EXHIBIT 4.02 WARRANT AGREEMENT
AGREEMENT
THIS AGREEMENT made as of this _____ day of May, 1998, between ▇▇▇▇▇▇▇
GOLD GROUP, INC., a Delaware corporation with offices at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, with offices at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Warrant Agent").
Introduction
The Company has determined to issue and deliver up to 1,500,000 common
stock purchase warrants (the "Class A Warrants") evidencing the right of the
holders thereof to purchase an aggregate of 1,500,000 shares of common stock,
$0.01 par value of the Company (the "Common Stock"), which Class A Warrants are
to be issued and delivered as part of units (the "Units") to be registered
pursuant to a registration statement No. 333-41635 (the "Registration
Statement") filed with the Securities and Exchange Commission. In connection
with the creation of the Class A Warrants, the Company has decide to create
1,500,000 common stock purchase warrants (the "Class B Warrants") evidencing the
right of the holders thereof to purchase an aggregate of 1,500,000 shares of
Common Stock, which Class B Warrants are to be registered pursuant to the
Registration Statement and which Class B Warrants are to be issued to the
holders of the Class A Warrants upon exercise of the Class A Warrants at rate of
one Class B Warrant for each Class A Warrant exercised. The Class A Warrants and
the Class B Warrants are hereinafter referred to as the "Warrants". 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.
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 obligation of the Company, and to authorize the execution and delivery of
this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
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.
ARTICLE II
Warrants, Form of Warrants, Execution,
Countersignature and Registration of Warrants
2.01. Form of Warrant. Each Warrant shall be issued in registered form
only, shall be in substantially the form of Exhibit A hereto (in the case of a
Class A Warrant) or Exhibit B hereto (in the case of a Class B Warrant), shall
be signed by, or bear the facsimile signature of, the President or any Vice
President and by the Secretary of the Company and shall bear a facsimile of the
Company's seal (a certificate representing a Warrant, whether in the form of
Exhibit A or Exhibit B, is referred to hereinafter as a "Warrant Certificate").
A Warrant Certificate may also bear such letters, marks of identification,
legends, designations, summaries and endorsements as the Company may believe
appropriate and as are not inconsistent with this Agreement, or in any
particular case as may be required in the opinion of counsel to the Company. In
the event the person whose facsimile signature has been placed upon any Warrant
Certificate shall have ceased to be President or Secretary of the Company before
such Warrant Certificate is issued, it may be issued with the same effect as if
she had not ceased to be such at the date of issuance. No Warrant Certificate
may be exercised until it has been countersigned by the Warrant Agent as
provided in Section 2.03 hereof.
2.02. Warrant Valid Only If Countersigned. Unless and until manually
countersigned by the Warrant Agent and dated the date of countersignature
pursuant to this Agreement, a Warrant Certificate shall be invalid and of no
effect.
2.03. Countersignature. The Warrant Agent shall countersign a Warrant
Certificate only (i) if the Warrant Certificate is to be issued in exchange or
substitution for one or more previously countersigned Warrant Certificates, as
hereinafter provided, (ii) upon the exercise of one or more Warrants, as
hereinafter provided, or (iii) if the Company instructs the Warrant Agent to do
so.
2.04. Registration.
2.04.1 The Warrant Agent shall maintain books (the "Warrant Register")
for the registration of original issuance and the registration of transfer of
the Warrant Certificates. Upon the initial issuance of any Warrant Certificates,
the Warrant Agent shall issue and register such Warrant Certificates 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 (in
the case of the Class A Warrants), or in accordance with the terms hereof (in
the cases of the Class B Warrants).
2.04.2 Prior to due presentment for registration of transfer of any
Warrant Certificate, the Company and the Warrant Agent may deem and treat the
person in whose name such Warrant Certificate shall be registered upon the
Warrant Register (the "Holder" or the "registered holder") as the absolute owner
of such Warrant Certificate 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
and shall not be required to recognize any equitable or other claim to or
interest in such Warrant Certificate on the part of any other person, and shall
not be liable for any registration or transfer of Warrant Certificates which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with such knowledge of such facts that its participation therein amounts to bad
faith.
