EXHIBIT 4.7
FORM OF
WARRANT AGREEMENT
BETWEEN REGISTRANT
AND
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
EAGLE SUPPLY GROUP, INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
WARRANT AGREEMENT
Dated as of ____, 1996
WARRANT AGREEMENT, dated as of _______________, 1996, by and between EAGLE
SUPPLY GROUP, INC., a Delaware corporation (the "Company") and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, as warrant and transfer agent (hereinafter called the
Warrant Agent").
WHEREAS, the Company proposes to issue and sell to the public up to
1,725,000 shares of Common Stock, $.0001 par value (hereinafter referred to as
"Common Stock" or "Common Shares"), and 1,725,000 Redeemable Common Stock
Purchase Warrants to purchase a share of Common Stock at $5.00 per share (the
"Warrant") (including the underwriter's over-allotment option granted to ▇▇▇▇▇▇
▇▇▇▇▇ Securities, Inc. (the "Underwriter")), (the "Public Offering"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfers, exchanges and exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent:Defined Terms. The Company hereby
appoints the Warrant Agent to act as agent ("Agent") for the Company in
accordance with the instructions hereinafter in this Agreement set forth, and
the Warrant Agent hereby accepts such appointment. The capitalized terms shall
have the meanings set forth in the recitals and the Sections of this Agreement
and the Addendum attached hereto.
Section 2. Form of Warrant. The text of the Warrant and of the form of
election to purchase shares as is printed on the reverse thereof as now
outstanding, is substantially as set forth respectively in Exhibit A attached
hereto. The per share Warrant Price (as hereinafter defined) and the number of
shares issuable upon exercise of the Warrants are subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The Warrants shall be
executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman, President, or Vice President of the Company,
under its corporate seal, affixed or in facsimile, attested by the manual or
facsimile signature of the present or any future Secretary or Assistant
Secretary of the Company.
The Warrants will be dated as of the date of issuance by the Warrant Agent
either upon initial issuance or upon transfer or exchange.
Section 3. Countersignature and Registration. The Warrant Agent shall
maintain books for the transfer and registration of Warrants. Upon the initial
issuance of the Warrants, the Warrant
1
Agent shall issue and register the Warrants in the names of the respective
holders thereof. The Warrants shall be countersigned manually or by facsimile by
the Warrant Agent (or by any successor to the Warrant Agent then acting as
warrant agent under this Agreement) and shall not be valid for any purpose
unless so countersigned. Warrants may be so countersigned, however, by the
Warrant Agent (or by its successor as warrant agent) and be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery.
Section 4. Transfers and Exchanges. The Warrant Agent shall transfer, from
time to time, any outstanding Warrants upon the books to be maintained by the
Warrant Agent for that purpose, upon surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer. Upon any such
transfer, a new Warrant shall be issued to the transferee and the surrendered
Warrant shall be delivered by the Warrant Agent. Warrants so cancelled shall be
cancelled by the Warrant Agent to the Company from time to time upon request.
Warrants may be exchanged at the option of the holder thereof, when surrendered
at the office of the Warrant Agent, for another Warrant, or other Warrants of
different denominations, of like tenor or representing in the aggregate the
right to purchase a like number of Common Shares.
Section 5. Rights of Redemption by Company. (i) commencing on the Effective
Date and on not less than thirty (30) days notice, the Warrants may be redeemed,
at the option of the Company, at a redemption price of $.25 per Warrant,
provided the market price of the Common Stock receivable upon exercise of the
Warrant shall have averaged at least$10.00 per share (the "Target Price"),
subject to adjustment as set forth in Section 11 hereof, for a period of thirty
consecutive trading days. For these purposes, the market price of the Common
Stock shall be determined by the closing bid price, as reported by the National
Association of Securities Dealers, Inc.'s ("NASD") Automated Quotation System
known as NASDAQ, so long as the Common Stock is quoted on NASDAQ, and, if the
Common Stock is listed on a national securities exchange or on NASDAQ's National
Market System ("NASDAQ-NMS"), shall be determined by the closing sales price on
the primary exchange on which the Common Stock is traded or on NASDAQ-NMS if
such shares are not listed on an exchange. Warrant holders will be entitled to
exercise Warrants at any time up to the business day next preceding the
redemption date. Notwithstanding the foregoing, the Warrants are not redeemable
prior to the first anniversary of the Effective Date without the written consent
of the Underwriter.
