EXHIBIT 4.2
WARRANT AGREEMENT
BETWEEN
XXXXXXXX XXXXXXX, INC.
AND
COMPUTERSHARE INVESTOR SERVICES, LLC
DATED AS OF ________________, 2003
THIS AGREEMENT (this "Agreement"), dated as of ___________, 2003, is
between XXXXXXXX XXXXXXX, INC., a Delaware corporation (the "Company") and
COMPUTERSHARE INVESTOR SERVICES, LLC, a Delaware limited liability company (the
"Warrant Agent").
The Company, at or about the time that it is entering into this
Agreement, proposes to issue and sell, to (i) public investors, (ii) its
eligible U.S. stockholders, and (iii) eligible U.S. holders of ordinary shares
and ADRs of Novogen Limited, the Company's parent company, an aggregate of
2,000,000 Common Stock Units (together with 300,000 Common Stock Units that may
be issued upon exercise of an over-allotment option, the "Units"). Each Unit
consists of one share of Common Stock, par value $0.00000002 per share (the
"Common Stock") and one Warrant to purchase one share of Common Stock of the
Company (a "Warrant"). Each Warrant is exercisable to purchase one share of
Common Stock upon the terms and conditions and subject to adjustment in certain
circumstances, all as set forth in this Agreement.
The Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange and replacement of
the certificates evidencing the Warrants to be issued under this Agreement (the
"Warrant Certificates") and the exercise of the Warrants;
The Company and the Warrant Agent wish to enter into this Agreement
to set forth the terms and conditions of the Warrants and the rights of the
holders thereof ("Holders") and to set forth certain respective rights and
obligations of the Company and the Warrant Agent. Each Holder is an intended
beneficiary of this Agreement with respect to the rights of Holders herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Date, Denomination and Execution of Warrant Certificates.
The Warrant Certificates (and the Form of Election to Purchase and
the Form of Assignment to be printed on the reverse thereof) shall be in
registered form only and shall be substantially of the tenor and purport recited
in Exhibit A hereto, and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law, or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any stock exchange or any automated
quotation system on which the Common Stock or the Warrants may be listed or to
conform to usage. Each Warrant Certificate shall entitle the registered holder
thereof, subject to the provisions of this Agreement and of the Warrant
Certificate, to purchase one fully paid and non-assessable share of Common Stock
for each Warrant evidenced by such Warrant Certificate for $_____________ per
share (the "Exercise Price"). The Exercise Price is subject to adjustment as
provided in Section 5 hereof. Each Warrant Certificate issued as a part of a
Unit offered as described in the recitals, above,
shall be dated the date hereof; each other Warrant Certificate shall be dated
the date on which the Warrant Agent receives valid issuance instructions from
the Company or a transferring holder of a Warrant Certificate or, if such
instructions specify another date, such other date.
The number of shares of Common Stock to be received upon the
exercise of each Warrant may be adjusted from time to time as hereinafter set
forth. The term "Company" means and includes the corporation named above as well
as (i) any immediate or more remote successor corporation resulting from the
merger or consolidation of such corporation (or any immediate or more remote
successor corporation of such corporation) with another corporation, or (ii) any
corporation to which such corporation (or any immediate or more remote successor
corporation of such corporation) has transferred its property or assets as an
entirety or substantially as an entirety.
For purposes of this Agreement, the term "close of business" on any
given date shall mean 5:00 p.m., Eastern time, on such date; provided, however,
that if such date is not a business day, it shall mean 5:00 p.m., Eastern time,
on the next succeeding business day. For purposes of this Agreement, the term
"business day" shall mean any day other than a Saturday, Sunday, or a day on
which banking institutions in New York, New York or in the State in which the
Warrant Agent maintains the principal office in which it conducts business
related to the Warrants are authorized or obligated by law to be closed.
Each Warrant Certificate shall be executed on behalf of the Company
by the President and CEO or the Secretary, either manually or by facsimile
signature printed thereon. Each Warrant Certificate shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have signed any
Warrant Certificate shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issue and delivery thereof by the
Company, such Warrant Certificate, nevertheless, may be countersigned by the
Warrant Agent, issued and delivered with the same force and effect as though the
person who signed such Warrant Certificate had not ceased to be such officer of
the Company.
SECTION 2. Subsequent Issue of Warrant Certificates.
