EXHIBIT 4.5
WARRANT AGREEMENT dated , 1999, between
xxxxxxxXX.xxx, Inc., a Delaware corporation, with
offices at 000 Xxxxx Xxxxxx, Xxxxx 0000X, Xxx
Xxxx, Xxx Xxxx 00000 (the "Company"), and AMERICAN
STOCK TRANSFER & TRUST COMPANY, a New York limited
purpose trust company, with offices at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Warrant
Agent").
------------------------------------
The Company has determined to issue and deliver up to 1,700,000 Redeemable
Common Stock Purchase Warrants (the "Redeemable Warrants"), and (ii) up to
170,000 redeemable warrants issued to Westminster Securities Corporation (the
"Underwriter") or its designees (the "Underwriter's Warrants" and, together with
the Redeemable Warrants, "Warrants") evidencing the right of the holders thereof
to purchase an aggregate of 1,870,000 shares of common stock of the Company,
$.01 par value per share ("Common Stock"), which Warrants are to be issued and
delivered as part of units ("Units") as described in the Company's Registration
Statement on Form X-0, Xx. 000- , xxxxxxxx xxxxxxxxx
, 0000 ("Registration Statement");
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, exchange, redemption and exercise of the Warrants;
The Company desires to provide for the form and provisions of the Warrants,
the terms upon which they shall be issued and exercised, and the respective
rights, limitation of rights, and immunities of the Company, the Warrant Agent,
and the holders of the Warrants; and
All acts and things have been done and performed which are necessary to
make the Warrants, when executed on behalf of the Company and countersigned by
or on behalf of the Warrant Agent, as provided herein, the valid, binding and
legal obligations of the Company, and to authorize the execution and delivery of
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant
----------------------------
Agent to act as agent for the Company for the Warrants, and the Warrant Agent
hereby accepts such appointment and agrees to perform the same in accordance
with the terms and conditions set forth in this Agreement.
2. Warrants.
--------
2.1. Form of Warrant. Each Warrant shall be issued in registered form
---------------
only, shall be in substantially the form of Exhibit A hereto, shall be signed
by, or bear the facsimile signature of, the Chairman of the Board or President
and Secretary or Assistant Secretary of the Company and shall bear a facsimile
of the Company's seal. In the event the person whose facsimile signature
has been placed upon any Warrant shall have ceased to serve in the capacity in
which such person signed the Warrant before such Warrant is issued, it may be
issued with the same effect as if he had not ceased to be such at the date of
issuance. No Warrant may be exercised until it has been countersigned by the
Warrant Agent as provided in Section 2.3 hereof.
2.2. Effect of Countersignature. Unless and until countersigned by
--------------------------
the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of
no effect.
2.3. Events for Countersignature. The Warrant Agent shall countersign
---------------------------
a Warrant only upon the occurrence of either of the following events:
(a) if the Warrant is to be issued in exchange or
substitution for one or more previously countersigned
Warrants, as hereinafter provided, or
(b) if the Company instructs the Warrant Agent to do so.
2.4. Registration.
------------
2.4.1. Warrant Register. The Warrant Agent shall maintain
----------------
books ("Warrant Register") for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance of the
Warrants, the Warrant Agent shall issue and register the Warrants in the names
of the respective holders thereof in such denominations and otherwise in
accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Registered Holder. Prior to due presentment for
-----------------
registration of transfer of any Warrant, the Company and the Warrant Agent may
deem and treat the person in whose name such Warrant shall be registered upon
the Warrant Register ("registered holder"), as the absolute owner of such
Warrant and of each Warrant represented thereby (notwithstanding any notation of
ownership or other writing on the Warrant Certificate made by anyone other than
the Company or the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
3. Terms and Exercise of Redeemable Warrants
-----------------------------------------
3.1. Warrant Price. Each Warrant shall, when countersigned by the
-------------
Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Warrant and of this Warrant Agreement, to purchase from the Company the
number of shares of Common Stock stated therein, at the price of $9.00 per whole
share, subject to the adjustments provided in Section 4 hereof. The term
"Warrant Price" as used in this Warrant Agreement refers to the price per share
at which Common Stock may be purchased at the time a Warrant is exercised.
