WARRANT AGENCY AGREEMENT, dated as of , 1997 (the
"Agreement") by and between EMILY ANNIE, INC., a New York corporation with
principal offices at 392 Central Park West, New York, New York 10025 (the
"Company") and OXFORD TRANSFER & REGISTRAR AGENCY, INC., 1130 S.W. Morrison,
Suite 250, Portland, Oregon 97205 (the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the creation of an issue of
warrants to be evidenced by certificates substantially in the form of Exhibit
A and B hereto ("Warrant Certificates") each warrant ("Warrant") entitling the
registered holder thereof to purchase, subject to the provisions of the
Warrant Certificate and this Agreement, one share of the Common Stock, $.0001
par value, of the Company (the "Common Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with
the issuance, registration, transfer, exchange and replacement of the Warrant
Certificates and exercise of the Warrants; and
WHEREAS, the Company and the Warrant Agent desire to set forth in
this Agreement the terms and conditions upon which the Warrant Certificates
shall be issued, transferred, exchanged and replaced and the Warrants
exercised, and to provide for the rights of the holders of the Warrants;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the Company and the Warrant Agent agree as
follows:
ARTICLE I
Issuance and Execution of Warrants
Section 1.01. The Company hereby appoints the Warrant Agent to
act on behalf of the Company in accordance with the provisions hereinafter in
this Agreement set forth, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with such provisions.
Section 1.02. The Warrant Certificates shall be issued in
registered form only. The text of the Warrant Certificates, including the
form of assignment and subscription to be printed on the reverse side thereof
shall be substantially in the form of Exhibit A and B hereto which text is
hereby incorporated into this Agreement by reference as though fully set forth
herein. Each Warrant Certificate shall evidence the right, subject to the
provisions of this Agreement and of such Warrant Certificate, to purchase the
number of fully paid and non-assessable shares of Common Stock stated therein,
subject to adjustment as provided in Article III.
Section 1.03. Upon the written order of the Company, signed by
the President or any Vice-President and the Secretary, Treasurer, Assistant
Secretary or Assistant Treasurer of the Company, the Warrant Agent shall issue
and register Warrants in the names and denominations specified in said order,
and will countersign and deliver Warrant Certificates evidencing the same in
accordance with said order. Each Warrant Certificate shall be executed on
behalf of the Company by the manual or facsimile signature of the President or
any Vice-President of the Company, under its corporate seal, affixed or
facsimile, attested by the manual or facsimile signature of the Secretary or
an Assistant Secretary of the Company and shall be countersigned manually by
the Warrant Agent. The Warrant Certificates shall not be valid for any
purpose unless so countersigned. In case any officer whose facsimile ceased
to be such before such Warrant Certificate is issued, it may be issued with
the same effect as if such officer had not ceased to be such at the date of
issuance.
Section 1.04. (1) The term "Warrant Holder" as used herein
shall mean any person in whose name at the time any Warrant shall be
registered upon the books to be maintained by the Warrant Agent for that
purpose.
(2) The term "Business Day" as used herein shall
mean a day other than a Saturday, Sunday or other day on which banks in the
State of New York are authorized by law to remain closed.
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.01. Persons intending to exercise their redeemable Class
A Warrants must present the Warrant and the exercise price to the Company's
Transfer Agent, in order to receive one (1) share of Common Stock. Each Class
A Warrant is exercisable at an exercise price of $7.00 from the Closing Date
of this offering and continuing for three (3) years, at which time the
Warrants expire. The Class A Warrants are immediately detachable.
For each Class B Warrant, the holder is entitled to receive one (1) share
of Common Stock, at an exercise price of $6.00 from the Closing Date and
continuing for four (4) years thereafter, at which time the Warrants expire.
Section 2.02. Subject to the provisions of Section 4.01,
paragraph (4) of Section 4.03 and the form of reverse side of the Warrant
Certificate, both Classes of Warrants may be exercised at any time prior to
the expiration date at 5:00 P.M. New York State time if such date shall be a
Business Day; and if not then at or before 5:00 P.M. New York State time on
the next following Business Day. Any Warrants not exercised during said
period shall become void and all rights thereunder and all rights in respect
thereof under this Agreement shall cease at the end of such period.
