EXHIBIT 4.3
WARRANT AGREEMENT
DATED AS OF ______________, 1998
BETWEEN
XXXXXXXX CARIBBEAN CORPORATION
AND
_______________________
WARRANTS TO PURCHASE SHARES OF CLASS A COMMON STOCK
OF
XXXXXXXX CARIBBEAN CORPORATION
WARRANT AGREEMENT
AGREEMENT made as of ____________, 1998, by and between XXXXXXXX CARIBBEAN
CORPORATION, a U.S. Virgin Islands corporation (herein called the "Company"),
and _____________________, a national banking association incorporated under the
laws of the United States of America (herein called the "Warrant Agent").
RECITALS
WHEREAS, the Company has determined to issue and deliver warrants in
connection with the Company's initial public offering (the "Offering") of a
maximum of 2,000,000 shares of the Company's Class A Common Stock, par value
$.01 per share (the "Shares"), entitling the holders thereof to purchase up to
an aggregate of 200,000 Shares. The Company desires to provide in this Agreement
for the form and provisions of those warrants (the "Warrants"), the terms upon
which they shall be issued and exercised, and the respective rights and
obligations of the Company, the Warrant Agent and the registered holders of the
Warrants.
WHEREAS, all acts and things necessary to make the Warrants, when
executed on behalf of the Company and countersigned by or on behalf of the
Warrant Agent, as provided in this Agreement, the valid, binding and legal
obligation of the Company, and to authorize the execution and delivery of this
Agreement, have been done and performed.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE 1
APPOINTMENT OF WARRANT AGENT; ISSUANCE,
EXECUTION AND COUNTERSIGNATURE OF WARRANTS
1.1 The Company hereby appoints the Warrant Agent to act as agent for
the Company in accordance with the instructions set forth hereinafter in this
Agreement, and the Warrant Agent hereby accepts such appointment.
1.2 (a) Each certificate for the Warrants (the "Warrant Certificates")
shall be in substantially the form of Exhibit A hereto. Each Warrant Certificate
shall be signed by, or bear the facsimile signature of the President of the
Company and attested by the Secretary or an Assistant Secretary or Treasurer or
Assistant Treasurer of the Company and shall bear a facsimile of the Company's
seal. In case any officer whose signature or facsimile signature has been placed
upon any Warrant Certificate shall have ceased to be such officer before such
Warrant Certificate is issued, it may be issued with the same effect as if such
officer had not ceased to be such at the date of issuance. The Warrant
Certificates shall be dated as of the date of their issue, which shall be the
date of countersignature by the Warrant Agent.
(b) In connection with the original issuance of the Warrants,
the Warrant Agent shall, upon the written instructions of the Company,
countersign and deliver Warrant Certificates to such persons and in such number
as the Company shall instruct in writing. No Warrant may be exercised until the
Warrant Certificate therefor has been countersigned by the Warrant Agent as
provided in paragraph (c) below.
(c) The Warrant Agent shall countersign a Warrant Certificate
only if:
(i) The Warrant Certificate is to be issued in exchange,
registration of transfer or substitution for one or more
previously duly issued and countersigned Warrant Certificates, as
hereinafter provided, or
(ii) The Company instructs the Warrant Agent in writing to
do so.
(d) Unless and until countersigned by the Warrant Agent
pursuant to this Agreement, a Warrant Certificate shall be invalid and of no
effect.
ARTICLE 2
WARRANT PRICE, DURATION, EXERCISE OF WARRANTS
2.1 WARRANT PRICE. Each Warrant shall, when the Warrant Certificate
therefor is countersigned by the Warrant Agent, entitle the registered holder
thereof, subject to the provisions thereof and of this Agreement, to purchase
from the Company the number of Common Shares stated therein, at a price of $9.75
per Share, subject to adjustment as provided in Article 3 hereto. The term
"Warrant Price" as used in this Agreement refers to the price per Share at which
Shares may be purchased pursuant to the Warrants at the time a Warrant is
exercised.
