WARRANT AGREEMENT
Agreement made as of________________ ___, 2006 effective as of the OTC
Listing Date (as hereinafter defined) between Giant Motorsports, Inc., a Nevada
Corporation, with offices at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
("Company"), and Olde Monmouth Stock Transfer Co., Inc., with offices at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Warrant Agent").
WHEREAS, the Company, in September 2005, engaged in a private placement
("Offering") of shares of 10% Series A Convertible Preferred Stock (the
"Preferred Shares") and common stock purchase warrants ("Offered Warrants");
WHEREAS, the Company issued to HCFP/▇▇▇▇▇▇▇ Securities, LLC ("HCFP")
and/or other placement agents or subagents participating in the Offering, an
option to purchase a number of Preferred Shares and Offered Warrants equal to
10% of the Preferred Shares and Offered Warrants (the "Agent Warrants" and,
together with the Offered Warrants, the "Warrants");
WHEREAS, the Company has determined to cause such Warrants to become (i)
registered under Section 12(g) of the Exchange Act of 1934 and (ii) listed on
the OTC Bulletin Board at the request of a Holder of the Offered Warrants or
HCFP;
WHEREAS, HCFP served as placement agent in connection with the Offering
for which it received, among other things, a number of Warrants equal to 10% of
the Warrants issued and sold to investors in the Offering;
WHEREAS, the Company desires that after the date on which the Warrants are
listed on the OTC Bulletin Board ("OTC Listing Date"), certain terms thereof
automatically change, and that upon any transfer of Warrants effectuated through
the Warrant Agent, certificates in customary, market tradeable form be issued
and governed by the terms of this Agreement;
WHEREAS, the Company intends to register the (a) resale by the initial
purchasers (including HCFP for purposes of this Agreement) thereof of the
Warrants and the shares of common stock issuable to such initial purchasers upon
exercise of the Warrants and (b) the issuance by the Company of shares of common
stock upon exercise of the Warrants by any purchasers of such Warrants in the
open market;
WHEREAS, each such Warrant evidences the right of the holder thereof to
purchase one share of common stock of the Company ("Common Stock") at an
exercise price of $0.50 per share, subject to adjustment as described herein;
WHEREAS, any Warrants purchased in the open market on and after the OTC
Listing Date shall be referred to herein as the "Public Warrants" and,
collectively, with the Warrants, the "Warrants;"
WHEREAS, the Company desires that the Warrant Agent act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the
Public Warrants, the terms upon which they shall be issued and exercised, and
the respective rights and obligation 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 Public 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, effective as of the OTC Listing Date, 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 Forms of Warrant. The Warrants outstanding prior to the OTC
Listing Date will have been issued in the form attached hereto as Exhibit A.
Each Public Warrant shall be issued in registered form only, shall be in
substantially the form attached hereto as Exhibit B, the provisions of which are
incorporated herein and shall be signed by, or bear the facsimile signature of,
the Chairman of the Board or President and Treasurer, 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 Public
Warrant shall have ceased to serve in the capacity in which such person signed
the Public Warrant before such Public Warrant is issued, it may be issued with
the same effect as if he or she had not ceased to be such at the date of
issuance.
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2.2 Effect of Countersignature. Unless and until countersigned by
the Warrant Agent pursuant to this Agreement, a Public Warrant shall be invalid
and of no effect and may not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books
("Warrant Register"), for the registration of transfer of the Warrants. Upon any
transfer of the Warrants, the Warrant Agent shall issue the new Warrants in the
form of Public Warrants only and shall register the new Public 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.
2.3.2 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 Warrants
3.1 Warrant Price. Each Warrant shall 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 $0.50 per whole share, subject to the
adjustments provided in Section 4 hereof, in the last sentences of this Section
3.1 and in Section 5.1 hereof. The term "Warrant Price" as used in this Warrant
Agreement refers to the price per share at which Common Stock may be purchased
pursuant to the exercise of a Warrant at the time such Warrant is exercised. The
Company in its sole discretion may lower the Warrant Price at any time prior to
the Expiration Date.