Section 2.03. (1) The Warrant Holder may exercise a Warrant,
in whole or in part, upon surrender of the Warrant Certificate, with the
exercise form thereon duly executed to the Warrant Agent at its corporate
office, together with the Warrant Price for each share of Common Stock to be
purchased in New York Clearing House funds or other funds acceptable to the
Company.
(2) Upon receipt of a Warrant Certificate with
the exercise form duly executed and accompanied by payment of the aggregate
Warrant Price for the shares of Common Stock for which the Warrant is then
being exercised, the Warrant Agent shall requisition from the transfer agent
certificates for the total number of whole shares (as provided in Section
4.04) of Common Stock for which the Warrant is being exercised in such names
and denominations as are required for delivery to the Warrant holder, and the
Warrant Agent shall thereupon deliver such certificate to or in accordance
with the instructions of the Warrant Holder. The Company covenants and agrees
that it has duly authorized and directed its transfer agent (and will
authorize and direct all its future transfer agents) to comply with all such
requests of the Warrant Agent.
(3) In case any Warrant Holder shall exercise his
Warrant with respect to less than all of the shares of Common Stock that may
be purchased under such Warrant, a new Warrant Certificate for the balance
shall be countersigned and delivered to or upon the order of such Warrant
Holder.
(4) The Company covenants and agrees that it will
pay, when due and payable, any and all taxes which may be payable in respect
of the issue of Warrants, or the issue of any shares of Common Stock upon the
exercise of Warrants. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issuance
or delivery of Warrant Certificates or shares of Common Stock in a name other
than that of the Warrant Holder at the time of surrender, and until the
payment of such tax, shall not be required to issue such Common Stock.
(5) The Warrant Agent shall account promptly to
the Company with respect to Warrants exercised and currently account to the
Company for moneys received by the Warrant Agent for the purchase of shares of
Common Stock upon the exercise of Warrants.
(6) The Class A Warrants and the Class B Warrants are
immediately detachable and tradeable separately.
ARTICLE III
Adjustment of Shares of Common Stock
Purchasable and of Warrant Price
Section 3.01. Subject and pursuant to the provisions of this
Section (3.01), 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) In case the Company shall declare a dividend or make any
other distribution upon any stock of the Company payable in Common Stock, the
Warrant Prices shall be proportionately decreased as of the close of business
on the date of record of said dividend.
(B) If the Company shall at any time subdivide its outstanding
Common Shares by recapitalization, reclassification or split-up thereof, the
Warrant Price immediately prior to such subdivision shall be proportionately
decreased, and if the Company shall at any time combine the outstanding Common
Shares by recapitalization, reclassification or combination thereof, the
Warrant Price immediately prior to such combination shall be proportionately
increased. Any such adjustment to the Warrant Price shall become effective at
the close of business on the record date for such subdivision or combination.
(C) Upon any adjustment of the Warrant Price as hereinabove
provided, the number of Common Shares issuable upon exercise of this Warrant
shall be changed to the number of shares determined by dividing (i) the
aggregate Warrant Price payable for the purchase of all shares issuable upon
exercise of this Warrant immediately prior to such adjustment by (ii) the
Warrant Price per share in effect immediately after such adjustment.
(D) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, cash, or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the Company
or such successor or purchasing corporation as the case may be, shall execute
with the Warrant Agent a supplemental Warrant Agreement providing that each
registered holder of a Warrant shall have the right thereafter and until the
expiration date to exercise such Warrant for the kind and amount of stock
securities, cash, or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale by a holder of the number of
shares of Common Stock, for the purchase of which such Warrant might have been
exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 3.01.
(E) 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.
(F) The form of Warrant need not be changed because of any
change pursuant to this Article, and Warrants issued after such change may
state the same Warrant Price and the same number of shares as it 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 affect the substance thereof; and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant
or otherwise, may be in the form as so changed.
