Exhibit 4.5
"C" WARRANT AGREEMENT
to Purchase Common Stock of
XPLORER, S.A.
Expiring August 4, 2001
August 5, 1996
Atlantic Pacific Trust
Xx. 0 Xxxxx Xxxxxx
XxXxxx, Xxxxxx 00000
Gentlemen:
Xplorer, S.A. (the "Company") confirms its agreement with you, Atlantic
Pacific Trust (the "Warrantholder"), with respect to the sale by the Company,
and the purchase by you, of a Common Stock "C" Purchase Warrant (hereinafter
referred to as the "Warrant") entitling the holder(s) to purchase 355,000 shares
of the Company's Common Stock, $.001 par value (the "Warrant Stock"), at the
purchase price of $3.00 per share (hereinafter called the "Purchase Price"),
subject to adjustment as to the number of shares of Common Stock, and to
exercise the other appurtenant rights, powers and privileges, all on the terms
and conditions hereinafter provided. The Warrant Stock may be exercised at any
time after August 5, 1997 (hereinafter called the "Commencement Date") and not
later than 5:00 P.M., Los Angeles Time, on August 4, 2001 (hereinafter called
the "Expiration Date").
Section 1. CERTAIN DEFINITIONS. For all purposes of this Warrant, unless
the context otherwise requires:
A. "Commission" shall mean the Securities and Exchange Commission, or any
other Federal agency then administering the Securities Act.
B. "Common Stock" shall mean and include the Company's authorized Common
Stock as the same existed on August 5, 1996.
C. "Company" shall mean said Xplorer, S.A. and any other corporation
assuming the obligations under the Warrant.
D. "Warrantholder" shall mean the person(s) to whom this Warrant or the
Warrant Stock is originally issued or is transferred in accordance with Section
4.
E. "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
F. "Seller," as used in Section 4, shall mean each holder of securities of
Exhibit 4.5
the Company for which the Company shall be required to file a registration
statement, or which shall be registered under the Securities Act at the request
of such holder, pursuant to any of the provisions of Section 4.
G. "Transfer," as used in Section 4, shall include any disposition of this
Warrant or the Warrant Stock, or of any interest in either thereof, which would
constitute a sale thereof within the meaning of the Securities Act.
H. "Warrant" shall mean this Common Stock "C" Purchase Warrant evidencing
the rights to purchase 355,000 shares of Common Stock.
I. "Warrant Stock" and/or "Shares" shall mean the shares of Common Stock
purchasable or purchased by the holder of this Warrant upon the exercise thereof
pursuant to Section 2.
Section 2. EXERCISE OF WARRANT.
A. The holder of this Warrant may, at any time after the Commencement Date
and not later than 5:00 P.M. Los Angeles Time, on the Expiration Date, exercise
this Warrant in whole or in part (but not as to a fractional share of Common
Stock) at any time for the purchase of the 355,000 shares of Common Stock at the
Purchase Price. In order to exercise this Warrant, the holder hereof shall
deliver to the Company (i) a written notice of such holder's election to
exercise this Warrant, which notice shall be in substantially the form of the
Purchase Form appearing at the end of the Warrant Certificate attached to this
Warrant as Exhibit A, and (ii) shall make payment of the aggregate purchase
price of the shares of Common Stock being purchased, such payment to be made by
the delivery to the Company of a certified check or checks payable to the
Company in an amount equal to such Purchase Price. The Company shall, as
promptly as practicable, and in any event within 30 days thereafter, execute and
deliver or cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock as relate to the Warrant Stock so purchased upon the exercise of
this Warrant. The stock certificate or certificates so delivered shall be
registered in the name of such holder or in such other name as shall be
designated in such notice. Such certificate or certificates shall be deemed to
have been issued and such holder or any other person so designated to be named
therein shall be deemed for all purposes to have become a holder of record of
such shares as of the date said notice is received by the Company as aforesaid.
The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issuance and delivery of stock certificates
under this Section.