Subsequent to their original issuance, no Warrant Certificates shall
be reissued except (i) Warrant Certificates issued upon transfer thereof in
accordance with Section 3 hereof, (ii) Warrant Certificates issued upon any
combination, split-up or exchange of Warrant Certificates pursuant to Section 3
hereof, (iii) Warrant Certificates issued in replacement of mutilated,
destroyed, lost or stolen Warrant Certificates pursuant to Section 4 hereof,
(iv) Warrant Certificates issued upon the partial exercise of Warrant
Certificates pursuant to Section 6 hereof, and (v) Warrant Certificates issued
to reflect any adjustment or change in the Exercise Price or the number or kind
of shares purchasable thereunder pursuant to Section 16 hereof. The Warrant
Agent is hereby irrevocably authorized to countersign and deliver, in accordance
with the provisions of said Sections 3, 4, 6 and 16, the new Warrant
Certificates required for purposes thereof, and the Company, whenever required
by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates
duly executed on behalf of the Company for such purposes.
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SECTION 3. Transfers, Exchanges and Assignments of Warrant Certificates.
The Warrant Agent will keep or cause to be kept books for
registration of ownership and transfer of the Warrant Certificates issued
hereunder. Such registers shall show the names and addresses of the respective
holders of the Warrant Certificates and the kind and number of Warrants
evidenced by each such Warrant Certificate.
The Warrant Agent shall, from time to time, register the transfer of
any outstanding Warrants upon the books to be maintained by the Warrant Agent
for that purpose, upon surrender of the Warrant Certificate evidencing such
Warrants, with the Form of Assignment duly filled in and executed with such
signature guaranteed by a banking institution or NASD member and such supporting
documentation as the Warrant Agent or the Company may reasonably require, to the
Warrant Agent at its stock transfer office in ______________ at any time on or
before the Expiration Date of such Warrant, and upon payment to the Warrant
Agent for the account of the Company of an amount equal to any applicable
transfer tax. Payment of the amount of such tax may be made in cash, or by
certified or official bank check, payable in lawful money of the United States
of America to the order of the Company.
Upon receipt of a Warrant Certificate, with the Form of Assignment
duly filled in and executed, accompanied by payment of an amount equal to any
applicable transfer tax, the Warrant Agent shall promptly cancel the surrendered
Warrant Certificate and countersign and deliver to the transferee a new Warrant
Certificate for the number of full Warrants transferred to such transferee;
provided, however, that in case the registered holder of any Warrant Certificate
shall elect to transfer fewer than all of the Warrants evidenced by such Warrant
Certificate, the Warrant Agent in addition shall promptly countersign and
deliver to such registered holder a new Warrant Certificate or Certificates for
the number of full Warrants not so transferred.
Any Warrant Certificate or Certificates may be exchanged at the
option of the holder thereof for another Warrant Certificate or Certificates of
different denominations, of like tenor and representing in the aggregate the
same kind and number of Warrants, upon surrender of such Warrant Certificate or
Certificates, with the Form of Assignment duly filled in and executed, to the
Warrant Agent, at any time or from time to time after the close of business on
the date hereof and prior to the close of business on the Expiration Date
relating to such Warrant. The Warrant Agent shall promptly cancel the
surrendered Warrant Certificate and deliver the new Warrant Certificate pursuant
to the provisions of this Section.
SECTION 4. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to each of them of the loss, theft, destruction or
mutilation of any Warrant Certificate, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification (which shall include the
posting of an open-penalty bond per Warrant Agent's requirements), and upon
surrender and cancellation of any Warrant Certificate, if mutilated, the Warrant
Agent shall countersign and deliver a new Warrant Certificate of like tenor and
date for the same kind and number of Warrants.
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SECTION 5. Anti-Dilution Provisions.
(a) Adjustment for Recapitalization and Reorganization, Etc. In case (i)
the outstanding shares of the Common Stock shall be subdivided into a greater
number of shares, (ii) a dividend or other distribution in Common Stock shall be
paid in respect of Common Stock, (iii) the outstanding shares of Common Stock
shall be combined into a smaller number of shares thereof, or (iv) any shares of
the Company's capital stock are issued by reclassification of the Common Stock
(including any reclassification upon a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect immediately
prior to such subdivision, combination or reclassification or at the record date
of such dividend or distribution shall simultaneously with the effectiveness of
such subdivision, combination or reclassification or immediately after the
record date of such dividend or distribution be proportionately adjusted to
equal the product obtained by multiplying the Exercise Price by a fraction, the
numerator of which is the number of outstanding shares of Common Stock (on a
fully diluted basis) immediately prior to such combination, subdivision,
reclassification or dividend and the denominator of which is the number of
outstanding shares of Common Stock (on a fully diluted basis) outstanding after
giving effect to such combination, subdivision, reclassification or dividend.
