Exhibit 4.7
UNIT, COMMON STOCK AND WARRANT AGREEMENT
Nations Express, Inc., a North Carolina corporation (the "Company"), and
First Union National Bank, a North Carolina corporation (the "Agent"), agree as
follows:
1. Purpose. The Company proposes to publicly offer and issue up to
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1,150,000 units ("Units"), each Unit consisting of (i) one share (a "Share") of
the Company's common stock, no par value per share ("Common Stock"), and (ii)
one Redeemable Common Stock Purchase Warrant (a "Warrant") permitting the
purchase of one share of Common Stock. The Agent wish to provide for the Agent
to serve as Transfer Agent for the Units, the Common Stock and the Warrants of
the Company.
Subject to the terms and conditions of this Agreement and the Transfer
Agent Agreement, the Company hereby authorizes the Agent to originally issue,
register and countersign certificates representing the Units, the Common Stock
and the Warrants covered by this Agreement upon being furnished with an
appropriate written request signed by an officer of the Company, a certified
copy of the resolutions of the Board of Directors or a copy of the minutes of a
meeting of the Board of Directors authorizing such issuance and, if specifically
requested by the Agent, an opinion of counsel regarding the status of such
securities under the Securities Act of 1933, as amended (the "Securities Act"),
and any other applicable Federal or state statutes. The Agent hereby agrees to
serve as Transfer Agent for the Units, the Common Stock and the Warrants and to
establish and maintain such books and records as may be required for the
performance of its agency duties and responsibilities, and to establish and
maintain ledgers for the Company and to make entries therein of all Unit
Certificates, Common Stock Certificates and Warrant Certificates issued,
canceled and transferred.
2. Units. The Common Stock and the Warrants which comprise the Units
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will trade only as Units until (a) at least 30 days from the date of the
Prospectus for the initial public offering of the Units (the "Prospectus Date")
or (b) such later time as may be determined by Xxxxxxxxx Securities, Inc. (the
"Representative"). Such time being hereinafter referred to as the "Separation
Date." In the vent that the Separation Date shall occur as a result of the
decision of the Representative, the Company shall promptly so notify the Agent
in writing. After occurrence of the Separation Date, Units shall be treated as
separate shares of Common Stock (a "Share") and Warrants on the books and
records maintained by the Agent. After the Separation Date, the Agent shall
cease to issue certificates representing Units and shall issue certificates
representing Shares and Warrants and/or make other appropriate book entries upon
the exchange, split up or transfer of a Unit.
3. Warrants. Subject to this Agreement including, without limitation,
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Sections 4, 8, 12 and 13, each Warrant will entitle the registered holder of a
Warrant ("Warrant Holder") to purchase from the Company one Share at $________
(the "Exercise Price"). A Warrant Holder may exercise all or any number of
Warrants resulting in the purchase of a whole number of Shares.
4. Exercise Period. Subject to this Agreement including, without
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limitation, Section 8, the Warrants may be exercised at any time during the 60
month period commencing 13 months from completion of the offering. After such
time, any unexercised Warrants will be void and all rights of Warrant Holders
shall cease.
5. Certificates. The Unit Certificates shall be registered form only and
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shall be substantially in the form set forth in Exhibit A attached hereto. The
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common Stock Certificates shall be in registered form only and shall be
substantially in the form set forth in Exhibit B hereto. The Warrant
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Certificates shall be in registered form only and shall be substantially in the
form set forth in Exhibit C attached to this Agreement. Certificates shall be
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signed by, or shall bear the facsimile signature of, the President or a Vice
President of the Company and the Chief Financial Officer 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 Certificate as the signature of an
officer of the Company, shall have ceased to be such officer before such
Certificate is countersigned, issued and delivered, such Certificate shall be
countersigned, issued and delivered with the same effect as if such person had
not ceased to be such officer. Any 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 Certificate shall be a proper officer of the Company to sign such
Certificate even though such person was not such an officer upon the date of
this Agreement.
The Company shall furnish the Agent with a sufficient quantity of blank
Certificates and from time to time will renew such supply upon the reasonable
request of the Agent. Such blank Certificates shall be properly signed by
officers of the Company authorized by law and in accordance with the Company's
by-laws to sign such Certificates and, if requested by the Agent, shall bear the
corporate seal or a facsimile thereof.