2.2 DURATION OF WARRANTS. Warrants may be exercised only (i) on or
after a date (the "Exercise Period Commencement Date") that is the last day of
the twelfth month following the effective date of the Company's initial public
offering of Shares and (ii) on or before the date that is sixty months after the
Exercise Period Commencement Date (the "Expiration Date"). Each Warrant not
exercised on or before the Expiration Date shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement shall cease on
the Expiration Date.
2.3 EXERCISE OF WARRANTS.
(a) A Warrant, when the Warrant Certificate therefor is
countersigned by the Warrant Agent, may be exercised in whole or in part on or
after the Exercise Period Commencement Date and up until the Expiration Date
(the "Exercise Period"). The registered holder may exercise the Warrant by
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surrendering the Warrant Certificate therefor, at the corporate trust office of
the Warrant Agent located in Charlotte, North Carolina, or at the office of a
successor warrant agent, with the subscription form set forth in the Warrant
Certificate duly executed, and by paying to the Warrant Agent (or such successor
Warrant Agent) the Warrant Price in lawful money of the United States, so that
the Warrant Price for each full Share as to which the Warrant is exercised, and
any transfer tax payable under Section 2.3 hereof, are paid in full. The Company
shall provide the Warrant Agent with information as to any applicable taxes
payable by the registered warrant holders pursuant to Section 2.3(c). The
Warrant Agent shall be entitled to rely on such information in undertaking its
obligations pursuant to this Section 2.3 and shall not be liable for any action
taken in reliance thereon. The Warrant Agent shall not be responsible for
calculating or paying any transfer taxes in connection with the exercise of
Warrants, but shall only apply any tax payments received by it to the Company's
account.
(b) As soon as practicable after the exercise of any Warrant
and upon the order of the registered holder of such Warrant, the Company shall
issue a certificate or certificates for the number of full Shares to which the
holder is entitled, registered in such name or names as may be directed by such
registered holder or failing such order shall be issued in uncertificated form.
No fractional shares will be issued. If such Warrant shall not have been
exercised in full, a new countersigned Warrant Certificate shall be issued for
the number of Shares and/or fractional shares as to which such Warrant shall not
have been exercised, and the Warrant Agent is hereby irrevocably authorized to
countersign and to deliver the required new Warrant Certificate or Certificates
pursuant to the provisions of this Agreement. All Warrant Certificates
surrendered upon exercise of Warrants shall be canceled by the Warrant Agent.
After inspection and recording of cancellation of such canceled Warrant
Certificates, they shall be disposed of upon direction by the Company.
(c) All Shares issued upon the exercise of a Warrant shall be
validly issued, fully paid and nonassessable, and the Company shall pay all
taxes in respect of the issue thereof. The Company shall not be required,
however, to pay any tax imposed in connection with any transfer involved in the
issue of a certificate for Shares in any name other than that of the registered
holder of the Warrant surrendered in connection with the purchase thereof; and
in such case the Company shall not be required to issue or deliver any Share
certificate until such tax is paid.
(d) Each person in whose name any such certificate for Shares
is issued shall for all purposes be deemed to have become the holder of record
of such Shares on the date on which all of the following have been received by
the Warrant Agent, irrespective of the date of delivery of such certificate: the
Warrant Certificate, including a duly executed subscription form, and payment in
lawful money of the United States of the Warrant Price and any applicable taxes;
provided, however, that, if the date of receipt of such items is a date when the
stock transfer books of the Company are closed, such person shall be deemed to
have become the holder of such Shares at the close of business on the next
succeeding date on which the stock transfer books are open.
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ARTICLE 3
ADJUSTMENTS
3.1 RECAPITALIZATION OR SUBDIVISION.
(a) If any capital reorganization or reclassification of the
Shares of the Company, or consolidation or merger of the Company with another
entity, or the sale of all or substantially all of its assets to another entity,
shall be effected in such a way that holders of Shares shall be entitled to
receive stock, securities, cash or assets with respect to or in exchange for
Shares, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, each Warrant Holder shall have the right
thereafter and until the Expiration Date to exercise his Warrants for the kind
and amount of stock, securities, cash or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale to which the
registered holder of such Warrant would be entitled had such Warrant been
exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale.