3.2. Duration of Warrants. A Warrant may be exercised only during the
--------------------
period ("Exercise Period") commencing on the date hereof, and terminating on the
earlier to occur of (i) , 2002 or (ii) the date fixed for
redemption of such Warrant as provided in Section 6 of this
2
Agreement. Each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date. The
Company in its sole discretion may extend the duration of the Warrants by
delaying the Expiration Date.
3.3. Exercise of Warrants.
--------------------
3.3.1. Payment. A Warrant, when countersigned by the Warrant
-------
Agent, may be exercised by the registered holder thereof by surrendering it, at
the office of the Warrant Agent, or at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the
subscription form, as set forth in the Warrant and in substantially the form of
Exhibit A hereto, duly executed, and by paying in full, in lawful money of the
United States, in cash, good certified check or good bank draft payable to the
order of the Company, the Warrant Price for each full share of Common Stock as
to which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for the
Common Stock, and the issuance of the Common Stock.
3.3.2. Issuance of Certificates. As soon as practicable after
------------------------
the exercise of any Warrant, the Company shall issue to the registered holder of
such Warrant a certificate or certificates for the number of full shares of
Common Stock to which he is entitled, registered in such name or names as may be
directed by him, and if such Warrant shall not have been exercised in full, a
new countersigned Warrant for the number of shares as to which such Warrant
shall not have been exercised. Notwithstanding the foregoing, the Company shall
not be obligated to deliver any securities pursuant to the exercise of a Warrant
unless a registration statement under the Securities Act of 1933 with respect to
the securities is then currently effective. Warrants may not be exercised by,
or securities issued to, any registered holder in any state in which such
exercise would be unlawful.
3.3.3. Valid Issuance. All shares of Common Stock issued upon
--------------
the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued.
3.3.4. Date of Issuance. Each person in whose name any such
----------------
certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Warrant was surrendered and payment of the Warrant Price was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
3.3.5. Warrant Solicitation Fee.
------------------------
(i) The Company has engaged the Underwriter as the
exclusive agent for the solicitation of the
exercise of the Warrants. The Company has also
agreed to (i) assist the Underwriter with respect
to such solicitation, if requested by the
Underwriter, and (ii) at the Underwriter's
request, provide the Underwriter and direct the
Company's transfer and warrant agent to deliver to
the Underwriter, at the
3
Company's cost, lists of the record and, to the
extent known, beneficial owners of, the Company's
Warrants. Accordingly, the Company hereby
instructs the Warrant Agent to cooperate with the
Underwriter in every respect in connection with
the Underwriter's solicitation activities,
including but not limited to providing to the
Underwriter, at the Company's cost, a list of
record and beneficial holders of the Warrants.
(ii) If, upon the exercise of any Warrant (i) the
market price of the Company's Common Stock is
greater than the then Warrant Price, (ii) the
exercise of the Warrant was solicited by the
Underwriter, and (iii) the Warrant was not held in
a discretionary account, then the Warrant Agent,
simultaneously with the distribution of proceeds
to the Company received upon exercise of the
Warrant(s) so exercised, shall, on behalf of the
Company, pay from the proceeds received upon
exercise of the Warrant(s), a fee of 3% of the
Warrant Price to the Underwriter. The Underwriter
and the Company may at any time during business
hours, examine the records of the Warrant Agent,
including its ledger of original Warrants
certificates returned to the Warrant Agent upon
exercise of Warrants.
4. Adjustments.
-----------
4.1 Stock Dividends - Split-Ups. If after the date hereof, and
---------------------------
subject to the provisions of Section 4.5 below, the number of outstanding shares
of Common Stock is increased by a stock dividend payable in shares of Common
Stock or by a split-up of shares of Common Stock or other similar event, then,
on the effective day thereof, such stock dividend or split-up, the number of
shares issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares and the then applicable Warrant Price shall
be correspondingly decreased.
4.2 Aggregation of Shares. If after the date hereof, and subject to
---------------------
the provisions of Section 4.5, the number of outstanding shares of Common Stock
is decreased by a consolidation, combination or reclassification of shares of
Common Stock or other similar event, then, after the effective date of such
consolidation, combination or reclassification, the number of shares issuable on
exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares and the then applicable Warrant Price shall be
correspondingly increased.
