NEITHER THIS WARRANT NOR THE SECURITIES UNDERLYING THIS WARRANT HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
("COMMISSION") UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED ("ACT") OR UNDER APPLICABLE STATE SECURITIES LAWS.
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT MAY
NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE DISPOSED OF FOR
VALUE WITHOUT REGISTRATION UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS, UNLESS THE HOLDER HEREOF PROVIDES THE COMPANY
WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
THE PROPOSED OFFER FOR SALE, SALE OR OTHER DISPOSITION IS
EXEMPT FROM SUCH REGISTRATION REQUIREMENTS.
AARICA HOLDINGS INC.
SELLING AGENT'S WARRANT
No. SAW-1 Number of
Shares of Common
Stock
Puchasable Upon Exercise
Of Warrant:
105,000
Aarica Holdings, Inc., a Texas corporation (the
"Company") hereby certifies that for a consideration of $.0001
for each share of common stock, $.01 par value per share, of
the Company (""Common Stock"), issuable upon exercise of this
Selling Agent's Warrant ("Selling Agent's Warrant") , receipt
of which is hereby acknowledged by the Company, Kashner
Davidson Securities Corporation (the "Selling Agent") , is
entitled, subject to the terms set forth in this Selling
Agent's Warrant, at any time or from time to time, commencing
on June __, 1999 (the "Issue Date"), to purchase from the
Company One Hundred and Five Thousand (105,000) shares of
Common Stock (the "Shares"), of the Company at the exercise
price per share of Two Dollars and fifty Cents ($2.50) (the
exercise price per Share shall hereinafter be referred to as
the "Exercise Price"), all as more particularly described in
the Company's Private Placement Memorandum, dated April 30,
1999 (the "Memorandum"). The Shares issuable upon exercise of
this Selling Agent's Warrant have the same respective terms as
the Shares offered pursuant to the Memorandum except that (i)
the holder of the Selling Agent's Warrant (the "Holder") shall
have registration rights under the Securities Act of 1933, as
amended (the "Act"), for the Shares as more fully described in
Section 8 of this Selling Agent's Warrant, and (ii) the
securities subject hereof are subject to adjustment in
accordance with Section 5 hereof. This Selling Agent's Warrant
and all rights hereunder, to the extent such rights shall not
have been exercised, shall terminate and become null and void
to the extent the Holder fails to exercise any portion of this
Selling Agent's Warrant prior to 5:00 p.m., Eastern Time on
June __, 2004.
1. Exercise of Warrant.
(a) All or any part of this Selling Agent's Warrant
may be exercised by the Holder hereof by surrendering it, with
the form of subscription at the end hereof duly executed by
such Holder, to the Company at its principal executive office
or at the Company's transfer agent accompanied by payment in
full of the Exercise Price payable in respect of all or part
of this Se11ing Agent's Warrant being exercised. If less than
the entire Selling Agent's Warrant is exercised, the Company
shall, upon such exercise, execute and deliver to the Holder
thereof a new Selling Agent's Warrant in the same form as this
Selling Agent's Warrant evidencing the Selling Agent's Warrant
to the extent not exercised. This Selling Agent's Warrant
shall be deemed to have been exercised prior to the close of
business on the date this Selling Agent's Warrant is
surrendered and payment is made in accordance with the
foregoing provisions.
(b) Form of Payment Authorized. Payment of the
Exercise Price may be made (i) in cash, by certified or
official bank check, or cash equivalent, (ii) by tender to the
Company of shares of the Company's stock owned by the Holder
having a value, as determined by the Board (but without regard
to any restrictions on transferability applicable to such
stock by reason of federal or State securities laws or
agreements with an underwriter for the Company), not less than
the Exercise Price, or (iii) by the assignment to a
broker-dealer registered under the Securities Exchange Act of
1934, as amended ("Exchange Act"), of the proceeds of a sale
of some or all of the shares being acquired upon the exercise
of this Selling Agent's Warrant, provided such assignment
complies with Regulation T as promulgated under the Exchange
Act by the Board of Governors of the Federal Reserve System,
(iv) by tender to the Company of a portion of this Selling
Agent's Warrant, which portion shall be deemed to have a value
equal to the difference between the exercise price and the
fair market value per share of the Common Stock purchasable
upon exercise of the portion of this Selling Agent's Warrant
tendered (as determined by reference to the closing
transaction price or in the absence thereof, the closing bid
price, on the trading date preceding the date that such tender
is made), or (v) by any combination thereof.