2.05. Detachability of Warrants. The Warrant Agent understands that the
Class A Warrants are being issued as part of Units together with shares of the
Company's Common Stock and that the shares of Common Stock and the Class A
Warrants are immediately detachable and may be traded separately. The Warrant
Agent further understands that the Class B Warrants shall also in all cases be
traded separately.
ARTICLE III
Term and Exercise of Warrants
3.01. Warrant Price. Each Warrant Certificate shall, when signed by the
proper officers of the Company and countersigned and dated by the Warrant Agent,
entitle the registered holder thereof, subject to the provisions of such Warrant
Certificate and of this Warrant Agreement, to purchase from the Company up to
the number of shares (the "Warrant Shares") of Common Stock stated therein, at
the price of $1.00 per share in the case of the Class A Warrants, and at the
price of $1.50 per share in the case of the Class B Warrants, subject in all
cases to the adjustments provided in Article IV hereof. The term "Warrant Price"
as used in this Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised, reflecting all appropriate
adjustments made in accordance with Article IV hereof.
3.02. Duration of Warrants. A Class A Warrant may be exercised only
during the period (the "Class A Warrant Exercise Period") commencing on the
effective date (the "Effective Date") of the Registration Statement, and ending
at 5:00 p.m. New York City time on the date which is the earlier of (i) the
third anniversary of the Effective Date, or (ii) the date fixed for redemption
of such Class A Warrant as provided in Article VI of this Agreement (in each
such case, the "Class A Warrant Expiration Date"). A Class B Warrant may be
exercised only during the period commencing on the date such Class B Warrant is
issued (the "Class B Warrant Issuance Date"), and ending at 5:00 p.m. New York
City time on the date which is the earlier of (i) the sixth anniversary of the
Class B Warrant Issuance Date, or (ii) the date fixed for redemption of such
Class B Warrant as provided in Article VI of this Agreement (in each such case,
the "Class B Warrant Expiration Date"). (The Class A Warrant Expiration Date and
the Class B Warrant Expiration Date are referred to hereinafter collectively as
the "Expiration Date"). Each Warrant not exercised on or before the applicable
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
any Warrant by extending the applicable Expiration Date upon written notice to
the holder thereof.
3.03. Exercise of Warrants.
3.03.1 A Warrant Certificate, when countersigned by the Warrant Agent,
may be exercised by the registered holder thereof by surrendering it duly
executed, 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 Certificate and in
substantially the form of Exhibit C hereto, and by paying in full, in lawful
money of the United States, in cash, certified check or bank draft payable to
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.
3.03.2 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.
In addition, as soon as practicable after the exercise of any Class A Warrant,
the Company shall issue to the registered holder of such Warrant a Warrant
Certificate representing one B Warrant for each Class A Warrant exercised,
registered in such name or names as may be directed by him, and an appropriate
entry shall be made in the Warrant Register.
3.03.3 All shares of Common Stock issued upon the proper exercise of a
Warrant in conformity with this Warrant Agreement shall be validly issued.
3.03.4 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.
3.04. Disposition of Proceeds. Upon the exercise of any Warrant, the
Warrant Agent shall promptly forward all funds received by it for the purchase
of Warrant Shares to the Company.
ARTICLE IV
Adjustments
4.01. Stock Dividends--Split-Ups. If after the date hereof 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, or the number of outstanding shares of Common Stock is decreased
by a consolidation, combination or reclassification of shares of Common Stock,
reverse stock split or other similar event, then, on the date following the date
fixed for the determination of holders of Common Stock entitled to receive such
stock dividend, or whom are affected by such split-up, consolidation,
combination, reclassification or other similar event, the Warrant Price in
effect immediately after the record date of such dividend or distribution or the
effective date of any such subdivision, combination or reclassification shall be
proportionately adjusted so that the Holder of any Warrant exercised after such
time shall be entitled to receive the aggregate number of shares which, if such
Warrant had been exercised prior to any such event, the registered holder would
have owned upon such exercise and would have been entitled to receive by virtue
of such event. Such adjustment shall be made successively whenever any such
event specified above shall occur.