6. Countersigning. Certificates shall be manually countersigned by the
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Agent and shall not be valid for any purpose unless so countersigned. The Agent
hereby is authorized to countersign and deliver to, or in accordance with the
proper instructions of, any Holder any Certificate which is properly issued.
7. Registration of Transfer and Exchanges. Subject to this Agreement, the
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Agent shall from time to time register the transfer of any outstanding
Certificate upon records maintained by the Agent for such purpose upon surrender
of such Certificate to the Agent for transfer, accompanied by appropriate
instruments of transfer in form satisfactory to the Company and the Agent and
duly executed by the Holder or a duly authorized attorney. Upon any such
registration of transfer, a new Certificate or Certificates shall be issued in
the name of and to the transferee and the surrendered Certificate shall be
canceled.
8. Exercise and Redemption of Warrants.
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(a) Subject to this Agreement, any one Warrant or any multiple of one
Warrant evidenced by any Warrant Certificate may be exercised upon any
single occasion during the Exercise Period. A Warrant shall be exercised by
the Warrant
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Holder by surrendering to the 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 Agent, by good check or
bank draft payable 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
for the Shares for which Warrants are then being exercised, the 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 deemed to be
issued, and the person to 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, whichever shall last occur; provided that if the books of the
Company with respect to the Shares shall be deemed to be closed, 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 Exercise Period), whichever shall
have last occurred.
(c) 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 end of the Exercise Period.
(d) All Warrant Certificates surrendered upon exercise of the Warrants
shall be canceled and shall not be reissued.
(e) Upon the exercise of any Warrant, the Agent shall promptly deposit
the payment into an escrow account established by mutual agreement of the
Company and the Agent at a federally insured commercial bank. All funds
deposited in the escrow account will be disbursed on a weekly basis to the
Company once they have been determined by the Agent to be collected funds.
Once the funds are determined to be collected, the Agent shall cause the
Share certificate(s) representing the exercised Warrants to be issued.
(f) Usual and customary out-of-pocket expenses incurred by First Union
National Bank while acting in the capacity as Agent will be paid by the
Company. These expenses, including costs of delivery of Common Stock
Certificates to the Warrant Holder upon exercise of Warrants, will be
deducted from the exercise fee submitted prior to distribution of funds to
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.
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(g) Except as otherwise provided in Section 9 of this Agreement, at
the time of exercise of the Warrant(s), the transfer fee is to be paid by
the Company. In the event the shareholder must pay the fee and fails to
remit same, the fee will be deducted from the proceeds prior to
distribution to the Company.
(h) The Company may redeem the Warrants after the Warrants become
exercisable, by giving notice to the Agent, if the Common Stock of the
Company shall have had a Closing Price (hereinafter defined) of not less
than $_______ for a period of 20 consecutive trading days after the
Warrants became exercisable. The Company shall pay Warrant Holders $.20 per
Warrant for each Warrant not exercised prior to the close of business on
the date specified in the notice ("Redemption Call Date"). Whenever the
Exercise Price is adjusted pursuant to Section 13, a similar and
proportionate adjustment will be made in the redemption price. Such notice
shall contain a certification by the Company that the above condition to
redemption of the Warrants has been satisfied. Notice of redemption shall
be mailed by the Agent to all registered holders of Warrants in accordance
with the provisions of Section 19, at least 30 days, but no more than 60
days, prior to the Redemption Call Date. The Agent shall mail such notice
to all registered holders of Warrants on a date designated by the Company,
but in no event shall such designated date be earlier than the fifth
business day after the date on which the Agent received notice of the
redemption from the Company. The right to exercise the Warrants shall
expire at the close of business on the Redemption Call Date. At the time of
any such notice or any time after such notice or prior to the Redemption
Call Date, the Company may deposit, or cause its nominee to deposit, the
aggregate redemption price (the calculation of which shall be certified by
the Company or its agents) for disbursal of the monies so deposited upon
proper surrender of the Warrants. In the event the Warrant Holder shall
not, within three years after the Redemption Call Date, claim the amount
deposited for the redemption of the Warrants, the depositary shall upon
demand pay over to the Company such unclaimed amounts and shall thereafter
be relieved from all responsibility.
(i) As used in this Agreement, the term "Closing Price" of the shares
of Common Stock for a day or days shall mean (i) if the shares of Common
Stock are not listed or admitted for trading on a national securities
exchange, the closing bid price of the shares of Common Stock in the Nasdaq
Small Cap Market (or on the Nasdaq Stock Market, if so quoted), or (ii) if
the shares of Common Stock are listed or admitted for trading on a national
securities exchange, the last reported sales price on a given day, or, in
case no such reported sale takes place on such given day, the last reported
sales price prior to such day, in either case on the principal national
securities exchange on which the Shares are listed or admitted for trading.
