March 17, 1997
VIA CMRRR NO. P 115 327 042
Xx. Xxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Toucan Gold Corporation (the "Company")
Dear Xxxx:
Enclosed herewith are the Warrant Agreement and Warrant Certificate,
which have been executed by the Company, that replace the Starlight Acquisition
Warrants. The material terms of the replacement warrant are identical to the
Starlight Acquisition Warrants.
Please do not hesitate to call me if you have any questions concerning
the foregoing.
Very truly yours,
/s/Xxxx X. Xxxxxx
-----------------
Xxxx X. Xxxxxx
MDW:xxx
xxxxxxxxxx
CORPDAL:63158.1 29976-00001
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement"), dated as of July 29, 1996
(the "Effective Date"), is made by and between Toucan Gold Corporation, a
Delaware corporation (the "Company"), and Xxxx X. Xxxxxx (the "Warrantholder").
The Company is the successor to Starlight Acquisitions, Inc., a
Colorado corporation ("Starlight"), pursuant to the reincorporation of Starlight
into the Company on the Effective Date (the "Reincorporation"). This Agreement
is being entered into pursuant to the terms of that certain Warrant Agreement,
dated May 10, 1996, by and between Starlight and each of Xxx Xxxxxx, Xxxx X.
Xxxxxx, X. Xxxxx Xxxxxxx and Xxxxx X. Xxxxx (the "Prior Warrant Agreement"),
which is being reissued in the form hereof as a result of the Reincorporation.
The Prior Warrant Agreement was issued in connection with the Share Exchange
Agreement, dated as of May 10, 1996, by and between Starlight and the
shareholders of Toucan Mining Limited.
The Company hereby agrees to issue to the Warrantholder, the warrants
hereinafter described (the "Warrants") to purchase an aggregate of 25,000 shares
(the "Warrant Shares") (subject to adjustment pursuant to SECTION 8 hereof) of
the Company's common stock, par value $0.01 per share (the "Common Shares"), at
an Exercise Price determined in accordance with SECTION 7 hereunder.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
SECTION 1. FORM OF WARRANT CERTIFICATES; TRANSFERABILITY OF WARRANTS.
1.1 FORM OF WARRANT CERTIFICATE. The Warrants shall be evidenced by a
certificate substantially as set forth in EXHIBIT A attached hereto (a "Warrant
Certificate"). The Warrant Certificate shall be executed on behalf of the
Company by its Chairman of the Board, Chief Executive Officer or a Vice
President. A Warrant Certificate bearing the signature of an individual who was
at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such office prior
to the delivery of such Warrant or did not hold such office on the date of this
Agreement. Each Warrant Certificate shall be numbered and registered on the
books of the Company when it is issued, and shall be dated as of the date of
signature thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
1.2 TRANSFER. The Warrant Certificate shall be transferable only on the
books of the Company maintained at its principal office at 0000 Xxxxxxx Xxxx,
Xxxx 000, Xxxxxx, Xxxxx 00000, or wherever its principal executive offices may
then be located upon delivery thereof duly endorsed by the Warrantholder or its
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. Upon any registration of
transfer, the Company shall execute and deliver a new Warrant Certificate to the
person entitled
CORPDAL:61599.2 29976-00001
1
thereto. All transfers shall be made subject to the provisions of SECTION 13
hereof. In the event the Warrants or any portion thereof are transferred, the
subsequent holder thereof shall have no greater rights than those afforded the
Warrantholder hereunder.
1.3 DIVISION OF WARRANTS. Subject to all federal and state securities
laws, a Warrant Certificate may be divided or combined, upon request to the
Company by the Warrantholder, into a certificate or certificates representing
the right to purchase the same aggregate number of Warrant Shares. Unless the
context indicates otherwise, the term "Warrantholder" shall include any
transferee or transferees of the Warrants pursuant to this SUBSECTION 1.3, and
the term "Warrants" shall include any and all Warrants outstanding pursuant to
this Agreement, including those evidenced by a certificate or certificates
issued upon division, exchange, substitution or transfer pursuant to this
Agreement.