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3.2 Duration of Warrants. A Warrant may be exercised from the date
hereof through the period ("Exercise Period") commencing on the date hereof and
terminating on the earlier of (i) September 16, 2010 and (ii) the date fixed for
redemption of the Warrants as provided in Section 6 of this Agreement
("Expiration Date"). Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), 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. Subject to the provisions of the Warrant and
this Warrant Agreement, 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, 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 (or as otherwise agreed to by 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 and the clearance of the funds in payment of the
Warrant Price, 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 such holder is entitled, registered in such name or names as may be
directed by such holder, and if such Warrant shall not have been exercised in
full, a new countersigned Public 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 Act with respect
to the Common Stock 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.
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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, fully paid and nonassessable.
3.3.4 Date of Issuance. Each person in whose name any such
certificate for shares of Common Stock issued upon the proper exercise of a
Warrant 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.
3.4 Warrant Solicitation and Warrant Solicitation Fee.
3.4.1 The Company has engaged HCFP on a non-exclusive basis,
as its agent for the solicitation of the exercise of the Warrants. The Company,
at its cost, will (i) assist HCFP with respect to such solicitation, if
requested by HCFP, and (ii) direct the Company's transfer agent and the Warrant
Agent to deliver to HCFP, lists of the record and, to the extent known,
beneficial owners of the Warrants. The Company hereby instructs the Warrant
Agent to cooperate with HCFP in every respect in connection with HCFP's
solicitation activities, including, but not limited to, providing to HCFP, at
the Company's cost, a list of record and, to the extent known, beneficial owners
of the Warrants and circulating a prospectus or offering circular provided by
the Company disclosing the compensation arrangements referenced in Section 3.4.2
below to holders of the Warrants at the time of exercise of the Warrants. In
addition to the conditions set forth in Section 3.4.2, HCFP shall accept payment
of the warrant solicitation fee provided in Section 3.4.2. It shall be presumed
that HCFP has solicited the exercise of the Warrants, unless the holder of the
Warrant affirmatively states in writing at the time of the exercise, that the
exercise was not solicited by HCFP. In addition to soliciting, either orally or
in writing, the exercise of Warrants by a holder, such services may also include
disseminating information, either orally or in writing, to holders about the
Company or the market for the Company's securities, or assisting in the
processing of the exercise of Warrants.
3.4.2 In each instance in which a Warrant is exercised, the
Warrant Agent shall promptly give written notice of such exercise to the Company
and HCFP ("Warrant Agent's Exercise Notice"). Upon the exercise of any Warrant
for which the exercise of the Warrant was solicited by HCFP (as set forth in
Section 3.4.1, then the Company or the Warrant Agent, simultaneously with the
distribution of the Common Stock underlying the Warrants so exercised in
accordance with the instructions from the Company following receipt of the
proceeds to the Company received upon exercise of such Warrant(s), shall, on
behalf of the Company, pay a fee of 5% of the Warrant Price to HCFP, provided
that HCFP delivers to the Company or the Warrant Agent within ten (10) business
days from the date on which HCFP has received the Warrant Agent's Exercise
Notice, a certificate that HCFP solicited the exercise of such Warrants.
Notwithstanding the foregoing, no fee will be paid to HCFP with respect to the
exercise by HCFP or its affiliates or the Company's officers or directors of
Warrants purchased by it or them and still held by them for its or their own
account. HCFP and the Company may at any time during business hours, examine the
records of the Company and/or the Warrant Agent, including its ledger of
original Warrant certificates returned to the Warrant Agent upon exercise of
Warrants.
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3.4.3 The provisions of this Section 3 may not be modified,
amended or deleted without the prior written consent of HCFP.
4. Adjustments.
4.1 Stock Dividends - Split-Ups. If after the date hereof, and
subject to the provisions of Section 4.5, 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 thereof, 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 Replacement of Securities Upon 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 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 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 holders such shares of stock, securities,
or assets as, in accordance with the foregoing provisions, such holders may be
entitled to purchase.
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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, 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 or the adjustment date of the increase in
the exercise price. 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
number of shares of Common Stock to be received shall be rounded up to the
nearest whole number.
4.6 Form of Warrant. The form of Warrant need not be changed because
of any adjustment pursuant to this Section 4, and Public Warrants issued after
such adjustment may state the same Warrant Price and the same number of shares
as is stated in the original Warrants. However, the Company may at any time in
its sole discretion make any change in the form of Public Warrant that the
Company may deem appropriate and that does not affect the substance thereof, and
any Public Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Public 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 certificate in the Public Warrant form
representing an equal aggregate number of Public Warrants shall be issued and
the old Warrant shall be cancelled by the Warrant Agent. The Warrants so
cancelled shall be delivered by the Warrant Agent to the Company from time to
time upon request. Following the OTC Listing Date, any holder of Warrants shall
be entitled to submit such Warrants to the Warrant Agent in exchange for
certificates evidencing Public Warrants (bearing appropriate legend).