(b) In case at any time the Company shall subdivide its
outstanding Shares into a greater number of Shares, the Warrant Price in effect
immediately prior to such subdivision shall thereupon be proportionately reduced
and the number of Shares purchasable increased accordingly. For purposes of this
subparagraph (b), a dividend by the Company payable in Shares of the Company
shall be treated as a subdivision of the outstanding Shares. Conversely, in case
the outstanding Shares of the Company shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall
be proportionately increased and the number of Shares purchasable decreased
accordingly.
(c) In case at any time the Company shall take a record of the
holders of Shares for the purpose of entitling them to receive a dividend or
other distribution payable in Shares, then for purposes of this Section 3.1 such
record date shall be deemed to be the date of the issue of the Shares.
3.2 NOTICES OF CHANGES IN WARRANT. Upon any adjustment of the Warrant
Price and the number of Shares issuable on exercise of a Warrant, then, and in
each such case the Company shall give written notice thereof to the registered
holder of the Warrant(s) at the address of such holder as shown on the books of
the Company, and to the Warrant Agent, which notice shall state the Warrant
Price resulting from such adjustment and the increase or decrease, if any, in
the number of Shares purchasable at such price upon
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the exercise of a Warrant, setting forth in reasonable detail thereof, issue a
new Warrant Certificate of like denomination, tenor and date. The Warrant Agent
shall have no duty with respect to any notice filed with it except to keep the
same on file and available for inspection by registered holders of Warrants
during reasonable business hours. The Warrant Agent shall not at any time be
under any duty or responsibility to any holder of a Warrant to determine whether
any facts exist which may require any adjustment to the Warrant Price, or with
respect to the nature or extent of any adjustment of the Warrant Price when made
or with respect to the method employed in making such adjustment.
3.3 OTHER NOTICES. In case at any time:
(a) The Company shall declare dividends payable in Shares or
make any liquidating distribution to the registered holders of its Shares;
(b) The Company shall offer any additional Shares for
subscription pro rata to the registered holders of its Shares;
(c) There shall be any capital reorganization,
reclassification of the Shares, consolidations or merger of the Company with, or
sale of all or substantially all of its assets to another entity; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company,
then, in any one or more of such cases, the Company shall give written
notice to the registered holders of the Warrants at the address of such holders
as shown on the books of the Company, and to the Warrant Agent, of the date on
which (i) the books of the Company shall close or a record of registered holders
of Shares shall be taken for such liquidating distribution or subscription
rights, or (ii) such reorganization, reclassification, consolidation, merger,
refinancing, sale, dissolution, liquidation, or winding up shall take place, as
the case may be. Such notice shall also specify the date as of which the holders
of Shares of record shall participate in such liquidating distribution or
subscription rights, or shall be entitled to exchange their Shares for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such notice to the registered holders of the
Warrants shall be given and published at least 20 days prior to the action in
question and not less than 20 days prior to the record date or the date on which
the Company's transfer books are closed in respect thereto. Such notice to the
Warrant Agent shall be given as soon as practicable, and in any event prior to
the giving of notice to the registered holders of the Warrants. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
any of the matters set forth in this Section 3.3.
3.4 FORM OF WARRANT. The form of Warrant need not be changed because of
any change pursuant to this Article 3, and Warrants issued after such change may
state the same Warrant Price and the same number of Shares as is stated in the
Warrants initially issued pursuant to this Agreement. However, the Company may
at any time in its sole discretion make any change in the form of Warrant that
the Company may deem appropriate and that does not affect the substance thereof;
and any Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the form as so
changed.
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ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS
OF REGISTERED HOLDERS OF WARRANTS
4.1 NO RIGHTS AS SHAREHOLDER CONFERRED BY WARRANTS. A Warrant does not
entitle the holder thereof to any of the rights of a Shareholder of the Company.