9. Transfer Taxes and Fees. The Company will pay all transfer taxes and
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fees attributable to the initial issuance of Shares upon exercise of Warrants.
The Company shall not, however, be required to pay any transfer taxes and fees
which may be payable in respect to any transfer involved in any issue of
Certificates or in the issue of
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any Common Stock Certificates in the name other than that of the Warrant Holder
upon the exercise of any Warrant.
10. Mutilated or Missing Certificates. On receipt by the Company and the
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Agent of evidence satisfactory as to the ownership of and the loss, theft,
destruction or mutilation of any Certificate, the Company shall execute and the
Agent shall countersign and deliver in lieu thereof, a new Certificate
representing an equal aggregate number of Units, Shares or Warrants. In the case
of loss, theft or destruction of any Certificate, the Holder requesting issuance
of a new Certificate shall be required to secure an indemnity bond from an
approved surety bonding company. In the event a Certificate is mutilated, such
Certificate shall be surrendered and canceled by the Agent prior to delivery of
a new Certificate. Applicants for a substitute Certificate shall also comply
with such other regulations and pay such other reasonable charges as the Agent
may prescribe.
11. Reservation of Shares. For the purpose of enabling the Company to
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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 and such Shares 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.
12. Governmental Restrictions. If any Shares issuable upon the exercise of
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Warrants require registration or approval of any governmental authority, the
Company will endeavor to secure such registration or approval; 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. If any such period of suspension continues past the
Exercise Period, all Warrants, the exercise of which have been requested during
the Exercise Period, 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.
Notwithstanding any other provision of this Agreement or of the Warrants to
the contrary, the Warrants shall not be exercisable by the Holder of any Warrant
Certificate (a) if a registration statement covering the issuance of the Shares
subject to such Warrant is not effective at the time of exercise or an exception
from registration not available or (b) if such holder is resident in a
jurisdiction under the securities or blue sky laws of which the Shares issuable
upon exercise of such Warrant are not registered or qualified or exempt from
registration or qualification or in which a current prospectus meeting the
requirements of the laws of such jurisdiction cannot be lawfully delivered by or
on behalf of the Company. The Company covenants and agrees that it will file a
registration statement under the Securities Act, (which registration statement
may be the registration statement for the Company's initial public offering),
use its best efforts to cause such registration statement to become effective,
use its best efforts to keep such registration statement current, if required
under the Securities Act, while any of the Warrants are outstanding, and deliver
a prospectus which complies with the Securities Act to any Holder exercising a
Warrant (if so required by the Securities Act).
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13. Adjustment of Exercise Price, Number of Shares, or Number of Warrants.
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The Exercise Price, the number and kind of securities purchasable upon the
exercise of each Warrant, and the number of Warrants outstanding shall be
subject to adjustment from time to time upon the happening of the events
enumerated in this Section 12.
(a) In case the Company shall at any time after the date of this
Warrant Agreement (i) pay a dividend in Shares or other stock of the
Company or make a distribution in Shares or such other stock to holders of
all its outstanding Shares, (ii) subdivide the outstanding Shares, (iii)
combine the outstanding Shares into a smaller number of Shares, or (iv)
issue by reclassification of its Shares or 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 and
kind of shares purchasable upon exercise of each Warrant outstanding
immediately prior thereto shall be adjusted so that the holder of each
Warrant shall be entitled to receive at the same aggregate Warrant Exercise
Price the kind and number of Shares or other securities of the Company
which the holder would have owned or have been entitled to receive after
the happening of any of the events described above had such Warrant been
exercised in full immediately prior to the earlier of the happening of such
event or any record date with respect thereto. In the event of any
adjustment of the total number of Shares purchasable upon the exercise of
the then outstanding Warrants pursuant to this paragraph (a), the Exercise
Price shall be adjusted to be the amount resulting from dividing the number
of Shares (including fractional Shares) covered by such Warrant immediately
after such adjustment into the total amount payable upon exercise of such
Warrant in full immediately prior to such adjustment. An adjustment made
pursuant to this paragraph 12(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any,
for such event. Such adjustment shall be made successively whenever any
event listed above shall occur.
