1
EXHIBIT 4.2
FORM OF CLASS F WARRANT AGREEMENT BY AND BETWEEN THE REGISTRANT AND
AMERICAN SECURITIES TRANSFER AND TRUST, INC.
2
EXHIBIT 4.2
WARRANT AGREEMENT
GLOBAL OUTDOORS, INC.
AND
AMERICAN SECURITIES TRANSFER AND TRUST, INC.
Warrant Agent
3
THIS AGREEMENT dated as of _____________________________, 1997, between GLOBAL
OUTDOORS, INC., an Alaska corporation (the "Company") and AMERICAN SECURITIES
TRANSFER AND TRUST, INC., a Colorado corporation (the "Warrant Agent").
WHEREAS:
1. In connection with the Company's public offering of a maximum of
625,000 Units (the "Units"), each Unit consisting of two shares of Common Stock,
$0.02 par value, and one Class F Warrant (a "Warrant" or the "Warrants"). The
Company proposes to issue 625,000 Units consisting of 1,250,000 shares of Common
Stock and 625,000 Class F Warrants to purchase 625,000 shares of Common Stock.
The Company also proposes to issue up to 37,500 Units to the Underwriter for an
additional potential issuance of up to 37,500 Class F Warrants.
2. The Company desires to provide for the issuance of warrant
certificates (the "Warrant Certificates") representing the Warrants.
3. The Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer and exchange of Warrant Certificates and
exercise of the Warrants.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrant Certificates and the Warrants, and the respective
rights and obligations thereunder of the Company, the registered holder of the
Warrant Certificates and the Warrant agent, the parties hereto agree as follows:
1. Definitions. As used herein:
(a) "Common Shares" shall mean the shares of Common Stock the
Company as authorized by the Company's amended Articles of Incorporation, which
have a par value of $0.02.
(b) "Corporate Office" shall mean the place of business of the
Warrant Agent (or its successor) located in Denver, Colorado, which office is
presently located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
(c) "Class F Exercise Period" shall mean __________________,
1997 to __________________, 1999, being the 24-month period commencing the date
the proposed public offering of the Company's Units is declared effective by the
Securities and Exchange Commission, which was ___________________, 1997. Such
24-month period may be extended by the Company as provided in Section 5 hereof.
(d) "Expiration Date" shall mean, with respect to the Class F
Exercise period, 5:00 p.m. Mountain Standard or Daylight Time two years after
the date the proposed public offering of the Company's Units is declared
effective by the Securities and Exchange Commission
4
(unless extended by the Company in accordance with Section 5 hereof, in which
case the Expiration Date shall be fixed by the Company), or if such day shall be
a holiday or a day on which banks are authorized to close, then 5:00 p.m.,
Mountain Standard or Daylight Time on the next following day which in the State
of Colorado is not a holiday or a day on which banks are authorized to close.
(e) "Exercise Price" shall mean (i) with respect to the Class
F Warrants, a purchase price of $4.80 per Share. The Company may elect to lower
the Exercise Price but cannot raise the Exercise Price above $4.80 per share.
(f) "Registered Holder" shall mean the person in whose name
any Warrant Certificates shall be registered on the books maintained by the
Warrant Agent pursuant to Section 6 of this Agreement.
(g) "Subsidiary" shall mean any corporation of which shares
having ordinary voting power to elect a majority of the Board of Directors of
such corporation (regardless of whether the shares of any other class or classes
of such corporation shall have or may have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by the
Company or one or more subsidiaries of the Company.
(h) "Trading Date" shall mean 8:00 a.m., Mountain Standard or
Daylight Time, 240 days and two years, for the Class F Warrants following the
date the proposed offering of the Company's Units, as described in the
Registration statement filed with the Securities and Exchange Commission, is
declared effective by the Commission, which was _________________________, 1997.
(i) "Transfer Agent" shall mean the Company's transfer agent,
American Securities Transfer and Trust, Inc., or its successor.
(j) "Warrant" or the "Warrants" shall mean and include from
25,000 to 662,500 Class F Warrants to purchase a like number of shares of the
authorized and unissued Common Shares of the Company.