4.2 LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES. If any
Warrant Certificate is lost, stolen, mutilated or destroyed, the Company shall,
upon such terms as to indemnify or otherwise as it may, in its discretion,
impose upon the registered holder thereof (which shall, in the case of a
mutilated Warrant Certificate, include the surrender thereof), and in the
absence of notice that such Certificate has been acquired by a bona fide
purchaser, issue a new Warrant Certificate of like denomination, tenor and date
as the Warrant Certificate so lost, stolen, mutilated or destroyed, and upon
instructions of the Company, the Warrant Agent shall countersign and deliver
such replacement Warrant Certificates. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
4.3 RESERVATION OF SHARES. The Company shall at all time keep available
for issuance a number of its Shares sufficient to permit the exercise in full of
all outstanding Warrants.
ARTICLE 5
TRANSFER AND EXCHANGE OF WARRANTS
5.1 The Warrant Agent will keep at the office or agency maintained
pursuant to Section 2.3 hereof a register or registers, in which, subject to
such reasonable regulations as it may prescribe, it will register all Warrants,
and the Company hereby constitutes and appoints the Warrant Agent its Warrant
Registrar. No transfer or exchange of any Warrant shall be valid unless made
upon such register.
The Warrant Agent shall register the transfer, from time to time, of
any outstanding Warrants upon the register to be maintained by the Warrant Agent
for that purpose, upon
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surrender of the Warrant Certificates therefor for registration of transfer, at
the office or agency maintained pursuant to Section 2.3 hereof, properly
endorsed or accompanied by instruments of transfer in a form customarily used or
accepted by the Warrant Agent from time to time. Such instruments of transfer
shall be duly executed by the registered holder of such Warrants or by a duly
authorized attorney, and accompanied by appropriate instructions of transfer,
and payment in lawful money of the United States of an amount equal to any
documentary stamps or similar tax or governmental charge required to be paid in
connection with the transfer thereof. The Company shall provide the Warrant
Agent with information as to any applicable taxes payable by the registered
Warrant holders in connection with the transfer of the Warrants. The Warrant
Agent shall be entitled to rely on such information in registering the transfer
of Warrants and shall not be liable for any action taken in reliance thereon.
The Warrant Agent shall not be responsible for calculating or paying any
transfer taxes paid to it pursuant to this Section 5.1, but shall only apply any
tax payments received by it to the Company's account. Upon any such registration
of transfer, a new Warrant Certificate representing a like number of Warrants
shall be issued to the transferee and the surrendered Warrant Certificate shall
be canceled by the Warrant Agent. After inspection and recording of cancellation
of canceled Warrant Certificates by the Warrant Agent, they shall be disposed of
upon direction by the Company. Warrant Certificates may be exchanged at the
option of the holder thereof upon surrender, at the office or agency maintained
pursuant to the Section 2.3 hereof, for another Warrant Certificate or Warrant
Certificates representing in the aggregate the equivalent number of Warrants. No
service charge shall be made for any registration of transfer or exchange of
Warrants, except for such charges payable by the Company to the Warrant Agent
pursuant to Section 6.4.
All Warrants issued upon any registration of transfer or exchange of
Warrants shall be the valid obligation of the Company, entitled to the same
benefits under this Warrant Agreement as the Warrants surrendered upon such
registration of transfer or exchange.
ARTICLE 6
CONCERNING THE WARRANT AGENT
6.1 PAYMENT OF TAXES. The Company shall from time to time promptly pay
all taxes and charges that may be imposed upon the Company or the Warrant Agent
in respect of the issuance or delivery of Shares upon the exercise of Warrants,
but the Company shall not be obligated to pay any transfer taxes in respect of
the Warrants representing the right to purchase such Shares.
6.2 DUTIES OF WARRANT AGENT. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, pursuant to which the Company and the registered holders of Warrants
shall be bound:
(a) The statements contained herein and in the Warrants shall
be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except for those that
describe the Warrant Agent. The Warrant Agent assumes no responsibility with
respect to the distribution of the Warrants.
(b) 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 Warrants.
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(c) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys, agents or employees and the Warrant Agent shall
not be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys, agents or employees or for any damage to the Company
resulting from such act, default, neglect or misconduct, provided the Warrant
Agent has exercised reasonable care in the selection and continued employment
thereof.