All shares of Common Stock issued upon the exercise of this Warrant shall
be validly issued, fully paid and nonassessable.
B. The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of a share of Common Stock, but,
in lieu thereof, shall pay to the holder of this Warrant cash in an amount equal
to a fraction corresponding to the fraction of a share involved (calculated to
the nearest 1/100 of a share) of the current market price of one share of Common
Stock as of the date of receipt by the Company of notice of exercise of this
Warrant.
Exhibit 4.5
Section 3. TRANSFER, DIVISION AND COMBINATION. This Warrant and all rights
hereunder are transferable. Any such permitted transfer shall be entered on the
books of the Company to be maintained for such purpose, upon surrender of this
Warrant at the principal office of the Company, together with a written
assignment of this Warrant duly executed by the holder hereof or his agent or
attorney and funds sufficient to pay any stock transfer taxes payable upon the
making of such transfer. Upon such surrender and payment the Company shall
execute and deliver a new Warrant or Warrants, dated as of the date of issuance
thereof, in the name of the assignee or assignees and in the denominations
specified in such instrument of assignment, and this Warrant shall promptly be
cancelled.
The Company shall pay all expenses, taxes (other than stock transfer taxes)
and other charges payable in connection with the preparation, issue and delivery
of Warrants under this Section.
The Company agrees to maintain at it principal office books for the
registration and transfer of the Warrants.
Section 4. COMPLIANCE WITH SECURITIES ACT; REGISTRATION THEREUNDER.
A. No Transfer in Violation of Securities Act. The holder of the Warrant
agrees not to transfer the related Warrant Stock in any manner which would
result in a violation of the registration provisions of the Securities Act, and
the Company shall not be required to take any action hereunder which would
result in a violation of such provisions.
B. REPRESENTATIONS AND COVENANTS OF THE HOLDER. The Holder represents and
warrants to the Company that the Warrant and the Warrant Stock will be acquired
by the Holder for its own account for investment and not with a view to the
distribution thereof, except that this sentence shall not be deemed to prohibit
or restrict transactions not in violation of this Agreement. As a condition to
transfer of the Warrant or exercise of it the Holder will be required to
acknowledge that this Warrant and the Warrant Stock are being issued by the
Company without registration under the Securities Act, and may not be offered or
sold unless registered or exempt from registration under the Securities Act. The
Holder will be required to covenant and agree that no Warrants or Warrant Stock
will be offered or sold by or for the account of the Holder except (i) pursuant
to an exemption from registration under the Securities Act (which exemption is
confirmed in a written opinion of the Holder's counsel addressed to the Company
and satisfactory in form and substance to the Company's counsel) or (ii)
pursuant to an effective registration statement under the Securities Act. Each
certificate representing shares shall bear a legend making appropriate reference
to the foregoing restrictions.
(1) Unless and until removed as provided below, each Warrant Certificate
and the certificates evidencing Warrant Stock shall bear a legend in
substantially the following form:
"The Securities have not been registered under the Securities Act of
1933, as amended, and may not be sold, pledged or otherwise
transferred unless (A) covered by an effective registration statement
under the Securities Act of 1933, as amended, (B) in compliance with
Exhibit 4.5
Rule 144 under such Act, or (C) the Company has been furnished with an
opinion of counsel reasonably acceptable to the Company to the effect
that no registration is required by such transfer."
(2) The Company shall issue a new certificate which does not contain such
legend if (i) the shares represented by such certificate are sold
pursuant to a registration statement (including a current Prospectus)
which has become and is effective under the Securities Act, or (ii)
the staff of the Securities and Exchange Commission (or any other
Federal agency at the time administering the Securities Act) (the
"Commission") shall have issued a "no action" letter, reasonably
satisfactory to counsel for the Company, to the effect that such
shares may be freely sold and thereafter traded publicly without
registration under the Securities Act, or (iii) counsel acceptable to
the Company shall have rendered an opinion satisfactory to the Company
to the effect that such shares may be freely sold and thereafter
traded publicly without registration under the Securities Act.