(b) In case the Company shall issue rights, options, or warrants to
all holders of its outstanding Shares, entitling them (for a period
expiring within 45 days after the record date for the determination of
stockholders entitled to receive such rights, options, or warrants) to
subscribe for or purchase Shares (or securities exchangeable for or
convertible into Shares) at a price per Share (or having an exchange or
conversion price per Share, with respect to a security exchangeable for or
convertible into Shares) which is less than __% of the current Market Price
per Share (as defined in paragraph (d) of Section 12) on such record date,
then the Exercise Price shall be adjusted by multiplying the Exercise Price
in effect immediately prior to such record date by a fraction, of which the
numerator shall be the number of Shares outstanding on such record date
plus the number of Shares which the aggregate offering price of the total
number of Shares of so to be offered (or the aggregate initial exchange or
conversion price of the exchangeable or convertible securities to be
offered) would purchase at such Market Price and of which the denominator
shall be the number of Shares outstanding on such record date plus the
number of additional Shares to be offered for subscription or purchase (or
into which the exchangeable or convertible securities so to be offered are
initially exchangeable or convertible).
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Such adjustment shall become effective at the close of business on such
record date; however, to the extent that Shares (or securities exchangeable
for or convertible into Shares) are not delivered after the expiration of
such rights, options, or warrants, the Exercise Price shall be readjusted
(but only with respect to Warrants exercised after such expiration) to the
Exercise Price which would then be in effect had the adjustments made upon
the issuance of such rights, options, or warrants been made upon the basis
of delivery of only the number of Shares (or securities exchangeable for or
convertible into Shares) actually issued. In case any subscription price
may be paid in a consideration, part or all of which shall be in a form
other than cash, the value of such consideration shall be as determined by
the Board of Directors of the Company and shall be described in a statement
filed with the Warrant Agent. Shares owned by or held for the account of
the Company shall not be deemed outstanding for the purpose of any such
computation.
(c) In case the Company shall distribute to all holders of its Shares
(including any such distribution made in connection with a consolidation or
merger in which the Company is the surviving corporation) evidences of its
indebtedness or assets (other than cash dividends and distributions payable
out of consolidated net income in accordance with North Carolina law or
earned surplus and dividends or distributions payable in shares of stock
described in paragraph (a) above) or rights, options, or warrants or
exchangeable or convertible securities containing the right to subscribe
for or purchase Shares (excluding those expiring within 45 days after the
record date mentioned in (b) above), then the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to
the record date for the determination of stockholders entitled to receive
such distribution by a fraction, of which the numerator shall be the
current Market Price per Share (as defined in paragraph (d) of this Section
13) on such record date, less the fair market value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive
and described in a statement filed with the Agent) of the portion of the
evidences of indebtedness or assets so to be distributed or of such rights,
options or warrants applicable to one Share and of which the denominator
shall be such current Market Price per Share. Such adjustment shall be made
whenever any such distribution is made and shall become effective on the
date of distribution retroactive to the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs (b) and (c) of
this Section 13, the current Market Price per Share at any date shall be
deemed to be the average daily Closing Prices of the Shares for the 5
consecutive trading days commencing 6 trading days before the day in
question.
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require any increase or decrease of at least one percent
or more of the Exercise Price; provided, however, that any adjustments
which by reason of this paragraph (e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 13
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shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(f) Unless the Company shall have exercised its election as provided
in paragraph (g) of this Section 13, upon each adjustment of the Exercise
Price as a result of the calculations made in paragraphs (b) or (c) of this
Section 13, each Warrant outstanding prior to the making of the adjustment
in the Exercise Price shall thereafter evidence the right to purchase at
the adjusted Exercise Price, that number of Shares (calculated to the
nearest hundredth) obtained by (i) multiplying the number of Shares
purchasable upon exercise of a Warrant prior to adjustment of the number of
Shares by the Exercise Price in effect prior to adjustment of the Exercise
Price and (ii) dividing the product so obtained by the Exercise Price in
effect after such adjustment of the Exercise Price.
