Draft
06/04/98
Exhibit 4.1
Xxxxxx International Ltd.
0 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
UNDERWRITERS' WARRANT
Warrant No. Cert__No_
Date of Issuance: As of __________ __, 1998 Right to Purchase ____ Shares
FOR VALUE RECEIVED, Xxxxxx International Ltd., an Ontario corporation
(the "Company"), promises to issue in the name of, and sell and deliver to,
Holder (the "Holder") a certificate or certificates for an aggregate of ____
shares (the "Warrant Shares") of the Company's common stock, no par value per
share (the "Common Stock"), upon payment by the Holder of the exercise price of
$5.50 per share for the Warrant Shares (the "Exercise Price") in lawful funds of
the United States of America, with the Exercise Price being subject to
adjustment in the circumstances set forth hereinbelow. This Warrant expires in
its entirety at 5:00 p.m. Eastern Time on ______________, 2003 (the "Expiration
Date"). This Warrant is one of a series of Underwriters' Warrants dated
_____________, 1998 issued pursuant to the Underwriting Agreement dated as of
______________, 1998 between the Company and Xxxxxx & Xxxxxxx Incorporated, as
representative (the "Representative") of the several underwriters named in the
Underwriting Agreement (the "Underwriters"). This Warrant may not be sold,
transferred, assigned or hypothecated until ______________, 1998, except that it
may be transferred, in whole or in part, to one or more officers or partners of
the Holder (or the officers or partners of such partner); any other Underwriter
or member of the selling group which participated in the Company's public
offering which commenced on ________________, 1998; a successor to the Holder,
or other officers or partners of such Holder; or by operation of law. The terms
and conditions of the Underwriters' Warrants shall be identical in all material
respects except that the number of Warrant Shares to which the Holder is
entitled to purchase may differ.
Section 1.
Certain Definitions
As used in this Warrant, the following terms have the meanings set
forth below:
"Common Stock Deemed Outstanding" means, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to Section 4 of this
Warrant.
"Date of Issuance" is the date set forth on the front page of this
Warrant, and the terms "date hereof," "date of this Warrant," and similar
expressions shall be deemed to refer to the Date of Issuance, as specified in
Section 10 of this Warrant.
"Effective Date" means the date the Company's Registration Statement
(as defined below) is declared effective by the U.S. Securities and Exchange
Commission.
"Exercise Period" means the period of time commencing at 12:01 A.M.,
Eastern Time, on the first anniversary of the Effective Date and ending at 5:00
p.m., Eastern Time, on the fifth anniversary of the Effective Date.
"Market Price" means, as to any security, the average of the closing
prices of such security's sales on the principal domestic securities exchange on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices listed on the Nasdaq NMS as of the close of trading in New York City on
such day, or, if on any day such security is not listed on the Nasdaq NMS, the
average of the high and low bid and asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of 20 consecutive business days consisting of the business day
immediately preceding the day as of which "Market Price" is being determined and
the 19 consecutive business days prior to such day; provided that if such
security is listed on any domestic securities exchange or listed on the Nasdaq
NMS, the term "business day" or "business days" as used in this sentence means a
day or days, as applicable, on which such exchange or the Nasdaq NMS is open for
trading or quotation, as the case may be. If at any time such security is not
listed on any domestic securities exchange or listed on the Nasdaq NMS or the
domestic over-the-counter market, the "Market Price" will be the fair value
thereof determined jointly by the Company and the Holders of Warrants
representing at least 50% of the Common Stock purchasable upon the exercise of
all the Warrants then outstanding; provided that if such parties are unable to
reach agreement, such fair value will be determined by an appraiser jointly
selected by the Company and the Holders of Warrants representing at least 25% of
the Common Stock purchasable upon the exercise of all the Warrants then
outstanding.
"Nasdaq NMS" means the Nasdaq National Market System (Registered
Trademark) or such other
similar quotation system as may in the future be used generally by members of
the Nasdaq Stock Market, Inc. for transactions in securities.
"Person" means an individual, a partnership, a corporation, a limited
liability company, a trust, a joint venture, an unincorporated organization, or
a government or any department or agency thereof.
"Registration Statement" means the Company's Registration Statement on
Form SB-2, File No. ____________.
"Warrants" mean this Warrant and all other Warrants issued in exchange
or substitution for this Warrant or any such other Warrants issued pursuant to
the terms hereof or thereof, as the case may be.
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Section 2.