2. Fractional Shares.
No fractional securities or scrip representing
fractional securities shall be issued upon the exercise of
this Selling Agent's Warrant. With respect to any fraction of
a share of Common Stock otherwise issuable upon any such
exercise hereof, the Company shall pay to the Holder an amount
in cash equal to such fraction multiplied by the current
market value of such fractional securities, determined as
follows:
(a) If the security is listed on a national
securities exchange or admitted to unlisted trading privileges
on such exchange, the current market value shall be the last
reported sale price of the security on such exchange on the
last business day prior to the date of exercise of this
Selling Agent's Warrant, or if no such sale is made on such
day. the average closing bid and asked prices for such day on
such exchange; or
(b) If the security is not listed or admitted to
unlisted trading privileges, the current value shall be the
last reported sale price on the National Association of
Securities Dealers Automated Quotation ("NASDAQ") National
Market System ("NASDAQ/NMS") or the mean of the last reported
bid and asked prices reported by the NASDAQ System or the NASD
OTC Bulletin Board (or, if not so quoted, by the
National Quotation Bureau, Inc.) on the last business day prior to the
date of the exercise of this Selling Agent's Warrant; or
(c) If the security is not so listed or admitted to
unlisted trading privileges and prices are not reported on
NASDAQ, or the NASD OTC Bulletin Board (or by the National
Quotation Bureau, Inc.), the current value shall be an amount,
not less than the book value, determined in such reasonable
manner as may be prescribed by the Board of Directors of the
Company.
3. Exchange, Assignment or Loss of Warrant.
This Selling Agent's Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and
surrender hereof to the Company, for other Selling Agent's
Warrants of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of
securities purchasable hereunder. Any assignment shall be made
by surrender of this Selling Agent's Warrant to the Company
with the Form of Assignment annexed hereto duly executed and
funds sufficient to pay any transfer tax; whereupon the
Company shall, without charge, cause to be executed and
delivered a new Selling Agent's Warrant in the name of the
assignee named in such instrument of assignment and this
Selling Agent's Warrant shall promptly be cancelled. This
Selling Agent's Warrant may be divided or combined with other
warrants that carry the same rights upon presentation hereof
to the Company together with a written notice specifying the
names and denominations in which new Selling Agent's Warrants
are to be issued and signed by the Holder hereof. The term
"Selling Agent's Warrant" as used herein includes any warrants
issued in substitution for or replacement of this Selling
Agent's Warrant, or into which this Selling Agent's Warrant
may be divided or exchanged. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Selling Agent's Warrant, and, in the case
of loss, theft or destruction, of reasonably satisfactory
indemnification including a surety bond, and upon surrender
and cancellation of this Selling Agent's Warrant, if
mutilated, the Company will cause to be executed and delivered
a new Selling Agent's Warrant of like tenor and date. Any such
new Selling Agent's Warrant executed and delivered shall
constitute an additional contractual obligation on the part of
the Company, whether or not this Selling Agent's Warrant so
lost, stolen, destroyed or mutilated shall be at any time
enforceable by anyone.
4. Rights of the Holder.
The Holder of this Selling Agent's Warrant shall not,
by virtue hereof, be entitled to any voting or other rights of
a stockholder in the Company, either at law or equity , and
the rights of the Holder are limited to those expressed in
this Selling Agent's Warrant.