"On a fully diluted basis" means that all outstanding options,
rights or Warrants to subscribe for shares of Common Stock and all securities
convertible into or exchangeable for shares of Common Stock (such options,
rights, Warrants and securities are collectively referred to herein as
"Convertible Securities") and all options or rights to acquire Convertible
Securities have been exercised, converted or exchanged.
Whenever the Exercise Price per share is adjusted as provided in the
immediately preceding paragraph, the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately prior to such Exercise
Price adjustment shall be adjusted, effective simultaneous with the Exercise
Price adjustment, to equal the product obtained (calculated to the nearest full
share) by multiplying such number of shares of Common Stock by a fraction, the
numerator of which is the Exercise Price per share in effect immediately prior
to such Exercise Price adjustment and the denominator of which is the Exercise
Price per share in effect upon such Exercise Price adjustment, which adjusted
number of shares of Common Stock shall thereupon be the number of shares of
Common Stock purchasable upon exercise of the Warrant until further adjusted as
provided herein.
For the purpose of this Section, the term "Common Stock" shall mean
(i) the Common Stock or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value. In the event that at any time as a result of an adjustment made pursuant
to this Section, the holder of any Warrant thereafter surrendered for exercise
shall become entitled to receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the number of such other shares so
receivable upon exercise of any Warrant shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in this Section, and all
other provisions of this Agreement, with respect to the Common Stock, shall
apply on like terms to any such other shares.
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(b) Adjustment for Reorganization, Consolidation, Merger, Liquidation Etc.
In case of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of each Warrant)
after the date hereof or in case after such date the Company (or any such other
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation or liquidate,
then, and in each such case, the Holder of each Warrant upon the exercise
thereof as provided in Section 6 at any time after the consummation of such
reorganization, consolidation, merger, conveyance or liquidation, shall be
entitled to receive, in lieu of the securities and property receivable upon the
exercise of such Warrant prior to such consummation, the securities or property
to which such Holder would have been entitled upon such consummation if such
Holder had exercised such Warrant immediately prior thereto; in each such case,
the terms of such Warrant shall be applicable to the securities or property
receivable upon the exercise of such Warrant after such consummation.
The Warrant Agent shall not be under any responsibility to determine
the correctness of either the kind or amount of shares of stock or securities or
property (or cash) purchasable by holders of Warrant Certificates upon the
exercise of their Warrants after any such consolidation, merger, sale or
transfer or of any adjustment to be made with respect thereto, but subject to
the provisions of Section 16 hereof, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, a
certificate of a firm of independent certified public accountants (who may be
the accountants regularly employed by the Company) with respect thereto.
(c) No Dilution. The Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger, dissolution,
issue or sale of securities, sale of assets or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this
Agreement, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders of the Warrants
against dilution or other impairment. Without limiting the generality of the
foregoing, while the Warrants are outstanding, the Company (a) will not permit
the par value, if any, of the shares of Common Stock receivable upon the
exercise of each Warrant to be above the amount payable therefor upon such
exercise and (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue or sell fully paid and
non-assessable shares of Common Stock upon the exercise of each Warrant.
(d) Certificate as to Adjustments. Whenever the number of shares of Common
Stock or other securities purchasable upon exercise of a Warrant is adjusted as
provided in this Section 5, the Company will promptly file with the Warrant
Agent a certificate signed by the President and CEO or the Secretary of the
Company setting forth the number and kind of securities or other property
purchasable upon exercise of a Warrant, as so adjusted, stating that such
adjustments in the number or kind of shares or other securities or property
conform to the requirements of this Section 5, and setting forth a brief
statement of the facts accounting for such adjustments. Promptly after receipt
of such certificate, the Company, or the Warrant Agent at the Company's request,
will deliver, by first-class, postage prepaid mail, a brief summary thereof (to
be supplied by the Company) to the registered holders of the outstanding Warrant
Certificates; provided, however, that failure to file or to give any notice
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required under this Section 5(d), or any defect therein, shall not affect the
legality or validity of any such adjustments under this Section 5; and provided,
further, that, where appropriate, such notice may be given in advance and
included as part of the notice required to be given pursuant to Section 5(e)
hereof.
(e) Notices of Record Date, Etc. In case:
(i) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any dividend (other than a
cash dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities, or
to receive any other right; or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation; or
(iii) of any voluntary or involuntary dissolution, liquidation or
winding up of the Company, then, and in each such case,
the Company shall mail or cause to be mailed to each Holder of the
Warrants at the time outstanding a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding up is to take place, and the time, if any, is to be fixed, as to which
the holders of record of Common Stock (or such other securities at the time
receivable upon the exercise of the Warrant) shall be entitled to exchange their
shares of Common Stock (or such other securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up. Such notice shall be
mailed at least 20 days prior to the date therein specified and the Warrants may
be exercised prior to said date during the term of the Warrants.