Exercise of Warrant
2.1 Exercise Period. The Holder may exercise this Warrant, in whole or
in part (but not as to a fractional share), at any time and from time to
time, during the Exercise Period.
2.2 Exercise Procedure.
(a) This Warrant will be deemed to have been exercised at such
time as the Company has received all of the following items (the "Exercise
Date"):
(i) a completed Exercise Agreement, in the form set forth as
Exhibit I hereto, executed by the Person exercising all or part of the purchase
rights represented by this Warrant (the "Purchaser");
(ii) this Warrant (subject to delivery by
the Company of a new Warrant with respect to any unexercised portion, as
provided in Subsection 2.2(b));
(iii) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments in the form set forth as Exhibit II
hereto, evidencing the assignment of this Warrant to the Purchaser; and
(iv) a cashier's or official bank check or other immediately
available funds payable to the Company in an amount equal to the sum of the
product of the Exercise Price multiplied by the number of Warrant Shares being
purchased upon such exercise. Notwithstanding anything contained herein to the
contrary, the Exercise Price for the Warrant may be satisfied by the delivery
of an unexercised portion of this Warrant to the Company or the Transfer Agent
for cancellation having a market value, as determined by the spread as of the
date of surrender equal to the difference between the then Exercise Price and
the market price of the shares of Common Stock underlying this Warrant, equal
to the aggregate Exercise Price of the portion of this Warrant desired to be
then exercised.
(b) Certificates for Warrant Shares purchased upon exercise of
this Warrant will be delivered by the Company to the Purchaser within five
calendar days after the Exercise Date. Unless this Warrant has expired or all of
the purchase rights represented hereby have been exercised, the Company will
prepare a new Warrant representing the rights formerly represented by this
Warrant that have not expired or been exercised. The Company will, within such
five-day period, deliver such new Warrant to the Person designated for delivery
in the Exercise Agreement.
(c) The Warrant Shares issuable upon the exercise of this
Warrant will be deemed to have been transferred to the Purchaser on the Exercise
Date, and the Purchaser will be deemed for all purposes to have become the
record holder of such Common Stock on the Exercise Date.
(d) The issuance of certificates for Warrant Shares upon
exercise of this Warrant will be made without charge to the Holder or the
Purchaser for any issuance tax in
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respect thereof or any other cost incurred by the Company in connection with
such exercise and the related transfer; provided, however, that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any certificate or instrument
in a name other than that of the Holder of this Warrant, and the Company shall
not be required to issue or deliver any such certificate or instrument unless
and until the Person or Persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
(e) The Company will not close its books for the transfer of
this Warrant or of any of the Warrant Shares in any manner that interferes with
the timely exercise of this Warrant. The Company will from time to time take all
such action as may be necessary to assure that the par value per share of the
unissued Common Stock acquirable upon exercise of this Warrant is at all times
equal to or less than the Warrant Share Exercise Price then in effect.
2.3 Exercise Agreement. The Exercise Agreement will be substantially in
the form set forth as Exhibit I hereto, except that if the Warrant Shares are
not to be issued in the name of the Holder of this Warrant, the Exercise
Agreement will also state the name of the Person to whom the certificates or
instrument for the Warrant Shares are to be issued, and if the number of
Warrant Shares purchasable does not include all of such securities
purchasable hereunder, it will also state the name of the Person to whom a
new Warrant for the unexercised portion of the rights hereunder is to be
delivered.
2.4 .Fractional Shares. If a fractional share of Common Stock would, but
for the provisions of Subsection 2.1, be issuable upon exercise of the rights
represented by this Warrant, the Company will, within 20 days after the
Exercise Date, deliver to the Purchaser a check payable to the Purchaser, in
lieu of such fractional share, in an amount equal to the Market Price of such
fractional share as of the close of business on the Exercise Date.
Section 3.
Exercise Price
3.1 General.
(a) The Holder of this Warrant shall be entitled to purchase
such numbers of Warrant Shares at the Exercise Price.
3.2 Subdivision or Combination of Common Stock and Stock
Dividends. If the Company shall at any time after the date hereof (a) issue any
shares of Common Stock or Convertible Securities, or any rights to purchase
Common Stock or Convertible Securities, as a dividend upon Common Stock, (b)
issue any shares of Common Stock, in subdivision of outstanding shares of Common
Stock by reclassification or otherwise, or (c) combine outstanding shares of
Common Stock, by reclassification or otherwise, then the Exercise Price that
would apply if purchase rights hereunder were being exercised immediately prior
to such action by the Company shall be adjusted by multiplying it by a fraction,
the numerator of which
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shall be the number of shares of Common Stock Deemed Outstanding immediately
prior to such dividend, subdivision, or combination and the denominator of which
shall be the number of shares of Common Stock Deemed Outstanding immediately
after such dividend, subdivision, or combination.