5. Adjustments.
(a) The number of securities purchasable upon
exercise of this Selling Agent's Warrant and the exercise
prices therefore shall be subject to adjustment from time to
time in the event that the Company shall: (1) pay a dividend
in, or make a distribution of, shares of Common Stock or other
securities, (2) subdivide its outstanding shares of Common
Stock into a greater number of shares, (3) combine its
outstanding shares of Common Stock into a smaller number of
shares or (4) spin-off a subsidiary by distributing, as a
dividend or otherwise, shares of the subsidiary to its Common
Stock stockholders. In any such case, the total number of
securities purchasable upon exercise of this Selling Agent's
Warrant immediately prior thereto shall be adjusted so that
the Holder shall be entitled to receive, at the same aggregate
exercise price, the number of shares of Common Stock or other
securities that the Holder would have owned or would have been
entitled to receive immediately following the occurrence of
any of the events
described above had this Selling Agent's Warrant been
exercised in full immediately prior to the occurrence (or
applicable record date) of such event. An adjustment made
pursuant to this Section 5(a) shall, in the case of a stock
dividend or distribution, be made as of the record date and,
in the case of a subdivision or combination, be made as of the
effective date thereof. If, as a result of any adjustment
pursuant to this Section 5(a). the Holder shall become
entitled to receive shares of two or more classes or series of
securities of the Company, tile Board of Directors of the
Company shall equitably determine the allocation of the
adjusted exercise price between or among shares of the Holder
of such allocation.
(b ) In the event of any reorganization or
recapitalization of the Company or in the event the Company
consolidates with or merges into or with another entity or
transfers all or substantially all of its assets to another
entity , then and in each such event, the Holder, on exercise
of this Selling Agent's Warrant as provided herein, at any
time after the consummation of such reorganization,
recapitalization, consolidation, merger or transfer, shall be
entitled, and the documents executed to effectuate such event
shall so provide, to receive tile stock or other securities or
property to which the Holder would have been entitled upon
such consummation if the Holder had exercised this Selling
Agent's Warrant immediately prior thereto. In such case, the
terms of this Selling Agent's Warrant shall survive the
consummation of any such reorganization. recapitalization,
consolidation, merger or transfer and shall be applicable to
the shares of stock or other securities or property receivable
on the exercise of this Selling Agent's Warrant after such
consummation.
(c) Whenever a reference is made in this Section 5 to
the issue or sale of shares of Common Stock the term "Common
Stock" shall mean the Common Stock of the Company of the class
authorized as of the date hereof and any other class of stock
ranking on a parity with or senior to such Common Stock.
(d) Whenever the number of securities purchasable
upon exercise of this Selling Agent's Warrant or the exercise
prices thereof shall be adjusted as required herein, the
Company shall forthwith file such information with its
Secretary at its principal office in the form of a certificate
of an authorized officer of the Company, with the price
determined as herein provided and setting forth in detail the
facts requiring such adjustment. Each such officer's
certificate shall be made available at all reasonable times
for inspection by the Holder and the Company shall, forthwith
after such adjustment, deliver a copy of such certificate to
the Holder.
(e) The Company will not, by amendment of its
certificate of incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger,
dissolution, issuance or sale of securities or any other
voluntary action, avoid or seek to avoid the performance of
any of the terms of this Selling Agent's Warrant, but will at
all times in good faith take all necessary action to carry out
the intent of all such terms. Without limiting the generality
of the foregoing, the Company (1) will not cause the par value
of any securities receivable on exercise of this Selling
Agent's Warrant to be in excess of the amount payable
therefore on such exercise, (2) will take all action as may be
necessary or appropriate so that the Company may validly and
legally issue fully paid and non-assessable shares (or other
securities or property deliverable hereunder) upon the
exercise of this Sel1ing Agent's Warrant, and (3) will not
transfer all or substantially all of its assets to any other
person (corporate or otherwise), or consolidate with or merge
into any other person or permit any such person to consolidate
with or merge with or into the Company (if the Company is not
the surviving person), unless such other person shall be bound
by all the terms of this Selling Agent's Warrant. If any event
occurs as to which the other provisions of this Selling
Agent's Warrant are not strictly applicable or if strictly
applicable would not fairly protect the purchase rights of
this Selling Agent's Warrant in accordance with the essential
intent and principles of such provisions, then the Board of
Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and
principles, in order to protect such purchase rights. This
Selling Agent's Warrant shall bind the successors and assigns
of the Company.