(d) The Warrant Agent may consult at any time with counsel
(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 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.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, counsel fees,
taxes and governmental charges and other charges of any kind and nature incurred
by the Warrant Agent in the execution of this Agreement, and from and at all
times after the date of this Agreement, the Company shall, to the fullest extent
permitted by law, indemnify and hold harmless the Warrant Agent and each
director, officer, employee, attorney, agent and affiliate of the Warrant Agent
solely with respect to such person's actions for or on behalf of the Warrant
Agent when acting in its capacity as Warrant Agent under this Agreement
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, reasonable costs and
expenses of any kind or nature whatsoever (including without limitation
reasonable attorneys' fees, costs and expenses) incurred by or asserted against
any of the Indemnified Parties from and after the date hereof, whether direct,
indirect or consequential, as a result of or arising from or in any way relating
to any claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Agreement or any transactions contemplated herein,
whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation; provided,
however, that no Indemnified Party shall have the right to be indemnified
hereunder for any liability finally determined by a court of
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competent jurisdiction, subject to no further appeal, to have resulted solely
from the negligence or willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against the Indemnified Party, such
Indemnified Party shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel and the
payment of all reasonable expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel in any such action and to
participate in the defense thereof, and the fees and expense of such counsel
shall be paid by such Indemnified Party unless (a) the Company agrees to pay
such fees and expenses, or (b) the Company shall fail to assume the defense of
such action or proceeding or shall fail, in the reasonable discretion of such
Indemnified Party, to employ counsel satisfactory to the Indemnified Party in
any such action or proceeding, or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnified Party
and the Company, and the Indemnified Party shall have been advised by counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Company. All such fees and expenses
payable by the Company pursuant to the foregoing sentence shall be paid from
time to time as incurred, both in advance of and after the final disposition of
such action or claim. The obligations of the Company under this Section 6.2(e)
shall survive any termination of this Agreement and the resignation or removal
of the Warrant Agent.
(f) The Warrant Agent shall not be obligated to take any legal
action or commence any proceeding on behalf of, or at the request of, any party
in connection with this Agreement, or prosecute or defend any such legal action
or proceeding. The Warrant Agent shall incur no liability for delaying
performance of its obligations under this Warrant Agreement if there is any
dispute between the Company and any Warrant holder, stockholder or other person
regarding the Warrant Agent's obligations hereunder.
(g) The Warrant Agent and any stockholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company in accordance with applicable requirements under
the federal and state securities and other laws 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 the 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.
(h) The Warrant Agent shall act hereunder solely as agent and
in a ministerial capacity, 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 negligence or willful misconduct. In no event shall the Warrant Agent or any
other Indemnified Party be liable to any person for any incidental, indirect,
special or consequential damages.
(i) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of a Warrant for any action taken
in reliance on any Warrant Certificate, subscription form, notice, resolution,
waiver, consent, order, certificate or other paper, document or instrument
believed by it in good faith to be genuine.
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature thereof); nor
shall the Warrant Agent by any act hereunder be deemed to make any
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representation or warranty as to the authorization or reservation of any Shares
(or any other stock or security) to be issued pursuant to this Agreement or any
Warrant or as to whether any Shares (or any other stock or security) will, when
issued, be validly issued, fully paid and nonassessable or as to the Warrant
Price, or the number or kind or amount of Shares or other securities or other
property issuable upon exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the President or Chairman of the Board or the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the Company, and to
apply to such officers for advice or instructions or the determination of any
matter 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 the advice
or determination or instructions of any such officer.
6.3 RESIGNATION, CONSOLIDATION OR MERGER OF WARRANT AGENT.
(a) The Warrant Agent, or any successor to it hereafter
appointed, may resign and shall be discharged from all further duties and
liabilities hereunder after giving notice in writing to the Company. If the
office of the Warrant Agent becomes vacant by reason of such resignation, the
incapacity to act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. The Company shall indemnify and
hold the Warrant Agent harmless from and against all claims, expenses or causes
of action resulting from the failure of the Company to make such appointment
prior to the effective date of resignation of the Warrant Agent.