C. "PIGGYBACK" REGISTRATION. If the Company, at any time after the
Commencement Date and prior to the Expiration Date, decides to file a
registration statement under the Securities Act relating to any shares of
Xplorer, S.A. Common Stock to be offered and sold by the Company pursuant to an
underwriting, (except with respect to registration statements filed with respect
to the issuance of Securities under employee benefit plans), the Company shall
give written notice to the Holder as promptly as possible for the proposed
filing of such registration statement and will use all reasonable efforts to
cause such number of Warrants or Warrant Stock as the Holder shall request in
writing, within fifteen days after the giving of such notice, to be included in
such registration statement for offering and sale upon the same terms and in the
same manner as the Company proposes to offer and to sell such shares of its
Common Stock pursuant thereto; provided, that (a) the Company shall not be
required to include any Warrant or Warrant Stock in any such registration
statement if the Company is advised by its investment banking firm that the
inclusion of such shares may, in such firm's opinion, interfere with the orderly
sale and distribution of the shares of Xplorer, S.A. Common Stock to be offered
and sold by the Company; and (b) the Company, at its sole discretion, and
without the consent of the Holder, may decide not to file or to withdraw such
registration statement and may abandon the proposed offering at any time.
(1) In connection with any registration of its shares by the Company
hereunder, the Company shall:
(a) furnish to sellers and the managing underwriters such number of
copies of any prospectus (including any preliminary prospectus)
as the Holder may reasonably request in order to effect the
offering and sale of the shares to be offered and sold, but only
as long as the Company is required under the provisions hereof to
cause the registration statement to remain current;
(b) use its best efforts to qualify such shares for offering under
such applicable state "blue sky" laws as the sellers may
reasonably request; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation to do business
Exhibit 4.5
under the laws of any jurisdiction in which it is not then so
qualified or to file any general consent to service of process;
(c) instruct the transfer agent to reissue to the Holder certificates
without legends representing the shares being sold in such
numbers and denominations as the sellers shall reasonably
request;
(d) instruct the transfer agent (or agents) and the registrar (or
registrars) of the Warrant Stock to release any "stop transfer"
order with respect to the shares being sold.
(2) The Company, at its option, may require that the number of Warrants or
Warrant Stock offered for sale pursuant to a request for registration
under Section 4.C hereof be decreased if, in the opinion of the
Company's investment banking firm, such reduction is desirable in
order to permit the orderly distribution and sale of the securities
being offered thereunder. If the Company shall require such a
reduction, the Holder shall have the right to withdraw from the
offering.
(3) In connection with any registration statement in which Warrants or the
Warrant Stock are included pursuant to Section 4.C hereof, the Company
will pay all Commission and "blue sky" registration and other
necessary filing fees, underwriting discounts, commissions and
expenses, printing expenses, fees and disbursements of legal counsel
for the Company and "blue sky" counsel, transfer agents' and
registrars' fees, fees and disbursements of experts used by the
Company in connection with such registration, and expenses incidental
to any post- effective amendment to such registration statement. The
Holder/Seller shall pay all other expenses attributable to inclusion
in the offering of Warrants or the Warrant Stock, including, without
limitation, Commission and "blue sky" registration and other necessary
filing fees and underwriting discounts, commissions and expenses
attributable thereto and fees and disbursements of the Holder/Seller's
counsel, accountants and experts, if any.