(f) Irrespective of any adjustments in the number or kind of shares
issuable upon exercise of Warrants, Warrant Certificates theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the similar Warrant Certificates initially issuable
pursuant to this Agreement.
(g) The Company may retain a firm of independent public accountants of
recognized standing, which may be the firm regularly retained by the Company,
selected by the Board of Directors of the Company, and not disapproved by the
Warrant Agent, to make any computation required under this Section 5, and a
certificate signed by such firm shall, in the
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absence of fraud or gross negligence, be conclusive evidence of the correctness
of any computation made under this Section 5.
SECTION 6. Exercise of Warrants.
(a) The Warrants may be exercised, in whole or in part, at any time, or
from time to time during the period commencing on the date hereof and expiring
5:00 p.m. Eastern Time on _____________, 200_ (the "Expiration Date"), by
presentation and surrender of any Warrant Certificate to the Warrant Agent at
its stock transfer office in ______________, with the Form of Election to
Purchase on the reverse side thereof duly executed and accompanied by payment
(either by wire transfer of good funds or by certified or official bank check,
payable to the order of the Company in lawful currency of the United States of
America) of the Exercise Price for the number of shares specified in such form
and an amount equal to any applicable transfer tax and, if requested by the
Company, any other taxes or governmental charges which the Company may be
required by law to collect in respect of such exercise.
(b) In case the registered holder of any Warrant Certificate shall
exercise fewer than all of the Warrants evidenced by such Warrant Certificate,
the Warrant Agent shall promptly countersign and deliver to the registered
holder of such Warrant Certificate, or to his duly authorized assigns, a new
Warrant Certificate or Certificates evidencing the number of Warrants that were
not so exercised.
(c) Upon receipt by the Warrant Agent of any Warrant Certificate, with the
Form of Election to Purchase duly filled in and executed, together with payment
of the Exercise Price of the Warrants being exercised (and of an amount equal to
any applicable taxes or government charges as aforesaid), the Warrant Agent
shall promptly request from the Transfer Agent with respect to the securities to
be issued and deliver to or upon the order of the registered holder of such
Warrant Certificate, in such name or names as such registered holder may
designate, a certificate or certificates for the number of full shares of the
securities to be purchased, together with cash made available by the Company
pursuant to Section 7 hereof in respect of any fraction of a share of such
securities otherwise issuable upon such exercise. If the Warrant is then
exercisable to purchase property other than securities, the Warrant Agent shall
take appropriate steps to cause such property to be delivered to or upon the
order of the registered holder of such Warrant Certificate. In addition, if it
is required by law and upon instruction by the Company, the Warrant Agent will
deliver to each Holder a prospectus which complies with the provisions of
Section 9 of the Securities Act of 1933 and the Company agrees to supply Warrant
Agent with sufficient number of prospectuses to effectuate that purpose. The
Holder shall pay any and all documentary stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock on
exercise of the Warrants.
(d) Each person in whose name any certificate for securities is issued
upon the exercise of Warrants shall for all purposes be deemed to have become
the holder of record of the securities represented thereby as of, and such
certificate shall be dated, the date upon which the Warrant Certificate was duly
surrendered in proper form and payment of the Exercise Price (and of any
applicable taxes or other governmental charges) was made notwithstanding that
the stock transfer books of the Company shall then be closed, or that
certificates representing such shares of Common Stock shall not then be actually
delivered to the Holder.
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SECTION 7. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issued upon the exercise of each Warrant, but the Company shall pay the
Holder an amount equal to the fair market value of such fractional share of
Common Stock in lieu of each fraction of a share otherwise called for upon any
exercise of such Warrant. For purposes of each Warrant, the fair market value of
a share of Common Stock shall be determined as follows:
(a) If the Common Stock is listed on a National Securities Exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the Nasdaq system, the current market value shall be the last reported sale
price of the Common Stock on such exchange or system on the last business day
prior to the date of exercise of such Warrant or, if no such sale is made on
such day, the average of the closing bid and asked prices for such day on such
exchange or system; or
(b) if the Common Stock is not so listed or admitted, the current market
value shall be the last reported sale price of the Common Stock on the Alternate
Investment Market of the London Stock Exchange on the last trading day prior to
the date of exercise of such warrant or, if no such sale is made on such day,
the average of the closing bid and asked prices for such day on such exchange;
or
(c) If the Common Stock is not so listed or admitted, the current market
value shall be the average of the closing bid and asked prices as quoted by the
OTC Bulletin Board; or
(d) If the Common Stock is not so listed or admitted to unlisted trading
privileges, the current market value shall be the mean of the last reported bid
and asked prices reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of such Warrant; or
(e) 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 market
value shall be an amount, not less than book value thereof as at the end of the
most recent fiscal year of the Company ending prior to the date of the exercise
of such Warrant, determined in such reasonable manner as may be prescribed by
the Board of Directors of the Company.