Any resignation of the Warrant Agent for cause, or after the failure of
the Company to pay any fees or expenses due to the Warrant Agent for a period of
30 days after the date due, shall become effective immediately. Any resignation
of the Warrant Agent for any other reason shall become effective 30 days after
the date on which the Warrant Agent shall give notice of resignation to the
Company.
Any successor Warrant Agent shall be a corporation organized and doing
business under the laws of the United States of America or of any state therein,
in good standing,
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authorized under applicable laws to exercise corporate trust powers and subject
to supervision or examination by federal or state authority for not less than
five (5) years preceding appointment as successor Warrant Agent. After
appointment, any successor Warrant Agent shall be vested with all the authority,
powers, rights, immunities, duties and obligations of its predecessor Warrant
Agent with like effect as if originally named as Warrant Agent hereunder,
without any further act or deed; but if for any reason it becomes necessary or
appropriate, the predecessor Warrant Agent shall execute and deliver at the
expense of the Company, written evidence of its resignation as Warrant Agent and
the successor Warrant Agent shall execute and deliver such documents or
instruments as deemed necessary or appropriate by the Company to vest such
successor Warrant Agent with all the authority, powers and rights of the
predecessor Warrant Agent hereunder; and upon request of any successor Warrant
Agent the Company shall make, execute, acknowledge and deliver any and all
instruments in writing for more fully and effectively vesting in and confirming
to such successor Warrant Agent all such authority, powers, rights, immunities,
duties and obligations. Not later than the effective date of any such
appointment, the Company shall give notice thereof to the predecessor Warrant
Agent and each transfer agent for the Shares, and shall forthwith deliver notice
of the same to each registered holder of Warrants. Failure to give such notice,
or any defect therein, shall not affect the validity of the appointment of the
successor 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 this subsection (a).
(b) 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 Warrants 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 Warrants 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 Warrants shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
6.4 FEES AND EXPENSES OF WARRANT AGENT. The Company agrees (a) that it
will pay the Warrant Agent for its services as such Warrant Agent hereunder,
compensation as set forth in the Fee Schedule attached hereto and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant Agent may
reasonably incur in the execution of its duties hereunder; and (b) that it will
perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Warrant Agent for the carrying
out or performing of the provisions of this Agreement.
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6.5 MODIFICATION OF THIS AGREEMENT. The Warrant Agent may, without the
consent or concurrence of the registered holders of the Warrants, by
supplemental agreement or otherwise, concur with the Company in making any
changes or corrections in this Agreement that it shall have been advised by
counsel (who may be counsel for the Company) are required to cure any ambiguity
or to correct any defective or inconsistent provision or clerical omission or
mistake or manifest error herein contained.
6.6 REPLACEMENT OF WARRANT AGENT. The Company may terminate its
Agreement with the Warrant Agent and appoint a substitute Warrant Agent at any
time on 30 days' advance notice to the Warrant Agent and the Warrant Agent may,
in addition to its rights of resignation under Section 6.3, terminate this
Agreement with the Company at any time on 30 days advance notice to the Company.
6.7 SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company and the Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
7.1 The Company represents and warrants to the Warrant Agent that:
(a) It has a satisfactory number of Shares available for
issuance upon the exercise of the Warrants, and covenants and agrees that it
will, at all times, cause to be available and free from pre-emptive rights, out
of its authorized but unissued Shares such number of Shares as shall be required
to be issued by it from time to time upon the exercise of the Warrants, in
accordance with their terms and the terms of this Agreement, and the transfer
agent for any Shares and every subsequent transfer agent for any Shares of the
Company issuable upon the exercise of any of the Warrants are hereby irrevocably
authorized and directed at all times to keep available such number of authorized
and unissued shares as shall be requisite for such purpose. The Company agrees
that all Shares issued upon exercise of the Warrants shall be, at the time of
delivery of the certificate for such Shares, validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof.