6 . Notices of Record Dates. Etc.
(a) If the Company shall fix a record date of the
holders of the Common Stock (or other securities at the time
deliverable upon exercise of this Selling Agent's Warrant) for
the purpose of entitling or enabling them to receive any
dividends or other distribution, or to receive any right to
subscribe for or purchase any shares of any class of any
securities, or to receive any other right contemplated by
Section 5 or otherwise; or
(b) In the event of any reorganization or
recapitalization of the Company, any reclassification of the
capital stock of the Company, any consolidation or merger of
the Company with or into another corporation or any transfer
of all or substantially all of the assets of the Company to
another entity ; or
(c) In the event of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any such event, the Company shall mail or cause to be
mailed to the Holder a notice specifying, as the case may be.
(1) the date on which a record is to be taken for the purpose
of such dividend, distribution or right and stating the amount
and character of such dividend, distribution or right. or (2)
the date on which a record is to be taken for the purpose of
voting on or approving such reorganization, recapitalization,
reclassification, consolidation, merger , conveyance,
dissolution, liquidation or winding up and the date on which
such event is to take place and the time, if any is to be
fixed, as of which the Holder of record of Shares shall be
entitled to exchange its Shares for securities or other
property deliverable on such reorganization. recapitalization,
reclassification. consolidation, merger, conveyance,
dissolution, liquidation or winding up. Such notice shall be
mailed at the same date as the Company shall inform its
stockholders. but in no event less than ten days preceding
such record date.
7. Reservation of Shares.
The Company shall at all times reserve, for the
purpose of issuance on exercise of this Selling Agent's
Warrant, such number of Shares or other securities as shall
from time to time be sufficient to comply with this Selling
Agent's Warrant, and the Company shall take such corporate
action as may in the opinion of its counsel be necessary to
increase its authorized and unissued shares of Common Stock or
other securities in such number as shall be sufficient for
such purpose.
8. Registration
(a) Definitions. As used in this Section 8, the following terms shall
have the meanings set forth below:
(i) The terms "register, " "registered" and
"registration" shall refer to a registration effected by
preparing and filing a registration statement or similar
document in compliance with the Act, and the declaration or
ordering of the effectiveness of such registration statement
or document.
(ii) The term "Registrrable" Securities" shall mean:
(A) this Warrant; (B) the Common Stock issued or issuable upon
exercise of this Selling Agent's Warrant; and (C) any warrant,
Common Stock or other securities of the Company issued (or
issuable upon the
conversion or exercise of any warrant, right or other security
which is issued as) as a dividend or other distribution with
respect to, in exchange for or in replacement of such warrant
or Common Stock, referenced in (B) or (C) immediately above,
excluding in all cases, however, any Registrable Securities
sold to the public pursuant to a registration under the Act or
an applicable exemption there from.