4.3 Reorganization, etc. If after the date hereof any capital
--------------------
reorganization or reclassification of the Common Stock of the Company, or
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation
4
or other similar event shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, or sale, lawful and
fair provision shall be made whereby the Warrant holders shall thereafter have
the right to purchase and receive, upon the basis and upon the terms and
conditions specified in the Warrants and in lieu of the shares of Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented thereby, such shares of stock, securities, or
assets as may be issued or payable with respect to or in exchange for the number
of outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests of the Warrant holders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Warrant Price
and of the number of shares purchasable upon the exercise of the Warrants) shall
thereafter be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger, or sale unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing such
assets, shall assume by written instrument executed and delivered to the Warrant
Agent the obligation to deliver to the Warrant holders such shares of stock,
securities, or assets as, in accordance with the foregoing provisions, such
holders may be entitled to purchase.
4.4 Notices of Changes in Warrant. Upon every adjustment of the
-----------------------------
Warrant Price or the number of shares issuable on exercise of a Warrant, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjust ment and the increase
or decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon the
occurrence of any event specified in Sections 4.1., 4.2., or 4.3., then, in any
such event, the Company shall give written notice in the manner set forth above
of the record date for such dividend, distribution, or subscription rights, or
the effective date of such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding up or issuance. Such notice
shall also specify the date as of which the holders of Common Stock of record
shall participate in such dividend, distribution, or subscription rights, or
shall be entitled to exchange their Common Stock for stock, securities, or other
assets deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding up or issuance. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such event.
4.5 No Fractional Shares. Notwithstanding any provision contained in
--------------------
this Warrant Agreement to the contrary, the Company shall not issue fractional
shares upon exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, purchase such fractional interest, determined
as follows:
(i) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such exchange or listed
for trading on the Nasdaq National Market or Nasdaq SmallCap Market or the OTC
Bulletin Board, the current value shall be the last reported sale price of the
Common Stock on such exchange on the last business day prior
5
to the date of exercise of this Warrant or if no such sale is made on such day,
the average of the closing bid and asked prices for such day on such exchange;
or
(ii) If the Common Stock is not listed or admitted to unlisted
trading privileges, the current value shall be the mean of the last reported bid
and asked prices reported by the National Quotation Bureau, Inc. on the last
business day prior to the date of the exercise of this Warrant; or
(c) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices
are not so reported, the current value shall not be an
amount determined in such reasonable manner as may be
prescribed by the Board of Directors of the Company.
4.6 Form of Warrant. The form of Warrant need not be changed because
---------------
of any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement. However,
the Company may at any time in its sole discretion make any change in the form
of Warrant that the Company may deem appropriate and that does not affect the
substance thereof, and any Warrant thereafter issued or countersigned, whether
in exchange or substitution for an outstanding Warrant or otherwise, may be in
the form as so changed.
5. Transfer and Exchange of Warrants.
----------------------------------
5.1 Registration of Transfer. The Warrant Agent shall register the
------------------------
transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with
signatures properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal aggregate
number of Warrants shall be issued and the old Warrant shall be canceled by the
Warrant Agent. The Warrant so cancelled shall be delivered by the Warrant Agent
to the Company from time to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be surrendered
-----------------------------------
to the Warrant Agent, together with a written request for exchange or transfer,
and thereupon the Warrant Agent shall issue in exchange therefor one or more new
Warrants as requested by the registered holder of the Warrants so surrendered,
representing an equal aggregate number of Warrants; provided, however, that in
the event that a Warrant surrendered for transfer bears a restrictive legend,
the Warrant Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion of counsel for
the Company stating that such transfer may be made and indicating whether the
new Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The Warrant Agent shall not be required to
-------------------
effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
6
5.4 Service Charges. No service charge shall be made for any
---------------
exchange or registration of transfer of Warrants.
5.5 Warrant Execution and Countersignature. The Warrant Agent is
--------------------------------------
hereby authorized to countersign and to deliver, in accordance with the terms of
this Agreement, the Warrants required to be issued pursuant to the provisions
hereof, and the Company, whenever required by the Warrant Agent, will supply the
Warrant Agent with Warrants duly executed on behalf of the Company for such
purpose.