SECTION 8. Reservation of Equity Securities.
The Company covenants that it will at all times reserve and keep
available, free from any pre-emptive rights, out of its authorized and unissued
equity securities, solely for the purpose of issue upon exercise of the
Warrants, such number of shares of equity securities of the Company as shall
then be issuable upon the exercise of all outstanding Warrants ("Equity
Securities"). The Company covenants that all Equity Securities which shall be so
issuable shall, upon such issue, be duly authorized, validly issued, fully paid
and non-assessable.
The Company covenants that if any Equity Securities, required to be
reserved for the purpose of issue upon exercise of the Warrants hereunder,
require registration with or approval of any governmental authority under any
federal or state law before such shares may be issued upon exercise of Warrants,
the Company will use its best efforts to cause such securities
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to be duly registered, or approved under the federal securities laws, as the
case may be, and, to the extent practicable, take all such action in
anticipation of and prior to the exercise of the Warrants, including, without
limitation, filing any and all post-effective amendments to the Company's
Registration Statement on Form S-1 (Registration No. 333-109129) and take such
reasonable action under the laws of the various states, necessary to permit a
public offering of the securities underlying the Warrants at any and all times
during the term of this Agreement, provided, however, that in no event shall
such securities be issued, and the Company is authorized to refuse to honor the
exercise of any Warrant, if such exercise would result in the opinion of the
Company's Board of Directors, upon advice of counsel, in the violation of any
law.
SECTION 9. Disposition of Proceeds on Exercise of Warrant Certificates, etc.
The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of securities or other property through the
exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by Holders during normal business hours at its stock transfer office.
Copies of this Agreement may be obtained upon written request addressed to the
Warrant Agent at its stock transfer office in ____________________.
SECTION 10. Holder Not Deemed a Stockholder.
No Holder, as such, shall be entitled to vote, receive dividends or
be deemed the holder of Common Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Warrants represented
thereby for any purpose whatever, nor shall anything contained herein or in any
Warrant Certificate be construed to confer upon any Holder, 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, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise), or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 5 hereof), or to receive dividend or
subscription rights, or otherwise, until such Warrant Certificate shall have
been exercised in accordance with the provisions hereof and the receipt of the
Exercise Price and any other amounts payable upon such exercise by the Warrant
Agent.
SECTION 11. Right of Action.
All rights of action in respect to this Agreement are vested in the
respective registered holders of the Warrant Certificates; and any registered
holder of any Warrant Certificate, without the consent of the Warrant Agent or
of any other holder of a Warrant Certificate, may, in his own behalf for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, his right
to exercise the Warrants evidenced by such Warrant Certificate, for the purchase
of
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shares of the Common Stock in the manner provided in the Warrant Certificate and
in this Agreement.
SECTION 12. Agreement of Holders of Warrant Certificates.
Every holder of a Warrant Certificate by accepting the same consents
and agrees with the Company, the Warrant Agent and with every other holder of a
Warrant Certificate that:
(a) the Warrant Certificates are transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in this Agreement;
and
(b) the Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner of the
Warrant (notwithstanding any notation of ownership or other writing thereon made
by anyone other than the Company or the Warrant Agent) for all purposes
whatsoever and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
SECTION 13. Cancellation of Warrant Certificates.
In the event that the Company shall purchase or otherwise acquire
any Warrant Certificate or Certificates after the issuance thereof, such Warrant
Certificate or Certificates shall thereupon be delivered to the Warrant Agent
and be canceled by it and retired. The Warrant Agent shall also cancel any
Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for transfer, split-up, combination or exchange. Warrant
Certificates so canceled shall be delivered by the Warrant Agent to the Company
from time to time, or disposed of in accordance with the instructions of the
Company.
SECTION 14. WARRANT AGENT.
The Warrant Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and the holders of Warrants, by their acceptance thereof, shall be
bound:
The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same. The Warrant Agent assumes
no responsibility with respect to the distribution of the Warrant Certificates
except as herein otherwise provided.
The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant
Certificate 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.
