<PAGE>
SECURITIES AND EXHCHANGE COMMISSION
WASHINGTON, D.C. 28594
FORM 10--SB
AMENDMENT NO. 1
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
UNDER SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
001-15179
------------------------------------------------
Commission file Number
H-Quotient, Inc.
------------------------------------------------
(Name of Small Business Issuer in its charter)
Virginia 54-1947753
- ------------------------------ ------------------------------------
(State of jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12030 Sunrise Valley Drive, Suite 205, Reston, VA 20191
- -------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Issuer's telephone number (703) 716-0100
---------------
Securities to be registered under Section 12(b) of the Act;
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------------------ ------------------------------------
- ------------------------------ ------------------------------------
Securities to be registered under Section 12(g) of the Act:
Common Stock
---------------------------------------
(Title of class)
---------------------------------------
(Title of class)
The undersigned registrant hereby files this Amendment No.1 to its Form 10-SB to
correct an error on page 47 thereof and to correct and refile, as corrected,
Exhibit 4.10, the Warrant Agreement between the Company and the Warrant Agent.
<PAGE>
CORRECTED PAGE 47
<PAGE>
(1) These warrants are redeemable by the company at $.10 per warrant if the
market price for our Common Stock exceeds $8.50 per share for 20 trading
days within a period of 30 consecutive trading days.
(2) These warrants were issued to investment banking groups for services in
placing financing for us.
(3) These warrants were issued to Aesop Financial Corporation, in consideration
for its contribution of certain assets it acquired in foreclosure of a
former subsidiary of the Company. Aesop is an affiliate of the Steven W.
Bingaman 1966 Trust, a principal stockholder of the Company.
In addition to the above, we authorized the issuance of 7,526,784 Class
A Redeemable Common Stock Purchase Warrants to stockholders as of June 14, 1999.
These Class A Warrants expire June 11, 2004 and entitle the holder of each
Warrant for the period commencing June 14, 2000 to June 11, 2004 to purchase one
share of Common stock at a purchase price of $5.00 per share. We may redeem the
Class A Warrants at any time at $.10 per Warrant during the exercise period if
the market price for the shares equals or exceeds $6.00 per share during any
five (5) trading days within a period of thirty consecutive trading days prior
to such redemption.
47
<PAGE>
(Corrected)
================================================================================
H-QUOTIENT, INC.
AND
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
--------------
WARRANT AGREEMENT
(CLASS A REDEEMABLE COMMON STOCK PURCHASE WARRANTS)
Dated as of June 14, 1999
================================================================================
<PAGE>
WARRANT AGREEMENT, dated as of the 14th day of June, 1999, by
and between H-QUOTIENT, INC., a New York corporation (the "Company"), and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation.
WITNESSETH:
WHEREAS, the Company desires to provide for the issuance of
Class A Redeemable Warrants ("Class A Warrants"); and
WHEREAS, the Company desires Continental Stock Transfer &
Trust Company to act on behalf of the Company, and Continental Stock Transfer &
Trust Company is willing to so act, in connection with the issuance,
registration, and transfer of such Class A Warrants and the exercise of the said
Warrants.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth and for the purpose of defining the
terms and provisions of the Class A Warrants and the respective rights and
obligations thereunder of the Company, and Continental Stock Transfer & Trust
Company, the parties hereto agree as follows:
SECTION 1. Definitions. As used herein, the following terms
shall have the following meanings, unless the context shall otherwise requires:
(a) "Common Stock" shall mean stock of the Company of any
class, whether now or hereafter authorized, which has the right to participate
in the voting and in the distribution of earnings and assets of the Company
without limit as to amount or percentage.
-2-
<PAGE>
(b) "Corporate Office" shall mean the office of the Warrant
Agent at which at any particular time its principal business in New York, New
York, shall be administered, which office is located on the date hereof at 2
Broadway, 19th Fl., New York, New York 10004.
(c) "Exercise Date" shall mean, subject to the provisions of
Section 5(b) hereof, as to any Class A Warrant, the date on which the Warrant
Agent shall have received both (i) the Class A Warrant Certificate representing
such Warrant, with the exercise form thereon duly executed by the Registered
Holder thereof or his attorney duly authorized in writing, and (ii) payment in
cash or by check made payable to the Company of the amount in lawful money of
the United States of America equal to the applicable Purchase Price in good
funds.
(d) "Initial Class A Warrant Exercise Date" shall mean
June 14, 2000.
(e) "Initial Class A Warrant Redemption Date" shall mean
October 1, 2000.
(f) "Purchase Price" shall mean $5.00.