6. Redemption.
----------
6.1 Redemption. Subject to Section 3.3.5 hereof, each of the
----------
Redeemable Warrants may be redeemed, at the option of the Company, as a whole
and not in part, after they become exercisable and prior to their expiration, at
the office of the Warrant Agent, upon the notice referred to in Section 6.2., at
the price of $.05 per Warrant ("Redemption Price"), provided that the reported
high bid price of the Common Stock if the Common Stock is quoted on the OTC
Bulletin Board (or the last sales price of the Common Stock is quoted on the
National Association of Securities Dealers Quotation System or principally
quoted on a securities exchange) has been at least $12.00 on each of the twenty
(20) consecutive trading days ending on the third business day prior to the date
on which notice of redemption is given.
6.2 Date Fixed for, and Notice of, Redemption. In the event the
-----------------------------------------
Company shall elect to redeem all or any part of the Redeemable Warrants, the
Company shall fix a date for the redemption. Notice of redemption shall be
mailed by first class mail, postage prepaid, by the Company not less than 30
days from the date fixed for redemption to the registered holders of the
Warrants to be redeemed at their last address as they shall appear on the
registration books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
6.3 Exercise After Notice of Redemption. The Redeemable Warrants may
-----------------------------------
be exercised in accordance with Section 3 of this Agreement at any time after
notice of redemption shall have been given by the Company pursuant to Section
6.2. hereof and prior to the time and date fixed for redemption. On and after
the redemption date, the record holder of the Redeemable Warrants shall have no
further rights except to receive, upon surrender of the Redeemable Warrants, the
redemption price.
7. Other Provisions Relating to Rights of Holders of Warrants.
----------------------------------------------------------
7.1 No Rights as Stockholder. A Warrant does not entitle the
------------------------
registered holder thereof to any of the rights of a stockholder of the Company,
including, without limitation, the right to receive dividends, or other
distributions, exercise any preemptive rights to vote or to consent or to
receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter.
7.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant
----------------------------------------------
is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may
on such terms as to indemnity
7
or otherwise as they may in their discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or
destroyed. Any such new Warrant shall constitute a substitute contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated,
or destroyed Warrant shall be at any time enforceable by anyone.
7.3 Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Agreement.
7.4 Registration Statement. The Company has filed with the
----------------------
Securities and Exchange Commission the Registration Statement for the
registration, under the Securities Act of 1933, of, among others, the Warrants
and the Common Stock issuable upon exercise of the Warrants.
7.5 Registration of Common Stock. The Company agrees that prior to
----------------------------
the commencement of the Exercise Period, it shall file with the Securities and
Exchange Commission a post-effective amendment to the Registration Statement, or
a new registration statement, for the registration, under the Securities Act of
1933, of the Common Stock issuable upon exercise of the Warrants. In either
case, the Company will use its best efforts to cause the same to become
effective and to maintain the effectiveness of such registration statement until
the expiration of the Warrants in accordance with the provisions of this
Agreement. In connection with the filing of such registration statement, the
Company shall disclose in such amendment or new registration statement the
warrant solicitation fee payable to the Underwriter.
8. Concerning the Warrant Agent and Other Matters.
----------------------------------------------
8.1 Payment of Taxes. The Company will from time to time promptly
----------------
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants, but the Company shall not be obligated to pay any transfer
taxes in respect of the Warrants or such shares.
8.2 Resignation, Consolidation, or Merger of Warrant Agent.
------------------------------------------------------
8.2.1. Appointment of Successor Warrant Agent. The Warrant
--------------------------------------
Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after giving sixty
(60) days' notice in writing to the Company. If the office of the Warrant Agent
becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor Warrant Agent in place of the Warrant
Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice,
submit his Warrant for inspection by the Company), then the holder of any
Warrant may apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent. Any successor
Warrant Agent, whether appointed by the Company or by such court, shall be a
corporation organized and existing or qualified to do business under the laws of
the State of New York, in good standing and having its
8
principal office in the Borough of Manhattan, City and State of New York, and
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authority. After appointment, any
successor Warrant Agent shall be vested with all the authority, powers, rights,
immunities, duties, and obligations of its predecessor Warrant Agent with like
effect as if originally named as Warrant Agent hereunder, without any further
act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder; and
upon request of any successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a
---------------------------------
successor Warrant Agent shall be appointed, the Company shall give notice
thereof to the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any
----------------------------------------
corporation into which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 Fees and Expenses of Warrant Agent.