3.3 Certain Dividends or Distributions. If the Company shall declare a
dividend or distribution upon the Common Stock payable otherwise than out of
earnings or earned surplus and otherwise than in Common Stock, Rights or
Convertible Securities, the Exercise Price that would apply if purchase
rights hereunder were being exercised immediately prior to the declaration of
such dividend or distribution shall be reduced by an amount equal, in the
case of a dividend or distribution in cash, to the amount thereof payable per
share of the Common Stock or, in the case of any other dividend or
distribution, to the fair value of such dividend or distribution per share of
the Common Stock as determined in good faith by the Board of Directors of the
Company. For purposes of the foregoing, a dividend or distribution other than
in cash shall be considered payable out of earnings or earned surplus only to
the extent that such earnings or earned surplus are charged an amount equal
to the fair value of such dividend or distribution as determined in good
faith by the Board of Directors of the Company. Such reductions shall take
effect as of the date on which a record is taken for the purpose of such
dividend or distribution or, if a record is not taken, the date as of which
the holders of Common Stock of record entitled to such dividend or
distribution are to be determined.
3.4 No De Minimis Adjustments. No adjustment of the Exercise Price shall
be made if the amount of such adjustment would be less than one cent per
share, but in such case any adjustment that otherwise would be required to be
made shall be carried forward and shall be made at the time and together with
the next subsequent adjustment that, together with any adjustment or
adjustments so carried forward, shall amount to not less than one cent per
share.
Section 4.
Adjustment of Number of
Shares Issuable upon Exercise
Upon each adjustment of the Exercise Price pursuant to Section 3, the
Holder of this Warrant shall thereafter (until another such adjustment) be
entitled to purchase, (i) at the adjusted Exercise Price in effect on the
date purchase rights for Warrant Shares under this Warrant are exercised, the
number of Warrant Shares, calculated to the nearest whole number, determined
by (a) multiplying the number of Warrant Shares purchasable hereunder
immediately prior to the adjustment of the Exercise Price by the Exercise
Price in effect immediately prior to such adjustment, and (b) dividing the
product so obtained by the adjusted Exercise Price in effect on the date of
such exercise. The provisions of Subsection 2.4 shall apply, however, so that
no fractional Warrant Share shall be issued upon exercise of this Warrant.
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Section 5.
Effect of Reorganization,
Reclassification, Consolidation, Merger, or Sale
If at any time while this Warrant is outstanding there shall be any
reorganization or reclassification of the capital stock of the Company (other
than a subdivision or combination of shares provided for in Subsection 3.3
hereof), any consolidation or merger of the Company with another corporation
(other than a consolidation or merger in which the Company is the surviving
entity and which does not result in any change in the Common Stock), or any
sale or other disposition by the Company of all or substantially all of its
assets to any other corporation, then the Holder of this Warrant shall
thereafter upon exercise of this Warrant be entitled to receive the number of
Warrant Shares or other securities or property of the Company, or of the
successor corporation resulting from such consolidation or merger, as the
case may be, to which the Holders of the Warrant Shares (and any other
securities and property) of the Company, deliverable upon the exercise of
this Warrant, would have been entitled upon such reorganization,
reclassification of capital stock, consolidation, merger, sale, or other
disposition if this Warrant had been exercised immediately prior to such
reorganization, reclassification of capital stock, consolidation, merger,
sale, or other disposition. In any such case, appropriate adjustment (as
determined in good faith by the Board of Directors of the Company) shall be
made in the application of the provisions set forth in this Warrant with
respect to the rights and interests thereafter of the Holder of this Warrant
to the end that the provisions set forth in this Warrant (including those
relating to adjustments of the Exercise Price and the number of Warrant
Shares issuable upon the exercise of this Warrant) shall thereafter be
applicable, as near as reasonably may be, in relation to any shares or other
property thereafter deliverable upon the exercise hereof as if this Warrant
had been exercised immediately prior to such reorganization, reclassification
of capital stock, consolidation, merger, sale, or other disposition and the
Holder hereof had carried out the terms of the exchange as provided for by
such reorganization, reclassification of capital stock, consolidation, or
merger. The Company shall not effect any such reorganization, consolidation,
or merger unless, upon or prior to the consummation thereof, the successor
corporation shall assume by written instrument the obligation to deliver to
the Holder hereof such shares of stock or other securities, cash, or property
as such Holder shall be entitled to purchase in accordance with the foregoing
provisions. Notwithstanding any other provisions of this Warrant, in the
event of sale or other disposition of all or substantially all of the assets
of the Company as a part of a plan for liquidation of the Company, all rights
to exercise the Warrant shall terminate upon the earlier of the expiration of
the Exercise Period and 60 days after the Company gives written notice to the
Holder of this Warrant that such sale or other disposition has been
consummated.