SECTION 2. LEGEND ON WARRANT SHARES. Each certificate for Warrant
Shares initially issued upon exercise of the Warrant, unless at the time of
exercise such Warrant Shares are registered under the Securities Act of 1933, as
amended (the "Securities Act"), shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and applicable state securities laws, and may not be sold. exchanged,
hypothecated or transferred in any manner in the absence of such
registration or an exemption therefrom. The shares are subject to the
terms of a certain Warrant Agreement, dated July 29, 1996, pursuant to
which they were issued."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act of the Warrant Shares represented thereby) shall also bear the
above legend unless, in the opinion of counsel satisfactory to the Company, the
securities represented thereby need no longer be subject to such restrictions.
SECTION 3. TERM OF WARRANTS. Subject to the terms of this Agreement,
the Warrantholder shall have the right, at any time during the period commencing
at 9:00 a.m., Dallas, Texas time, on May 10, 1996, and ending at 5:00 p.m.,
Dallas, Texas time, on the later of (i) the eighteenth month anniversary of May
10, 1996, or (ii) the sixth month anniversary of the closing of the first
registration of the offering of the Company's securities pursuant to SECTION 10
hereof (the "Termination Date"), to purchase from the Company up to the number
of fully paid and nonassessable Warrant Shares that the Warrantholder may at the
time be entitled to purchase pursuant to this Agreement, upon surrender to the
Company, at its principal office, of the certificate evidencing the Warrants to
be exercised, duly completed and signed, and upon payment to the Company of the
Exercise Price (as defined in and determined in accordance with the provisions
of SECTIONS 7 AND 8 hereof), for the number of Warrant Shares in respect of
which such Warrants are then exercised, but in no event for less than 25 Warrant
Shares, unless the Warrant entitled the Warrantholder on exercise to less than
25 Warrant Shares, in which event the Warrant can be exercised for such lesser
number of Warrant Shares.
CORPDAL:61599.2 29976-00001
2
SECTION 4. EXERCISE. Payment of the aggregate Exercise Price shall be
made in cash or by check. Upon surrender of the Warrant Certificates and payment
of such Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Warrantholder and in such name or names as the Warrantholder may designate a
certificate or certificates for the number of full Warrant Shares so purchased
upon the exercise of the Warrants, together with cash, as provided in SECTION 9
hereof, in respect of any fractional Warrant Shares otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been issued
and any person so designated to be named therein shall be deemed to have become
a holder of record of such Warrant Shares as of the date of the surrender of the
Warrant Certificate and the payment of the Exercise Price, as aforesaid,
notwithstanding that the certificates representing the Warrant Shares shall not
actually have been delivered or that the stock transfer books of the Company
shall then be closed. The Warrants shall be exercisable, at the election of the
Warrantholder, either in full or from time to time in part and, in the event
that a certificate evidencing the Warrants is exercised in respect of less than
all of the Warrant Shares specified therein at any time prior to the Termination
Date, a new certificate evidencing the remaining Warrants will be issued by the
Company.
SECTION 5. MUTILATED OR MISSING WARRANT CERTIFICATES. In case the
certificate or certificates evidencing the Warrants shall be mutilated, lost,
stolen or destroyed, the Company shall, at the request of the Warrantholder,
issue and deliver in exchange and substitution for and upon cancellation of the
mutilated certificate or certificates, a new Warrant Certificate or certificates
of like tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Warrants and a bond of indemnity, if requested, also
satisfactory in form and amount, at the applicant's cost. Applicants for such
substitute Warrant Certificate shall also comply with such other reasonable
requirements and pay such other reasonable charges as the Company may prescribe.
SECTION 6. RESERVATION OF WARRANT SHARES. There has been reserved, and
the Company shall at all times keep reserved so long as all or any portion of
the Warrants remains outstanding, out of its authorized Common Shares, such
number of Warrant Shares as shall be subject to purchase under such portion of
the Warrant that remains outstanding.
