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EXHIBIT 4.4
WARRANT AGREEMENT
Agreement made as of October __, 1996, between Xxxxxxxxx Mobile
Fueling, Inc., a Florida corporation, with offices at 0000 Xxxxxxxxx 00xx
Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Company"), and American Stock Transfer &
Trust Company, a New York corporation, with offices at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (herein called "Warrant Agent").
WHEREAS, the Company has determined to issue and deliver up to
1,150,000 Redeemable Common Stock Purchase Warrants ("Redeemable Warrants") and
up to 115,000 Common Stock Purchase Warrants ("Underwriter's Warrants,"
together with the Redeemable Warrants, "Warrants") evidencing the right of the
holders thereof to purchase an aggregate of 1,365,000 shares of common stock,
$.01 par value per share, of the Company ("Common Stock"), which Warrants are
to be issued and delivered in connection with the Company's initial public
offering ("IPO") of securities and
WHEREAS, 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; and
WHEREAS, 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
WHEREAS, 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, the
provisions of which are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman 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 be Chairman or President and Secretary or Assistant
Secretary of the Company before such Warrant is issued, it may be
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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:
(i) if the Warrant is to be issued in exchange or
substitution for one or more previously countersigned
Warrants, as hereinafter provided, or
(ii) 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 or
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 an 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.
2.5. Detachability of Warrants. The Warrant Agent understands that
the Warrants and the shares of Common Stock are being offered separately and
may be traded separately.
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each Redeemable 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 one share of Common Stock for $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. The Company
has the right, in its sole discretion, to decrease the exercise price of the
Warrants for a period of not less than 30 days on not less than 30 days' prior
written notice to the holders of the Warrants.
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3.2. Duration of Warrants. A Warrant may be exercised only during
the period ("Exercise Period") commencing on the first anniversary of the
effective date of the IPO and terminating on the fourth anniversary date of the
IPO; provided, however, that the Exercise Period of the Redeemable Warrants
shall terminate earlier on the date fixed for redemption of such Redeemable
Warrants as provided in Section 6 of this Agreement ("Expiration Date"). Each
Warrant not exercised on or before the Expiration Date shall become void, and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company has
the right, in its sole discretion, to extend the expiration date of the
Warrants on five business days' prior written notice to the holders of the
Warrants.
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 purchase 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, 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. Subject to Section
3.3.5, upon exercise of any Warrant, the Warrant Agent shall promptly remit
the payment received for the Warrant to the Company or its agent, as the
Company may direct in writing.
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 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 registered holder of record
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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.
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 date of 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, upon 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 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
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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 adjustment 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
on the record date for such event, or the effective date of such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding up or issuance of shares. 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,
the current value shall be the last reported sale price of the Common Stock on
such exchange on the last business day prior to the date of exercise of the
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 the Warrant, or (iii)If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and
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asked prices are not so reported, the current value shall 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 Warrants so canceled 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 for a fraction of a Warrant.
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 of this Section 5, 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.
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6. Redemption.
6.1. Redemption. Subject to Section 6.4 hereof, the Redeemable
Warrants may be redeemed, at the option of the Company, as a whole at any time
or in part from time to time, after the First Exercise Date and prior to their
expiration, in any proportion as the Company in its sole discretion may
determine, at the office of the Warrant Agent, upon the notice referred to in
Section 6.2., at the price of $.01 per Warrant ("Redemption Price"), provided
that the average closing price of the Common Stock has been at least equal to
$10.50 per share for the twenty consecutive trading days ending three days
prior to the date of the notice of redemption.
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 or the Company's
agent at its direction not less than 30 days from the date fixed for redemption
to the registered holders of the Warrants to be redeemed at their last
addresses 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 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.
6.4. Redemption Exceptions. Notwithstanding anything to the
contrary herein, the Company shall not have the right to redeem any of the
115,000 Underwriter's Warrants. The provisions of this Section 6.4 shall not
be modified, amended or deleted without the prior written consent of Argent
Securities, Inc.
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 or 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 or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender
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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 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 a Registration Statement [No. 33-14501]
("Registration Statement") on Form SB-2 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 or another registration statement with respect to such Common Stock
until the expiration or redemption of the Warrants in accordance with the
provisions of this Agreement.
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 (other than those incurred
prior to such resignation or discharge) hereunder after giving sixty (60) days'
notice in writing to the Company and may be removed by the Company upon sixty
(60) days' notice and the written consent of Xxxxxxxx. 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, then the holder of any Warrant may apply to
the Supreme Court of the State of New York for the County of New York
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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 in
good standing and having its 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.
8.2.4. Records. The Warrant Agent shall, upon request by
the Company, deliver to the Company a copy of the transfer records relating to
the Warrants subject to the payment of any amounts required to be paid pursuant
to Section 8.3 1,
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant
Agent the aggregate sum of per month for (i) its services as Warrant Agent
hereunder and (ii) its services as transfer agent to the Company, and to
reimburse the Warrant Agent, upon demand and presentation of appropriate
vouchers or receipts, for the reasonable costs incurred by the Warrant Agent in
connection with its services as Warrant Agent 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.
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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 Chairman or 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 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 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.
8.6. Right to Consult Counsel. The Warrant Agent may at any time
consult with legal counsel of its selection satisfactory to it (who may be
legal counsel for the Company), and the Warrant Agent shall incur no liability
or responsibility to the Company or to any registered holder for any action
taken, suffered or omitted by it in good faith in accordance with the opinion
or advice of such counsel.
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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 on 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: with a copy to Xxxxxxxxx Mobile Fueling, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
and Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx, Traurig
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
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
with a copy to:
(Name & Address of Law Firm)
Attention:
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.
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 6-1 and 6.4 hereof, Xxxxxxxx,
any right, remedy, or claim
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under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof. Xxxxxxxx shall be deemed to be a
third party beneficiary of this Agreement with respect to Sections 6.1 and 6.4
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 to the extent set forth above) and their successors
and assigns and of the registered holders of the Warrants.
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 or her 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.
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 under their respective corporate seals as of the day and year
first above written.
XXXXXXXXX MOBILE FUELING, INC.
By
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Xxxxxxx X. Xxxxxxxxx, President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By
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