Section 6.
Notice of Adjustment
Immediately upon any adjustment of the Exercise Price or increase or
decrease in the number of Warrant Shares, the Company will send written
notice thereof to all Holders, stating the adjusted Exercise Price, and the
increased or decreased number of Warrant Shares and setting forth in
reasonable detail the method of calculation for such adjustment and increase
or decrease. When
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appropriate, such notice may be given in advance and included as part of any
notice required to be given pursuant to Section 7 below. Notwithstanding
anything herein to the contrary, if any adjustment under this Warrant of the
Exercise Price or the number of shares of Common Stock issuable upon exercise of
this Warrant, shall be determined by NASD Regulation, Inc. (the "NASD") to
violate the Rules of Fair Practice of the NASD, and such determination shall not
be subject to further appeal or review, the violative provisions shall be deemed
to be amended to the minimum extent necessary to cause each such provision to
comply with the applicable violated section of the NASD Rules of Fair Practice.
Section 7.
Prior Notice of Certain Events
If at any time:
(a) the Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution (other than cash dividends) to the holders
of its Common Stock;
(b) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or any
other rights;
(c) there shall be any reorganization or reclassification of the
capital stock of the Company, any consolidation or merger of the Company with
another corporation, or a sale or disposition of all or substantially all its
assets; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company,
then, in each such case, the Company shall give prior written notice, by hand
delivery or by certified mail, postage prepaid, addressed to the Holder of this
Warrant at the address of such holder as shown on the books of the Company, of
the date on which (i) the books of the Company shall close or a record shall be
taken for such stock dividend, distribution, or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up shall take place, as the case may be. A copy of each
such notice shall be sent simultaneously to each transfer agent of the Company's
Common Stock. Such notice shall also specify the date as of which the holders of
Common Stock of record shall participate in said dividend, distribution, or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least 30
days prior to the record date or the effective date, whichever is earlier, of
the subject action or other event.
If any other event (not listed above) would require adjustment to the
Exercise Price, then the Company shall give prior written notice thereof (in
substance as set forth above) to the Holders, at their addresses and in the
manner provided in Subsection 13.3. Notwithstanding the foregoing, the Company
shall not be required to give prior written notice where it is not reasonably
possible.
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Section 8.
Reservation of Common Stock
The Company will at all times reserve and keep available such number of
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants. Upon exercise of this Warrant, the Holder will acquire
fully paid and non-assessable ownership rights of the Common Stock, free and
clear of any liens, claims or encumbrances.
Section 9.
No Shareholder Rights or Obligation
This Warrant will not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company. Until the shares of Common Stock
issuable upon exercise of this Warrant are recorded as issued on the books and
records of the Company's transfer agent, the Holder shall not be entitled to any
voting rights or other rights as a shareholder; provided, however, the Company
uses its best efforts to ensure that, upon receipt of an Exercise Agreement, the
appropriate documentation necessary to effectuate the exercise of the Warrant
and issuance of the Common Stock is accomplished as expeditiously as possible.
No provision of this Warrant, in the absence of affirmative action by the Holder
to purchase Common Stock, and no enumeration in this Warrant of the rights or
privileges of the Holder, will give rise to any obligation of such Holder for
the Exercise Price of the Warrant Shares acquirable by exercise hereof or as a
shareholder of the Company.
Section 10.
Exchangeable for Different Denominations
This Warrant is exchangeable, upon the surrender hereof by the Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants,
as set forth on the front page hereof, will represent such portion of such
rights as is designated by the Holder at the time of such surrender. The date
the Company initially issued this Warrant, which is set forth on the front page
hereof, will be deemed to be the "Date of Issuance" of this Warrant and any
purchase warrant exchanged or substituted herefor, regardless of the number of
times (and dates on which) new certificates representing the unexpired and
unexercised rights formerly represented by this Warrant are issued.