4.02. Adjustment to Number of Shares. Upon each adjustment of the
Warrant Price pursuant to Section 4.01, each Warrant shall thereupon evidence
the right to purchase that number of shares of Common Stock (calculated to the
nearest hundredth of a share) obtained by multiplying the number of shares of
Common Stock purchasable immediately prior to such adjustment upon exercise of
the Warrant by the Warrant Price in effect immediately prior to such adjustment
and dividing the product so obtained by the Warrant Price in effect immediately
after such adjustment.
4.03. Reorganization, etc. If after the date hereof any capital
reorganization or reclassification (other than pursuant to Section 4.01 hereof)
of the Common Stock of the Company, or consolidation or merger of the Company
with another corporation (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the conversion or
exchange of such outstanding shares into shares of other stock or other
securities or property), 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 issuable or payable with respect to or in
exchange for the number of shares of Common Stock purchasable and receivable
upon the exercise of the Warrants had such exercise occurred in full prior to
such reorganization, reclassification, consolidation, merger, or sale. 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 provision, such
Holders may be entitled to purchase. In the event of sale or conveyance or other
transfer of all or substantially all of the assets of the Company as a part of a
plan for total liquidation of the Company, all rights to exercise any Warrant
shall terminate 30 days after the Company gives notice to each Holder that such
sale or conveyance or other transfer has been consummated.
4.04. 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 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. The Company shall promptly cause a
similar notice to be mailed to each Holder of Warrants. Upon the occurrence of
any event above specified in this Article IV, the Company shall give notice to
the Warrant Agent and each Holder 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.
4.05. No Fractional Shares. Notwithstanding any provision contained in
this 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
Article IV, 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 for an amount in cash
equal to the current market value of such fractional interest, determined as
follows:
4.05.1. If the Common Stock is listed on a national securities exchange
or admitted to unlisted trading privileges on such exchange, the current value
shall be the last reported sale price regular way of the Common Stock on such
exchange. If the Common Stock is not listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange but is listed for
trading on the NASDAQ Automated Quotation System, the current value shall be the
closing bid quotation on NASDAQ on the last business day prior to the date of
exercise of the Warrant.
4.05.2. If the Common Stock is not listed or admitted as above
described, the current value shall be the mean of the last reported bid and
asked prices reported by first, the OTC Bulletin Board, or if the Common Stock
is not listed or admitted for trading on the OTC Bulletin Board, second, the
National Quotation Bureau, Inc. on the last business day prior to the date of
the exercise of the Warrant.
4.05.3. If the Common Stock is not so listed or admitted as above
described and bid and asked prices are not so last 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.
4.06. Form of Warrant. The form of Warrant need not be changed because
of any adjustment pursuant to this Article IV or Article IX hereof, 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 believe 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.
4.07. Limitations. No adjustment of the Warrant Price shall be made as
a result of or in connection with (i) the issuance of Common Stock pursuant to
options, warrants, and stock purchase agreements outstanding or in effect on the
date hereof, (ii) the issuance of Common Stock in connection with the conversion
of any other securities of the Company currently issued and outstanding or
hereafter issued, or (iii) any other circumstances other than those set forth in
Section 4.01 hereof.