(g) "Registered Holder" shall mean the person in whose name
the Class A Warrants shall be registered on the books maintained by the Warrant
Agent pursuant to Section 6(b) hereof.
(h) "Subsidiary" or "Subsidiaries" shall mean any corporation
or corporations, as the case may be, of which stock having ordinary power to
elect a majority of the board of directors of such corporation or corporations
(regardless of whether or not at the time the stock of any other class, or
classes of such corporation shall have or may have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by the
Company or by one or more Subsidiaries, or by, the Company and one or more
Subsidiaries.
-3-
<PAGE>
(i) "Transfer Agent" shall mean Continental Stock Transfer &
Trust Company, New York, New York, or its authorized successor.
(j) "Warrant Agent" shall mean Continental Stock Transfer &
Trust Company, New York, New York or its authorized successor.
(k) "Class A Warrant Certificate" shall mean a Class A Warrant
substantially in the form annexed hereto as Exhibit A.
(l) "Class A Warrant Expiration Date" shall mean, unless the
Class A Warrants are redeemed as provided in Section 9 hereof prior to such
date, 5:00 p.m. (New York time) on June 11, 2004 or, if such date shall in the
State of New York be a holiday or a day on which banks are authorized to close,
then 5:00 p.m. (New York time) on the next following day which in the State of
New York is not a holiday or a day on which banks are authorized to close,
subject to the Company's right, prior to the Class A Warrant Expiration Date to
extend such Class A Warrant Expiration Date on five (5) business days prior
written notice to the Registered Holders.
SECTION 2. CLASS A Warrants and Issuance of Class A Warrant
Certificates.
(a) Each Class A Warrant shall initially entitle the
Registered Holder of the Class A Warrant Certificate representing such Warrant
to purchase at the Purchase Price therefor from the Initial Warrant Exercise
Date until the Warrant Expiration Date one (1) share of Common Stock upon the
exercise thereof, subject to modification and adjustment as provided in Section
8 hereof.
-4-
<PAGE>
(b) Upon execution of this Agreement, Class A Warrants
Certificates representing, inter alia, up to 7,526,784 Class A Warrants to
purchase up to an aggregate of 7,526,784 shares of Common Stock (subject to
modification and adjustment as provided in Section 8 hereof) shall be executed
by the Company and delivered to the Warrant Agent.
(c) From time to time, up to the Class A Warrant Expiration
Date, the Warrant Agent shall countersign said Class A Warrants in required
denominations of one or whole number multiples thereof to the person entitled
thereto in connection with any transfer or exchange permitted under this
Agreement. Except as provided in Section 7 hereof, no Class A Warrant
Certificates shall be issued except (i) Certificates initially issued hereunder,
(ii) Certificates issued upon any sale transfer or exchange of such Class A
Warrants (iii) Certificates issued in replacement of lost, stolen, destroyed or
Certificates pursuant to Section 7 hereof, and (iv) at the option of the
Company, Class A Warrant Certificates in such form as may be approved by its
Board of Directors, to reflect any adjustment or change in the number of shares
of Common Stock purchasable upon the exercise of the Class A Warrants made
pursuant to Section 8 hereof.
SECTION 3. Form and Execution of Class A Warrant Certificates.
(a) The Class A Warrant Certificates shall be substantially in
the form annexed hereto as Exhibit A (the provisions of which are hereby
incorporated herein) and may have such letters, numbers or other marks of
identification or designations and legends, summaries or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Series A Units may be
listed, or to conform to usage. The Class A Warrant Certificates shall be dated
the date of issuance thereof (whether upon initial issuance, transfer, exchange
or in lieu of mutilated, lost, stolen or destroyed Class A Warrant
Certificates).
-5-
<PAGE>
(b) Class A Warrant Certificates shall be executed on behalf
of the Company by its Chairman of the Board, President or any Vice President and
by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, by manual signatures or by facsimile signatures printed thereon, and
shall have imprinted thereon a facsimile of the Company's seal. The Class A
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Class A Warrant Certificates
shall cease to be such officer of the Company before the date of issuance
thereof or before countersignature by the Warrant Agent and issue and delivery
thereof, such Warrant Certificates, nevertheless, may be countersigned by the
Warrant Agent, issued and delivered with the same force and effect as though the
officer of the Company who signed such Class A Warrant Certificates had not
ceased to hold such office.
SECTION 4. Exercise.