(g) The Company may elect on or after the date of any adjustment of
the Exercise Price to adjust the number of Warrants in substitution for any
adjustment in the number of shares of Common Stock purchasable upon the
exercise of a Warrant as provided in paragraph (f) of this Section 13. Each
of the Warrants outstanding after such adjustment of the number of Warrants
shall be exercisable for one Share. Each Warrant held of record prior to
such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the
Exercise Price in effect prior to adjustment of the Exercise Price by the
Exercise Price in effect after adjustment of the Exercise Price. The
Company shall cause the Agent to send to each Warrant Holder an
announcement of its election to adjust the number of Warrants, indicating
the record date for the adjustment, and, if known at the time, the amount
of the adjustment to be made. This record date may be the date on which the
Exercise Price is adjusted or any day thereafter, but shall be at least ten
days later than the date such announcement is sent to the Warrant Holders.
Upon each adjustment of the number of Warrants pursuant to this paragraph
(g), the Company shall, as promptly as practicable, cause to be distributed
to holders of record of Warrant Certificates on such record date Warrant
Certificates evidencing, the additional Warrants to which such holders
shall be entitled as a result of such adjustment, or at the option of the
Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Warrant Certificates held by such
holders prior the date of adjustment, and upon surrender thereof if
required by the Company, new Warrant Certificates evidencing all the
Warrants to which such holders shall be entitled after such adjustment.
Warrant Certificates so to be distributed shall be issued, executed, and
countersigned in the manner specified in this Agreement (but may bear, at
the option of the Company, the adjusted Exercise Price) and shall be
registered in the names of the holders of record of Warrant Certificates on
the record date specified in the announcement sent to Warrant Holders.
(h) In case of any capital reorganization of the Company, or of any
reclassification of the Shares (other than a reclassification of the Shares
referred to in paragraph (a) of this Section 13, or in case of the
consolidation of the Company with, or other merger of the Company
with, or merger of the Company
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into, any other corporation (other than a reclassification of the Shares
referred to in paragraph (a) of this Section 13 or a consolidation or
merger which does not result in any reclassification or change of the
outstanding Shares) or of the sale of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation or
entity, each Warrant shall after such capital reorganization,
reclassification of Shares, consolidation, merger or sale, be exercisable,
upon the terms and conditions specified in this Warrant Agreement, for the
number of shares or other securities, assets, or cash to which a holder of
the number of Shares purchasable (at the time of such capital
reorganization, reclassification of Shares, consolidation, merger or sale)
upon exercise of such Warrant would have been entitled upon such capital
reorganization, reclassification of Shares, consolidation, merger, or sale;
and in any such case, if necessary, the provisions set forth in this
Section 13 with respect to the rights and interests thereafter of the
holders of the Warrants shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares or other
securities, assets, or cash thereafter deliverable on the exercise of the
Warrants. The subdivision or combination of Shares at any time outstanding
into a greater or lesser number of Shares shall not-be deemed to be a
reclassification of the Shares for the purposes of this paragraph. The
Company shall not effect any such consolidation, merger, or sale, unless
prior to or simultaneously with the consummation thereof the successor
corporation or entity (if other than the Company) resulting from such
consolidation or merger or the corporation or entity purchasing such assets
or other appropriate corporation or entity shall assume, by written
instrument executed and delivered to, and in form reasonably acceptable to,
the Warrant Agent, the obligations to deliver to the holder of each Warrant
such shares, securities, assets, or cash as, in accordance with the
foregoing provisions, such holders may be entitled to purchase and the
other obligations under this Agreement.
(i) In the event that at any time, as a result of an adjustment made
pursuant to this Section 13 the holders of a Warrant or Warrants shall
become entitled to purchase any shares or securities of the Company other
than the Shares, thereafter the number of such other shares or securities
so purchasable upon exercise of each Warrant and the Exercise Price for
such shares or securities 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 shares of Common Stock contained in
paragraphs (a) through (h) of Section 13, inclusive, and the other
provisions of this Agreement, with respect to the Shares shall apply on
like terms to any such other shares.
(j) In any case in which this Section 13 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event issuing to the holder of any Warrant exercised after such record
date the Shares if any, issuable upon exercise over and above the Shares,
if any, issuable upon such exercise on the basis of the Exercise Price in
effect prior to such adjustment; provided, however, that the Warrant Agent
shall deliver as soon as practicable to such holder a due xxxx or other
appropriate instrument provided by
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the Company and in form acceptable to the Warrant Agent, evidencing such
holder's right to receive such additional Shares upon the occurrence of the
event requiring such adjustment.