ARTICLE V
Transfer and Exchange of Warrants
5.01. Registration Procedure. The Warrant Certificates shall be
transferable only on the books of the Company maintained at the principal office
of the Warrant Agent in New York, New York upon delivery thereof duly endorsed
by the registered holder or to his order, or duly authorized attorney or
representative, accompanied by proper evidence of succession, assignment or
authority to transfer, which endorsement shall be guaranteed by an eligible
guarantor institution. These institutions (commercial banks, member firms of a
national securities exchange, savings and loans and thrifts) qualify as long as
the guarantor is a member of The Securities Transfer Association Medallion
Program or any other industry recognized program. In all cases of transfer by an
attorney-in-fact, the original power of attorney, duly approved, or a copy
thereof, duly certified, by such attorney-in-fact, shall be deposited and remain
with the Warrant Agent. In case of transfer of executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited and remain with
the Warrant Agent in its discretion. Upon any such transfer, a new Warrant
Certificate representing an equal aggregate number of Warrants so transferred
shall be issued, a new Warrant Certificate representing the balance of the
Warrants not so transferred shall be issued, and the original Warrant
Certificate which is the subject of such transfers shall be canceled by the
Warrant Agent. The Warrant Certificate so canceled shall be delivered by the
Warrant Agent to the Company upon request.
5.02. Cancellation and Surrender. Warrant Certificates may be
surrendered to the Warrant Agent together with a request for exchange, and
thereupon the Warrant Agent shall issue in exchange therefor one or more new
Warrant Certificates as requested by the registered holder of the Warrants so
surrendered, representing an equal aggregate number of Warrants. In the event
that a Warrant Certificate surrendered for transfer bears a restrictive legend,
the Warrant Agent shall not cancel such Warrant Certificate and issue a new
Warrant Certificate 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. 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.
5.02.1. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.02.2. The Warrant Agent is hereby authorized to countersign and to
deliver, in accordance with the terms of this Agreement, the Warrant
Certificates required to be issued pursuant to the provisions hereof, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrant Certificates duly executed on behalf of the Company for such
purpose.
ARTICLE VI
Redemption
6.01. Redemption. Any Warrant may be redeemed prior to its Expiration
Date, at the option of the Company, as a whole at any time or in part from time
to time, by lot, in any proportion as the Company in its sole discretion shall
determine, at the office of the Warrant Agent, upon notice as below provided, at
the price of $.01 per Warrant (the "Warrant Redemption Price"), provided, (i)
the closing bid quotation of the Common Stock as quoted by the National
Association of Securities Dealers Automated Quotation System; (ii) the last
reported sale price, regular way, or if no such reported sale has occurred on
any such day, the average of the closing bid and asked prices, regular way, on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or (iii) if not so quoted or reported, the average of
the bid and asked prices as furnished by two members of the NASD selected for
that purpose, in any such case, has been at least $1.25 (in the case of a Class
A Warrant) and $1.75 (in the case of a Class B Warrant), on each of the ten (10)
consecutive trading days ending on the third (3rd) day prior to the day on which
notice is given (the "Closing Price").
6.02. Date Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all or any part of the Warrants, the Company shall
fix a date for the redemption (the "Redemption Date") not more than sixty (60)
days and not less than thirty (30) days following the date upon which notice is
given to the registered holders of the Warrants to be redeemed, at their
respective addresses then appearing on the registration books. Nothing herein
shall limit the rights of registered holders to exercise the Warrants in
accordance with Article III of this Agreement at any time prior to the date
fixed for redemption. Written notice by first class mail shall be given by the
Company to all Holders of Warrant Certificates to be redeemed not more than
sixty (60) days and not less than thirty (30) days prior to the Redemption Date.
Each such notice of redemption will specify the Redemption Date and the
Redemption Price. The notice will state that payment of the Redemption Price
will be made by the Warrant Agent upon presentation and surrender of the Warrant
Certificates representing such Warrants to the Warrant Agent at its principal
office, and will also state that the right to exercise the Warrants will
terminate at 5:00 p.m., New York City time, on the Redemption Date. Failure to
mail the notice of redemption to any Holder or any defect therein, however,
shall not affect the validity of the redemption of the remaining Warrants. The
Company will also make prompt public announcement of such redemption by news
release.
6.03. Payment of Redemption Price. On or prior to the opening of
business on the Redemption Date (as defined in Section 6.01 hereof), the Company
shall deposit with the Warrant Agent funds in form satisfactory to the Warrant
Agent sufficient to purchase all the Warrants which are to be redeemed. Payment
of the Redemption Price shall be made by the Warrant Agent upon presentation and
surrender of the Warrant Certificates representing such Warrants to the Warrant
Agent at its principal office.