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The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any Warrant Certificate, certificate of shares, notice, resolution,
waiver, consent, order, certificate, opinion, direction 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.
The Company agrees to pay to the Warrant Agent reasonable
compensation, as agreed in writing from time to time, for all services rendered
by the Warrant Agent in connection with this Agreement, to reimburse the Warrant
Agent for all expenses, taxes and governmental charges and other charges of any
kind and nature reasonably incurred by the Warrant Agent in connection with this
Agreement (including, without limitation, reasonable fees and expenses of
counsel) and to indemnify the Warrant Agent and its agents, employees,
directors, officers, attorneys and affiliates and save it and them harmless
against any and all losses, liabilities, damages and expenses of any nature
whatsoever, including, without limitation, judgments, costs and counsel fees and
actual expenses, for any action taken or omitted by the Warrant Agent or arising
in connection with this Agreement and the exercise by the Warrant Agent of its
rights hereunder and the performance by the Warrant Agent of any of its
obligations hereunder except as a result of the Warrant Agent's gross negligence
or bad faith or willful misconduct, which finding of liability shall have been
determined by a court of competent jurisdiction.
The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Holders of Warrant Certificates shall
furnish the Warrant Agent with reasonable security and indemnity satisfactory to
the Warrant Agent for any costs and expenses which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such action as
it may consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent and any recovery of judgment shall
be for the ratable benefit of the Holders of the Warrants, as their respective
rights or interests may appear.
The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own willful misconduct,
gross negligence or bad faith.
The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the
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Exercise Price or number of the Equity Securities or other securities or
property deliverable as provided in this Agreement, or to determine whether any
facts exist which may require any of such adjustments, or with respect to the
nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be accountable
with respect to the validity or value or the kind or amount of any Equity
Securities or of any securities or property which may at any time be issued or
delivered upon the exercise of any Warrant or with respect to whether any such
Equity Securities or other securities will when issued be validly issued and
fully paid and non-assessable, and makes no representation with respect thereto.
Before the Warrant Agent acts or refrains from acting with respect
to any matter contemplated by this Agreement, it may require:
(i) an Officers' Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with; and
(ii) if reasonably necessary in the sole judgment of the Warrant Agent, an
Opinion of Counsel for the Company stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Each Officers' Certificate or, if requested, an Opinion of Counsel
with respect to compliance with a condition or covenant provided for in
this Agreement shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
The Warrant Agent shall not be liable for any action it takes or
omits to take in good faith in reliance on any such certificate or opinion.
The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Company, and
to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer.
The Warrant Agent shall not have any duty to calculate or determine
any adjustments with respect either to the Exercise Price or the kind and amount
of shares or other securities or any property receivable by holders of Warrant
Certificates upon the exercise or
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tender of Warrants required from time to time, and the Warrant Agent shall have
no duty or responsibility in determining the accuracy or correctness of such
calculations.
The Company will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may be required by the Warrant Agent in order to
enable it to carry out or perform its duties under this Agreement.
The Warrant Agent may rely and shall be fully protected in relying
upon any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Warrant Agent need not investigate any fact
or matter stated in the document.
The Warrant Agent may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
The Warrant Agent shall maintain the Warrant Register consistent
with the terms and conditions of this Agreement.
SECTION 15. Merger or Consolidation or Change of Name of Warrant
Agent.
Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor warrant agent
under the provisions of Section 15 hereof. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and in case at
that time any of the Warrant Certificates shall not have been countersigned, the
Warrant Agent may countersign such Warrant Certificates either in its prior name
or in its changed name; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this Agreement.
SECTION 16. Change of Warrant Agent.
The Warrant Agent may resign and be discharged from its duties under
this Agreement upon 30 days' prior notice in writing mailed, by registered or
certified mail, to the
13
Company. The Company may remove the Warrant Agent or any successor warrant agent
upon 30 days' prior notice in writing, mailed to the Warrant Agent or successor
warrant agent, as the case may be, by registered or certified mail. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent and shall,
within 15 days following such appointment, give notice thereof in writing to
each registered holder of the Warrant Certificates. If the Company shall fail to
make such appointment within a period of 15 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent, then the Company
agrees to perform the duties of the Warrant Agent hereunder until a successor
Warrant Agent is appointed. After appointment and execution of a copy of this
Agreement in effect at that time, the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the former
Warrant Agent shall deliver and transfer to the successor Warrant Agent, within
a reasonable time, any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to give any notice provided for in this Section, however, or
any defect therein shall not affect the legality or validity of the resignation
or removal of the Warrant Agent or the appointment of the successor warrant
agent, as the case may be.