ARTICLE IV
Other Provisions Relating to Rights of Warrant Holders
Section 4.01. No Warrant Holder, as such, shall be entitled to
vote or receive dividends or be deemed the holder of shares of Common Stock
for any purpose, nor shall anything contained in any Warrant Certificate be
construed to confer upon any Warrant Holder, as such, any of the rights of a
shareholder of the Company or any right to vote, give or withhold consent to
any action by the Company or any right to vote, give or withhold consent to
any action by the Company (whether upon any recapitalization, issue of stock,
consolidation, merger, conveyance or otherwise), receive notice of meetings or
other action affecting shareholders (except for notices provided for in 7.02
hereof), receive dividends or subscription rights, or otherwise, until such
Warrant shall have been exercised and the shares of Common Stock purchasable
upon the exercise thereof shall have become deliverable as provided in this
Agreement provided, however, that any such exercise on any date when the stock
transfer books of the Company shall be closed shall constitute the person or
persons in whose name or names the certificate or certificates for such shares
of Common Stock are to be issued as the record holder or holders thereof for
all purposes at the opening of business on the next succeeding day on which
such stock transfer books are open and the Warrant surrendered shall not be
deemed to have been exercised, in whole or in part as the case may be, until
such date for the purpose of determining entitlement to dividends on such
Common Stock, and such exercise shall be at the actual Warrant Price in effect
at such date.
Section 4.02. If any Warrant Certificate is lost, stolen,
mutilated or destroyed, the Company and the Warrant Agent may, on such terms
as to indemnity or otherwise as they may in their discretion impose (which
shall, in the case of a mutilated Warrant Certificate, include the surrender
thereof), issue a new Warrant Certificate of like denomination and tenor as,
and in substitution for, the Warrant Certificate so lost, stolen, mutilated or
destroyed.
Section 4.03. (1) The Company covenants and agrees that at
all times it shall reserve and keep available for exercise of Warrants such
number of authorized shares of Common Stock as shall be required to permit the
exercise in full of all outstanding Warrants and that it will make available
to the Warrant Agent from time to time a number of duly executed certificates
representing shares of Common Stock sufficient thereof.
(2) Prior to the issuance of any shares of Common
Stock upon exercise of Warrants, the Company shall secure the listing of such
shares of Common Stock upon any securities exchange upon which shares of
Common Stock are then listed.
(3) The Company covenants that all shares of
Common Stock issued on exercise of Warrants will be validly issued, fully
paid, non-assessable and free of preemptive rights and that, if the taking of
any action would cause an adjustment in the Warrant Price so that the exercise
of a Warrant while such Warrant Price is in effect would cause a share of
Common Stock to be issued at a price below its then par value, the Company
will take such action as may, in the opinion of counsel, be necessary in order
that upon exercise of the Warrants it may validly and legally issue shares of
Common Stock that are fully paid, non-assessable and free of preemptive
rights.
(4) The Company will from time to time, furnish
the Warrant Agent with current Prospectuses meeting the requirements of the
Act in sufficient quantity to permit the Warrant Agent to deliver a Prospectus
to each registered holder of a Warrant Certificate upon exercise thereof. The
Company further agrees to pay all fees, costs and expenses in connection with
the preparation and delivery to the Warrant Agent of the Prospectus and to
immediately notify the Warrant Agent in the event that (i) the Commission
shall have issued or threatened to issue any order preventing or suspending
the use of the Prospectus or suspending or revoking the exemption upon which
such Prospectus was based; (ii) at any time the Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) for any reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Act.
Section 4.04. Anything contained herein to the contrary
notwithstanding, the Company shall not be required to issue any fraction of a
share of Common Stock in connection with the exercise of any Warrant, and in
any case where the Warrant Holder would, except for the provisions of this
Section 4.04, be entitled under the terms of this Agreement to receive a
fraction of a share of Common Stock upon the exercise of a Warrant, the
Company shall, upon the exercise of the Warrant and receipt of the Warrant
Price, issue the largest number of whole shares of Common Stock to which such
Warrant or Warrants are entitled and if the Holder so elects at the time he
exercises any Warrant, he may pay in cash for an additional fractional share
in order to round out any fraction of a share of Common Stock to which he
would otherwise be entitled upon exercise into one whole share. The amount
which said Holder shall pay for such additional share shall be an amount in
cash equal to the current value of such fraction computed on the basis of the
mean between the high bid and low asked prices in the over-the-counter market
for shares of Common Stock on the last Business Day prior to the date of
exercise on which such bid and asked prices shall have been quoted as reported
by The National Quotation Bureau Incorporated, but if the Common Stock is
listed to trading on a national securities exchange (or similar central
market), on the basis of the last reported sale price for shares of Common
Stock on the principal such exchange or central market, on the last Business
Day prior to the Date of Exercise upon which such a sale shall have been
effected. If the Holder does not elect to purchase such additional fractional
share at the time he exercises such Warrant, any fractional share to which he
would otherwise be entitled upon conversion shall immediately be null and
void.