SECTION 7. EXERCISE PRICE. The price per Share (the "Exercise Price")
at which Warrant Shares shall be purchasable upon the exercise of the Warrant
shall be $4.00. The Exercise Price as determined hereunder shall be subject to
further adjustment pursuant to Section 8 hereof.
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
8.1 GENERAL. The number of Warrant Shares purchasable upon the exercise
of the Warrants and the Exercise Price shall be subject to adjustment from time
to time upon the happening of certain events, as follows:
(A) In case the Company shall (i) pay a dividend in Common
Shares or make a distribution in Common Shares, (ii) subdivide its
outstanding Common Shares, (iii) combine its outstanding Common Shares
into a smaller number of Common Shares
CORPDAL:61599.2 29976-00001
3
(by way of a reverse stock split or otherwise) or (iv) issue by
reclassification of its Common Shares other securities of the Company,
the number of Warrant Shares purchasable upon exercise of the Warrants
immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Warrant Shares or
other securities of the Company that it would have owned or would have
been entitled to receive after the happening of any of the events
described above, had the Warrants been exercised immediately prior to
the happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this SUBSECTION 8.1(A) shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(B) In case the Company shall issue rights, options, warrants
or convertible securities to all or substantially all of the holders of
its Common Shares, without any charge to such holders, entitling them
to subscribe for or purchase Common Shares at a price per share that is
lower at the record date mentioned below than the Exercise Price, the
number of Warrant Shares thereafter purchasable upon the exercise of
the Warrants shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon the exercise of the Warrants by a
fraction, of which the numerator shall be the number of Common Shares
outstanding immediately prior to the issuance of such rights, options,
warrants or convertible securities plus the number of additional Common
Shares offered for subscription or purchase, and of which the
denominator shall be the number of Common Shares outstanding
immediately prior to the issuance of such rights, options, warrants or
convertible securities plus the number of Common Shares that the
aggregate offering price of the total number of Common Shares offered
would purchase at the Exercise Price. Such adjustment shall be made
whenever such rights, options, warrants or convertible securities are
issued, and shall become effective immediately and retroactively after
the record date for the determination of shareholders entitled to
receive such rights, options, warrants or convertible securities.
(C) In case the Company shall distribute to all or
substantially all of the holders of its Common Shares evidences of its
indebtedness or assets (excluding cash dividends or distributions out
of earnings) or issue, to all or substantially all of such holders,
without any charge to such holders, rights, options, warrants or
convertible securities containing the right to subscribe for or
purchase Common Shares (excluding those referred to in PARAGRAPH (B)
above), then in each case the number of Warrant Shares thereafter
purchasable upon the exercise of the Warrants shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon
exercise of the Warrants by a fraction, of which the numerator shall be
the Exercise Price on the date of such distribution, and of which the
denominator shall be the Exercise Price on such date minus the then
fair value of the portion of the assets or evidences of indebtedness so
distributed or of such rights, options, warrants or convertible
securities applicable to one share. Such adjustment shall be made
whenever any such distribution is made and shall become effective on
the date of distribution retroactive to the record date for the
determination of shareholders entitled to receive such distribution.
CORPDAL:61599.2 29976-00001
4
(D) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent in the aggregate number of
Warrant Shares then purchasable upon the exercise of the Warrants or,
if the Warrants are not then exercisable, the number of Warrant Shares
purchasable upon the exercise of the Warrants on the first date
thereafter that the Warrants become exercisable; provided however, that
any adjustments that by reason of this SUBSECTION 8.1(D) are not
required to be made immediately shall be carried forward and taken into
account in any subsequent adjustment.
(E) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrants is adjusted as herein provided in this
SUBSECTION 8.1, the Exercise Price payable upon exercise of the
Warrants shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Warrant Shares purchasable upon the
exercise of the Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of Warrant Shares so
purchasable immediately thereafter.