SECTION 17 Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or the
several Warrant Certificates to the contrary, the Company may, at its option,
issue new Warrant Certificates in such form as may be approved by its Board of
Directors to reflect any adjustment or change in the Exercise Price or the
number or kind of shares purchasable under the several Warrant Certificates made
in accordance with the provisions of this Agreement.
SECTION 18 Notices.
Notice or demand pursuant to this Agreement to be given or made on
the Company by the Warrant Agent or by the registered holder of any Warrant
Certificate shall be sufficiently given or made if sent by first-class or
registered mail, postage prepaid, addressed
14
(until another address is filed in writing by the Company with the Warrant
Agent) as follows:
Xxxxxxxx Xxxxxxx, Inc.
000 Xxxxx Xxxx
Xxxxx Xxxx XXX 0000
Xxxxxxxxx
Attention: Xxxxx X. Xxxxxx
Secretary
Subject to the provisions of Section 15, any notice pursuant to this
Agreement to be given or made by the Company or by the holder of any Warrant
Certificate to the Warrant Agent shall be sufficiently given or made if sent by
first-class or registered mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as follows:
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Relationship Manager
Any notice or demand authorized to be given or made to the
registered holder of any Warrant Certificate under this Agreement
shall be sufficiently given or made if sent by first-class or
registered mail, postage prepaid, to the last address of such holder
as it shall appear on the registers maintained by the Warrant Agent.
SECTION 19. Modification of Agreement.
The Warrant Agent may, without the consent or concurrence of the
Holders, by supplemental agreement or otherwise, concur with the Company in
making any changes or corrections in this Agreement that the Warrant Agent shall
have been advised by counsel (who may be counsel for the Company) are necessary
or desirable to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error herein contained, or
to make any other provisions in regard to matters or questions arising hereunder
and which shall not be inconsistent with the provisions of the Warrant
Certificates and which shall not adversely affect the interests of the Holders.
As of the date hereof, this Agreement contains the entire and only agreement,
understanding, representation, condition, warranty or covenant between the
parties hereto with respect to the matters herein, supersedes any and all other
agreements between the parties hereto relating to such matters, and may be
modified or amended only by a written agreement signed by both parties hereto
pursuant to the authority granted by the first sentence of this Section.
SECTION 20. Successors.
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All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
SECTION 21. Applicable Law.
This Agreement and each Warrant Certificate issued hereunder shall
for all purposes be governed by and construed in accordance with the laws of the
State of Delaware without giving effect to the choice of law rules thereof.
SECTION 22 Termination.
This Agreement shall terminate as of the close of business on the
Expiration Date, or such earlier date upon which all Warrants shall have been
exercised or redeemed, except that the Warrant Agent shall account to the
Company as to all Warrants outstanding and all cash held by it as of the close
of business on the Expiration Date.
SECTION 23 Benefits of this Agreement.
Nothing in this Agreement or in the Warrant Certificates shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent, and their respective successors and assigns hereunder and the
registered holders of the Warrant Certificates any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent, their respective
successors and assigns hereunder and the registered holders of the Warrant
Certificates.
SECTION 24 Descriptive Headings.
The descriptive headings of the several Sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 25 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
XXXXXXXX XXXXXXX, INC.
By:
-----------------------------------------
Name:
Title:
COMPUTERSHARE INVESTOR
SERVICES, LLC
By:
-----------------------------------------
Name:
Title:
17
EXHIBIT A
VOID AFTER 5 P.M. EASTERN TIME ON ______________, 200__
WARRANTS TO PURCHASE COMMON STOCK
____ WARRANTS
XXXXXXXX XXXXXXX, INC.
CUSIP 572322 11 3
THIS CERTIFIES THAT ____________________ or its registered assigns,
is the registered holder of the number of Warrants ("Warrants") set forth above.
Each Warrant, unless and until redeemed by the Company as provided in the
Warrant Agreement, hereinafter more fully described (the "Warrant Agreement")
entitles the holder thereof to purchase from Xxxxxxxx Xxxxxxx Inc., a
corporation incorporated under the laws of the State of Delaware the
("Company"), subject to the terms and conditions set forth hereinafter and in
the Warrant Agreement, at any time on or before the close of business on
__________, 200__ ("Expiration Date"), one fully paid and non-assessable share
of Common Stock of the Company, par value $0.00000002 per share ("Common Stock")
upon presentation and surrender of this Warrant Certificate, with the
instructions for the registration and delivery of Common Stock filled in, at the
stock transfer office in _____________, of Computershare Investor Services, LLC,
Warrant Agent of the Company ("Warrant Agent") or of its successor warrant agent
or, if there be no successor warrant agent, at the corporate offices of the
Company, and upon payment of the Exercise Price (as defined in the Warrant
Agreement) and any applicable taxes paid either in cash, or by certified or
official bank check, payable in lawful money of the United States of America to
the order of the Company. Each Warrant initially entitles the holder to purchase
one share of Common Stock for $_________. The number and kind of securities or
other property for which the Warrants are exercisable are subject to adjustment
in certain events, such as mergers, splits, stock dividends, splits and the
like, to prevent dilution.