(k) "Warrant Shares" shall mean and include (i) up to 662,500
shares of authorized and unissued Common Shares initially reserved for issuance
on exercise of the Warrants, and (ii) any additional Common Shares or other
property which may hereafter be issuable or deliverable on exercise of the
Warrants pursuant to Section 10 of this Agreement.
2. Warrants and Issuance of Warrant Certificates. Each Class F Warrant
shall initially entitle the Registered Holder of the Warrant Certificate
representing such warrant to purchase one Common Share on exercise thereof,
subject to modification and adjustment as hereinafter provided in Section 10.
Warrant Certificates representing an aggregate of from 25,000 to 662,500 Common
Shares of the Company shall be executed by the proper officers of the Company
and delivered to the Transfer Agent of the Company's Common Shares for
countersignature on execution of the Agreement. Each Class F Warrant Certificate
shall be attached to a certificate
-2-
5
representing two Common Shares of the Company; the Warrant Certificates to be
delivered to the Transfer Agent shall be from 25,000 Class F Warrant
Certificates (minimum) to 662,500 Class F Warrant Certificates (maximum), in
direct relation to the number of Units sold in the Company's public offering.
The Warrant Certificates will be issued and delivered by the Warrant Agent on
written order of the Company signed by its president and attested by its
Secretary or Assistant Secretary. The Warrant agent shall deliver Warrant
Certificates in required whole number denominations to the persons entitled
thereto in connection with any transfer or exchange permitted under this
Agreement.
Except as provided in Section 8 hereof, certificates representing the
Warrant Shares shall be issued only on or after the Exercise Date (hereinafter
defined) on exercise of the Warrants or on transfer or exchange of the Warrant
Shares.
3. Form and Execution of Warrant Certificates. The Warrant Certificates
shall be substantially in the form attached as Exhibit "A" and may have such
letters, numbers or other marks of identification 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.
The Warrant Certificates shall be dated as of the date of issuance, whether on
initial issuance, transfer, exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
One Warrant Certificate representing one Class F warrant shall be
initially issued only when attached to a certificate representing two Common
Stock Shares. The Warrant Certificates shall be numbered serially in accordance
with the Common Shares attached thereto with the letter "W" appearing on each
Warrant Certificate. Following initial issuance, the Warrant Shares may be
issued by number preceded by the letter "W" without regard to the number of
Common Shares initially attached thereto.
The Warrant Certificates shall be executed on behalf of the Company by
its President and Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the Company's
seal. The Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates shall
cease to be an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent, such
Warrant Certificates may be countersigned, issued and delivered by the Warrant
Agent with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be an officer of the Company.
4. Exercise. The Class F Warrants shall become exercisable beginning on
the Trading Date and for the duration of the Class F Exercise Period (subject)
to extension in accordance with Section 5 below. A Warrant represented by a
Warrant Certificate may be exercised in whole or in part during the Exercise
Period, but in no event after the expiration Date. A Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date of
the surrender for exercise (the "Exercise Date") of the Warrant Certificate. The
exercise form shall
-3-
6
be executed by the Registered Holder thereof or his attorney duly authorized in
writing and shall be delivered together with any other documents required by the
Company and payment to the Warrant Agent, in cash or by official bank or
certified check, of an amount in lawful money of the United States of America.
Such payment shall be an amount equal tot he Class F Exercise Price per Warrant
as hereinabove defined.
The person entitled to receive the number of Warrant Shares deliverable
on such exercise shall be treated for all purposes as the holder of such Warrant
Shares as of the close of business on the Exercisable Date. The Company shall
not be obligated to issue any fractional share interests in Warrant Shares
issuable on exercise of a Warrant. If more than one Warrant shall be exercised
at one time by the same Registered Holder, the number of full shares which shall
be issuable on exercise thereof shall be computed on the basis of the aggregate
number of full shares issuable on such exercise.
As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant agent shall cause to be issued and
delivered to the person or persons entitled to receive the same, a certificate
or certificates for the number of Warrant Shares deliverable on such exercise.