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Section 11.
Transferability
Subject to the transfer conditions referred to in Section 2 or in the
remaining provisions or this Section 11, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Holder, upon
surrender of this Warrant with a properly executed Assignment (in the form of
Exhibit II hereto) at the principal office of the Company. This Warrant and the
Warrant Shares may not be offered, sold, or transferred except in compliance
with the Securities Act of 1933, as amended (the "Act"), and any applicable
state securities laws; and then only against receipt of an agreement of the
Person to whom such offer or sale is made to comply with the provisions of this
Section 11 with respect to any resale or other disposition of such securities;
provided that no such agreement shall be required from any Person purchasing
this Warrant or any Warrant Shares pursuant to a registration statement
effective under the Act. The Holder of this Warrant agrees that, prior to the
disposition of any security purchased on the exercise hereof under circumstances
that might require registration of such security under the Act, or any similar
statute then in effect, the Holder shall give written notice to the Company,
expressing his intention as to such disposition. Promptly upon receiving such
notice, the Company shall present a copy thereof to its securities counsel. If,
in the opinion of such counsel, the proposed disposition does not require
registration of such security under the Act, or any similar statute then in
effect, the Company shall, as promptly as practicable, notify the Holder of such
opinion, whereupon the Holder shall be entitled to dispose of such security in
accordance with the terms of the notice delivered by the Holder to the Company.
The above agreement by the Holder of this Warrant shall not be deemed to limit
or restrict in any respect the exercise of rights set forth in Section 12
hereof.
Section 12.
Registration Rights
12.1 Demand Registration Right. At any time during the Exercise Period,
the Holders of Warrants whose holdings thereof comprise a majority of the
Warrant Shares issuable upon exercise of said Warrants shall have the right
to require the Company (a) to prepare and file with the Commission up to one
new registration statement under the Act (or, in lieu thereof, a
post-effective amendment or amendments to the Registration Statement, if then
permitted under the Act), covering all or any portion of the Warrant Shares
and to use its best efforts to obtain promptly and maintain the effectiveness
thereof for at least 120 days and (b) to register or qualify the subject
Warrant Shares for sale in up to ten states identified by such holders. The
Company shall bear all fees and expenses other than the fees and expenses of
Holders' counsel incurred in the preparation and filing of such registration
statement or post-effective amendments (and related state registrations, to
the extent permitted by applicable law) and the furnishing of copies of the
preliminary and final prospectus thereof to such Holders of Warrant Shares.
12.2 Piggy Back Registration Rights. In addition, if at any time
commencing after the date hereof and expiring seven years after the date
hereof, the Company shall prepare and file one or more registration
statements under the Act, with respect to a public offering of equity or debt
securities of the Company, or of any such securities of the Company held by
its security
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holders, the Company will include in any such registration statement such
information as is required, and such number of shares of Common Stock held by,
or shares of Common Stock underlying outstanding Warrants held by, the Holders
hereof or their respective designees or transferees as may be requested by them,
to permit a public offering of the Shares so requested; provided, however, that
if, in the written opinion of the Company's managing underwriter, if any, for
such offering, the inclusion of the shares requested to be registered, when
added to the securities being registered by the Company or the selling security
holder(s), would exceed the maximum amount of the Company's securities that can
be marketed without otherwise materially and adversely affecting the entire
offering, then the Company may exclude from such offering that portion of the
shares requested to be so registered, so that the total number of securities to
be registered is within the maximum number of shares that, in the opinion of the
managing underwriter, may be marketed without otherwise materially and adversely
affecting the entire offering, provided that the Company shall be required to
include in the offering and in the following order: first, the pro rata number
of securities requested by the Holder of Warrants along with all other holders
of securities requesting registration pursuant to registration rights which were
granted on or prior to the date hereof and are described in the Company's
Registration Statement; and, second, the pro rata number of securities requested
by all other holders of securities requesting registration pursuant to other
registration rights. In the event of such a proposed registration, the Company
shall furnish the then Holders with not less than 30 days' written notice prior
to the proposed date of filing of such registration statement. The Company shall
use its best efforts to ensure that such registration statement is declared
effective and remains effective until such time as all of the shares have been
registered or may be sold without registration under the Act or applicable state
securities laws and regulations, and without limitation as to volume, pursuant
to Rule 144 of the Act. The Holders shall be entitled to exercise the rights
provided for in this Subsection 12.2 on two separate occasions by giving written
notice to the Company, within 20 days of receipt of the Company's notice of its
intention to file a registration statement. The Company shall bear all fees and
expenses incurred by it in connection with the preparation and filing of such
registration statement other than fees and expenses of Holder's counsel.