This Warrant Certificate is subject to all of the terms, provisions
and conditions of the Warrant Agreement, dated as of ____________, 200__,
between the Company and the Warrant Agent, to all of which terms, provisions and
conditions the registered holder of this Warrant Certificate consents by
acceptance hereof. The Warrant Agreement is incorporated herein by reference and
made a part hereof and reference is made to the Warrant Agreement for a full
description of the rights, limitations of rights, obligations, duties and
immunities of the Warrant Agent, the Company and the holders of the Warrant
Certificates. Copies of the Warrant Agreement are available for inspection at
the stock transfer office of the Warrant Agent or may be obtained upon written
request addressed to the Company at 000 Xxxxx Xxxx, Xxxxx Xxxx XXX 0000,
Xxxxxxxxx, Attn: Secretary.
The Company shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of Warrants, Common
Stock or other securities, but
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shall make adjustment therefor in cash on the basis of the current market value
of any fractional interest as provided in the Warrant Agreement.
In certain cases, the sale of securities by the Company upon
exercise of Warrants would violate the securities laws of the United States,
certain states thereof or other jurisdictions. The Company has agreed to use its
best efforts to cause a registration statement to continue to be effective
during the term of the Warrants with respect to such sales under the Securities
Act of 1933, and to take such reasonable action under the laws of various states
as may be required to cause the sale of securities upon exercise to be lawful.
However, the Company will not be required to honor the exercise of Warrants if,
in the opinion of the Board of Directors, upon advice of counsel, the sale of
securities upon such exercise would be unlawful.
This Warrant Certificate, with or without other Certificates, upon
surrender to the Warrant Agent, any successor warrant agent or, in the absence
of any successor warrant agent, at the corporate offices of the Company, may be
exchanged for another Warrant Certificate or Certificates evidencing in the
aggregate the same number of Warrants as the Warrant Certificate or Certificates
so surrendered. If the Warrants evidenced by this Warrant Certificate shall be
exercised in part, the holder hereof shall be entitled to receive upon surrender
hereof another Warrant Certificate or Certificates evidencing the number of
Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to
vote, receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose whatever, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon the holder of this Warrant
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof or give or withhold consent to any corporate
action (whether upon any matter submitted to stockholders at any meeting
thereof, or give or withhold consent to any merger, recapitalization, issuance
of stock, reclassification of stock, change of par value or change of stock to
no par value, consolidation, conveyance or otherwise) or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Warrant Agreement) or to receive dividends or subscription rights or otherwise
until the Warrants evidenced by this Warrant Certificate shall have been
exercised and the Common Stock purchasable upon the exercise thereof shall have
become deliverable as provided in the Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within
any period during which the transfer books for the Company's Common Stock or
other class of stock purchasable upon the exercise of the Warrants evidenced by
this Warrant Certificate are closed for any purpose, the Company shall not be
required to make delivery of certificates for shares purchasable upon such
transfer until the date of the reopening of said transfer books.
Every holder of this Warrant Certificate by accepting the same
consents and agrees with the Company, the Warrant Agent, and with every other
holder of a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the registry books
of the Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement, and
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(b) the Company and the Warrant Agent may deem and treat the person
in whose name this Warrant Certificate is registered as the absolute owner
hereof (notwithstanding any notation of ownership or other writing thereon made
by anyone other than the Company or the Warrant Agent) for all purposes whatever
and neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary. The Company shall not be required to issue or deliver any
certificate for shares of Common Stock or other securities upon the exercise of
Warrants evidenced by this Warrant Certificate until any tax which may be
payable in respect thereof by the holder of this Warrant Certificate pursuant to
the Warrant Agreement shall have been paid, such tax being payable by the holder
of this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the proper officers of the
Company.
Dated: XXXXXXXX XXXXXXX, INC.
By:
-----------------------------------------
President and CEO
COUNTERSIGNED
COMPUTERSHARE INVESTOR SERVICES, LLC,
as Warrant Agent
By:
-----------------------------------------
Authorized Officer
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