No adjustment shall be made in respect of cash dividends on Warrant Shares
deliverable on exercise of any Warrant. The Warrant Agent shall promptly notify
the Company in writing of any exercise and of the number of Warrant Shares
delivered and shall cause payment of an amount in cash equal to the Exercise
Price to be made promptly to the order of the Company. The parties contemplate
such payments will be made by the Warrant Agent to the Company on a weekly basis
and will consist of collected funds only. The Warrant Agent shall hold any
proceeds collected and not yet paid to the Company in a Federally-insured escrow
account at a commercial bank selected by agreement of the Company and the
Warrant agent, at all times relevant hereto. Following a determination by the
Warrant Agent that collected funds have been received, the Warrant Agent shall
cause share certificates to be issued representing the number of Warranties
exercised by the holder.
Expenses incurred by the Warrant Agent, including administrative costs,
costs of maintaining records and other expenses, shall be paid by the Company
according to the standard fees imposed by the Warrant Agent for such services. A
$15.00 fee shall be paid to the Warrant Agent by the Registered holder of any
Warrants on exercise of such Warrants and will be retained by the Warrant agent
over and above expenses. All expenses incurred by the Warrant Agent and to be
paid by the Company shall be deducted from the Escrow Account prior to
distribution of funds to the Company.
A detailed accounting statement setting forth the number of Warrants
exercised, the net amount of exercised funds and all expenses incurred by the
Warrant agent shall be transmitted to the Company on payment of each exercise
amount. Such accounting statement shall serve as an interim accounting for the
Company during the Class F Exercise Periods. The Warrant Agent shall render to
the Company a complete accounting setting forth the number of Warrants
exercised, the identity of persons exercising such Warrants, the number of
shared issued, the amounts to be distributed to the Company, and all other
expenses incurred by the Warrant Agent, at the completion of the Class F
Exercise Period.
-4-
7
5. Extension of Expiration Date. If at any time prior to the Expiration
Date, the Company should desire to extend the Expiration Date and the Class F
Exercise Period, the Board of Directors of the Company may extend the Class F
Exercise Periods on 30 days prior written notice to the holders of the Class F
Warrants. A copy of the resolution of the Board of Directors of the Company for
inspection by the Warrant holders during such 30-day notice period. Following
proper notice to the Warrant Holders, an extension in the Class F Exercise
Period shall automatically become effective, assuming the Company has bet the
conditions set forth above. The Company shall also notify the warrant agent at
the time notice is given to the Warrant Holders of a proposed extension in the
Warrant exercise periods. The duties and responsibilities of the Warrant Agent
shall continue in force and without modification as set forth elsewhere herein
during any extension period and until the Expiration Date, as extended.
6. Redemption of Warrants.
(a) The Company will be entitled to call all of its Class F
Warrants for redemption at a price (the "Redemption Price") of $0.02 per
Warrant. The Warrants are callable upon notice specified herein at any time
after such Warrants become exercisable. On the redemption date, the Warrant
Holders of record of redeemed Warrants shall be entitled to payment of the
Redemption price for such redeemed Warrants to the Company at the principal
office of the Warrant Agent.
(b) Notice of redemption of any Warrants shall be given at
lease twenty (20) days prior to any redemption date ("Redemption Date") by
mailing, by registered or certified mail, return receipt requested, a copy of
such notice to all of the affected Warrant Holders of record as of two days
prior to the mailing date at their respective addresses appearing on the books
or transfer records of the Company or such other address designated in writing
by the Warrant Holder of record to the Warrant Agent not less than seventy-five
(75) days prior to the Redemption Date and shall be effective upon receipt.
(c) Notwithstanding any other provision of this Agreement,
from and after the Redemption Date, all rights of the affected Warrant Holders
(except the right to receive the Redemption Price) shall terminate, but only if
(i) on or prior to the Redemption Date the Company shall have irrevocably
deposited with the Warrant Agent, as paying agent (who is hereby appointed as
such) a sufficient amount to pay on the Redemption Date the Redemption Price for
all warrants called for redemption and (ii) the notice of redemption shall have
stated the name and address of the Warrant Agent and the intention of the
Company to deposit such amount with the Warrant Agent on or before the
Redemption Date.