(F) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrants or the Exercise Price is adjusted as herein
provided in this SUBSECTION 8.1, the Company shall cause to be promptly
mailed to the Warrantholder in accordance with the provisions or
SECTION 12 hereof, notice of such adjustment or adjustments and a
certificate of a firm of independent public accountants selected by the
Board of Directors of the Company (who may be the regular accountants
employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of the Warrants and the Exercise Price
after such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made.
(G) For the purpose of this SUBSECTION 8.1, the term "Common
Shares" shall mean (i) the class of shares designated as the Common
Shares of the Company at the date of this Agreement or (ii) any other
class of shares resulting from successive changes or reclassifications
of such Common Shares including 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
8, the Warrantholder shall become entitled to purchase any shares of
the Company other than Common Shares, thereafter the number of such
other shares so purchasable upon exercise of the Warrants and the
Exercise Price of such shares shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to
the provisions of this SECTION 8.
(H) Upon the expiration of any rights, options, warrants or
conversion privileges referred to in this SECTION 8, if such shall not
have been exercised, the number of Warrant Shares purchasable upon
exercise of the Warrants and the Exercise Price, to the extent the
Warrants have not then been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had
they been originally adjusted (or had the original adjustment not been
required, as the case may be) on the basis of (A) the fact that the
only Common Shares so issued were the Common Shares, if any,
CORPDAL:61599.2 29976-00001
5
actually issued or sold upon the exercise of such privileges, options,
warrants or conversion rights and (B) the fact that such Common Shares,
if any, were issued or sold for the consideration actually received by
the Company upon such exercise plus the consideration, if any, actually
received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion rights whether or not
exercised; provided, however, that no such readjustment shall have the
effect of increasing the Exercise Price by an amount in excess of the
amount of the adjustment initially made in respect of the issuance,
sale or grant of such rights, options, warrants or convertible rights.
8.2 NO ADJUSTMENT OF DIVIDENDS. Except as provided in SUBSECTION 8.1,
no adjustment in respect of dividends shall be made during the term of the
Warrants or upon the exercise thereof.
8.3 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another person of the property, assets or business of the Company as an entirety
or substantially as an entirety, the Company or such successor or purchaser, as
the case may be, shall execute with the Warrantholder an agreement that the
Warrantholder shall have the right thereafter upon payment of the Exercise Price
in effect immediately prior to such action to purchase upon exercise of the
Warrants the kind and amount of shares and other securities and property that
the Warrantholder would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had the warrants
been exercised immediately prior to such action. In the event of a merger
described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, in which the Company is the surviving corporation, the right to
purchase Warrant Shares under the Warrants shall terminate on the date of such
merger and thereupon the Warrants shall become null and void but only if the
controlling corporation shall agree to substitute for the Warrants other
warrants that entitle the holders thereof to purchase, upon exercise thereof,
the kind and amount of shares and other securities and property that the
Warrantholder would have owned or had been entitled to receive had the Warrants
been exercised immediately prior to such merger. The adjustments required by
this SUBSECTION 8.3 shall be effected in a manner that shall be as nearly
equivalent as may be practicable to the adjustments provided for elsewhere in
this SECTION 8. The provisions of this SUBSECTION 8.3 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
8.4 STATEMENT ON WARRANT CERTIFICATE. Irrespective of any adjustments
in the Exercise Price or the number or kind of shares purchasable upon the
exercise of the Warrants, the Warrant Certificate or certificates theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
SECTION 9. FRACTIONAL SHARES. The Company shall not be required to
issue fractional Warrant Shares on the exercise of the Warrants. If any fraction
of a Warrant Share would, except for the provisions of this SECTION 9, be
issuable on the exercise of the Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the then Current Market Price
CORPDAL:61599.2 29976-00001
6
multiplied by such fraction. For purposes of this Agreement, the term "Current
Market Price" shall mean (i) if the Common Shares are traded in the
over-the-counter market and not in the NASDAQ Market System (National Market or
SmallCap) or on any national securities exchange, the average mean between the
per share closing bid and asked prices of the Common Shares on the 30
consecutive trading days immediately preceding the date in question, as reported
by NASDAQ Market System or an equivalent generally accepted reporting service,
or (ii) if the Common Shares are traded in the NASDAQ Market System (National
Market or SmallCap) or on a national securities exchange, the average for the 30
consecutive trading days immediately preceding the date in question of the daily
per share closing prices of the Common Shares in the NASDAQ Market System
(National Market or SmallCap) or on the principal securities exchange on which
they are listed, as the case may be. The closing price referred to in clause
(ii) above shall be the last reported sales price or, in case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices, in either case in the NASDAQ Market System (National Market or SmallCap)
or on the principal securities exchange on which the Common Shares are then
listed.
