cease and terminate.
(b) If the Company intends to make any distribution on its
Common Stock (or other securities which may be purchasable in lieu thereof upon
the exercise of Underwriter's Warrants), including, without limitation, any such
distribution to be made in connection with a consolidation or merger in which
the Company is the continuing corporation, or to issue subscription rights or
warrants to holders of its Common Stock, the Company shall cause a notice of its
intention to make such distribution to be sent by first-class mail, postage
prepaid, at least 15 days prior to the date fixed as a record date or the date
of closing the transfer books in relation to such distribution, to each
registered Holder of Underwriter's Warrants at such Holder's address appearing
on the Underwriter's Warrant register, but failure to mail or to receive such
notice or any defect therein or in the mailing thereof shall not affect the
validity of any action taken in connection with such distribution.
14. NOTICES. All notices and other communications hereunder (unless
otherwise expressly provided for herein) shall be in writing and shall be deemed
given when delivered in person on the business (before 5:00 P.M.) sent by
facsimile transmission, or on the date indicated on the return receipt if sent
registered or certified mail return receipt requested) to the party to receive
the same at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to the Company: Advanced Electronic Support Products, Inc.
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Messrs. Xxxx Xxxxx and Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a Copy to: Akerman, Senterfit & Xxxxxx, P.A.
SunTrust International Center, 00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to the Holder: At the address shown on the Underwriter's
Warrant register or the Company's Common
Stock register, as the case may be.
with a copy to: XX Xxxxxxx Securities, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000-X
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx, Vice President
Facsimile: (000) 000-0000
Xxxxx, Mandler, Croland, Xxxxxxxxx & Xxxxxxx, P.A.
Xxxxxxx Bank Tower
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
15. OPINION OF COUNSEL. Counsel to the Company shall deliver to the
Underwriter an opinion, dated the date hereof, satisfactory to counsel for the
Underwriter, to the effect that (i) the Underwriter's Warrants and this
Agreement have been authorized by all necessary corporate action, (ii) the
Underwriter's Warrants and this Agreement have been duly authorized, executed
and delivered and each constitutes a legal, valid and binding obligation of the
Company enforceable in accordance with its terms, (iii) the Company has reserved
out of its authorized and unissued shares of Common Stock, a number of shares
sufficient to provide for the exercise of the rights of purchase represented by
the Underwriter's Warrants and (iv) the Warrant Shares, when issued upon
exercise of Underwriter's Warrants in accordance with the terms of the
Underwriter's Warrants and this Agreement, will be validly issued, fully paid
and non-assessable.
16. GOVERNING LAW. This Agreement and each Underwriter's Warrant
issued hereunder shall be governed by and construed in accordance with the
substantive laws of the State of Florida. The Company hereby agrees to accept
service of process by notice given to it pursuant to the provisions of Section
14.
17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
ADVANCED ELECTRONICS SUPPORT PRODUCTS, INC.
By: _________________________
Authorized Representative
XX XXXXXXX SECURITIES, INC.
By: _________________________
Authorized Representative
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EXHIBIT A
(Form of Warrant Certificate)
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT."
No. ____________ ___________ Warrants
VOID AFTER 5:00 P.M. _________ CITY TIME
ON ________________, 19___
__________________________
Warrant Certificate
THIS CERTIFIES THAT for value received XX Xxxxxxx Securities, Inc., or
registered assigns, is the owner of the number of Warrants set forth above, each
of which entitles the owner thereof to purchase at any time from _____________,
19___, until 5:00 p.m., ____________ time on _____________, 20___ (the
"Expiration Date"), one share of common stock, par value $.001 (the "Common
Stock"), of Advanced Electronics Support Products, Inc., a Florida corporation
(the "Company"), at a purchase price of $____ per share (the "Exercise Price")
upon presentation and surrender of this Warrant Certificate with the Form of
Election to Purchase duly executed. The number of Warrants evidenced by this
Warrant Certificate (and the number of Shares which may be purchased upon
exercise thereof) set forth above, and the Exercise Price per share set forth
above, are the number and Exercise Price as of the date of original issuance of
the Warrants, based on the shares of Common Stock of the Company as constituted
at such date. As provided in the Warrant Agreement referred to below, the
Exercise Price and the number of shares which may be purchased upon the exercise
of the Warrants evidenced by this Warrant Certificate are, upon the happening of
certain events, subject to modification and adjustment.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement dated as of
___________, 19___ (the "Warrant Agreement") between the Company and XX Xxxxxxx
Securities, Inc., which Warrant Agreement is hereby incorporated herein by
reference and made a part hereof and to which Warrant
Agreement reference is hereby made for a full description of the rights,
limitations of rights, duties and immunities hereunder of the Company and the
holders of the Warrant Certificates. Copies of the Warrant Agreement are on file
at the principal office of the Company.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number of
shares of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled such holder to purchase. If this
Warrant Certificate shall be exercised in part, the holder hereof shall be
entitled to receive upon surrender hereof another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed the holder of Warrant Shares or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained in the Warrant Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue of stock, reclassification of stock, change of par value
or change of stock to no par value, consolidation, merger, conveyance, or
otherwise) or except as provided in the Warrant Agreement, to receive notice of
meetings, or to receive dividends or subscription rights or otherwise, until the
Warrant or Warrants evidenced by this Warrant Certificate shall have been
exercised and payment for the Warrant Shares shall have been made, and become
deliverable as provided in the Warrant Agreement.
If this Warrant 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 this Warrant are closed for any purpose,
the Company shall not be required to make delivery of certificates for shares
purchasable upon such exercise until the date of the reopening of said transfer
books.
2
IN WITNESS WHEREOF, Advanced Electronics Support Products, Inc. has
caused the signature (or facsimile signature) of its President and Secretary to
be printed hereon and its corporate seal (or facsimile) to be printed hereon.
Dated: ______________, 19___
ADVANCED ELECTRONICS SUPPORT
PRODUCTS, INC.
By: ___________________
President
[Corporate Seal]
Attest:
------------------------------
Secretary
3
FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificates.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
this Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint , to transfer the
within Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ___________________, 19___
Signature _________________________
Signature Guaranteed:
NOTICE
The signature on the foregoing Assignment must correspond to the name
as written upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatsoever.
4
FORM OF
ELECTION TO PURCHASE
(To be executed if holder desires to exercise
the Warrant Certificate)
TO __________________________:
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that certificates for
such shares be issued in the name of:
Please insert social security
or other identifying number
-----------------------------
-----------------------------------------------------------------
(Please print name and address)
If such number of Warrants shall not be all the Warrants evidenced by
this Warrant Certificate, a new Warrant Certificate for the balance remaining of
such Warrants shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
------------------------------
-----------------------------------------------------------------
(Please print name and address)
Dated:_________________, 19___
---------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of this Warrant
Certificate)
5
PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, ____ Shares of the common stock of
__________________, and herewith makes payment of $__________________ therefore,
and requests that the share certificates be issued in the name(s) whose
address(es) is (are) __________________________________________________________
_______________________________________________________________________________
___________________.
Dated:_______________________________
_____________________________________ (Signature)
_____________________________________ Name (Print or Type)
_____________________________________ Address
_____________________________________ City, State, Zip
6