(d) The Warrant Agent shall pay to the Warrant Holders of
record of redeemed Warrants all monies received by the Warrant agent from the
Company for the redemption of Warrants to which the Warrant Holders of record of
such redeemed Warrants are entitled under the provisions of this Agreement.
(e) Any amounts deposited with the Warrant agent which are not
required for redemption of the Warrants may be withdrawn by the Company. Any
amounts deposited with the Warrant Agent which shall be unclaimed after six (6)
months after the Redemption Date may be
-5-
8
withdrawn by the Company, and thereafter the Warrant Holders of the Warrants
called for redemption for which such funds were deposited shall look solely to
the Company for payment. The Company shall be entitled to the interest, if any,
on funds deposited with the Warrant Agent, and the Warrant Holders of redeemed
warrants shall have no right to any such interest.
(f) If the Company fails to made a sufficient deposit with the
Warrant Agent as provided above, the Warrant Holder of any Warrants called for
redemption may at the option of the Warrant Holder (i) by notice to the Company
declare the notice of redemption a nullity, or (ii) maintain an action against
the Company for the Redemption Price. If the Warrant holder brings such an
action, the Company will pay reasonable attorneys' fees of the Warrant Holder.
If the Warrant Holder fails to bring an action against the Company for the
Redemption Price within ninety (90) days after the Redemption Date, the Warrant
Holder shall be deemed to have elected to declare the notice of redemption to be
a nullity and such notice shall be without any force or effect.
7. Reservation of Shares and Payment of Taxes. The Company covenants
that it will at all times reserve and have available from its authorized Common
Shares such number of Common Shares as shall then be issuable on exercise of all
outstanding Warrants. The Company covenants that all Warrant Shares issuable
shall be duly and validly issued, fully paid and nonassessable, and free from
all taxes, liens and charges with respect to the issue thereof.
If any Warrant Shares require an exemption from registration with any
government authority under any Federal or State law before such shares may be
validly issued or delivered, the Company covenants it will in good faith and as
expeditiously as possible endeavor to secure such exemption from registration
except that the Company will not attempt to seek an exemption from registration
of the Warrant Shares in certain states that the Company, on advice of Counsel,
believes in good faith cannot be exempted from registration.
A Warrant Holder residing in a state where a required exemption from
registration of issuance of the Shares has not been obtained within a reasonable
time after the surrender date of the Warrant Certificate for exercise shall not
be entitled to exercise Warrants, unless in the opinion of counsel such
exemption from registration in such state shall not be required, or the Company
authorizes the issuance. In such event, the Warrant Holder shall be entitled to
transfer the Warrants to others, but only prior to the Expiration Date for the
Warrants being transferred.
The Warrant holder shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect to the issuance of
the Warrants, or the issuance, transfer or delivery of any Warrant shares on
exercise of the Warrant. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered holder of the Warrant Certificate,
no such delivery shall be made unless the person requesting the same has paid to
the Warrant agent the amount of any such taxes or charges incident thereto. No
issuance of Warrant Shares shall be made unless an exemption from registration
has been obtained from jurisdictions that require said exemption.
-6-
9
The Warrant Agent is hereby irrevocably authorized to requisition
certificates for Warrant Shares from the Company's Transfer Agent as required
from time to time. In addition, the Company will supply the Warrant Agent with
blank warrant certificates, so as to maintain an inventory satisfactory to the
Warrant Agent. The Company will authorize the Transfer agent to comply with all
such requisitions. The Company will file with the Warrant Agent as statement
setting forth the name and address of its Transfer Agent for Common Shares
issuable on exercise of the Warrants and of each successor Transfer Agent, if
any.
8. Registration of Transfer. The Warrant Certificates may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at its Corporate Office. The Company shall
execute and the Warrant Agent shall countersign, issue and deliver in exchange
therefor, the Warrant Certificates which the holder making the transfer shall be
entitled to receive.