ARTICLE VII
Other Provisions Relating to
Rights of Holders of Warrants
7.01. No Rights as Stockholder Conferred by Warrants. 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 shareholders in respect of the meetings of shareholders or the
election of directors of the Company or any other matter.
7.02. 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 the Company may in its discretion
impose (which shall, in the case of a mutilated Warrant Certificate, include the
surrender thereof), issue a new Warrant Certificate of like denomination, tenor,
and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new
Warrant Certificate shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated, or destroyed
Warrant shall be at any time enforceable by anyone.
7.03. 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 covered by this Agreement.
7.04 Registration of Common Stock. Prior to the commencement of the
Class A Warrant Exercise Period, the Company shall have the Registration
Statement on file with the Securities and Exchange Commission for the
registration of the Common Stock issuable upon exercise of the Warrants, and
shall use good faith efforts with due diligence to maintain such Registration
Statement current, until the expiration of the Warrants in accordance with the
provisions of this Agreement, whether by filing an appropriate post-effective
amendment thereto or otherwise.
ARTICLE VIII
Concerning the Warrant Agent and Other Matters
8.01. Payment of Taxes. The Company will from time to time pay on or
before the due date therefor, 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.
8.02. Resignation, Consolidation, or Merger of Warrant Agent.
8.02.1. 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 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 receiving notification of such
resignation or incapacity by the Warrant Agent or by the holder of a 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.
8.02.2. 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. 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 the successor Warrant Agent shall execute and deliver an
instrument accepting the same. Upon request of any successor Warrant Agent, the
Company and the predecessor Warrant Agent shall make, execute, acknowledge, and
deliver any and all instruments in writing in order to more fully and
effectually vest in and confirm to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and obligations.
8.02.3. 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.
8.02.4. 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 may be the
successor Warrant Agent under this Agreement upon delivery to the Company of an
agreement whereby such successor shall assume all obligations of the Warrant
Agent hereunder.
8.03. Fees and Expenses of Warrant Agent.
8.03.1 The Company shall pay the Warrant Agent reasonable remuneration
for its services as such Warrant Agent hereunder and will promptly reimburse the
Warrant Agent for all expenditures that the Warrant Agent may reasonably incur
in the execution of its duties hereunder.
8.03.2 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.
8.04. Liability of Warrant Agent.
8.04.1 Whenever in the performance of its duties under this Agreement
the Warrant Agent shall believe 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.
8.04.2 The Warrant Agent shall be liable hereunder only for its own
gross negligence, bad faith or willful misconduct. 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 gross negligence, willful misconduct,
or bad faith.
8.04.3 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. The Warrant Agent shall not be responsible to make
any adjustments required under the provisions of Article IV 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 validly issued and fully paid and nonassessable.
8.05. 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
remit 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.
8.06. Purchase of Warrants by the Company. The Company shall have the
right, except as limited by law, other agreement or herein, to purchase or
otherwise acquire Warrants at such times, in such manner and for such
consideration as it may believe appropriate.
ARTICLE IX
Miscellaneous Provisions
9.01. 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 permitted assigns.
9.02. Notices. Any notice, statement or demand or other communication
authorized or permitted by this Agreement shall be in writing and signed and
shall be deemed given or made as and when sent by registered or certified mail,
postage prepaid addressed to the parties at their above addresses or such other
address as a party may hereafter specify in the manner for the giving of notice
herein.
9.03. Applicable Law: Amendment. 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 regard to its conflicts
of laws principles. This Agreement and the Warrants may be amended only in
writing. The Warrant Agent may, without the consent or concurrence of any
Holder, by supplemental agreement or otherwise, join with the Company in making
any changes or corrections in this Agreement that they shall reasonably believe
(i) are required to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest error herein
contained; (ii) add to the covenants and agreements of the Company or the
Warrant Agent in this Agreement such further covenants and agreements thereafter
to be observed, or (iii) result in the surrender of any right or power reserved
to or conferred upon the Company or the Warrant Agent in this Agreement, but
which changes or corrections do not or will not adversely affect, alter or
change the rights, privileges or immunities of the Holders of Warrant
Certificates.