(ii) Providing the conditions set forth in Section 5(i) are met, and the
Company shall desire to exercise its right to redeem
2
the Warrants, it shall mail a notice of redemption to the holders of the
Warrants to be redeemed, first class, postage prepaid, not later than the
thirtieth (30th) day before the date fixed for redemption, at his/her last
address as shall appear on the records of the Company. Any notice mailed in the
manner provided herein shall be conclusively presumed to have been duly given
whether or not the holder receives such notice.
(iii) The notice of redemption shall specify (i) the redemption price, (ii)
the date fixed for redemption, (iii) the place where the Warrant Certificates
shall be delivered and the redemption price paid, and (iv) that the right to
exercise the Warrant shall terminate at 5:00 p.m. (New York time) on the trading
day immediately preceding the date fixed for redemption. The date fixed for
redemption of the Warrants shall be the Redemption Date. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption except as to a holder (a) to
whom notice was mailed; or (b) whose notice was defective. An affidavit of the
Secretary or an Assistant Secretary of the Company that notice of redemption has
been mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(iv) Except as provided herein, any right to exercise a Warrant shall
terminate at 5:00 p.m. (New York time) on the trading day immediately proceeding
the Redemption Date. On and after the Redemption Date, the holders shall have no
further rights except to receive, upon surrender of the Warrant, the redemption
price.
(v) From and after the Redemption Date, the Company shall, at the place
specified in the notice of redemption, upon presentation and surrender to the
Company by or on behalf of the holder thereof of one or more Warrants to be
redeemed, deliver or cause to be delivered to or upon the written order of such
holder a sum in cash equal to the redemption price of each such Warrant. From
and after the date fixed for redemption and upon the deposit or setting aside by
the Company of a sum sufficient to redeem all the Warrants called for
redemption, such Warrants shall expire and become void and all rights hereunder
and under the Warrant Certificate, except the right to receive payment of the
redemption price, shall cease.
(vi) If the shares of the Company's Common Stock are subdivided or combined
into a greater of smaller number of shares of Common Stock, the Target Price
shall be proportionately adjusted by the ratio which the total number of shares
of Common Stock outstanding immediately prior to such event bears to the total
number of shares of Common Stock to be outstanding immediately after such event.
3
Section 6. Exercise of Warrants. Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right which may be
exercised through _____________, 1999 commencing from the Effective Date and
ending at the close of business on _____________, 1999 to purchase from the
Company (and the Company shall issue and sell to such registered holder of
Warrants) the number of fully paid and non-assessable Common Shares specified in
such Warrants, upon surrender to the Company at the office of the Warrant Agent
of such Warrants, with the form of election to purchase duly filled in and
signed, and upon payment to the order of the Company of the Warrant Price,
determined in accordance with Sections 10 and 11 herein, for the number of
shares in respect of which such Warrants are then exercised. Payment of such
Warrant Price shall be made in cash or by certified check or official bank
check, payable in United States dollars, to the order of the Company. No
adjustments shall be made for any dividends on any Common Shares issuable upon
exercise of a Warrant. Subject to Section 7, upon such surrender of Warrants,
and payment of the Warrant Price as aforesaid, the Company shall issue and cause
to be delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants and in such name or names as such registered
holder may designate, a certificate or certificates for the largest number of
whole Common Shares so purchased upon the exercise of such Warrants. The Company
shall not be required to issue any fraction of a share of Common Stock or make
any cash or other adjustment except as provided in Section 12 herein, in respect
of any fraction of a Common Share otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
record of such shares as of the date of the surrender of such Warrants and
payment of the Warrant Price as aforesaid, provided, however, that if, at the
date of surrender of such Warrants and payment of such Warrant Price, the
transfer books for the Common Shares or other class of stock purchasable upon
the exercise of such Warrants shall be closed, the certificates for the shares
in respect of which such Warrants are then exercised shall be issuable as of the
date on which such books shall be opened, and until such date the Company shall
be under no duty to deliver any certificate for such shares; provided, further,
however, that the transfer books aforesaid, unless otherwise required by law or
by applicable rule of any national securities exchange, shall not be closed at
any one time for a period longer than 20 days. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or form time to time for part
only of the shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the shares specified therein at any
time prior to the date of expiration of the Warrant, a new Warrant or Warrants
will be issued to such registered holders for the remaining number of shares
4
specified in the Warrant so surrendered, and the Warrant Agent is hereby
irrevocably authorized to countersign and to deliver the required new Warrants
pursuant to the provisions of this Section during the Warrant exercise period,
and the Company, whenever requested by the Warrant Agent, will supply the
Warrant Agent, with Warrants duly executed on behalf of the Company for such
purpose.