The Warrant Agent shall keep transfer books at its Corporate Office
which shall register Warrant Certificates and the transfer thereof. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and deliver
to the Transferees a new Warrant Certificate of Certificates representing an
equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or
exercise shall be duly endorsed or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Warrant
Agent. A $15.00 fee shall be paid to the Warrant agent by the Registered holder
for any registration or transfer of Warrant Certificates. In addition, the
Company may require payment of a sum by the Registered Holder sufficient to
cover any tax or other government charge that may be imposed in connection
therewith. At the time of exercise of the Warrant(s), the transfer fee is to be
paid by the Warrant holder. In the event Warrant holder must pay the fee and
fails to remit same, the fee will be deducted from the proceeds prior to
distribution to the Company.
Prior to due presentment for registration of transfer thereof, the
Company and the Warrant Agent may treat the Registered Holder of any Warrant
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company or the
Warrant Agent) and the parties hereto shall not be affected by any notice to the
contrary.
9. Loss or Mutilation. On receipt by the Company and the Warrant Agent
of evidence satisfactory as to the ownership of and the loss, theft, destruction
or mutilation of any Warrant Certificate, the Company shall execute and the
Warrant Agent shall countersign and deliver in lieu thereof, a new Warrant
Certificate representing an equal aggregate number of Warrants. In the case of
loss, theft or destruction of any Warrant Certificate, the individual requesting
issuance of a new Warrant Certificate shall be required to indemnify the Company
and Warrant Agent in an amount satisfactory to each of them. In the event a
Warrant Certificate is mutilated, such Certificate shall be surrendered and
cancelled by the Warrant Agent prior to delivery of a new
-7-
10
Warrant Certificate. Applicants for a substitute Warrant Certificate shall also
comply with such other regulations and pay such other reasonable charges as the
Company may prescribe.
10. Adjustment of Exercise Price and Shares.
(a) In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall issue any of its Common Shares as
a stock dividend or shall subdivide the number of outstanding common Shares into
a greater number of shares, then, in either of such events, the then applicable
Exercise Price per Common Share purchasable pursuant to the Warrants in effect
at the time of such action shall be reduced proportionately and the number of
Common Shares purchasable pursuant tot he Warrants shall be increased
proportionately. Conversely, in the event the Company shall reduce the number of
its outstanding Common Shares by combining such shares into a smaller number of
shares, then, in such event, the then applicable Exercise Price per Common Share
purchasable pursuant to the Warrants in effect at the time of such action shall
be increased proportionately and the number of Common Shares at that time
purchasable pursuant to the Warrants shall be decreased proportionately. Any
dividend paid or distributed on the Common Shares in shares of any other class
of the Company or securities convertible into Common Shares shall be treated as
a dividend paid in Common Shares to the extent Common Shares are issuable on the
payment of conversion thereof.
(b) In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall be recapitalized by reclassifying
its outstanding Common Shares into shares with a different par value, or by
changing its outstanding Common Shares into shares with a different par value,
or by changing its outstanding Common Shares to shares without par value or in
the event of any other material change of the capital structure of the Company
or of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any holder of the Warrants shall
thereafter have the right to purchase, on the basis and the terms and conditions
specified on this Agreement, in lieu of the Common Shares of the Company
theretofore purchasable on the exercise of any Warrant, such securities or
assets as may be issued or payable with respect to or in exchange for the number
of Common Shares of the Company theretofore purchasable on exercise of the
Warrants had such reclassification, recapitalization or conveyance not taken
place; and in any such event, the rights of any holder of a Warrant to any
adjustment in the number of Common Shares purchasable on exercise of such
Warrant, as set forth above, shall continue and be preserved in respect of any
stock, securities or assets which the holder becomes entitled to purchase;
provided, however, a merger, acquisition, stock exchange, stock for asset
exchange or like transaction by the Company will not be considered a material
change for purposes of this paragraph, and no adjustment shall be made under
this paragraph by reason of any merger, acquisition, stock exchange or like
transaction.