9.04. 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 any right, remedy, or claim under or by reasons of this
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
parties hereto and their successors and assigns and of the registered holder of
the Warrants.
9.05. Examination of 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.
9.06. 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.
9.07. Effect of Headings. The Article and Section headings herein are
for convenience only and are not part of this 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.
▇▇▇▇▇▇▇ GOLD GROUP, INC.
By: ______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Exhibit A
[FORM OF CLASS A WARRANT CERTIFICATE]
No.
CERTIFICATE FOR ____________ CLASS A WARRANTS
NOT EXERCISABLE BEFORE 9:30 A.M., NEW
YORK CITY TIME, ON _______________ _____, 1997 OR
AFTER 5:00 P.M., NEW YORK CITY TIME, ON
_______________ _____, 2001
▇▇▇▇▇▇▇ GOLD GROUP, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES that __________________________________________________
or registered assigns is the registered holder (the "Registered Holder") of the
number of Class A Warrants set forth above, each of which represents the right
to purchase one fully paid and nonassessable share of Common Stock, par value
$.01 per share (the "Common Stock"), of ▇▇▇▇▇▇▇ Gold Group, Inc., a Delaware
corporation (the "Company"), at the initial exercise price (the "Warrant Price")
of $1.00 at any time after the shares of Common Stock issuable upon exercise of
the Warrants evidenced hereby have been registered under the Securities Act of
1933, as amended, or such other action as may be required by Federal or state
law relating to the issuance or distribution of securities shall have been
taken, but not after the Expiration Date hereinafter referred to, by
surrendering this Warrant Certificate, with the form of election to purchase set
forth hereon duly executed with signatures guaranteed as provided below, at the
office maintained pursuant to the Warrant Agreement hereinafter referred to for
that purpose by Continental Stock and Transfer & Trust Company, or its successor
as warrant agent (any such warrant agent being herein called the "Warrant
Agent"), and by paying in full the Warrant Price, plus transfer taxes, if any.
Payment of the Warrant Price shall be made in United States currency, by
certified check or money order payable to the order of the Company.
Upon certain events provided for in the Warrant Agreement, the Warrant
Price and the number of shares of Common Stock issuable upon the exercise of
each Warrant are required to be adjusted.
The Warrants, or any portion thereof, are subject to call for
redemption by the Company at a call price of $0.01 per Warrant, upon no more
than sixty (60) days and no less than thirty (30) days notice to the Registered
Holders, provided that the "Closing Price" (as defined in the Warrant Agreement)
per share of the Common Stock shall have been greater than or equal to $1.25 for
a period of 10 consecutive trading days ending on the third day prior to the
date that the notice of such call (the "Call Notice") is given by the Company to
the Warrant Agent and subject to certain other conditions.
No Warrant may be exercised after 5:00 P.M., New York City time, on
the expiration date (the "Expiration Date") which will be the earlier of (i)
_______________ _____, 2001 or (ii) the close of business on the Redemption
Date. After the Expiration Date, all Warrants evidenced hereby shall thereafter
become void.
Prior to the Expiration Date, subject to any applicable laws, rules,
or regulations restricting transferability and to any restriction on
transferability that may appear on this Warrant Certificate in accordance with
the terms of the Warrant Agreement hereinafter referred to, the Registered
Holder shall be entitled to transfer this Warrant Certificate in whole or in
part upon surrender of this Warrant Certificate at the office of the Warrant
Agent maintained for that purpose with the form of assignment set forth hereon
duly executed, with signatures guaranteed by an eligible guarantor institution.
These institutions (commercial banks, member firms of a national securities
exchange, savings and loans and thrifts) qualify as long as the guarantor is a
member of The Securities Transfer Association Medallion Program or any other
industry recognized program. Upon any such transfer, a new Warrant Certificate
or Warrant Certificates representing the same aggregate number of Warrants will
be issued in accordance with instructions in the form of assignment.