(b) The Company has filed or will have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-11 for the registration under the Securities Act of 1933 (the "Act")
of the Warrants and Shares issuable pursuant to the exercise thereof. Before
such registration statement shall become effective, the Company will file with
the Commission one or more amendments thereto. Such registration statement,
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including all exhibits thereto, and the final prospectus, included therein, each
as amended at the time such registration statement became effective and as
further amended or supplemented, from time to time, is hereinafter called the
"Registration Statement" and the "Prospectus," respectively.
(c) With respect to the Company's Registration Statement as
described in (b) above, the Commission has not issued any order preventing or
suspending its use and the Prospectus conforms in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and does not include any incorrect statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the general affairs, management,
financial position, shareholders' equity or results of operations of the Company
and its subsidiaries, other than as set forth or contemplated in the Prospectus.
The Company will use its best efforts to keep the Registration Statement in
effect as required by the Act for the duration of the Exercise Period of the
Warrants.
ARTICLE 8
OTHER MATTERS
8.1 NOTICES AND DEMANDS TO COMPANY AND WARRANT AGENT. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the registered holder of any Warrant to or on the Company 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 Company
with the Warrant Agent) as follows:
XXXXXXXX CARIBBEAN CORPORATION
X.X. Xxx 0000
Xx. Xxxxxx, XX 00000
Any notice or demand authorized by this Agreement to be given or made
by the registered holder of any Warrant or by the Company to or on 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:
Any notice pursuant to this Agreement to be given by the Company or the
Warrant Agent to the registered holder of any Warrant shall be sufficiently
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given if sent by first-class mail, postage prepaid, addressed to the registered
holder of any Warrant at such Warrant holder's address as it appears on the
Warrant transfer books of the Company maintained by the Warrant Agent.
8.2 APPLICABLE LAW. The validity, interpretation and performance of
this Agreement and of the Warrants shall be governed by and construed in
accordance with the laws of the U.S. Virgin Islands applicable to contracts made
and wholly performed in such state.
8.3 PERSONS HAVING RIGHTS UNDER THIS AGREEMENT. Nothing expressed in
this Agreement and nothing that may be implied from any of the provisions hereof
is intended, or shall be construed to confer upon, or give to, any person or
corporation other than the parties hereto and the registered holders of Warrants
any right, remedy or claim under or by reason of this Agreement or of any
covenant, warranty, condition, stipulation, promise, or agreement therein, and
all covenants, warranties, conditions, stipulations, promises and agreements in
this Agreement contained shall be for the sole and exclusive benefit of the
parties hereto and the successors of the registered holders of Warrants.
8.4 EXAMINATION OF THIS AGREEMENT AND OF THE WARRANTS. A copy of this
Agreement shall be available at all reasonable times at the corporate trust
office of the Warrant Agent for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such registered holder to submit his
Warrant Certificate for inspection by it.
8.5 EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
8.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE COMPANY:
XXXXXXXX CARIBBEAN CORPORATION
By: _____________________________
Its: _____________________________
Attest:
__________________________
AGENT:
________________________
By: _____________________________
Its: _____________________________
Attest:
___________________________
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(EXHIBIT A)
XXXXXXXX CARIBBEAN CORPORATION
(This Warrant will be void after __________, 200_)
This Warrant Certificate certifies that ________________, or registered
assigns, is the registered holder of a Warrant or Warrants expiring __________,
200_ (the "Warrant") to purchase one-tenth of one Share of Class A Common Stock,
par value $0.01 per share (the "Shares") of Xxxxxxxx Caribbean Corporation, a
U.S. Virgin Islands corporation (the "Company") for each Warrant evidenced by
this Warrant Certificate. The Warrant entitles the holder thereof to purchase
from the Company, at any time after 12 months following the effective date of
the Company's initial public offering of Class A Common Stock, and before
expiration thereof 60 months after such 12 months expires, such number of Shares
of the Company at the price of $9.75 per Share, upon surrender of this Warrant
Certificate and payment of the Warrant Price at the office or agency of
_________________ (the "Warrant Agent"), but only subject to the conditions set
forth herein and in the Warrant Agreement referred to herein. The Warrant Price
and the number of Shares purchasable hereunder are subject to adjustment upon
the occurrence of certain events set forth in the Warrant Agreement. The term
"Warrant Price" as used in this Warrant Certificate refers to the price per
Share at which Shares may be purchased pursuant to the Warrant at the time the
Warrant is exercised.