Section 7. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Common Shares issuable upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issuance or delivery of any certificates for Common Shares in a name
other than that of the registered holder of Warrants in respect of which such
shares are issued, and in such case neither the Company nor the Warrant Agent
shall be required to issue or deliver any certificate for Common Shares or any
Warrant until the person requesting the same has paid to the Company the amount
of such tax or has established to the Company's satisfaction that such tax has
been paid.
Section 8. Mutilated or Missing Warrants. In case any of the Warrants shall
be mutilated, lost, stolen or destroyed, the Company may in its discretion
issue, and the Warrant Agent shall countersign and deliver, in exchange and
substitution for and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company and the Warrant Agent of such
loss, theft or destruction of such Warrant and indemnity, if requested, also
satisfactory to them. Applicants for such substitute Warrants shall also comply
with such other reasonable regulations and pay such reasonable charges as the
Company or the Warrant Agent may prescribe.
Section 9. Reservation of Common Shares. There have been reserved, and the
Company shall at all times keep reserved, out of the authorized and unissued
Common Shares, a number of shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Common Shares and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid are hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued shares as shall be requisite
for such purpose. The Company agrees that all Common Shares issued upon exercise
of the Warrants shall be, at the time of delivery of the certificates for such
Common Shares, validly issued and outstanding, fully paid and non-assessable and
listed on any securities exchange upon which the other Common Shares are then
listed. The Company will file such
5
registration statement(s) pursuant to the Securities Act of 1933, as amended,
with respect to the Common Shares as may be necessary to permit it to deliver to
each person exercising a Warrant, a Prospectus meeting the requirements of
Section 11(a) (3) of such act and otherwise complying therewith, and will
deliver such a Prospectus to each such person; provided, that the Company shall
only be obligated to use its reasonable, good faith efforts to have any such
registration statement declared effective by the Securities and Exchange
Commission, and to have such reserved shares qualified for delivery to holders
of the Warrants under applicable state securities laws, and to the extent that
the Company has used such prescribed efforts but has been unsuccessful in
obtaining any such registration(s) or qualification(s), it shall not constitute
a breach of this Agreement by the Company. The Company will keep a copy of this
Agreement on file with the Transfer Agent for the Common Shares and with every
subsequent transfer agent for any shares of the Company's capital stock issuable
upon the exercise of the rights of purchase represented by the Warrants. The
Warrant Agent is hereby irrevocably authorized to requisition from time to time
such Transfer Agent for stock certificates required to honor outstanding
Warrants. The Company will supply such Transfer Agent with duly executed stock
certificates for such purpose. All Warrants surrendered in the exercise of the
rights thereby evidenced shall be cancelled by the Warrant Agent and shall
thereafter be delivered to the Company, and such cancelled Warrants shall
constitute sufficient evidence of the number of Common Shares which have been
issued upon the exercise of such Warrants. Promptly after the date of expiration
of the Warrants, the Warrant Agent shall certify to the Company the total
aggregate amount of Warrants then outstanding, and thereafter no Common Shares
shall be subject to reservation in respect to such Warrants which shall have
expired.
Section 10. Warrant Price. The Warrant Price at which Common Stock shall be
purchasable shall be $5.00 per whole share. No fractional shares shall be
issued.
Section 11. Adjustments. Subject and pursuant to the provisions of this
Section 11, the Warrant Price and number of Common Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(A) Subdivision and Combination. In case the Company shall at any time
during the Exercise Period subdivide or combine the outstanding shares of Common
Stock, the Warrant Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination.
(B) Adjustment in Number of Shares. Upon each adjustment of the Warrant
Price pursuant to the provisions of this Section 11,
6
the number of shares of Common Stock issuable upon the exercise of the Warrants
shall be adjusted to the nearest full number obtained by multiplying the Warrant
Price in effect immediately prior to such adjustment by the number of shares of
Common Stock issuable upon exercise of the Warrants immediately prior to such
adjustment and dividing the product so obtained by the adjusted Warrant Price.