(4) In the case of each registration of shares effected by the Company
pursuant to Section 4.C hereof, the Company will agree to indemnify
and hold harmless each Seller of Warrants or of Warrant Stock and its
controlling persons against any and all losses, claims, damages or
liabilities to which they or any of them may become subject under
the Securities Act or any other statute or common law (including any
amount paid in settlement of any litigation, commenced or threatened,
if such settlement is effected with the written consent of Xplorer,
S.A., and to reimburse them for any legal or other expenses incurred
by them in connection with investigating any claims and defending any
actions, insofar as any such losses, claims, damages, liabilities or
actions arise out of or are based upon (a) any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement relating to such Securities, or any
post-effective amendment thereto or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) any
Exhibit 4.5
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus relating to such Securities,
if sued prior to the effective date of such registration statement, or
contained in the final prospectus relating to such Securities (as
amended or supplement if the Company shall have filed with the
Commission any amendment thereof or supplement thereto); provided,
however, that the indemnification agreement contained in this Section
4.C shall not (a) apply to any losses, claims, damages, liabilities or
actions arising out of, or based upon, any such untrue statement or
alleged untrue statement, or any such omission or alleged omission,
which was made in reliance upon and in conformity with information
furnished to the Company by the seller or such underwriter for used in
connection with the registration statement, any preliminary prospectus
or final prospectus contained in such registration statement, or any
amendment or supplement thereto, or (b) inure to the benefit of any
underwriter or any person controlling such underwriter, if such
underwriter failed to send or give a copy of the final prospectus to
the person asserting the claim at or prior to the written confirmation
of the sale of such securities to such person and if the untrue
statement or omission, or alleged untrue statement or omission, in
question was corrected in such final prospectus.
(5) In case of each registration of shares effected by the Company
pursuant to Section 4.C hereof, the Seller and each underwriter of
shares will agree, in the same manner and to the same extent as set
forth in Section 4.C above, to indemnify and hold harmless the
Company, each person (if any) who controls the Company within the
meaning of Section 15 of the Securities Act, the directors of the
Company and those officers of the Company who shall have signed any
such registration statement, with respect to any untrue statement or
alleged untrue statement in, or omission or alleged omission from,
such registration statement or any post-effective amendment thereto or
any preliminary prospectus or final prospectus (as amended or
supplemented, if amended or supplemented) contained in such
registration statement, which was made in reliance upon and in
conformity with information furnished to the Company by the Seller or
any underwriter for use in connection with the registration statement,
any preliminary prospectus or final prospectus contained in such
registration statement, or any amendment or supplement thereto.
(6) Each indemnified party under Section 4.C(4) or Section 4.C(5) hereof
will, with reasonable promptness after its receipt of written notice
of the commencement of any action against such indemnified party in
respect of which indemnity may be sought from an indemnifying party on
account of an indemnity agreement contained in Section 4.C(4) or
4.C(5) hereof, notify the indemnifying party in writing of the
commencement thereof, the indemnifying party will be entitled to
participate therein and to the extent it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under Section 4.C(4) or 4.C(5)
hereof for any legal or other expenses subsequently incurred by such
Exhibit 4.5
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. The indemnity agreements in
Sections 4.C(4) and 4.C(5) hereof shall be in addition to any
liabilities which the indemnifying parties may have pursuant to law.
(7) In addition to the rights above-provided, the Company will cooperate
with the then Holders of the Securities in preparing and signing any
registration statement in addition to the registration statement
discussed above, required in order to sell or transfer the Securities
and will supply all information required therefore, but such
additional registration statement shall be at the then Holders'
expense, unless the Company elects to register or qualify additional
shares of the Company's Common Stock, in which case the cost and
expense of such registration statement will be pro-rated between the
Company and the Holders of the Securities to the aggregate sales price
of all the securities being issued.
Section 5. ADJUSTMENTS. The number of shares of Warrant Stock shall be
subject to adjustment from time to time as follows:
A. ADJUSTMENT OF EXERCISE PRICE IN THE EVENT OF STOCK DIVIDENDS, STOCK
SPLITS AND REVERSE STOCK SPLITS. Anything in this Section to the contrary
notwithstanding, in case the Company shall at any time issue Common Stock or
Convertible Securities by way of dividend or other distribution on any stock of
the Company or effect a stock split or reverse stock split of the outstanding
shares of Common Stock, the Exercise Price shall be proportionately decreased in
the case of such stock split or increased in the case of such reversed stock
split (on the date that such stock split or reverse stock split shall become
effective), by multiplying the Exercise Price in effect immediately prior to the
stock dividend, stock split or reverse stock split by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately prior
to such stock dividend, stock split or reverse stock split, and the denominator
of which is the number of shares of Common Stock outstanding immediately after
such stock dividend, stock split or reverse stock split.
