Exhibit 4.2
Warrant Number 2004-1
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND THIS WARRANT CANNOT BE
EXERCISED, SOLD OR TRANSFERRED, AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT CANNOT BE SOLD OR TRANSFERRED, UNLESS AND UNTIL THEY
ARE SO REGISTERED OR UNLESS AN EXEMPTION IS THEN AVAILABLE.
Warrant to Subscribe for 500,000 Shares of Common Stock
AGU ENTERTAINMENT CORP.
WARRANT
To Subscribe for and Purchase
Common Stock of
AGU ENTERTAINMENT CORP.
THIS CERTIFIES that, for value received, Galt Financial Corporation, 17
Larkspur Lane, Newtown, PA 18940 or its registered assigns ("Holder"), is
entitled to subscribe for and purchase from AGU ENTERTAINMENT CORP., a Colorado
corporation ("Company"), at an exercise price per share of $1.00 (initially and
as adjusted, if at all, pursuant to the terms and conditions of this Warrant,
the "Exercise Price"), 500,000 fully paid and nonassessable shares of Company's
common stock, no par value per share (the "Common Stock"). This Warrant may be
exercised, in whole or in part, by Holder at any time commencing immediately
after delivery of this Warrant to Holder and prior to and including 5:00 p.m.
Eastern time on the fifth anniversary of the date hereof.
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise; Payment. The rights represented by this Warrant may be
exercised by Holder, in whole or in part, by the surrender of this Warrant at
the principal office of Company properly endorsed and accompanied by payment to
Company of the Exercise Price for that number of shares of Common Stock sought
to be purchased (the "Exercised Shares"), in the manner provided below. Company
agrees that (a) shares purchased upon exercise of this Warrant shall be and are
deemed to be issued to Holder as the record owner of such shares as of the close
of business on the date on which this Warrant shall have been surrendered and
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payment made for such shares as provided herein, and (b) certificates for the
shares of stock so purchased shall be delivered to Holder as promptly as
reasonably practicable following any exercise of this Warrant, and unless this
Warrant shall have been exercised in full, or shall have expired, a new Warrant
representing the number of shares with respect to which this Warrant shall not
yet have been exercised, shall also be delivered to Holder.
Holder may pay the Exercise Price for any Exercised shares in one or a
combination by delivering cash, check, money order or wire transfer of funds to
the Company in the amount of the Exercise Price of the Exercised Shares. In the
event there is a trading market for the Company's common shares, Holder may, at
its option, pay the Exercise Price with registered or unregistered shares of the
Company's common stock, which shall be valued in each instance at the average of
the closing price for said shares as traded on a recognized public trading
market or quoted on a recognized quotation system for the last 20 days
immediately preceding the date of exercise.
2. Shares to be Fully Paid; Reservation. Company covenants and agrees
that all shares which may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance and payment therefor in accordance with
Section 1 above, be fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof; and without limiting the
generality of the foregoing, Company covenants and agrees that it will from time
to time take all such action as may be required to assure that the par value per
share of the Common Stock is at all times equal to or less than the then
effective Exercise Price per share of Common Stock issuable pursuant to this
Warrant. Company further covenants and agrees that when the rights represented
by this Warrant may be exercised, Company will at all times thereafter have
authorized, and reserved for the purpose of issue or transfer upon exercise of
the subscription rights evidenced by this Warrant, a sufficient number of shares
of its Common Stock to provide for the exercise of the rights represented by
this Warrant.
3. Protection Against Dilution.
(a) In the event at any time or from time to time, all holders of
Common Stock (or any other shares of stock or other securities at that time
receivable upon exercise of this Warrant) shall have received, other or
additional or less Common Stock without payment therefor (whether through a
dividend in stock or any class of stock of Company or any other corporation, or
through stock split, spinoff, split-off, reclassification, combination of shares
or otherwise) (a "Distribution"), then, and in each such case, Holder upon the
exercise of this Warrant and payment of the Exercise Price provided above, shall
be entitled to receive, in addition to the shares called for under this Warrant,
the shares or other securities to which Holder would have been entitled in the
Distribution if Holder had exercised this Warrant immediately prior thereto. In
case of the partial exercise of this Warrant under such circumstances, the
number of shares of stock or other securities which would have been receivable
upon the full exercise of this Warrant, and the Exercise Price payable therefor
computed as provided above, shall be proportionately reduced.