14. Notice to Warrant Holders. Upon any adjustment as described in Section
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13, the Company within 20 business days thereafter shall (i) cause to be filed
with the Agent a certificate signed by a Company officer setting forth the
details of such adjustment, the method of calculation and the facts upon which
such calculation is based, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause written notice of
such adjustments to be given to each Warrant Holder as of the record date
applicable to such adjustment. Also, if the Company proposes to enter into any
reorganization, reclassification, sale of substantially all of its assets,
consolidation, merger, dissolution, liquidation or winding up, the Company shall
give notice of such fact at least 20 days prior to the consummation of such
action to all Warrant Holders which notice shall set forth such facts as
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Exercise Price and the kind and amount of the
shares or other securities and property deliverable upon exercise of the
Warrants. Without limiting the obligation of the Company hereunder to provide
notice to each Warrant Holder, failure of the Company to give notice shall not
invalidate any corporate action taken by the Company.
35. No Fractional Warrants or Shares. The Company shall not be required to
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issue fractions of Warrants upon the reissue of Warrants, any adjustments as
described in Section 13 or otherwise; but the Company in lieu of issuing any
such fractional interest, shall round down to the nearest full Warrant. 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 aggregate number of shares issuable will be rounded down to the
nearest full share.
16. Rights of Warrant Holders. No Warrant Holder, as such, shall have any
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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 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.
47. Agent. The Company hereby appoints the Agent to act as the agent of the
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Company and the Agent hereby accepts such appointment upon all of the terms and
conditions set forth in this Agreement including, without limitation, the
following terms and conditions by all of which the Company and every Unit
Holder, Share Holder and Warrant Holder, by acceptance of his or her Units,
Shares or Warrants, shall be bound:
(a) Statements contained in this Agreement and in the Certificates
shall be taken as statements of the Company. The Agent assumes no
responsibility for the correctness of any of the same except such as
describes the Agent or for action taken or to be taken by the Agent.
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(b) The 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 Certificates.
(c) The Agent may consult at any time with counsel satisfactory to it
(who may be counsel for the Company) and the Agent shall incur no liability
or responsibility to the Company or to any 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 Agent shall
have exercised reasonable care in the selection and continued employment of
such counsel.
(d) The Agent shall incur no liability or responsibility to the
Company or to any 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 Agent compensation for all
services rendered by the Agent in the execution of this Agreement in
accordance with the fee schedule attached in Exhibit D hereto, to reimburse
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the Agent for all reasonable out-of-pocket expenses, taxes and governmental
charges and all other charges of any kind or nature incurred by the Agent
in the execution of this Agreement and to indemnify the Agent and save it
harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for this Agreement except those costs and fees
arising as a result of the Agent's negligence or bad faith.
(f) The 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 Holders shall furnish the 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 Agent to take such action
as the 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 Agent without the possession of any of the
Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Agent shall be brought in its name as Agent, and any recovery of judgement
shall be for the ratable benefit of the Holders, as the case may be, as
their respective rights or interest may appear.
(g) The Agent and any shareholder, director, officer or employee of
the Agent may buy, sell or deal in any of the Units, the Shares or 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 Agent under this Agreement. Nothing herein
shall preclude the Agent from acting in any other capacity for the Company
or for any other legal entity.
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(h) At any time the Agent may apply to the Company or its counsel for
instructions or information, and may consult with its own counsel, with
respect to any matter arising in connection with the agency created hereby
and the Agent shall not be liable for any action taken or omitted in
accordance with such instructions, information or the advice or opinion of
such officer or counsel. The Agent shall not be liable for acting upon any
paper or document believed by it to be genuine and to have been signed by
the proper person(s). The Agent shall also not be liable for recognizing
stock certificates which it reasonably believes bear the proper manual or
facsimile signatures of the officers of the Company and the proper
counter-signature of a transfer agent or registrar, or of a co-transfer
agent or co-registrar. The Agent, if it so elects, may rely conclusively,
for any and all purposes, upon any advice or transfer or transfers made in
the course of transferring or registering original issuances, retirements
or cancellation of Units, Shares or Warrants; upon advice of stop transfer
orders placed, released or in effect against outstanding Certificates; and
upon any certification or notification as to the number of Certificates
issued, the Certificates representing such Units, Shares or Warrants and
other information which the Agent may receive from time to time from any
co-transfer agent or co-registrar. The Agent shall further not be liable
for relying upon all information contained in Certification of Corporate
Secretary or otherwise supplied to the Agent by the Company in accordance
with the terms of this Agreement. The Agent may deliver to the Company from
time to time at its discretion, for safekeeping or disposition by the
Company in accordance with law, such records, papers, stock certificates
which have been cancelled in transfer or exchanges and other documents
accumulated in the execution of its duties hereunder as the Agent may deem
expedient, other than those which the Agent is itself required to maintain
pursuant to applicable laws and regulations. Upon delivery of such records,
the Company shall assume all responsibility for any failure thereafter to
produce any record, paper, cancelled stock certificate or other document so
returned, if and when required. The Agent will endeavor to notify the
Company of, and will follow instructions received from the Company with
respect to, any request or demand for the inspection of the Company's
books. However, the Agent reserves the right to exhibit the records to any
person if it is advised by its counsel that it may be held liable for the
failure to exhibit such records to such person.