(b) Demand Registration Rights. If, at any time
during the period commencing on the Issue Date and ending five
(5) years thereafter, the Company shall receive a written
request (a "Request"), from Holders who in the aggregate own
(or upon exercise of all Registrable Securities then
outstanding or issuable would own) a majority of the total
number of shares of Common Stock then included (or which upon
such exercise would be included) in the Registrable Securities
(the "Majority Holders"), to register the sale of all or part
of such Registrable Securities, the Company shall, as promptly
as practicable, prepare and file with the Securities and
Exchange Commission ("SEC") a registration statement
sufficient to permit the public offering and sale of the
Registrable Securities through the facilities of all
appropriate securities exchanges and the over-the-counter
market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration
statement to become effective as promptly as practicable;
provided that the Company shall only be obligated to register
Registrable Securities on two (2) occasions pursuant to this
Section 8(b). Within five (5) business days after receiving
any request contemplated by this Section 8(b), the Company
shall give written notice to all the other Holders, advising
each of them that the Company is proceeding with such
registration and offering to include therein all or any
portion of any such other Holder's Registrable Securities,
provided that the Company received a written request to do so
from such Holder within thirty (30) days after receipt by him
or it of the Company's notice. Notwithstanding anything
contained in this Section 8(b) to the contrary: ( i ) no
person may make a Request that the Company file, nor shall the
Company be obligated to file, a registration statement on any
date that is within ninety (90) days of the effective date of
any registration Statement filed by the Company and pursuant
to which such person was given full "piggyback" registration
rights in accordance with Section 8(c) hereof including
without limitation the ability to include all Registrable
Securities' requested to be included therein; and (ii) the
Company may delay the registration of the securities to which
a Request relates if upon receipt of such Request (A) the
Company notifies the person making the Request that it is
contemplating filing a Registration Statement within ninety
(90) days of such request, or (B) the Company notifies the
person making the Request that the Board of Directors of the
Company has determined that a material event has occurred that
has nor been publicly disclosed and which if disclosed would
have a material adverse effect on the Company; provided that
(x) in the case of clause (ii)(A) of this paragraph, the
Company shall, as soon as practical, upon the first to occur
of the abandonment of such contemplated registration statement
or the expiration of such ninety (90) day period, register me
securities to which the Request relates unless such Request is
withdrawn; and (y) in the case of clause (ii)(B) of this
paragraph, the Company may not delay the filing of the
registration statement for more than thirty (30) days from the
date of the request unless such request is withdrawn.
(c) Piggy-back Registration Rights. If (but without any obligation to
do so) at any time during the five (5) year period commencing on the Issue
Date, the Company proposes to register (including for this purpose a
registration effected by the Company for security holders other than the
Holder) any of its securities under the Act in connection with the public
offering of such securities solely for cash (other than a registration on
Form S-4, Form S-8 or any form which does not include substantially the
same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company
shall, each such time, promptly give the Holder written notice of such
registration. Upon the written request
of the Holder given within twenty (20) days after receipt of
such written notice from the Company, the Company shall,
subject to the provisions of this Section 8, cause to be
registered under the Act all of the Registrable Securities
that the Holder has requested to be registered; and provided
further, however, that the Registrable Securities shall be
subject to restrictions on transfer for forty-five (45) days
after the effective date of the subject registration
statement. The inclusion of any of the Holder's Registrab1e
Securities in a registration statement filed by the Company
and declared effective by the Securities and Exchange
Commission ("SEC") shall be deemed to be the exercise by such
Holder of the piggy-back registration rights granted herein to
such Holder.
(d) Obligations of the Company. Whenever required hereunder to effect
the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(i) Prepare and file with the SEC a
registration statement with respect to such
Registrable Securities and use its best efforts to
cause such registration statement to become
effective, and, upon the request of the Holders of a
majority of the RegistrabJe Securities registered
there under, keep such registration statement
effective for at least nine (9) months.
(ii) Prepare and file with the SEC such
amendments and supplements to such registration
statement and the prospectus used in connection with
such registration statement as may be necessary to
comply with the provisions of the Act with respect to
the disposition of all securities covered by such
registration statement.
(iii) Furnish to the Holders such numbers of
copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of
the Act, and such other documents as they may
reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(iv) Use its best efforts to register and
qualify the securities covered by such registration
statement under the securities laws of such
jurisdictions as shall be reasonably requested by the
Holders for the distribution of the securities
covered by the registration statement, provided that
the Company shall not be required in connection
therewith or as a condition thereto to qualify to do
business or to file a general consent to service of
process in any such jurisdiction.
(v) In the event of any underwritten public
offering, enter into and perform its obligations
under an underwriting agreement with terms generally
satisfactory to the managing underwriter of such
offering.
(vi) Notify the Holders, promptly after the
Company shall have received notice thereof, of the
time when the registration statement becomes
effective or any supplement to any prospectus forming
a part of the registration statement has been filed.
(vii) Notify the Holders of any stop order
suspending the effectiveness of the registration
statement and use its reasonable best efforts to
remove such Stop order.