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(b) In case of any reorganization of Company, or any other
corporation the stock or securities of which are at the time deliverable on the
exercise of this Warrant, or in case Company or such other corporation shall
consolidate with or merge into another corporation, or convey all or
substantially all of its assets to another corporation, or liquidate, Holder,
upon the exercise hereof and upon the payment of the Exercise Price provided
above, shall be entitled to receive, in lieu of the shares called for under this
Warrant, the stock or other securities to which Holder would have been entitled
upon the consummation of such reorganization, consolidation, merger, conveyance,
or liquidation if Holder had purchased the shares called for hereby immediately
prior thereto; and in such case, the provisions of this Warrant shall be
applicable to the shares of stock or other securities thereafter deliverable
upon the exercise of this Warrant. In the case of the partial exercise of this
Warrant under such circumstances, the number of shares of stock or other
securities which would have been receivable upon the full exercise of this
Warrant, and the Exercise Price payable therefor, shall be proportionately
reduced.
4. No Rights as Shareholder. Until the valid exercise of this Warrant,
the holder hereof shall not be entitled to any voting right or other rights as a
shareholder of Company with respect to this Warrant.
5. Transfer of Warrants. Subject to Section 7 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, without charge to
the Holder, at the office or agency of Company referred to in Section 1 by the
Holder in person or by duly authorized attorney, upon surrender of this Warrant
properly endorsed. Each taker and holder of this Warrant, by taking or holding
the same, consents and agrees that this Warrant, when endorsed in blank, shall
be deemed negotiable, and that the holder hereof, when this Warrant shall have
been so endorsed, may be treated by Company and all other persons dealing with
this Warrant as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented by this Warrant, or to the transfer
hereof on the books of Company, any notice to the contrary notwithstanding; but
until such transfer on such books, Company may treat the registered holder
hereof as the owner for all purposes.
6. Fractional Interests. Company shall not be required to issue
fractional shares of Common Stock upon the exercise of this Warrant. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 6, be issuable upon the exercise of this Warrant (or specified portion
thereof), Company shall pay an amount in cash equal to the Fair Market Value (as
defined below) of such fraction of a Common Share on the business day prior to
the date of such exercise. As used in this Agreement, the "Fair Market Value" of
the Common Stock shall be the closing price of the Common Stock on the date of
determination on the principal stock market or quotation system on which the
Common Stock is then traded; provided, however, if the Common Stock is not, as
of the date of determination of the Fair Market Value, traded on a recognized
public trading market or quoted on a recognized quotation system, then the Fair
Market Value shall be determined by Company on the basis of such valuation as it
considers appropriate.
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7. Compliance With Securities Laws. By acquiring this Warrant from
Company on the date hereof, the Holder hereby agrees, acknowledges, covenants,
represents and warrants as follows:
(a) This Warrant and the shares of Common Stock issuable upon
exercise hereof have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or qualified or registered under any state
securities laws which may be applicable. Holder understands that this Warrant
and such shares of Common Stock have been and will be issued and sold hereunder
in transactions exempt from the registration or qualification requirements of
the Securities Act and applicable state securities laws and Holder acknowledges
that reliance on and the availability of said exemptions is predicated in part
on the accuracy of Holder's representations and warranties herein.
(b) Holder represents and warrants that it is acquiring this
Warrant for its own account, for purposes of investment, and not with a view to,
or for sale in connection with, any distribution thereof within the meaning of
the Securities Act and the rules and regulations promulgated thereunder. Holder
represents, warrants and agrees that it will not sell, exercise, transfer or
otherwise dispose of this Warrant (or any interest therein) or any of the Common
Stock purchasable upon exercise hereof, except pursuant to (i) an effective
registration statement under the Securities Act and applicable state securities
laws or (ii) an opinion of counsel, satisfactory to Company, that an exemption
from registration under the Securities Act and such laws is available. Holder
further acknowledges and agrees that Company is not required, legally or
contractually, so to register or qualify the Warrant or such Common Stock or to
take any action to make such an exemption available. Holder understands that
Company will be relying upon the truth and accuracy of the representations and
warranties contained in this Section 7 in issuing this Warrant and such Common
Stock without first registering the issuance thereof under the Securities Act or
qualifying or registering the issuance thereof under any state securities laws
that may be applicable.
(c) Holder acknowledges that (i) there is not now, and there will
not be in the future, any public market for the Warrant, (ii) although there
currently is a public trading market for the Common Stock, there can be no
assurance that any such market will be sustained, and (iii) there can be no
assurance that Holder will be able to liquidate its investment in Company.
Holder represents and warrants that it is familiar with and understands the
terms and conditions of Rule 144 promulgated under the Securities Act.
(d) Holder represents and warrants to Company that (i) it has such
knowledge and experience in financial and business matters as is necessary to
enable it to evaluate the merits and risks of any investments in Company and is
not utilizing any other person to be a purchaser representative in connection
with evaluation of such merits and risks; and (ii) it has no need for liquidity
in an investment in Company and is able to bear the risk of that investment for
an indefinite period and to afford a complete loss thereof.