SECTION 10. REGISTRATION RIGHTS
10.1 PIGGYBACK REGISTRATION. If the Company shall at any time propose,
on or after May 10, 1996, the registration under the Securities Act of an
offering of its equity securities, the Company shall give written notice of its
intention as promptly as practicable of such proposed registration to each and
every Warrantholder or holder of Warrant Shares. The Company shall use its best
efforts to cause the registration (and the offering if requested by the
Warrantholder) of the Warrant Shares owned by the Warrantholder as the
Warrantholder shall request (within 10 days after the receipt of notice) to be
included, upon the same terms (including the method of distribution), in any
such offering; provided, however, that:
(A) the Company shall not be required to give notice or include such
Warrant Shares in any such registration if the proposed registration is (A)
a registration of a stock option or compensation plan or of securities
issued or issuable pursuant to any such plan or (B) a registration of
securities proposed to be issued in exchange for securities or assets of,
or in connection with a merger or consolidation with another corporation;
(B) the Company may, without the consent of the Warrantholder,
withdraw such registration statement and abandon the proposed offering in
which the Warrantholder had requested to participate; and
(C) the registration rights set forth in this Section 10.1 shall be
applicable to all Warrant Shares owned by the Warrantholder.
10.2 TERMS AND CONDITIONS. The registration rights of the Warrantholder
pursuant to this SECTION 10 are subject to the following terms and conditions:
(A) The Warrantholder shall provide the Company with such
information with respect to the Warrant Shares to be sold, the plans
for the proposed disposition thereof and
CORPDAL:61599.2 29976-00001
7
such other information as shall, in the opinion of counsel for the
Company, be necessary to enable the Company to include in such
registration statement all material facts required to be disclosed with
respect to the Warrantholder.
(B) All expenses incurred by the Company in connection with
any registration requested under this Section will be paid by the
Company. Such expenses include, but are not limited to, printing
expenses (including for such number of registration statements,
prospectuses and other filed material as the Warrantholder shall
reasonably request), "blue sky" fees and expenses and fees and
disbursements of counsel and accountants for the Company, except that
in any such requested registration, the Warrantholder shall pay the
fees and disbursements of its counsel and any underwriting discounts
and commissions with respect to such Warrantholder's Warrant Shares.
(C) The Company will take all necessary action that may be
required in qualifying or registering the Warrant Shares included in a
registration statement, for offering and sale under the securities or
blue sky laws of such states as are requested by the Warrantholder of
such securities.
10.3 UNDERWRITING. The Warrantholder and the Company each agree in
connection with any registration of Warrant Shares contemplated by this section:
(I) to enter into an appropriate underwriting agreement containing
terms and provisions (including reasonable provisions as to
indemnification) customary in such agreements. The Warrantholder shall
indemnify the Company and the underwriters as to information provided
pursuant to SECTION 10.2, the Company shall indemnify the Warrantholder as
to information contained in the registration statement, and the
underwriters shall indemnify the Company and the Warrantholder as to
information provided by such underwriters;
(II) to permit the Company, in its sole discretion, to select the
managing underwriter(s) for any registration under SECTION 10.1;
(III) to provide the Warrantholder and its representatives with
reasonable opportunity for due diligence, if any; and
(IV) notwithstanding the foregoing, if the offering of the Company's
securities pursuant to such registration statement is to be made by or
through underwriters, the Company shall not be required to include Warrant
Shares therein if and to the extent that the underwriter managing the
offering reasonably believes in good faith that such inclusion would
materially adversely affect such offering. The number of Common Shares to
be included in the registration shall be reduced as follows: the number of
Common Shares held by Warrantholder and by other shareholders pursuant to
other piggyback registration rights ("Additional Holders") shall be reduced
pro rata among the Warrantholder(s) and the Additional Holder(s) in
accordance with the number of Common Shares entitled to be registered
pursuant to piggyback registration rights by such Warrantholder(s) and
Additional Holder(s).