(e) Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action
pursuant hereto that the Holder, having chosen to have its
Registrable Securities included for registration, shall
furnish to the Company such information regarding the Holder,
its Registrable Securities and the intended method of
disposition of such
securities as shall be required to effect the registration
thereof. The Holder shall be required to represent to the
Company that all such information which is given is complete
and accurate in all material respects. The Holder shall
deliver to the Company a statement in writing from the
beneficial owners of such securities that such beneficial
owners bona fide intend to sell, transfer or otherwise dispose
of such securities.
(f) Expenses.
----------
(i) Registration Expenses. All expenses
incurred by the Company in complying with Subsections 8(b),
8(c) and 8(d) hereof, including without limitation, all
registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, "Blue Sky" fees and
expenses, and the expense of any special audits incident to or
required by any such registration (but excluding the
compensation of regular employees of the Company which shall
be paid in any event by the Company) shall be borne by the
Company.
(ii) Selling; Expenses. All underwriting
discounts, underwriters' expense allowance, and
selling commissions applicable to the sale of
Registrable Securities by the Holders and all fees
and disbursements of any special Counsel (other than
the Company's regu1ar counsel) shall be borne by the
Holders of the Registrable Securities so registered
pro rata on the basis of the number of Registrable
Securities so registered.
(g) Underwriting Requirements.All Holders proposing
to distribute their Registrable Securities through an
underwriting in which the Company has proposed or is proposing
to pal1icipate, shall (together with the Company and any other
Holders distributing their securities through such
underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected
for underwriting by the Company. Notwithstanding any other
subsection of this Section 8, at the request of the managing
underwriter, the Holder shall delay the sale of Registrable
Securities which such Holder has requested be registered
hereunder for up to 90 days following the effective date of
the registration statement. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect withdraw
there from by written notice to the Company and the managing
underwriter. Any Registrable Securities excluded or withdrawn
from such underwriting shall not be withdrawn from such
registration except at the election of the Holder.
(h) Delay of Registration. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any
controversy that might arise with respect to the
interpretation or implementation of this section.
(i) Indemnification. In the event that any Registrable Securities are
included in a registration statement pursuant hereto:
(i) To the extent permitted by law, the
Company will indemnify and hold harmless each Holder,
the officers, directors, partners and legal counsel
of each Holder, any underwriter (as defined in the
Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the
meaning of the Act or the Exchange Act, against any
losses, claims, damages or liabilities joint or
several) to which they may become subject under the
Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements,
omissions or violations (collectively, a
"Violation"): (A) any untrue statement or alleged
untrue statement of a material fact contained in such
registration statement, including any preliminary
prospectus or final prospectus contained therein or
any amendments or supplements thereto: (B) the
omission or alleged omission to state therein a
material fact required to be stated therein,
or necessary to make the statement; therein not
misleading; or (C) any violation or alleged violation
by the Company of the Act, the Exchange Act, any
applicable state securities law or any rule or
regulation promulgated under the Act, the Exchange
Act or any applicable state securities law; and the
Company will reimburse the Holder for any legal or
other expenses reasonably incurred by them in
connection with investigating or defending any such
loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in
this Subsection 8(i)(i) shall not apply to amounts
paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected
without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that
it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with
written information furnished expressly for use in
connection with such registration by any such Holder,
underwriter or controlling person; provided, however,
that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or
alleged omission made in said registration statement,
said preliminary prospectus, said final prospectus or
said amendment or supplement in reliance upon and in
conformity with written information furnished by such
Holder or any other Holder, for use in the
preparation thereof; and further provided, however,
that the foregoing indemnity agreement is subject to
the condition that, insofar as it relates to any
untrue statement, alleged untrue statement, omission
or alleged omission made in any preliminary
prospectus but eliminated or remedied in the
prospectus , such indemnity agreement shall not inure
to the benefit of any underwriter or broker, if a
copy of the prospectus was not sent or given to such
person with or prior to the confirmation of the sale
of such securities to such person.