(c) In the event the Company, at any time while the Warrants
shall remain unexpired and unexercised, shall sell all or substantially all of
its property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part of
the terms of such sale, dissolution, liquidation or winding up such that the
holder of a Warrant may thereafter receive, on exercise thereof, in lieu of each
Common Share of the
-8-
11
Company which he would have been entitled to receive, the same kind and amount
of any stock, securities or assets as may be issuable, distributable or payable
on any such sale, dissolution, liquidation or winding up with respect to each
Common Share of the Company; provided however, that in the event of any such
sale, dissolution, liquidation or winding up, the right to exercise the Warrants
shall terminate on a date fixed by the Company, such date to be not earlier than
5:00 p.m., Mountain Time, on the 30th day next succeeding the date on which
notice of such termination of the right to exercise the Warrants has been given
by mail to the holders thereof at such addressed as may appear on the books of
the Company.
(d) On exercise of the Warrants by the holders, the Company
shall not be required to deliver fractions of Common Shares; provided, however,
that prompt, proportionate, equitable, lawful and adequate adjustment in the
Exercise Price payable shall be made in respect of any such fraction of one
Common Share on the basis of the applicable Exercise Price per share.
(e) In the event, prior to expiration of the Warrants by
exercise or by their terms, the Company shall determine to take a record of the
holders of its Common Shares for the purpose of determining shareholders
entitled to receive any stock dividend, distribution or other right which will
cause any change or adjustment in the number, amount, price or nature of the
Common Shares or other stock, securities or assets deliverable on exercise of
the Warrant pursuant to the foregoing provisions, the Company shall give to the
Registered Holders of the Warrants at the addresses as may appear on the books
of the Company at least 30 days' prior written notice to the effect that it
intends to take such a record. Such notice shall specify the date as of which
such record is to be taken; the purpose for which such record is to be taken;
and the number, amount, price and nature of the Common Shares or other stock,
securities or assets which will be deliverable on exercise of the Warrants after
the action for which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the Registered
Holders of the Warrant Certificates of any corporate action hereunder, the
failure of the Company to give notice shall not invalidate such corporate action
of the Company.
(f) The Warrants shall not entitle the holder thereof to any
of the rights of shareholders or to any dividend declared on the Common Shares
unless the Warrant is exercised and the Common Shares purchased prior to the
record date fixed by the Board of Directors of the Company for the determination
of holders of Common Shares entitled to such dividend or other right.
(g) No adjustment of the Exercise Price shall be made as a
result of or in connection with (i) the issuance of Common Shares of the Company
pursuant to options, warrants and share purchase agreements outstanding or in
effect on the date hereof, (ii) the establishment of additional option plans of
the Company, the modification, renewal or extension of any plan now in effect or
hereafter created, or the issuance of Common Shares on exercise of any options
pursuant to such plans, (iii) the issuance of Common Shares in connection with
compensation arrangements for officers, employees or agents of the Company and
any subsidiary, and the like, (iv) the issuance of Common Shares in connection
with an acquisition, merger, stock exchange or stock for asset exchange of a
similar transaction by or with the Company of any entity, as contemplated by the
Company's plan of operation.
-9-
12
(h) The foregoing subparagraphs (a) through (g) shall be
included on the reverse side of the Warrant Certificate as a "Statement of
rights of Warrant Holders."
11. Duties, Compensation and Termination of Warrant Agent. The Warrant
Agent shall act hereunder as agent and in a ministerial capacity for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not, by issuing and delivering Warrant Certificates or by
any other act hereunder, be deemed to make any representations as to the
validity, value or authorization of the Warrant Certificate or the Warrants
represented thereby or of the Common Shares or other property delivered on
exercise of any Warrant. The Warrant Agent shall not be under any duty or
responsibility to any holder of the Warrant Certificates to make or cause to be
made any adjustment of the Exercise Price or to determine whether any fact
exists which may require any such adjustments.
