EXHIBIT 4.2
This Warrant Agreement is made and entered into by and between ▇▇▇▇▇▇▇ &
Associates,Inc. a Florida corporation, (the "Issuer") and Zodiac Capital Corp.,
(hereinafter referred to as the "Holder").
WHEREAS, the Holder has, loaned the Issuer certain monies pursuant to
the terms and conditions of a convertible promissory note (the "Note"); and
WHEREAS, the Issuer has granted to Holder certain rights to purchase
the Issuer's common stock subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Holder to the Issuer of TWENTY- FIVE ($25.00) DOLLARS, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agrees as follows:
1. Grant
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Subject to the Holder's exercise of the Holder's conversion privilege
as set forth in the Note, the Holder is hereby granted the right to purchase, at
any time from the date Holder exercises the convertibility feature of the Note
and for a period of two years thereafter, Holder shall have the right to
purchase an equal number of shares of the Issuer's common stock for which the
Holder has converted under the Note up to an aggregate of 220,000 shares of
Common Stock at an exercise price per share of $0.05. Neither the number of
shares subject to this warrant nor the exercise price thereof shall be adjusted
in case of any reorganization or recapitalization of the Issuer.
2. Exercise of Warrant.
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(a) The Warrants are exercisable at the price of $0.05 per share of Common
Stock hereof payable by certified or official bank check.
(b) Upon surrender of a Warrant Certificate with the annexed Form of
Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the shares of Common Stock
purchased, at the Issuer's principal office the registered Holder
(which for purposes of this Agreement will refer to both the person
identified in the introductory paragraph as the "Holder" and all of the
Holder's successors in interest with reference to this Warrant
Agreement) shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased.
(c) The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part
(but not as to fractional shares of the Common
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Stock underlying the Warrants).
(d) Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby.
(e) In the case of the purchase of less than all the shares of Common Stock
purchasable under any Warrant Certificate, the Issuer shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and
deliver a new Warrant Certificate of like tenor for the balance of the
shares of Common Stock.
3. Issuance of Certificates.
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(a) Upon the exercise of the Warrant the issuance of certificates for
shares of Common Stock or other securities, properties or rights
underlying such Warrants, shall be made forthwith (and in any event
such issuance shall be made within five (5) business days thereafter)
without charge to the Holder thereof including, without limitations any
tax which may be payable in respect of the issuance thereof and such
certificates shall be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Issuer
shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Issuer
shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have
paid to the Issuer the amount of such tax or shall have established to
the satisfaction of the Issuer that such tax has been paid.
(b) The Warrant Certificates and the certificates representing the shares
of Common Stock (and/or other securities, property or rights issuable
upon exercise of the Warrants) shall be executed on behalf of the
Issuer by the manual or facsimile signature of t its president.
4. Restriction On Transfer of Warrants.
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(a) The Holder of a Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrants are being acquired as an
investment and not with a view to the distribution thereof, in reliance
on the exemption from registration under the Securities Act of 1933, as
amended (the "Securities Act"), provided by Section (please check
appropriate Section:
[_] 4(2) of the Securities Act, based on the representations of
the Holder that it is not engaged in a distribution of the
Issuer's securities, as such concept is defined for purposes
of the Securities Act;
[x] 4(6) of the Securities Act, based on the representations of
the Holder that it qualifies as an "accredited investor" as
such term is defined in Section 501 of Regulation D
promulgated by the United States Securities and Exchange
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Commission (the "Commission") under authority of the
Securities Act and the Exchange Act.
(b) Because the Warrants have not been registered under the Securities Act,
they may not be sold, transferred, hypothecated or exchanged, except
after registration under the Securities Act or pursuant to an exemption
from such registration requirements, demonstrated to the satisfaction
of the Issuer's legal counsel, based on a legal opinion from legal
counsel to the Holder and such other matters as the Issuer's legal
counsel may reasonably request.
(c) Because the shares of common stock underlying the Warrants have not
been registered under the Securities Act, upon issuance, they may not
be sold, transferred, hypothecated or exchanged, except after
registration under the Securities Act or pursuant to an exemption from
such registration requirements, demonstrated to the satisfaction of the
Issuer's legal counsel, based on a legal opinion from legal counsel to
the Holder and such other matters as the Issuer's legal counsel may
reasonably request, shall be legended to reflect such facts and the
Issuer's transfer agent shall note such fact on the Issuer's transfer
records and shall take steps reasonably necessary to promote compliance
therewith.
5. Exercise Price.
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ss.5.1 Exercise Price.
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(a) The exercise price of each Warrant shall be $0.05 per share of Common
Stock and is not subject to adjustment..