(ii) To the extent permitted by law, each
selling Holder will indemnify and hold harmless the
Company, its directors, its officers, any person who
controls the Company within the meaning of the Act or
the Exchange Act, any underwriter (within the meaning
of the Act) for the Company and any person who
controls such underwriter against any losses, claims,
damages or liabilities (joint or several) to which
the Company or any such director, officer ,
controlling person, or underwriter or controlling
person may become subject, under the Act, the
Exchange Act or other federal or state law, insofar
as such losses, claims) damages or liabilities (or
actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in
reliance upon and in conformity with written
information furnished by the Holder expressly for use
in connection with such registration; and the Holder
will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer
, controlling person, underwriter or controlling
person thereof, in connection with investigating or
defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity
agreement contained in this Subsection 8(i)(ii) shall
not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such
settlement is effected without the consent of the
Holder, which consent shall not be unreasonably
withheld.
(iii) Promptly after receipt by an
indemnified parry under Subsection 8(i) of notice of
the commencement of any action (including any
governmental action), such indemnified party will, if
a claim in respect thereof is to be made against any
indemnifying party under Subsection 8(i), notify the
indemnifying party in writing of the commencement
thereof and the indemnifying party shall have the
right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume the
defense thereof with counsel mutually satisfactory to
the parties; provided, however, that an indemnified
party shall have the right to retain
its own counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to
actual or potential differing interests between such
indemnified party and any other party represented by
such counsel in such proceeding. The failure to
notify an indemnifying party within a reasonable time
of the commencement of any such action, to the extent
prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any
liability to the indemnified party under Subsection
8(i), but the omission so to notify the indemnifying
party will not relieve it of any liability that it
may have to any indemnified party otherwise than
under Subsection 8(i).
(j) Reports Under Exchange Act. Following
registration of the Company's securities under the Exchange
Act and with a view of making available to the Holders the
benefits of Rule 144 promulgated under the Act and any other
rule or regulation or me SEC that may at any time permit a
Holder to sell securities of the Company to the public without
registration, the Company agrees to;
(i) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all
times; and
(ii) use its best efforts to file with the
SEC in a timely manner all reports and other documents
required of the Company under the Act and the Exchange Act.
(k) Termination of the Company's Obligations.
------------------------------------------
(i) The Company shall have no obligations
pursuant to Subsections 8(b) or 8(c) with respect to
any request made by the Holder after June -, 2004.
(ii) Notwithstanding any provision hereof to
the contrary, the Company shall not be required to
effect any registration under the Act or under any
state securities laws on behalf of any Holder or
Holders if, in the opinion of counsel for the
Company, the offering or transfer by such Holder or
Holders in the manner proposed (including without
limitation, the number of shares proposed to be
offered or transferred and the method of offering or
transfer) is exempt from the registration
requirements of the Act and the securities or "Blue
Sky" laws of applicable states.
(1) Holder's Acceptance of Obligations. Acceptance of this Warrant by
its Holder(s) shall be deemed to constitute the unqualified acceptance by
the Holder of all of the terms and conditions set forth herein.
9. Approvals.
The Company shall from time to time use its best
efforts to obtain and continue in effect any and all permits,
consents, registrations, qualifications and approvals of
governmental agencies and authorities and to make all filings
under applicable securities laws that may be or become
necessary in connection with the issuance, sale, transfer and
delivery of this Selling Agent's Warrant, the issuance of
securities on any exercise hereof, and if any such permits,
consents, qualifications, registrations, approvals or filings
are not obtained or continued in effect as required, the
Company shall immediately notify the Holder hereof.
10. Survival.
All agreements, covenants, representations and
warranties herein shall survive the execution and delivery of
this Selling Agent's Warrant and any investigation at any time
made by or on behalf of any parties hereto and the exercise,
sale and purchase of this Selling Agent's Warrant.
11. Remedies.
The Company agrees that the remedies at law of the
Holder, in the event of any default or threatened default by
the Company in the performance or compliance with any of the
terms of this Selling Agent's Warrant, may not be adequate and
such terms may, in addition to and not in lieu of any other
remedy, be specifically enforced by a decree of specific
performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or
otherwise.