The Warrant Agent shall not (i) be liable for any recital or statement
of fact contained herein or for any action taken or omitted by it in reliance on
any Warrant Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith accordance
with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by and instrument signed by its
President and attested by its Secretary of Assistant Secretary. The Warrant
Agent shall not be liable for any action taken or omitted by it in accordance
with such notice, statement, instruction, request, direction, order or demand.
The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant agent for its reasonable
expenses. The Company further agrees to indemnify the Warrant Agent against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the execution of
its duties and powers hereunder, excepting losses, expenses and liabilities
arising as a result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may terminate
the Warrant agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or willful misconduct) on 30 days' prior written
notice to the other party. At lease 15 days prior to the date such resignation
is to become effective, the Warrant Agent shall cause a copy of such notice of
resignation to be mailed to the Registered Holder of each Warrant Certificate.
On such resignation or termination, the Company shall appoint a new Warrant
Agent. If the Company shall fail to make such
-10-
13
appointment within a period of 30 days after it has been notified in writing of
the resignation by the Warrant Agent, then the Registered Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Warrant Agent.
After accepting in writing of an appointment of a new Warrant Agent is
received by the Company, such new Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed. The
Company shall file a notice of appointment of a new Warrant Agent with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new Warrant Agent
may be converted or merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new Warrant Agency shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent. Any
such successor Warrant Agent shall promptly cause notice of its succession as
Warrant agent to be mailed to the Company and to the Registered Holder of each
Warrant Certificate. No further action shall be required for the establishment
and authorization of such successor Warrant Agent.
The Warrant Agent, its officers, directors and its subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company and
otherwise deal with the Company in the same manner and to the same extent and
with like effect as though it were not Warrant Agent. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company.
12. Modification of Agreement. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement they
shall deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained. Additionally, the
parties may make any changes or corrections deemed necessary which shall not
adversely affect the interests of the holders of Warrant Certificates; provided,
however, this Agreement shall not otherwise be modified, supplemented or altered
in any respect except with the consent in writing of the Registered Holders of
Warrant Certificates representing not less than 66 2/3% of the Warrants
outstanding. Additionally, no change in the number or nature of the Warrant
Shares purchasable on exercise of a warrant shall be made without the consent in
writing of the Registered holder of the Warrant Certificate representing such
Warrant, other than such changes as are specifically prescribed by this
Agreement.
13. Notices. All notices, demands, elections, opinions or requests
(however characterized or described) requiring or authorized hereunder shall be
deemed given sufficiently
-11-
14
in writing and sent by registered or certified mail, return receipt requested
and postage prepaid, or by tested telex, telegram or cable to, in the case of
the Company:
Xxxxxxx X. Xxxxxxx XX, Esq.
Global Outdoors, Inc.
00000 Xxxxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
and in the case of the Warrant Agent:
American Securities Transfer and Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
and if to the Registered Holder of a Warrant Certificate, at the address of such
holder as set forth on the books maintained by the Warrant Agent.
14. Persons Benefiting. This Agreement shall be binding upon and inure
to the benefit of the Company, the Warrant Agent and their respective successors
and assigns, and the holders from time to time of the Warrant Certificates.
Nothing in this Agreement is intended or shall be construed to confer on any
other person any right, remedy or claim or to impose on any other person any
duty, liability or obligation.
15. Further Instruments. The parties shall execute and deliver any and
all such other instruments and shall take any and all such other actions as may
be reasonable or necessary to carry out the intention of this Agreement.
16. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
17. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other action or
occurrence.
18. General Provisions. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Colorado. Except
as otherwise expressly stated herein, time is of the essence in performing
hereunder. This Agreement embodies the entire
-12-
15
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, and this
Agreement may not be modified or amended or any term or provision hereof waived
or discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. The headings of this
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above mentioned.
THE COMPANY:
GLOBAL OUTDOORS, INC.
(CORPORATE SEAL) By:_________________________________
Xxxxx Xxxxxx, President
ATTEST:
_________________________________
Secretary
THE WARRANT AGENT:
AMERICAN SECURITIES TRANSFER AND
TRUST, INC.
By:_________________________________
ATTEST:
_________________________________
Secretary
-13-