----------------------------------
8.3.1. Remuneration. The Company agrees to pay the Warrant
------------
Agent reasonable remuneration for its services as such Warrant Agent hereunder
and will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company and the Warrant Agent
------------------
agree to perform, execute, acknowledge, and deliver or cause to be performed,
executed, acknowledged, and delivered all such further and other acts,
instruments, and assurances as may reasonably be required by the Warrant Agent
or the Company for the carrying out or performing of the provisions of this
Agreement.
8.4 Liability of Warrant Agent.
--------------------------
8.4.1. Reliance on Company Statement. Whenever in the
-----------------------------
performance of its duties under this Warrant Agreement, the Warrant Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
statement signed by the President of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action taken or
suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder
---------
only for its own negligence or willful misconduct or any actions taken in bad
faith. The Company agrees to
9
indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement
except as a result of the Warrant Agent's negligence, willful misconduct, or bad
faith.
8.4.3. Exclusions. The Warrant Agent shall have no
----------
responsibility with respect to the validity of this Agreement or with respect to
the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall it be
responsible to make any adjustments required under the provisions of Section 4.
hereof or responsible for the manner, method, or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock to be issued pursuant to this Agreement or any Warrant or as to
whether any shares of Common Stock will when issued be valid and fully paid and
nonassessable.
8.5 Acceptance of Agency. The Warrant Agent hereby accepts the
--------------------
agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account
promptly to the Company with respect to Warrants exercised and concurrently
account for, and pay to the Company, all moneys received by the Warrant Agent
for the purchase of shares of the Company's Common Stock through the exercise of
Warrants.
9. Miscellaneous Provisions.
------------------------
9.1 Successors. All the covenants and provisions of this Agreement
----------
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2 Notices. Any notice, statement or demand authorized by this
-------
Warrant Agreement to be given or made by the Warrant Agent or by the holder of
any Warrant to or by the Company shall be sufficiently given or made if sent by
certified mail, or private courier service, postage prepaid, addressed (until
another address is filed in writing by the Company with the Warrant Agent), as
follows:
XxxxxxxXX.xxx, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000X
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
with a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxx, Esq.
10
Any notice, statement or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Warrant Agent shall
be sufficiently given or made if sent by certified mail or private courier
service, postage prepaid, addressed (until another address is filed in writing
by the Warrant Agent with the Company), as follows:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
9.3 Applicable law. The validity, interpretation, and performance of
--------------
this Agreement and of the Warrants shall be governed in all respects by the laws
of the State of New York, without giving effect to conflict of laws. Each of
the Company and the Warrant Agent hereby agrees that any action, proceeding or
claim against it arising out of, relating in any way to this Agreement shall be
brought and enforced in the courts of the State of New York of the United States
of America for the Southern District of New York, and irrevocably submits to
such jurisdiction, which jurisdiction shall be exclusive. Each of the Company
and the Warrant Agent hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such process or
summons to be served upon the Company or the Warrant Agent may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 hereof. Such mailing shall be deemed personal service and shall be legal and
binding upon each of the Company and the Warrant Agent in any action, proceeding
or claim. Each of the Company and the Warrant Agent agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys' fees and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefor.
9.4 Persons Having Rights under this Agreement. Nothing in this
------------------------------------------
Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the parties hereto and the registered holders
of the Warrants and, for the purposes of Sections 3.3.5 and 6.1 hereof, the
Underwriter, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto and their successors and assigns and of the registered
holders of the Warrants. The parties hereto agree that the Underwriter is
intended to be a third-party beneficiary with respect to Sections 3.3.5 and 6.1,
with all legal rights and remedies available to it as fully as if it were a
party hereto.
9.5 Examination of the Warrant Agreement. A copy of this Agreement
------------------------------------
shall be available at all reasonable times at the office of the Warrant Agent in
the Borough of Manhattan, City and State of New York, for inspection by the
registered holder of any Warrant. The Warrant Agent may require any such holder
to submit his Warrant for inspection by it.
9.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
11
9.7 Effect of Headings. The Section headings herein are for
------------------
convenience only and are not part of this Warrant Agreement and shall not affect
the interpretation thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto
12
under their respective corporate seals as of the day and year first above
written.
xxxxxxxXX.xxx, Inc.
By:______________________________________
Name:
Title:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:______________________________________
Name:
Title:
13