CORPDAL:61599.2 29976-00001
8
11. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER. Nothing
contained in this Agreement or in the Warrant Certificate shall be construed as
conferring upon the Warrantholder, or its transferees, any rights as a
shareholder of the Company, including the right to vote, receive dividends,
consent or receive notices as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company or any other matter.
If, however, at any time prior to the expiration of the Warrants and prior to
the exercise thereof, any of the following events shall occur:
(A) any action that would require an adjustment pursuant to SECTION
8.1 OR 8.3; or
(B) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property,
assets and business as an entirety) shall be proposed;
then in any one or more of said events, the Company shall give notice in writing
of such event to the Warrantholder as provided in SECTION 12 hereof at least 20
days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the shareholders entitled to any
relevant dividend, distribution, subscription rights or other rights or for the
determination of shareholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record date or the
date of closing the transfer books, as the case may be.
SECTION 12. NOTICES. Any notice pursuant to this Agreement by the
Company or by the Warrantholder shall be in writing and shall be deemed to have
been duly given if delivered by hand or if mailed by certified mail, return
receipt requested, postage prepaid, addressed as follows:
(A) If to the Warrantholder - to the address as set forth on the
signature page hereof.
(B) If to the Company - to the address first set forth above;
or to such other address as any such party may designate by notice to the other
party. Notices shall be deemed given at the time they are delivered personally
or three days after they are mailed in the manner set forth above.
SECTION 13. ASSIGNMENT. This Agreement is binding upon and inures to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. This Agreement cannot be assigned, amended or modified by the
parties hereto, except by written agreement executed by the parties; provided,
however, that upon 10 days' prior written notice to the Company, the
Warrantholder may assign this Agreement and its rights and obligations hereunder
to any person or entity, without the consent of the Company, provided, that the
transferee agrees to be bound by the terms of this Agreement as if such
transferee were a Warrantholder and, provided further, that the assignment is
made pursuant to a valid exemption from registration
CORPDAL:61599.2 29976-00001
9
under the Securities Act. If requested by the Company, the Warrantholder shall
have furnished to the Company an opinion of counsel reasonably satisfactory to
the Company to such effect.
SECTION 14. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 15. HEADINGS. The headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado applicable to
contracts made and to be performed entirely within such state, without regard to
its principles of conflicts of laws.
SECTION 17. SEVERABILITY. If any provision of this Agreement shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
CORPDAL:61599.2 29976-00001
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, on the day and year first above written.
TOUCAN GOLD CORPORATION
By:/s/Xxxxxx Xxxxxx-Xxxx
---------------------
Name:Xxxxxx Xxxxxx-Xxxx
Title:President and CEO
WARRANTHOLDER:
/s/Xxxx X. Xxxxxx
----------------- Address: 00000 Xxxxxx Xxxxxxxx Xxxx
Xxxx X. Xxxxxx Xxxxxxxxx, Xxxxxxxx 00000
CORPDAL:61599.2 29976-00001
11
EXHIBIT A
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACT,
AND MAY NOT BE PLEDGED, HYPOTHECATED, TRANSFERRED, OFFERED FOR SALE OR SOLD
EXCEPT IN ACCORDANCE WITH SUCH ACTS AND THE RULES AND REGULATIONS THEREUNDER.