B. NO ADJUSTMENT FOR SMALL AMOUNTS. Anything in this Section to the
contrary notwithstanding, the Company shall not be required to give effect to
any adjustment in the Exercise Price unless and until the net effect of one or
more adjustments, determined as above provided, shall have required a change of
the Exercise Price by at least ten cents ($.10), but when the cumulative net
effect of more than one adjustment so determined shall be to change the actual
Exercise Price by at least ten cents ($0.10), such change in the Exercise Price
shall thereupon be given effect.
C. NUMBER OF SHARES ADJUSTED. Upon any adjustment of the Exercise Price,
the Holder shall thereafter (until another such adjustment) be entitled to
purchase, at the new Exercise Price, the number of shares, calculated to the
nearest full share, obtained by multiplying the number of shares of Warrant
Stock initially issuable upon exercise of any of the Warrants by the Exercise
Price in effect on the date hereof and dividing the product so obtained by the
new Exercise Price.
Exhibit 4.5
D. STATEMENT ON WARRANTS. Irrespective of any adjustments in the Exercise
Price or the number of kind of shares purchasable upon the exercise of the
Warrants, the Warrant Certificates theretofore or thereafter issued may continue
to express the same price and number and kind of shares as are stated in the
Warrants initially issuable pursuant to this Agreement.
Section 6. OFFICER'S CERTIFICATE
Whenever the Exercise Price shall be adjusted as required by the provision
of Section 5 hereof, the Company shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal office, an officer's
certificate showing the adjusted Exercise Price determined as herein provided
and setting forth in reasonable detail the facts requiring such adjustment. Each
such officer's certificate shall be made available at all reasonable times for
inspection by the Holders and the Company shall, forthwith after each such
adjustment, deliver a copy of such certificate to each of the Holders. Such
certificate shall be conclusive as to the correctness of such adjustment.
Section 7. NOTICES TO WARRANTHOLDERS
So long as any Warrant shall be outstanding and unexercised (a) if the
Company shall pay any dividend or make any distribution upon the Common Stock or
(b) if the Company shall offer to the holders of Common Stock for subscription
or purchase by them any shares of stock of any class or any other rights or (c)
if any capital reorganization of the Company, reclassification of the capital
stock of the Company, consolidation or merger of the Company with or into
another corporation, sale, lease or transfer of all or substantially all of the
property and assets of the Company to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then, in any such case, the Company shall cause to be delivered to the
Holders, at least 30 days prior to the date specified in (i) or (ii) below, as
the case may be, a notice containing a brief description of the proposed action
and stating the date on which (i) a record is to be taken for the purpose of
such dividend, distribution or rights, or (ii) such reclassification,
reorganization, consolidation, merger, conveyance, lease, dissolution,
liquidation or winding up is to take place and the date, if any, as of which the
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
Section 8. CLOSING OF TRANSFER BOOKS. The Company will not at any time
(except on dissolution, liquidation or winding up of the Company) close its
transfer books against the transfer of any shares of Common Stock issued or
issuable upon exercise of the Warrant in any manner which interferes with the
timely exercise of the Warrant.
Section 9. TRANSFER OF WARRANT; WARRANT LEDGER.
A. Subject to the provisions of this Agreement, the Warrant and all rights
Exhibit 4.5
hereunder are transferable, in whole or in part (but not as to a fractional
share of Common Stock), by written assignment with appropriate notice to the
Company of any such transfer.