12. Notices.
All demands, notices, consents and other
communications to be given hereunder shall be in writing and
shall be deemed duly given when delivered personally or five
days after being mailed by first class mail, postage prepaid,
properly addressed, as follows:
If to the Company, to: Aarica Holdings Inc.
195 Wekiva Springs Road Suite 200
Longwood, FL 32779
Attention: Mr. Carol Kolozs,
President
With a copy by
contemporaneous like means, to: 8214 Westchester Drive Suite 500
Dallas, Texas 75225
Attention: M. Joseph Bates, Esq.
If to the Holder, to: Kashner Davidson Securities
Corporation 77
South Palm A venue
Sarasota, Florida 34236
Attention: Mr. D. Scott Elliot,
Syndicate Manager
With a copy by
contemporaneous like means, to: De Martino Finkelstein Rosen &
Virga
1818 N Street, NW Suite 400
Washington, DC 20036
Attention: Ralph V. De Martino,
Esq.
The Company and each Holder may change such address
at any time or times by notice hereunder to the other.
13. Amendments; Waivers; Terminations; Governing Law; Headings.
This Selling Agent's Warrant and any term hereof may
be changed, waived , discharged or terminated only by an
instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination
is sought. This Selling Agent's Warrant shall be governed by
and construed and interpreted in accordance with the Laws of
the State of Texas. The headings in this Selling Agent's
Warrant are for convenience of reference only and are not part
of this Selling Agent's Warrant.
DATED: 3/2 , 2000
AARICA HOLDINGS INC.
By: /s/ Carol Kolozs
------------------------
Carol Kolozs, President
FORM OF ASSIGNMENT
(To be executed upon transfer of Selling Agent's Warrant)
FOR V ALUE RECEIVED, the undersigned hereby sells,
assigns and transfers to _________________________the right
represented by the within Selling Agent's Warrant, No. SAW -1,
as such right may apply to shares of Common Stock which are
the subject of the within Selling Agent's Warrant, together
with all rights, title and interest therein, and does hereby
irrevocably constitute and appoint ___________________attorney
to Transfer such Selling Agent's Warrant on the warrant
register of the within named Company, with full power of
substitution.
DATED: _____________________
Signature;
-----------------------------
(Signature must
conform in all
respects to name
of Holder as
specified on the
face of the
Selling Agent's
Warrant)
Signature Guaranteed:
-----------------------------
SUBSCRIPTION
(To be completed and signed only upon an exercise of the Selling
Agent's Warrant in whole or in part)
TO: Aarica Holdings Inc.
The undersigned, the Holder of the attached Selling
Agent's Warrant ("Warrant"), hereby irrevocably elects to
exercise the purchase right represented by the Warrant for,
and to purchase thereunder, _____________ shares of Common
Stock (as such term is defined in the Selling Agent's Warrant
dated , _________199__ , from Aarica Holdings Inc. to Kashner
Davidson Securities Corporation) (or other securities or
property), and herewith makes payment of $______ therefore in
cash, by certified or official bank check or such other form
of payment as may be permitted under the Warrant. The
undersigned hereby requests that the Certificate(s) for such
securities be issued in the name(s) and delivered to the
address(es) as follows:
Name:
------------------------------------------------
Address:
------------------------------------------------
Social Security Number: ___________________________________
Deliver to:
------------------------------------------------
Address:
------------------------------------------------
If the foregoing Subscription evidences an exercise
of the Se1ling Agent's Warrant to purchase fewer than all of
the Shares (or other securities or property) to which the
undersigned is entitled under such Selling Agent's Warrant,
please issue a new Selling Agent's Warrant, of like date and
tenor, for the remaining portion of the Selling Agent's
Warrant (or other securities or property) in the name(s), and
deliver the same to the address(es), as follows:
Name:
--------------------------------------------------
Address:
--------------------------------------------------
DATED: ___________________ , 199 ___
-------------------------------------------------------------
(Social Security or Taxpayer Identification (Name of Holder) (Number
of Holder)
------------------------------------
(Signature of Holder or Authorized Signatory)
Signature Guaranteed:
-------------------------------------