(b) Upon exercise, in part or in whole, of the Warrants, certificates
representing the shares of Common Stock and any other securities
issuable upon exercise of the Warrants (collectively, the "Common Stock
underlying the Warrants") shall bear a legend providing substantially
as follows: "The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended ("Act')
for public resale, and may not be offered or sold except pursuant to
(i) an effective registration statement under the Act, (ii) to the
extent applicable, Rule 144 under the Act (or any similar rule under
such Act relating to the disposition of securities), or (iii) an
opinion from the Holder's legal counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an exemption
from registration under such Act is available."
6. Exchange and Replacement of Warrant Certificates
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(a) Each Warrant Certificate is exchangeable without expense, upon the
surrender thereof by the registered Holder at the principal executive
office of the Issuer, for a new Warrant Certificate of like tenor and
date representing in the aggregate the right to purchase the same
number of Securities in such denominations as shall be designated by
the Holder thereof at the time of such surrender.
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(b) Upon by the Issuer of evidence reasonably satisfactory to it of loss,
theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Issuer of all reasonable
expenses incidental thereto, and upon surrender and cancellation of the
Warrants if mutilated, the Issuer will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
7. Elimination of Fractional Interests.
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The Issuer shall not be required to issue certificates representing
fractions of shares of Common Stock upon the exercise of the Warrants, nor shall
it be required to issue scrip or pay cash in lieu of fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up to the nearest whole number of shares of
Common Stock or other securities, properties or rights.
8. Reservation and Listing of Securities.
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(a) The Issuer shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Common
Stock or other securities properties or rights as shall be issuable
upon the exercise thereof.
(b) The Issuer covenants and agrees that, upon exercise of the Warrants and
payment of the Exercise Price therefor, all shares of Common Stock and
over securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive
rights of any stockholder.
9. Notice to Warrant Holders.
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(a) Nothing contained in this Agreement shall be consented as conferring
upon the Holders the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the
election of directors or any other manner, or as having any rights
whatsoever as a stockholder of the Issuer.
10. Notices.
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All motions, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
or mailed registered or certified mail, return receipt requested:
(a) If to the Holder, at the last address reflected in the securities
registry books of the Issuer, or
(b) If to the Issuer, to the Issuer's principal place of business.
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11. Supplements and Amendments.
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(a) Except as otherwise expressly provided herein, the provisions of this
Agreement may be amended or waived at any time only by the written
agreement of the parties hereto.
(b) Any waiver, permit, consent or approval of kind or character on the
part of each Company or the Holder of any provisions or conditions of
this Agreement must be made in writing and shall be effective only in
the extent specifically set forth in such writing.
12. Successors.
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All the covenants and provisions of this Agreement shall be binding
upon and inure to the benefit of the Issuer, the Holder and their respective
successors and assigns hereunder.
13. Governing Law; Submission to Jurisdiction.
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(a) This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Florida and
for all the purposes shall be construed in accordance with the laws of
said State without giving effect to the rules of said State governing
the conflicts of laws.
(b) The Issuer and the Holder hereby agree 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
Florida or of the United Slates of America for the Southern District of
Florida located in Palm Beach County, Florida, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive.
(c) The Issuer, and the Holder hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum.
(d) Any such process or summons to be served upon any of the Issuer and the
Holder (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or
certified mail, return receipt requested, postage prepaid.
(e) Such mailing shall deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim.
(f) The Issuer and the Holder agree that the prevailing party(ies) in any
such action or proceeding shall be entitled to recover from the other
party(ies) all of its/their reasonable legal costs and expenses
relating to such action or proceeding and/or incurred in connection
with the preparation therefor.
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14. Entire Agreement Modification.
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This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be modified or
amended except by a writing duly signed by the party against whom enforcement of
the modification or amendment is sought.
15. Severability.
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If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement.
16. Captions.
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The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be construed
as, a part of this Agreement and shall be given no substantive effect.
17. Benefits of this Agreement.
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Nothing in this Agreement shall be construed to give to any person or
corporation over than the Issuer and the Holder any legal or equitable right,
remedy or claim under this Agreement; and this Agreement shall be for the sole
and exclusive 'benefit of the Issuer and the Holder.
18. Counterparts.
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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,
such counterparts shall together constitute but one and the same instrument.
The Parties have executed this Agreement, effective as of the last date
set forth below.
Signed, Sealed & Delivered
In Our Presence ▇▇▇▇▇▇▇ & ASSOCIATES, INC..
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---------------------------- By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Dated:
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{Corporate Seal}
Zodiac Capital Corp.
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----------------------------- By:
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, Holder
Dated:
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