(C) Recapitalization. For the purpose of the Warrants, the term "Common
Stock" shall also mean any other class of stock resulting from successive
changes or reclassification of Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
(D) Merger or Consolidation. In case of any capital reorganization,
reclassification of the Common Stock, consolidation of the Company with, or
merger of the Company with, or merger of the Company into, another corporation
(other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Common Stock), or sale of the
properties and assets of the Company, as or substantially as, an entirety to any
other corporation, during the Exercise Period, the Warrant will thereupon become
exercisable only for the number of shares of stock or other securities, assets,
or cash to which a holder of the number of shares of Common Stock of the Company
purchasable (at the time of such reorganization, reclassification,
consolidation, merger, or sale) upon exercise of the Warrant would be entitled
to receive upon such reorganization, reclassification, consolidation, merger or
sale.
(E) No Adjustment in Certain Cases. No adjustment shall be made:
(i) upon the issuance of the Warrants and underlying shares of the
Company's Common Stock issued in connection with a private placement of the
Company's securities in June and July of 1996;
(ii) upon the issuance of shares of Common Stock and Warrants (including
shares of Common Stock issued upon exercise of those warrants) issued in
connection with the Public Offering;
(iii) upon the issuance or sale of shares of Common Stock issuable upon the
exercise of any stock options granted under any stock option plan of the
Company;
(iv) if the amount of said adjustment shall be less than five cents ($.05)
per share of Common Stock, provided, however, that in such case, any
adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with the next
subsequent ad-
7
justment which, together with any adjustment so carried forward, shall
amount to at least five cents ($.05) per share of Common Stock; and
(v) upon the issuance of any securities of the Company prior to or on the
date hereof.
(F) On the effective date of any new Warrant Price the number of shares as
to which any Warrant may be exercised shall be increased or decreased so that
the total sum payable to the Company on the exercise of such Warrant shall
remain constant.
(G) The form of Warrant need not be changed because of any change pursuant
to this Section, and Warrants issued after such change 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 (which shall be conclusive) make any change in the
form of Warrant that the Company may deem appropriate and that does not effect
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.
Section 12. Fractional Interest. The Company shall not be required to issue
fractions of Common Stock on the exercise of Warrants or any cash or other
adjustment in respect of such fractions of Common Shares. If any fraction of a
Common Share would, except for the provisions of this Section 12, be issuable on
the exercise of any Warrant (or specified portions thereof), the Company shall
issue such number of shares of Common Stock to which the Warrant holder is
entitled, rounded up to the nearest number of whole shares.
Section 13. Notices to Warrantholders.
(A) Upon any adjustment of the Warrant Price and the number of shares
issuable on exercise of a Warrant, then and in each such case 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.
(B) In case at any time:
(a) the Company shall pay any dividends payable in stock upon its
Common Stock or make any distribution (other than regular cash dividends) to the
holders of its Common Stock;
8
(b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company (in
which the Company is not the surviving corporation) with, or sale of all or
substantially all of its assets to, another corporation; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company;
then, in any one or more such cases, the Company shall give written notice to
all Warrant holders of record not fewer than 10 days' prior to the date of which
the books of the Company shall close or a record shall be taken for (i) such
dividend, distribution, or subscription rights, or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up shall take place, as the case may be. 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 securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up, as the case may be. Failure to give or publish such
notice, or any defect therein, shall not affect the legality or validity of any
of the matters set forth in this Section 13 inclusive.
(C) The Company shall cause copies of all financial statements and reports,
proxy statements and other documents as it shall send to its stockholders to be
sent by first-class mail, postage prepaid, on the date of mailing to such
stockholders, to each registered holder of Warrants at his address appearing on
the Warrant register as of the record date for the determination of the
stockholders entitled to such documents.
Section 14. Disposition of Proceeds on Exercise of Warrants.
(A) The Warrant Agent shall forward promptly to the Company, with respect
to Warrants exercised, the funds which will be deposited in a special account in
a bank designated by the Company for the benefit of the Company, for the
purchase of Common Shares through the exercise of such Warrants.
(B) The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours.
9
Section 15. Merger or Consolidation or Change of Name of Warrant Agent.