Notwithstanding anything in this Agreement to the contrary, the number of
Warrant Shares issuable upon exercise of, and the Warrant Price of, any Public
Warrant issued upon exchange of an old Warrant shall be adjusted to give effect
to any adjustment made pursuant to Section 5 of the old Warrant.
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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
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 Public 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 Public Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The Warrant Agent shall not be required to
affect any registration of transfer or exchange which will result in the
issuance of a warrant certificate 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 Public 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 Public Warrants duly executed on
behalf of the Company for such purpose.
6. Redemption.
6.1 Redemption. Subject to Section 6.4 hereof, not less than all of
the outstanding Warrants may be redeemed, at the option of the Company, at any
time commencing six (6) months after the date of effectiveness of a registration
statement registering the Warrants and Warrant Shares with the Securities and
Exchange Commission ("SEC") (the "Registration Statement") 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 $0.01 per Warrant ("Redemption Price"), provided
that the last sales price of the Common Stock has been at least 300% of the
then-effective Exercise Price, on each of the ten (10) trading days ending
within three business days prior to the date on which notice of redemption is
given; provided further, that in order for the Company to exercise its
redemption rights under this Section 6.1, the Registration Statement must have
been declared effective by the SEC 30 days prior to the Redemption Notice (as
hereinafter defined) and such Registration Statement must remain effective
through the Redemption Date (as hereinafter defined).
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6.2 Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all of the Warrants, the Company shall fix a date
for the redemption. Notice of redemption ("Redemption Notice") shall be mailed
by first class mail, postage prepaid, by the Company not less than 14 days prior
to the date fixed for redemption ("Redemption Date") 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 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 Warrants shall have no further
rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Outstanding Warrants Only. The Company understands that the
redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such
purchase rights shall not be extinguished by redemption. However, once such
purchase rights are exercised, the Company may redeem the Warrants issued upon
such exercise provided that the criteria for redemption are met.
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 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 Public Warrant of like denomination, tenor, and date as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Public
Warrants 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.
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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 of Common Stock. The Company will use its best
efforts to maintain the effectiveness of the registration statement covering the
Public Warrants and the Warrant Shares at the OTC Listing Date until the
expiration 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 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
thirty (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 at the
Company's cost. Any successor Warrant Agent, whether appointed by the Company or
by such court, shall be a corporation organized and existing under the laws of
the State of New York, 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.
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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 agrees 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 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 or Chairman of the Board 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.
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8.4.2 Indemnity. The Warrant Agent shall be liable hereunder
only for its own negligence, willful misconduct or 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 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.
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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 when so delivered
if by hand or overnight delivery or if sent by certified mail or private courier
service within five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
Giant Motorsports, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
Gusrae, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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 when so delivered if by hand or overnight delivery or if
sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Olde Monmouth Stock Transfer Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy in each case to:
Blank Rome LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and
HCFP/▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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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, except to
the extent that the Delaware General Corporation Law is mandatorily applicable.
The Company hereby agrees that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be brought and
enforced in the courts of the State of New York or the United States District
Court for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenience forum. Any such process or summons to be served upon the Company
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 the Company in any action, proceeding or claim.
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, the registered holders of
the Warrants and, as applicable, HCFP, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. HCFP shall be deemed to be a third-party
beneficiary of this Agreement with respect to Sections 3.4, 7.4 and 9.2 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 HCFP with respect to the Sections 3.4, 7.4 and 9.2 hereof)
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 Warrant for inspection by it.
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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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the
parties hereto as of the day and year first above written.
GIANT MOTORSPORTS, INC.
By:
-------------------------------------------
Name:
Title:
OLDE MONMOUTH STOCK
TRANSFER CO., INC.
By:
-------------------------------------------
Name:
Title:
For Purposes of Section 3.4
HCFP/▇▇▇▇▇▇▇ SECURITIES LLC
By:
-------------------------------------------
Name:
Title:
16