Section 4.05. Notice to Warrant Holders provided for in Section
7.02 hereof shall be deemed given or made by the Company if sent by mail,
first-class or registered, postage prepaid, addressed to the Warrant Holders
at their last known addresses as they shall appear on the register maintained
by the Warrant Agent.
ARTICLE V
Treatment of Warrant Holders
Section 5.01. Prior to due presentment for registration or
transfer of any Warrant, the Company and the Warrant Agent may deem and treat
the Warrant Holder as the absolute owner of such Warrant (notwithstanding any
notation of ownership or other writing thereon) for the purpose of any
exercise thereof and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
ARTICLE VI
Split-up, Combination, Exchange and Transfer of Warrants
Section 6.01. Any Warrant or Warrants may be split up, combined
or exchanged for another Warrant or Warrants to purchase a like aggregate
number of shares of Common Stock or may be transferred in whole or in part as
provided in this Section 6.01. Any Warrant Holder desiring to split up,
combine or exchange any Warrant or Warrants shall make such request in writing
delivered to the Warrant Agent at its corporate office and shall surrender the
Warrant Certificate or Certificates representing such Warrant or Warrants to
be so split up, combined or exchanged at said office. Registration of
transfers of an outstanding Warrant or outstanding Warrants shall be effected
by the Warrant agent, from time to time upon the books to be maintained by the
Warrant Agent for that purpose, upon surrender of the Warrant Certificate or
Certificates representing such Warrant or Warrants to the Warrant Agent at its
corporate office for registration of transfer, duly endorsed or accompanied by
written instruments of transfer and written instructions for transfer, all in
form satisfactory to the Company and the Warrant Agent, duly executed by the
Warrant Holder or his attorney duly authorized in writing. Upon any such
surrender for a split-up, combination, exchange or registration of transfer,
the Warrant Agent shall countersign and deliver to the person entitled thereto
a Warrant Certificate or Warrant Certificates, as the case may be, as so
requested. The Warrant Agent shall not be required to effect any registration
of transfer, split-up or exchange which will result in the issuance of a
Warrant entitling the Warrant Holder to purchase upon exercise a fraction of a
share of Common Stock or a number of whole shares of Common Stock and a
fraction of a share of Common Stock, unless one or more of the Warrants
delivered to the Warrant Agent to effect such registration of transfer,
split-up or exchange entitles the Warrant Holder to purchase upon exercise a
fraction of a share of Common Stock, and in such latter event, the Warrant
Agent shall not be required in connection with such registration of transfer,
split-up or exchange to issue more than one Warrant which entitled the Warrant
Holder thereof to acquire a fraction of a share of Common Stock or a number of
whole shares of Common Stock and a fraction of a share of Common Stock. The
Warrant Agent may require such Warrant Holder to pay a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
split-up, combination, exchange or registration of transfer of Warrants.
ARTICLE VII
Concerning the Warrant Agent and Other Matters
Section 7.01. The Company will from time to time promptly pay,
subject to the provisions of Section 2.03, all taxes and charges that may be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants.
Section 7.02. (1) The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving two weeks notice in writing to
the Company and to each registered Warrant Holder in accordance with the
provisions of Section 4.05. If the office of the Warrant Agent becomes vacant
by resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent, then any Warrant Holder may apply to
any court of competent jurisdiction for the appointment of a successor Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or by
such a court, shall be a corporation, firm or entity having its principal
office in the United States of America, organized in good standing and doing
business under the laws of the United States of America, or any state thereof,
and authorized under such laws to exercise corporate trust or corporate agency
powers and subject to supervision or examination by Federal or State authority
and having a combined capital and surplus of not less than $35,000. The
combined capital and surplus of any such successor Warrant Agent shall be
deemed to be the combined capital and surplus as set forth in the most recent
report of its condition published at least annually pursuant to law or to the
requirements of a Federal or State supervising or examining authority. After
appointment, any successor Warrant Agent shall be vested with all the
authority, powers, rights, immunities, duties and obligations of its
predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but the former Warrant Agent
shall deliver and transfer to its successor any property at the time held by
it hereunder and, if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers and rights of such predecessor Warrant Agent hereunder; and,
upon request of any successor Warrant Agent, the Company shall make, execute,
acknowledge and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties and obligation. Not later than
the effective date of any such appointment, the Company shall give notice
thereof to the predecessor Warrant Agent and each transfer agent for the
Common Stock, and shall forthwith give notice thereof to the Warrant Holders
in accordance with the provisions of Section 4.05. Failure to give such
notice, or any defect therein, shall not affect the validity of the
appointment of the successor Warrant Agent.