TO PURCHASE SHARES OF
TOUCAN GOLD CORPORATION
THIS CERTIFIES THAT for value received, Xxxx X. Xxxxxx ("Holder"), is
the holder of Warrants to purchase from Toucan Gold Corporation, a Delaware
corporation ("Toucan"), at such time as provided in the Warrant Agreement (as
hereinafter defined), 25,000 fully paid and nonassessable shares of the Common
Stock, $.01 par value ("Shares"), of Toucan, at the purchase price and subject
to the adjustments provided in the Warrant Agreement (the "Exercise Price") upon
presentation and surrender of this Warrant Certificate. As provided in the
Warrant Agreement, the Shares that may be purchased upon the exercise of the
Warrants evidenced by this Warrant Certificate are, upon the happening of
certain events, subject to modification and adjustment. In the event that upon
any exercise of Warrants evidenced hereby the number of Warrants exercised shall
be less than the total number of Warrants evidenced hereby, there shall be
issued to Holder a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Shares issuable
upon exercise of this Warrant.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of a Warrant Agreement, dated as
of July 29, 1996 (the "Warrant Agreement"), between Toucan and Holder, which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitation of rights, obligations, duties and
immunities hereunder of Toucan and Holder. Copies of the Warrant Agreement are
on file at the principal office of Toucan.
Holder shall not be entitled to vote or receive dividends or be deemed
the holder of Common Stock of Toucan that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon Holder, as such, any of the
rights of a shareholder of Toucan or any right to vote for the election of
directors or upon any matter submitted to shareholders 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 rights or otherwise, until the Warrants evidenced by
this Warrant Certificate shall have been exercised as provided in the Warrant
Agreement.
CORPDAL:61599.2 29976-00001
IN WITNESS WHEREOF, Xxxxxx has caused this Warrant Certificate to be
duly executed as of the date first written above.
TOUCAN GOLD CORPORATION
By:
Print Name:
Title:
CORPDAL:61599.2 29976-00001
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACT,
AND MAY NOT BE PLEDGED, HYPOTHECATED, TRANSFERRED, OFFERED FOR SALE OR SOLD
EXCEPT IN ACCORDANCE WITH SUCH ACTS AND THE RULES AND REGULATIONS THEREUNDER.
TO PURCHASE SHARES OF
TOUCAN GOLD CORPORATION
THIS CERTIFIES THAT for value received, Xxxx X. Xxxxxx ("Holder"), is
the holder of Warrants to purchase from Toucan Gold Corporation, a Delaware
corporation ("Toucan"), at such time as provided in the Warrant Agreement (as
hereinafter defined), 25,000 fully paid and nonassessable shares of the Common
Stock, $.01 par value ("Shares"), of Toucan, at the purchase price and subject
to the adjustments provided in the Warrant Agreement (the "Exercise Price") upon
presentation and surrender of this Warrant Certificate. As provided in the
Warrant Agreement, the Shares that may be purchased upon the exercise of the
Warrants evidenced by this Warrant Certificate are, upon the happening of
certain events, subject to modification and adjustment. In the event that upon
any exercise of Warrants evidenced hereby the number of Warrants exercised shall
be less than the total number of Warrants evidenced hereby, there shall be
issued to Holder a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Shares issuable
upon exercise of this Warrant.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of a Warrant Agreement, dated as
of July 29, 1996 (the "Warrant Agreement"), between Toucan and Holder, which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitation of rights, obligations, duties and
immunities hereunder of Toucan and Holder. Copies of the Warrant Agreement are
on file at the principal office of Toucan.
Holder shall not be entitled to vote or receive dividends or be deemed
the holder of Common Stock of Toucan that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon Holder, as such, any of the
rights of a shareholder of Toucan or any right to vote for the election of
directors or upon any matter submitted to shareholders 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 rights or otherwise, until the Warrants evidenced by
this Warrant Certificate shall have been exercised as provided in the Warrant
Agreement.
IN WITNESS WHEREOF, Xxxxxx has caused this Warrant Certificate to be
duly executed as of the date first written above.
CORPDAL:61599.2 29976-00001
TOUCAN GOLD CORPORATION
By:
Print Name:
Title:
CORPDAL:61599.2 29976-00001