(a) The Class A Warrants in denominations of one or whole
number multiples thereof may be exercised commencing at any time on or after the
Initial Warrant Exercise Date, but not after the Class A Warrant Expiration
Date, upon the terms and subject to the conditions set forth herein (including
the provisions set forth in Sections 5 and 9 hereof). A Class A Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
Exercise Date, with the exercise form thereon duly executed by the Registered
Holder thereof or his attorney duly authorized in writing, together with payment
in cash or by check made payable to the Company of an amount in lawful money of
the United States of America equal to the applicable Purchase Price, have been
received in good funds by the Warrant Agent. The person entitled to receive the
securities deliverable upon such exercise shall be treated for all purposes as
the holder of such securities as of the close of business on the Exercise Date.
As soon as practicable, on or after the Exercise Date, the Warrant Agent, on
behalf of the Company, shall cause to be issued to the person, or persons
entitled to receive the same, a Common Stock certificate, or certificates, for
the shares of Common Stock deliverable upon such exercise, The Warrant Agent
shall deliver the same to the person, or persons entitled thereto. Upon the
exercise of any Class A Warrants, the Warrant Agent shall promptly notify the
Company in writing of such fact and of the number of securities delivered upon
such exercise, and subject to Section 4(b) hereof, shall cause all payments in
cash, or by check made payable to the order of the Company, in respect of the
Purchase Price to be deposited promptly in the Company's bank account, or
delivered to the Company.
-6-
<PAGE>
(b) The Company shall not be obligated to issue any fractional
share interests or fractional warrant interests upon the exercise of any Class A
Warrant, or Warrants, nor shall it be obligated to issue scrip or pay cash in
lieu of fractional interests. Any fraction equal to or greater than one-half
(1/2) shall be rounded up to the next full share or Class A Warrant, as the case
may be.
SECTION 5. Reservation of Shares, Listing; Payment of Taxes;
etc.
(a) The Company covenants that it will, at all times, reserve
and keep available out of its authorized Common Stock, solely for the purpose of
issuance upon the exercise of Class A Warrants, such number of shares of Common
Stock as shall then be issuable upon the exercise of all outstanding Class A
Warrants. The Company covenants that, upon exercise of the Class A Warrants and
payment of the Purchase Price for the shares of Common Stock underlying said
Warrants, all shares of Common Stock which shall be validly issued, fully paid,
non-assessable, free from all preemptive or similar rights, and free from all
taxes, liens and charges with respect to the issuance thereof, and that upon
issuance such shares shall be listed or quoted on each securities exchange, if
any, on which the other shares of outstanding Common Stock of the Company are
then listed or quoted.
(b) The Company covenants that if any securities reserved for
the purpose of exercise of Class A Warrants hereunder require registration with,
or approval of any governmental authority under any federal securities law
before such securities may be validly issued or delivered upon such exercise,
then the Company will file a registration statement under the federal securities
laws or a post-effective amendment to a registration statement, use its best
efforts to cause the same to become effective, keep such registration statement
current while any of the Class A Warrants are outstanding and deliver a
prospectus which complies with Section 10(a)(3) of the Securities Act of 1933,
as amended (the "1933 Act"), to the Registered Holder exercising the Class A
Warrant (except, if in the opinion of counsel to the Company, such registration
is not required under the federal securities law or if the Company receive a
letter from the staff of the Securities and Exchange Commission (the
"Commission") stating that it would not take any enforcement action if such
registration is not effected). The Company will use its best efforts to obtain
appropriate approvals or registrations under the state "blue sky" securities
laws of all states in which Registered Holders reside. The Warrants may not be
exercised by, nor may shares of Common Stock be issued to, any Registered Holder
in any state in which such exercise would be unlawful.
-7-
<PAGE>
(c) The Company shall pay all documentary, stamp or similar
taxes and other governmental charges that may be imposed with respect to the
issuance of the Class A Warrants, or the issuance or delivery of any shares of
Common Stock upon exercise of the Class A Warrants; provided, however, that if
shares of Common Stock are to be delivered in a name other than the name of the
Registered Holder of the Class A Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
(d) The Warrant Agent is hereby irrevocably authorized as the
Transfer Agent to requisition from time to time, certificates representing
shares Common Stock or other securities required upon exercise of the Warrants,
and the Company will comply with all such requisitions.
SECTION 6. Exchange and Registration of Transfer.
(a) Class A Warrant Certificates may be exchanged for other
Class A Warrant Certificates representing an equal aggregate number of Class A
Warrants or may be transferred in whole or part. Class A Warrant Certificates to
be so exchanged shall be surrendered to the Warrant Agent at its Corporate
Office, and the Company shall execute and the Warrant Agent shall countersign,
issue and deliver in exchange therefor the Class A Warrant Certificates or
Certificates which the Registered Holder making the exchange shall be entitled
to receive.