(2) Any corporation into which the Warrant Agent
may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which Warrant Agent shall be a
party, or any corporation succeeding to all or substantially all the corporate
agency business of the Warrant Agent, shall be the successor Warrant Agent
under this Agreement without 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 the preceding paragraph. In
case at the time such successor to the Warrant Agent shall succeed to the
agency created by this Agreement, and in case at that time any of the Warrant
Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agency may adopt the countersignature of the
predecessor Warrant Agent and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, any successor to the Warrant Agent may
countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor Warrant Agent; and in all such
cases such Warrant Certificates shall have the full force and effect provided
in the Warrant Certificates 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 Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent may adopt the countersignature under its
prior name and deliver Warrant Certificates so countersigned; and in case at
that time any of the Warrant Certificates shall not have been countersigned,
the Warrant Agent may countersign such Warrant Certificates either in its
prior name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force and effect provided in the Warrant
Certificates and in this Agreement.
Section 7.03. The Company agrees (i) that it will pay the
Warrant Agent reasonable compensation for its services hereunder and will
reimburse the Warrant Agent upon demand for all expenditures that the Warrant
Agency may reasonably incur in the execution of its duties hereunder; and (ii)
that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Agreement.
Section 7.04. 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 the Warrants, by their
acceptance thereof, shall be bound:
A. The Statements contained herein and in the Warrant
Certificates 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 described the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the execution,
delivery or distribution of Warrant Certificates except as herein 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 Warrant Certificates to be complied with by the Company,
nor shall it at any time be under any duty or responsibility to any Warrant
Holder, to make or cause to be made any adjustment of the Warrant Price or of
the shares of Common Stock, or to determine whether any facts exist which may
require any of such adjustments, or with respect to the nature or extent of
any such adjustments when made, or with respect to the method employed in
making same;
C. The Warrant Agent may consult with its counsel or
other counsel satisfactory to it (including counsel for the Company) and the
opinion of such counsel shall be full and complete authorization in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion of such counsel provided the Warrant Agent shall
have exercised reasonable care in the selection of such counsel;
D. The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
E. 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 Warrant
Holders shall furnish the Warrant Agent with reasonable security and indemnity
for any costs and expenses which may be incurred. 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 Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent may 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;
F. The Warrant Agent and any stockholder, director,
officer 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 the Company or otherwise act as fully and freely as though it
were not Warrant Agent under this Agreement. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Company or for any
other legal entity;
G. The Warrant Agent shall act hereunder solely as
agent 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
willful misconduct;
H. The Warrant Agent shall not be under any
responsibility with respect to the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Warrant Agent) or
in respect of the validity or execution of any Warrant Certificate (except its
countersignature thereof), nor shall the Warrant Agent by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock or other securities, property or
cash to be issued pursuant to this Agreement or any Warrant Certificate or as
to whether any shares of Common Stock or other securities or property will
then issued be validly issued, fully paid and non-assessable or as to the
Warrant Price or the number of, kind or amount of shares of Common Stock or
other securities, other property or cash issuable upon exercise of any
Warrant;
I. The Warrant Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties hereunder
from the President and Vice President, the Treasurer or the Secretary of the
Company, and to apply to such officers for advice or instructions in
connection with its duties, and shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with instructions of
any such officer or in good faith reliance upon any statement signed by any
one of such officers of the Company with respect to any fact or matter (unless
other evidence in respect thereof is herein prescribed) which may be deemed to
be conclusively proved and established by such signed statement;
J. The Warrant Agent shall cancel any Warrant
Certificate delivered to it for exercise, in whole or in part, or delivered to
it for registration of transfer or exchange or substitution and shall deliver
to the Company from time to time, or otherwise dispose of, such canceled
Warrant Certificate in a manner specified in writing by the Company; and
K. The Company agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense,
including judgments, costs and counsel fees, for anything done or omitted by
the Warrant Agent arising out of or in connection with this Agreement, except
as a result of the Warrant Agent's negligence or bad faith.