Upon the exercise of less than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Registered Holder a new
Warrant Certificate in respect of the Warrants not exercised.
Prior to the Expiration Date, the Registered Holder shall be entitled
to exchange this Warrant Certificate, with or without other Warrant
Certificates, for another Warrant Certificate or Warrant Certificates for the
same aggregate number of Warrants, upon surrender of this Warrant Certificate at
the office maintained for such purpose by the Warrant Agent.
No fractional shares will be issued upon the exercise of Warrants. As
to any final fraction of a share which the registered holder of one or more
Warrant Certificates, the rights under which are exercised in the same
transaction, would otherwise be entitled to purchase upon such exercise, the
Company shall pay the cash value thereof determined as provided in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement between the Company and the Warrant Agent (the "Warrant
Agreement") and is subject to the terms and provisions contained in said Warrant
Agreement, to all of which terms and provisions the Registered Holder consents
by acceptance hereof.
This Warrant Certificate shall not entitle the Registered Holder to
any of the rights of a stockholder of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, or
to attend or receive any notice of meetings of stockholders or any other
proceedings of the Company.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its facsimile corporate seal.
▇▇▇▇▇▇▇ GOLD GROUP, INC.
By: ______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
[SEAL] Attest:
---------------------------
Su ▇. ▇▇▇, Secretary
Countersigned: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, as Warrant Agent
Dated: By: _________________________________
Authorized Officer
Exhibit B
[FORM OF CLASS B WARRANT CERTIFICATE]
No.
CERTIFICATE FOR _____________ CLASS B WARRANTS
DATED: _______________________ ______, __________
NOT EXERCISABLE AFTER 5:00 P.M.,
NEW YORK CITY TIME, ON
_________________________ _____, 2004
▇▇▇▇▇▇▇ GOLD GROUP, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES that __________________________________________________
or registered assigns is the registered holder (the "Registered Holder") of the
number of Class B Warrants set forth above, each of which represents the right
to purchase one fully paid and nonassessable share of Common Stock, par value
$.01 per share (the "Common Stock"), of ▇▇▇▇▇▇▇ Gold Group, Inc., a Delaware
corporation (the "Company"), at the initial exercise price (the "Warrant Price")
of $1.50 at any time after this Warrant Certificate has been issued, but not
after the Expiration Date hereinafter referred to, by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon duly
executed with signatures guaranteed as provided below, at the office maintained
pursuant to the Warrant Agreement hereinafter referred to for that purpose by
Continental Stock and Transfer & Trust Company, or its successor as warrant
agent (any such warrant agent being herein called the "Warrant Agent"), and by
paying in full the Warrant Price, plus transfer taxes, if any. Payment of the
Warrant Price shall be made in United States currency, by certified check or
money order payable to the order of the Company.
Upon certain events provided for in the Warrant Agreement, the Warrant
Price and the number of shares of Common Stock issuable upon the exercise of
each Warrant are required to be adjusted.
The Warrants, or any portion thereof, are subject to call for
redemption by the Company at a call price of $0.01 per Warrant, upon no more
than sixty (60) days and no less than thirty (30) days notice to the Registered
Holders, provided that the "Closing Price" (as defined in the Warrant Agreement)
per share of the Common Stock shall have been greater than or equal to $1.75 for
a period of 10 consecutive trading days ending on the third day prior to the
date that the notice of such call (the "Call Notice") is given by the Company to
the Warrant Agent and subject to certain other conditions.
No Warrant may be exercised after 5:00 P.M., New York City time, on
the expiration date (the "Expiration Date") which will be the earlier of (i)
__________________________ _____, 2004, or (ii) the close of business on the
Redemption Date. After the Expiration Date, all Warrants evidenced hereby shall
thereafter become void.