Section 13.
Miscellaneous
13.1 Original Issue Taxes. The Company will pay all United States, state
and local (but not foreign) original issue taxes, if any, upon the issuance
of this Warrant and the Warrant Shares.
13.2 Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant may be amended, and the Company may take any
action herein prohibited or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Holders of the Warrants representing at least 50% of the shares of Common
Stock obtainable upon the exercise of the Warrants outstanding at the time of
such consent.
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13.3 Notices. Any notices required to be sent to a Holder of this
Warrant or of any Warrant Shares purchased upon the exercise hereof will be
delivered to the address of such Holder shown on the books of the Company.
All notices referred to herein will be delivered in person or sent by
registered or certified mail, postage prepaid, and will be deemed to have
been given when so delivered in person or on the third business day following
the date so sent by mail.
If to the Holder: Xxxxxx & Xxxxxxx Incorporated
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Executive Vice President
With a copy to: Broad and Xxxxxx
Miami Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
If to the Company: Xxxxxx International Ltd.
0 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxx,
President
With a copy to: Xxxxxxx, Xxxxxx, Xxxxxxxxx &
Xxxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
13.4 Descriptive Headings. The descriptive headings of the sections and
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
13.5 Governing Law; Arbitration. This Warrant is governed by,
interpreted under and construed in all respects in accordance with the
substantive laws of the State of Florida, without regard to the conflicts of
law provisions thereof, and irrespective of the place of domicile or
residence of the party. In the event of a controversy arising out of the
interpretation, construction, performance or breach of this Warrant, the
parties hereby agree and consent to the jurisdiction and venue of the courts
of the State of Florida, or the United States District Court for the Southern
District of Florida that are located in Miami-Dade County, Florida; and
further agree and consent that personal service of process in any such action
or proceeding outside the State of Florida shall be tantamount to service in
person in Florida.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and attested by its duly authorized officer.
Xxxxxx International Ltd., an Ontario corporation
By:
---------------------------------------------
Xxxxx Xxxxxx, President
Attest:
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EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned Record Holder, pursuant to the provisions set forth in
the within Warrant, hereby subscribes for and purchases ________ Warrant Shares
covered by such Warrant and herewith makes full cash payment of $______________
for such Warrant Shares at the Exercise Price provided by such Warrant.
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(Signature)
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(Print or type name)
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(Address)
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NOTICE: The signature on this Exercise Agreement must correspond with the
name as written upon the face of the within Warrant, or upon the Assignment
thereof if applicable, in every particular, without alteration, enlargement, or
any change whatsoever, and must be medallion guaranteed by a bank, other than a
saving bank, having an office or correspondent in New York, New York, or Fort
Lauderdale or Miami, Florida, or by a firm having membership on a registered
national securities exchange and an office in New York, New York, or Fort
Lauderdale or Miami, Florida.
MEDALLION SIGNATURE GUARANTEE
Authorized Signature:
-------------------------------------------------------
Name of Bank or Firm:
-------------------------------------------------------
Dated:
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, __________________________________________, the
undersigned Holder hereby sells, assigns, and transfers all of the rights of the
undersigned under the within Warrant with respect to the number of Warrant
Shares covered thereby set forth below, unto the Assignee identified below, and
does hereby irrevocably constitute and appoint________________________________
to effect such transfer of rights on the books of the Company, with full power
of substitution:
Name of Assignee Address of Assignee No. of Warrant Shares
---------------- ------------------- ---------------------
Dated:
---------------------------- ---------------------------------
(Signature of Holder)
---------------------------------
(Print or type name)
NOTICE: The signature on this Assignment must correspond with the name
as written upon the face of the within Warrant, in every particular, without
alteration, enlargement, or any change whatsoever, and must be medallion
guaranteed by a bank, other than a savings bank, having an office or
correspondent in New York, New York, or Fort Lauderdale or Miami, Florida, or by
a firm having membership on a registered national securities exchange and an
office in New York, New York, or Fort Lauderdale or Miami, Florida.
MEDALLION SIGNATURE GUARANTEE
Authorized Signature:
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Name of Bank or Firm:
---------------------------------------------------
Dated:
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