(e) Holder represents and warrants that it has had access to, and
has been furnished with, all of the information it has requested from Company
and has had an opportunity to review the books and records of Company and to
discuss with management and members of the board of directors of Company the
business and financial affairs of Company.
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(f) Holder agrees that at the time of each exercise of this
Warrant, unless the issuance of shares of Common Stock issuable thereupon is
pursuant to an effective registration statement under the Securities Act, Holder
will provide Company with a letter embodying the representations and warranties
set forth in subsections (b) through (e), in form and substance satisfactory to
Company, and agrees that the certificate(s) representing any shares issued to it
upon any exercise of this Warrant may bear such restrictive legend as Company
may deem necessary to reflect the restricted status of such shares under the
Securities Act unless Company shall have received from Holder an opinion of
counsel to Holder, reasonably satisfactory in form and substance to Company,
that such restrictive legend is not required. If such legend is placed on such
certificate(s), before consenting to the removal of such legend and the transfer
of such shares, unless the request to remove such legend is made in connection
with a sale or transfer of the shares represented by such certificate in a
transaction registered under Section 5 of the Securities Act, Company may insist
upon the delivery to it of an opinion from counsel to Holder, reasonably
satisfactory in form and substance to Company, that the contemplated transfer
does not constitute a violation of the Securities Act.
8. Notice. Company covenants and agrees to give notice in writing to
Holder at least 10 days prior to (or, if later, then as soon as reasonably
practicable prior to) any action contemplated which would affect the per share
Exercise Price, or number of shares purchasable upon exercise of this Warrant;
provided, however, any failure of Company to provide such notice shall not
affect the validity of any action by Company. Any notice, request or other
communication provided for under this Warrant shall be given in writing,
delivered by hand, by overnight United States Mail, return receipt requested,
postage prepaid, or through a reputable courier service (such as Federal
Express) and shall be addressed to Company or to the Holder at the address shown
below, unless notice of a change in address is furnished in accordance with this
paragraph:
If to Company:
AGU Entertainment Corp.
11077 Biscayne Blvd, Suite 101
Miami, FL 33161
Attn: David Levy, President
If to Holder:
Galt Financial Corporation
17 Larkspur Lane
Newtown, PA 18940
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9. Descriptive Headings and Governing Law. The descriptive headings of
the several paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant. This Warrant is being delivered and is
intended to be performed in the State of Florida and shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of such state. In the event of controversy arising out of the
interpretation construction, performance or breach of this Agreement, the
parties hereby agree and consent to the jurisdiction and venue of the District
or County Court of Dade County, Florida; or the United States District Court for
the Southern District of Florida, and further agree and consent that personal
service or process in any such action or proceeding outside of the State of
Florida and Dade County shall be tantamount to service in person within Dade
County, Florida and shall confer personal jurisdiction and venue upon either of
said Courts.
IN WITNESS WHEREOF, AGU Entertainment Corp has caused this Warrant to
be signed by its duly authorized officers under its corporate seal, this 15th
day of September, 2004.
AGU Entertainment Corp.
By: /s/ David C. Levy
--------------------------
David C. Levy, President
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ELECTION TO PURCHASE
The undersigned Holder hereby irrevocably elects to exercise the within
Warrant to purchase (___________)* Shares of Common Stock issuable upon exercise
thereof to and requests that certificates for such Shares be issued in
his/her/its name and delivered to him/her/it at the following
address:________________
___________________________________________________________
___________________________________________________________.
Date:_________________
___________________________________________________________
Signature(s)**
- ----------
* If the Warrant is to be exercised or transferred in its entirety, insert the
word "All" before "Shares"; otherwise insert the number of shares then
purchasable on the exercise thereof as to which transferred or exercised. If
such Warrants shall not be transferred or exercised to purchase all shares
purchasable upon exercise thereof, that a new Warrant to purchase the balance of
such shares be issued in the name of, and delivered to, the Holder at the
address stated below.
** Signature(s) must conform exactly to the name(s) of the Holder as set forth
on the first page of this Warrant.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
the within Warrant to the extent of (________)* Shares purchasable upon exercise
thereof to ____________________________, whose address is
_________________________________________________ and hereby irrevocably
constitute and appoint ____________________ his/her/its Attorney to transfer
said Warrant on the book of the Company, with full power of substitution.
Date:_______________________
__________________________________________________________
Signature(s)**
- ----------
* If the Warrant is to be exercised or transferred in its entirety, insert the
word "All" before "Shares"; otherwise insert the number of shares then
purchasable on the exercise thereof as to which transferred or exercised. If
such Warrants shall not be transferred or exercised to purchase all shares
purchasable upon exercise thereof, that a new Warrant to purchase the balance of
such shares be issued in the name of, and delivered to, the Holder at the
address stated below.
** Signature(s) must conform exactly to the name(s) of the Holder as set forth
on the first page of this Warrant.
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