B. The Company shall at all times maintain a ledger indicating the
ownership of the Warrant and the number of shares of Common Stock as to which
the Warrant has been exercised and the date of such exercise (the "Warrant
Ledger"). Upon any transfer of any interest in the Warrant by the Holder or by a
transferee of the Holder as provided in this Section 9, the Company shall (i)
note such transfer on the Warrant Ledger, (ii) issue and deliver a new Warrant
Certificate (substantially in the form of Exhibit A with the blanks
appropriately completed) evidencing such transferee's interest in the Warrant
and (iii) if the Warrant Certificate surrendered in connection with such
transfer evidenced the right to acquire a greater number of shares of Common
Stock than the interest which was transferred, issue a new Warrant Certificate
(substantially in the form of Exhibit A with the blanks appropriately completed)
evidencing the right to acquire shares of Common Stock which was not
transferred.
Section 10. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of the shares of Warrant
Stock upon the exercise of Warrants; provided, however, that 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 the Warrant Certificates or the
certificates for the shares of Warrant Stock in a name other than that of the
registered Warrantholder in respect of which such Warrants or shares of Warrant
Stock are issued.
Section 11. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company shall, at
the request of the holder of such certificate, issue and deliver, in exchange
and substitution for and upon cancellation of the mutilated certificate or
certificates, or in lieu of a substitution for the certificate or certificates
lost, stolen or destroyed, a new Warrant Certificate or Certificates of like
tenor and representing an equivalent right or interest; but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction of such
Warrant Certificate or Certificates, and indemnity, if requested, also
satisfactory (as to form and amount) to the Company. An application for such a
substitute Warrant Certificate or Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company may
prescribe.
Section 12. RESERVATION OF SHARES OF WARRANT STOCK. There has been
reserved, and the Company shall at all times keep reserved so long as any of the
Warrants remain outstanding, out of its authorized Common Stock a number of
shares of Common Stock sufficient to provide for the exercise of the rights of
purchase represented by the outstanding Warrants. The transfer agent for the
Common Stock and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the rights of purchase
aforesaid will be irrevocably authorized and directed at all times to reserve
such number of authorized as shall be requisite for such purpose. The Company
Exhibit 4.5
will keep a copy of this Agreement on file with the transfer agent for any
shares of the Company's capital stock issuable upon the exercise of the rights
of purchase represented by the Warrants. The Company will supply such transfer
agent with duly executed stock certificates for such purpose and will provide or
otherwise make available any cash which may be payable as provided in Section 13
hereof. All Warrant Certificates surrendered in exercise of the rights thereby
evidenced shall be cancelled by the Company.
Section 13. FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrants. With respect to any fraction of a
share called for upon the exercise of any Warrant, the Company shall pay to the
Warrantholder an amount in cash equal to such fraction multiplied by the current
market value of such fractional share, determined as follows:
(i) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the current value
shall be the last reported sale price of the Common Stock on such exchange
on the last business day prior to the date of exercise of the Warrant or if
no such sale is made on such day, the average closing bid and asked prices
for such day on such exchange; or
(ii) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current value shall be the mean of the last
reported bid and asked prices reported by the National Association or
Securities Dealers Quotation System ("NASDAQ"), (or, if not so quoted by
NASDAQ, by the National Quotation Bureau, Inc.) on the last business day
prior to the date of the exercise of the Warrant; or
(iii) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current value shall be an amount, not less than the book value, determined
in such reasonable manner as may be prescribed by the board of directors of
the Company, such determination to be final and binding on the
Warrantholder.
Section 14. APPLICABLE LAW.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of California and for
all purposes shall be construed in accordance with the laws of said state.
Section 15. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Holder any legal or equitable right,
remedy or claim under this Agreement and this Agreement shall be for the sole
and exclusive benefit of such persons, the Company and the Holder.
Exhibit 4.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above-written.
(CORPORATE SEAL)
XPLORER, S.A.
ATTEST:
By:
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Xxxxxx X. Xxxxxxxxx, Secretary Xxxxxx X. Xxxxx, President
and Chief Executive Officer
ATLANTIC PACIFIC TRUST
By:
------------------------
Warrantholder
Exhibit 4.5