Prior to the Expiration Date, subject to any applicable laws, rules,
or regulations restricting transferability and to any restriction on
transferability that may appear on this Warrant Certificate in accordance with
the terms of the Warrant Agreement hereinafter referred to, the Registered
Holder shall be entitled to transfer this Warrant Certificate in whole or in
part upon surrender of this Warrant Certificate at the office of the Warrant
Agent maintained for that purpose with the form of assignment set forth hereon
duly executed, with signatures guaranteed by an eligible guarantor institution.
These institutions (commercial banks, member firms of a national securities
exchange, savings and loans and thrifts) qualify as long as the guarantor is a
member of The Securities Transfer Association Medallion Program or any other
industry recognized program. Upon any such transfer, a new Warrant Certificate
or Warrant Certificates representing the same aggregate number of Warrants will
be issued in accordance with instructions in the form of assignment.
Upon the exercise of less than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Registered Holder a new
Warrant Certificate in respect of the Warrants not exercised.
Prior to the Expiration Date, the Registered Holder shall be entitled
to exchange this Warrant Certificate, with or without other Warrant
Certificates, for another Warrant Certificate or Warrant Certificates for the
same aggregate number of Warrants, upon surrender of this Warrant Certificate at
the office maintained for such purpose by the Warrant Agent.
No fractional shares will be issued upon the exercise of Warrants. As
to any final fraction of a share which the registered holder of one or more
Warrant Certificates, the rights under which are exercised in the same
transaction, would otherwise be entitled to purchase upon such exercise, the
Company shall pay the cash value thereof determined as provided in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement between the Company and the Warrant Agent (the "Warrant
Agreement") and is subject to the terms and provisions contained in said Warrant
Agreement, to all of which terms and provisions the Registered Holder consents
by acceptance hereof.
This Warrant Certificate shall not entitle the Registered Holder to
any of the rights of a stockholder of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, or
to attend or receive any notice of meetings of stockholders or any other
proceedings of the Company.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its facsimile corporate seal.
▇▇▇▇▇▇▇ GOLD GROUP, INC.
By: ______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
[SEAL] Attest:
------------------------------------------
Su ▇. ▇▇▇, Secretary
Countersigned: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, as Warrant Agent
Dated: By: ________________________________
Authorized Officer
Exhibit C
[FORM OF]
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise __________________
of the Warrants represented by this Warrant Certificate and to purchase the
shares of Common Stock issuable upon the exercise of said Warrants, and requests
that certificates for such shares be issued and delivered as follows:
ISSUE TO: ____________________________________________________________________
(NAME)
------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
------------------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER TAX IDENTIFICATION NUMBER)
DELIVER TO: ________________________________________________________________
(NAME)
at ____________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
If the number of Warrants hereby exercised is less than all the Warrants
represented by this Warrant Certificate, the undersigned requests that a new
Warrant Certificate representing the number of full Warrants not exercised be
issued and delivered as set forth below.
In full payment of the purchase price with respect to the Warrants
exercised and transfer taxes, if any, the undersigned hereby tenders payment of
$__________________ by certified check or money order payable in United States
currency to the order of the Company.
Dated _________________________ ______, _____________
Name of Warrant Holder: ________________________________________________________
Address: ______________________________________________________________________
Signature: _____________________________________________________________________
[FORM OF]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto the Assignee named below all of the rights of the undersigned represented
by the within Warrant Certificate, with respect to the number of Warrants set
forth below:
Name of Assignee: ______________________________________________________________
Address: ______________________________________________________________________
No. of Warrants: _______________________________________________________________
and does hereby irrevocably constitute and appoint
____________________________________ Attorney to make such transfer on the books
of ▇▇▇▇▇▇▇ Gold Group, Inc. maintained for that purpose, with full power of
substitution in the premises.
Dated: __________________________ _____, ____________.
Signature: ______________________________________________________________
SIGNATURE(S) GUARANTEED
By: _____________________________________________________________________
Signature:___________________
NOTICE: The signature(s) on this assignment must correspond with the name(s) as
written upon the face of the Certificate, in every particular, without
alteration or enlargement or any change whatever.