-8-
<PAGE>
(b) The Warrant Agent shall keep, at such office, books in
which subject to such reasonable regulations as it may prescribe, it shall
register Class A Warrant Certificates and the transfer thereof. Upon due
presentment for registration of transfer of any Class A Warrant Certificate at
such office, the Company shall execute and the Warrant Agent shall issue and
deliver it to the transferee or transferees a new Class A Warrant Certificate or
Certificates representing an equal aggregate number of Class A Warrants.
(c) With respect to any Class A Warrant Certificates presented
for registration or transfer, or for exchange or exercise, the subscription or
assignment, as the case may be, on the reverse thereof shall be duly endorsed or
be accompanied by a written instrument or instruments of subscription or
assignment, in form satisfactory to the Company and the Warrant Agent, duly
executed by the Registered Holder thereof or his attorney, duly authorized in
writing.
(d) No service charge shall be made for any exchange or
registration of transfer of the Class A Warrant Certificates. However, the
Company may require payment of a sum sufficient to cover an tax or other
governmental charge that may imposed in connection therewith.
(e) All Class A Warrant Certificates surrendered for exercise
or for exchange shall be promptly cancelled by the Warrant Agent.
-9-
<PAGE>
(f) Prior to due presentment for registration or transfer
thereof, the Company and the Warrant Agent may deem and treat the Registered
Holder of any Class A Warrant Certificate as the absolute owner thereof of each
Class A Warrant represented thereby (notwithstanding any notations of ownership
or writing thereon made by anyone other than the Company or the Warrant Agent)
for all purposes and shall not be affected by any notice to the contrary.
(g) Anything herein to the contrary not withstanding, since as
of the date hereof the Class A Warrant Certificates have not been registered
under the Act of 1933, the Warrant Agent may not register a transfer of such
Class A Warrant Certificate unless (i) the Class A Warrants have been registered
pursuant to a registration statement under the 1933 Act which has become
effective and is current with respect to such Warrants, or (ii) the transfer is
pursuant to a specific exemption from registration under the 1933 Act and the
Warrant Agent has been furnished the written opinion of counsel to the Company
or their counsel reasonably acceptable to the Company, that the proposed
disposition is consistent with all applicable provisions of the 1933 Act as well
as any applicable "Blue Sky" or other state securities law.
SECTION 7. Loss or Mutilation.
Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Class A Warrant Certificate and (in the case of loss, theft or
destruction) of indemnity satisfactory to them, and (in case of mutilation) upon
surrender and cancellation thereof, the Company shall execute and the Warrant
Agent shall countersign and deliver in lieu thereof a new Class A Warrant
Certificate representing an equal aggregate number of Class A Warrants.
Applicants for a substitute Series A Unit Certificate shall also comply with
such other reasonable regulations and pay such other reasonable charges as the
Warrant Agent may prescribe.
-10-
<PAGE>
SECTION 8. ADJUSTMENTS
(a) In case of any reclassification, capital reorganization or
other change of outstanding shares of the Common Stock, or in case of any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock), the
Company shall cause effective provision to be made so that the Holder shall have
the right thereafter, by exercising this Warrant, to purchase the kind and
number of shares of stock or other securities or property (including cash)
receivable upon such reclassification, capital reorganization or other change,
consolidation or merger by a holder of the number of shares of Common Stock that
could have been purchased upon exercise of the Class A Warrant immediately prior
to such reclassification, capital reorganization or other change, consolidation
or merger. Any such provision shall include provision for adjustments that shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Section 8. The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and other changes of outstanding
shares of Common Stock and to successive consolidations or mergers. If the
consideration received by the holders of Common Stock is other than cash, the
value shall be as determined by the Board of Directors of the Company acting in
good faith.
(b) If and whenever the Company shall effect a stock dividend,
a stock split, a stock combination, or a reverse stock split of the Common
Stock, the number of Warrant Shares purchasable hereunder and the Purchase Price
shall be proportionately adjusted in the manner determined by the Company's
Board of Directors acting in good faith. The number of shares, as so adjusted,
shall be rounded down to the nearest whole number and the Purchase Price shall
be rounded to the nearest cent.
-11-
<PAGE>
SECTION 9. Redemption.