18. Successor Agent. Any corporation into which the 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 Agent shall be a
party, or any corporation succeeding to the corporate trust business of the
Agent, shall be the successor to the Agent hereunder without the execution or
filing of any paper or any further act of a party or the parties hereto. In any
such event or if the name of the Agent is changed, the Agent or such successor
may adopt the countersignature of the original Agent and may countersign
Certificates either in the name of the predecessor Agent or in the name of the
successor Agent.
19. Change of Agent. The Agent may resign or be discharged by the
---------------
Company from its duties under this Agreement, by the Agent or the Company, as
the case
12
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
30 days prior to the date so specified. If the Agent shall resign, be discharged
or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Agent. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
resignation or incapacity by the Agent after discharging the Agent, then any
Holder may apply to the District Court for Mecklenburg County, North Carolina,
for the appointment of a successor to the Agent. Pending appointment of a
successor to the Agent, either by the Company or by such Court, the duties of
the Agent shall be carried out by the Company. Any successor Agent, whether
appointed by the Company or by such Court, shall be a bank or a trust company,
in good standing, organized under the laws of any State of the United States of
America, and having at the time of its appointment as Agent, a combined capital
and surplus of at least four million dollars. After appointment, the successor
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Agent without further act or deed and the
former Agent shall deliver and transfer to the successor 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 Agent or the appointment of the successor Agent, as the case may be.
20. Notices. Any notice or demand authorized by this Agreement to be
-------
given or made by the Agent or by 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 Agent), as follows:
Nations Express, Inc.
0000X Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chief Financial Officer
With a copy to: Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Any notice or demand authorized by this Agreement to be given or made by any
Holder or by the Company to or on the 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 Agent with the
Company), as follows:
First Union National Bank
Corporate Trust Services
----------------------------
Charlotte, North Carolina _______
Attn: ______________
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Any distribution, notice or demand required or authorized by this Agreement to
be given or made by the Company or the Agent to or on the Holders shall be
sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed to the Holders at their last known
addresses as they shall appear on the registration books for the Certificates
maintained by the Agent.
21. Supplements and Amendments. The Company and the Agent may make such
--------------------------
modifications to this Agreement and to the Warrants that they deem necessary and
desirable that do not materially adversely affect the interests of the Warrant
Holders. No other modifications may be made to the Warrants without the consent
of the majority of the Warrant Holders, respectively. Reduction of the number of
securities purchasable upon the exercise of any Warrant, increase in the
exercise price and shortening of the expiration date with respect to any Warrant
requires the consent of the holder of such Warrant unless such modification
occurs in connection with a stock split, stock dividend, recapitalization,
reclassification or similar event.
22. Successors. All the covenants and provisions of this Agreement by or
----------
for the benefit of the Company or the Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
23. Termination. This Agreement shall terminate at the close of business
-----------
after the Exercise Period or such earlier date upon which all Warrants have been
exercised or redeemed; provided, however, that if exercise of the Warrants is
suspended pursuant to Section 12 and such suspension continues after the
Exercise Period, this Agreement shall terminate at the close of business on the
business day immediately following expiration of such suspension. The provisions
of Section 17 shall survive such termination.
54. 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
North Carolina and for all purposes shall be construed in accordance with the
laws of said State.
25. Benefits of this Agreement. Nothing in this Agreement shall be
--------------------------
construed to give any person or corporation other than the Company, the Agent
and the 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 Agent and the Holders.
66. 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.
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IN WITNESS WHEREOF, the parties have entered into this agreement as of
the __ day of ___________________, 2000.
NATIONS EXPRESS, INC.
By: ________________________________
Xxxxxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
SEAL
ATTEST:
-------------------------------
FIRST UNION NATIONAL BANK
By: ________________________________
SEAL
ATTEST:
-------------------------------
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