The Warrant Agreement provides that upon the occurrence of certain
events the Warrant Price and the number of Warrant Shares purchasable hereunder,
set forth on the face hereof, may, subject to certain conditions, be adjusted.
No fraction of a Share will be issued upon any exercise of a Warrant. Upon any
exercise of the Warrant for less than the total number of full shares provided
for herein, there shall be issued to the registered holder hereof or such
holder's assignee a new Warrant Certificate, if requested by the holder,
covering the number of Shares and/or fractional shares for which the Warrant has
not been exercised.
Warrant Certificates, when surrendered at the office or agency of the
Warrant Agent by the registered holder hereof in person or by attorney duly
authorized in writing, may be exchanged in the manner and subject to the
limitations provided in the Warrant Agreement, but without payment of any
service charge for another Warrant Certificate or Warrant Certificates of like
tenor and evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of the Warrant
Certificate at the office or agency of the Warrant Agent, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants, if requested, shall be issued to the
transferee in exchange for this Warrant Certificate, subject to the limitations
provided in the Warrant Agreement, without charge except for any applicable tax
or other governmental charge.
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The Company and the Warrant Agent may deem and treat the registered
holder as the absolute owner of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, of any distribution to the registered holder, and for
all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
This Warrant does not entitle the registered holder to any of the
rights of a Shareholder of the Company.
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REVERSE SIDE OF EXHIBIT A - WARRANT AGREEMENT
The Warrant evidenced by this Warrant Certificate is part of a duly
authorized issue of Warrants expiring at 5:00 p.m. Eastern Time, __________,
200_, to purchase up to and including _____ Shares, and is issued pursuant to a
Warrant Agreement dated as of __________, 1998 (the "Warrant Agreement"), duly
executed and delivered by the Company to ______________________ as
attorney-in-fact (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders, the words "holders" or "holder" meaning the registered holders or
registered holder of Warrants.
Warrants may be exercised to purchase Shares from the Company on or
after 12 months following the effective date of the Company's initial public
offering, and on or before __________, 200_ (60 months thereafter) at the
Warrant Price set forth on the face hereof, subject to adjustment in certain
events. The holder of the Warrant evidence by this Warrant Certificate may
exercise it by surrendering this Warrant Certificate, with the form of election
to purchase set forth hereon properly completed and executed, together with
payment of the Warrant Price at the office or agency of the Warrant Agent, First
Union National Bank, Shareholder Services Group, Corporate Trust Client Services
NC-1153, 0000 Xxxx X.X. Xxxxxx Xxxx., 0X0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
The Warrant Price shall be paid by cash or bank check.
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FORM OF SUBSCRIPTION
[TO BE SIGNED ONLY UPON EXERCISE OF WARRANT]
To _____________________:
The undersigned hereby irrevocably elects to exercise Warrant(s)
represented by this Warrant Certificate, and to purchase the Shares issuable
upon exercise of such Warrants, and requests that certificates for such Shares
shall be issued in the name of, and cash for any fractional shares paid to,
_________________ whose address is _______________________.
By checking this box [ ], the undersigned requests that the Shares be
issued in Certificate form.
Dated:__________, _____
---------------------------------------------------------
(Signature must conform in all respects to name of holder
as specified on the fact of the Warrant)
---------------------------------------------------------
Address
---------------------------------------------------------
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FORM OF ASSIGNMENT
[TO BE SIGNED ONLY UPON TRANSFER OF WARRANT]
For value received, the undersigned hereby sells, assigns and transfers
unto _____________ Warrants represented by the within Warrant Certificate,
together with all right, title and interest therein, and do hereby irrevocably
constitute and appoint _____________________ to transfer said Warrants on the
books of the within-named Company, with full power of substitution in the
premises.
Dated:__________, _____
---------------------------------------------------------
(Signature must conform in all respects to name of holder
as specified on the face of the Warrant)