Any corporation or company which may succeed to the business of the Warrant
Agent by any merger or consolidation or otherwise to which the Warrant Agent
shall be a party shall be the successor Warrant Agent hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation would be eligible for appointment
as a successor Warrant Agent under the provisions of Section 17 of this
Agreement. In case at the time such successor to the Warrant Agent shall succeed
to the agency created by this Agreement, any of the Warrants shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent and deliver such
Warrants so countersigned; and in case at that time any of the Warrants shall
not have been countersigned, any successor to the Warrant Agent may countersign
such Warrants either in the name of the predecessor Warrant Agent or in the name
of the successor warrant agent; and in all such cases such Warrants shall have
the full force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrants so countersigned, and in case at that time any of the Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
Section 16. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
A. The statements of fact and recitals contained herein and in the Warrants
shall be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or actions taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein expressly provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
10
C. The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the written advice of such counsel.
D. The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
E. The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution of this
Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and 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 or bad faith.
F. The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrants shall furnish
the Warrant Agent with reasonable security and indemnity for any costs and
expenses which may be incurred, but this provision shall not affect the power of
the Warrant Agent to take such action as the Warrant Agent may consider proper,
whether with or without any such security or indemnity. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Warrants, as their respective rights or interests
may appear.
G. The Warrant Agent and any stockholder, director, officer, partner or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it were not Warrant
Agent under this Agreement. Nothing herein shall preclude the
11
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
H. The Warrant Agent shall act hereunder solely as agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own negligence or bad faith.
I. The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents, or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care has been exercised in
the selection and continued employment thereof.
J. Any request, direction, election, order or demand of the Company shall
be sufficiently evidenced by an instrument signed in the name of the Company by
its President or a Vice President or its Secretary or an Assistant Secretary or
its Treasurer or an Assistant Treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of
Directors of the Company may be evidenced to the Warrant Agent by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company.
Section 17. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, and to the holders of the Warrants notice by mailing such notice to
holders at their addresses appearing on the Warrant register, of such
resignation, specifying a date when such resignation shall take effect. The
Warrant Agent may be removed by like notice to the Warrant Agent from the
Company and by like mailing of notice to the holders of the Warrants. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the registered
holder of a Warrant (who shall, with such notice, submit his Warrant for
inspection by the Company), then the registered holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor warrant agent, whether appointed by the Company or
by such court, shall be a bank, or trust company or active transfer agent, in
good standing, incorporated under the
12
laws of a state of the United States of America. After appointment, the
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor warrant agent all cancelled Warrants, records and property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file or mail any
notice provided by this Section, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor warrant agent, as the case may be.
Section 18. Identity of Transfer Agent. Forthwith upon the appointment of
any Transfer Agent for the Common Shares or of any subsequent transfer agent for
Common Shares or other shares of the Company's capital stock issuable upon
exercise of the rights of purchase represented by the Warrants, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such Transfer Agent. The Warrant Agent hereby acknowledges that it is, at the
time of execution hereof, the Transfer Agent, and waives any statement required
herein with respect thereto.
Section 19. Notices. Any notice pursuant to this Agreement to be given or
made by the Warrant Agent or by the registered holder of any Warrant to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
Eagle Supply Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any notice pursuant to this Agreement to be given or made by the Company or
by the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
13
Section 20. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrants in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable and which shall not be inconsistent with the
provisions of the Warrants and which shall not adversely affect the interests of
the holders of Warrants.
Section 21. 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 hereunder.
Section 22. New York Contract. This Agreement shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be construed in accordance with laws of said state.
Section 23. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrants.
Section 24. Counterparts. This Agreement may be executed in any number of
counterparts and each such counterparts shall be considered an original.
Section 25. Effectiveness. This Agreement shall be deemed binding, and,
therefore, in effect, as of and subject to the effective date of the
Registration Statement for the Public Offering.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EAGLE SUPPLY GROUP, INC.
(Corporate Seal)
By:_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer
14
Attest:
________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
15
ADDENDUM
Warrant Agreement by and between
Eagle Supply Group, Inc. and
Continental Stock Transfer & Trust Company
(the "Agreement")
The terms set forth below, for the purposes of the Agreement to which this
Addendum is attached, shall have the meanings specified:
The term "Effective Date" shall mean the date(s) the Commission declares
effective the Company's registration statement under Commission File Number
333-9951 or any other registration statement required to be filed by the Company
pursuant to the Agreement.
The term "Transfer Agent" shall mean Continental Stock Transfer & Trust
Company.
The term "Warrant Price" shall mean the sum of money specified in Section
10 of the Agreement, as may be adjusted from time to time pursuant to Section 11
of the Agreement.
The term "Warrant Certificates" shall mean typed or printed renditions of
the Warrants, specifying the names of the holders thereof and the number of
shares of the Company's Common Stock purchasable thereunder.