Section 7.05. The Warrant Agent may, without the consent or
concurrence of the Warrant Holder, by supplemental agreement or otherwise,
concur with the Company in making any changes or corrections in this Agreement
that it shall have been advised by counsel (who may be counsel for the
Company) are required to cure any ambiguity or to correct any defective or
inconsistent provision or clerical omission or mistake or manifest error
herein contained, or to confer additional rights upon the Warrant Holders.
Section 7.06. All 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 7.07. Forthwith upon the appointment after the date
hereof of any transfer agent other than Certificate Transfer Company, or if
any subsequent transfer agent for the Common Stock, the Company will file with
the Warrant Agent a statement setting forth the name and address of such
transfer agent.
Section 7.08. Any notice or demand authorized by this Agreement
to be given or made by the Warrant Agent or by the holder of any Warrant to or
on the Company shall be sufficiently given or made of sent by registered mail,
postage prepaid, addressed (until another addressed is filed in writing by the
Company with the Warrant Agent) as follows:
EMILY ANNIE, INC.
392 Central Park West
New York, New York 10025
Attn: Emily Putterman
Any notice or demand authorized by this Agreement to be given or made by the
holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given or made of sent by registered mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company), as follows:
OXFORD TRANSFER & REGISTRAR AGENCY, INC.
1130 S.W. Morrison, Suite 250
Portland, Oregon 97205
Any notice or demand authorized by this Agreement to be given or made by the
Company or the Warrant Agent to or on the Warrant Holders shall be given in
accordance with the provisions of Section 4.05.
Section 7.09. The validity, interpretation and performance of
this Agreement and of the Warrants shall be governed by the law of the State
of New York.
Section 7.10. Nothing in this Agreement expressed and nothing
that may be implied from any of the provisions hereof is intended or shall be
construed to confer upon, or give to any person or corporation other than the
parties hereto and the Warrant Holders any right, remedy or claim under
promise or agreement hereof, and all covenants, conditions, stipulations,
promises and agreements in this Agreement contained shall be for the sole and
exclusive benefit of the parties hereto and their successors and of the
Warrant Holders.
Section 7.11. A copy of this Agreement shall be available at all
reasonable times at the business offices of the Warrant Agent in Portland,
Oregon, for inspection by any Warrant Holder at which time the Warrant Agent
may require the Warrant Certificate for inspection by it.
Section 7.12. This Agreement shall terminate on the Expiration
Date, on such earlier date upon which all Warrants have been exercised, except
that the Warrant Agent shall account to the Company pursuant to Paragraph (5)
of Section 2.03 for all cash held by it. The provisions of Section 7.04 shall
survive such termination.
Section 7.13. The Article headings herein are for convenience
only and are not part of this Agreement and shall not affect the
interpretation thereof.
Section 7.14. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto under their respective seals as of the day and year first above
written.
ATTEST:
EMILY ANNIE, INC.
By:
Emily Putterman
ATTEST: OXFORD TRANSFER & REGISTRAR AGENCY, INC.
By:
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this day of , 19 , before me personally came
EMILY PUTTERMAN, to me known, who, being by me duly sworn, did depose and say
that her address is 209 Columbus Avenue, New York, New York 10023, that she is
President of EMILY ANNIE, INC., described herein and which executed the above
instrument; that he knows that seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation and that he signed his name thereto
by like order.
Notary Public
STATE OF )
) SS.:
COUNTY OF )
On this day of , 19 , before me personally
came , to me known, who, being duly sworn, did depose and say
that s/he resides at , that s/he is an authorized
signatory of OXFORD TRANSFER & REGISTRAR AGENCY, INC., the entity described in
and which executed the above instrument.
Notary Public