(a) Commencing on the Initial Class A Warrant Redemption Date,
the Company may on thirty (30) days prior written notice, redeem all of the
Class A Warrants at a redemption price of ten cents ($.10) per Warrant;
provided, however, that before any such call for redemption of the Class A
Warrants can take place, the (i) average closing bid price for the Common Stock,
as reported by the OTC Bulletin Board, or (ii) if not so quoted as reported by
any other recognized quotation system on which the Common Stock is quoted, shall
for any five (5) trading days within a period of thirty (30) consecutive biding
days ending or on the fifth (5th) trading day prior to the date on which the
notice contemplated by Sections 9(b) and 9(c) hereof is given, equaled or
exceeded $6.00 per share of Common Stock (subject to adjustment in the event of
any stock splits or other similar events as provided in Section 8 hereof).
(b) In case the Company shall exercise its right to redeem all
of the Class A Warrants, it shall give or cause to be given notice to the
Registered Holders of the Class A Warrants, by mailing to such Registered
Holders a notice of redemption, first class, postage prepaid, at their last
address as shall appear on the records of the Warrant Agent. Any notice mailed
in the manner provided herein shall be conclusively presumed to have been duly
given whether or not the Registered Holder receives such notice.
(c) The notice of redemption shall specify (i) the redemption
price, (ii) the date fixed for redemption, which shall in no event be less than
thirty (30) days after the date of mailing of such notice, (iii) the place where
the Class A Warrant Certificates shall be delivered and the redemption price
shall be paid, and (iv) that the right to exercise the Class A Warrant shall
terminate at 5:00 p. m.(New York time) on the business day immediately
preceding the date fixed for redemption,, The date fixed for the redemption of
the Class A Warrants shall be the "'Redemption Date" for purposes of this
Agreement. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect the validity of the proceedings for such redemption
except as to a holder (A) to whom notice was not mailed or (B) whose notice was
defective. An affidavit of the Warrant Agent or the Secretary or Assistant
Secretary of the Company that notice of redemption has been mailed shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
-12-
<PAGE>
(d) Any right to exercise a Class A Warrant shall terminate at
5: 00 p.m. (New York time) on the business day immediately preceding the
Redemption Date. The redemption price payable to the Registered Holders shall be
mailed to such persons at their addresses of record.
(e) The Company shall as soon as practicable after the
Redemption Date, and in any event within fifteen (15) months thereafter, make
"generally available to its security holders" (within the meaning of Rule 158
under the Act) an earnings statement (which need not be audited) complying with
Section 11 (a) of the Act and covering a period of at least twelve (12)
consecutive months beginning after the Redemption Date.
SECTION 10. Concerning the Warrant Agent.
(a) The Warrant Agent acts hereunder as agent and in a
ministerial capacity for the Company, and its duties shall be determined by
solely by the provisions hereof. The Warrant Agent shall not, by issuing and
delivering Class A Warrant Certificates, or by any other act hereunder, be
deemed to make any representation as to the validity, or value, or authorization
of the Class A Warrant Certificates, or the Class A Warrants represented
thereby, or of any securities, or other property delivered upon exercise of any
Class A Warrant is fully paid and non-assessable.
(b) The Warrant Agent shall not at any time be under any duty
or responsibility to any holder of Class A Warrant Certificates to make or cause
to be made any adjustment of the Purchase Price provided in this Agreement, or
to determine whether any fact exists which may require any such adjustment, or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed in making the same. It shall not (i) be liable
for any recital, or statement of fact contained herein, or for any action taken,
suffered or omitted by it in reliance on any Class A Warrant Certificate, or
other document or instrument believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties, (ii) be
responsible for any failure on the part of the Company to comply with any of its
covenants and obligations contained in this Agreement or in any Class A Warrant
Certificate, or (iii) be liable for any act or omission in connection with this
Agreement except for its own its own gross negligence or willful misconduct.
-13-
<PAGE>
(c) The Warrant Agent may at any time consult with counsel
satisfactory to it (who may be counsel for the Company) and shall incur no
liability or responsibility for any action taken, suffered or omitted by it good
faith in accordance with the opinion or advice of such counsel.
(d) Any notice, statement, instruction, request, direction,
order or demand of the Company shall be sufficiently evidenced by an instrument
signed by the Chairman of the Board of Directors, President or any Vice
President (unless other evidence in respect thereof is herein specifically
prescribed). The Warrant Agent shall not be liable for any action taken,
suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand.
(e) The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse it for its reasonable
expenses hereunder; the Company further agrees to indemnify the Warrant Agent
and hold harmless against any and all losses, expenses and liabilities,
including judgments, costs and Counsel fees, for anything done or omitted by the
Warrant Agent in the execution of its duties and powers hereunder except losses,
expenses and liabilities arising as a result of the Warrant Agent's gross
negligence or willful misconduct.
-14-
<PAGE>
(f) The Warrant Agent may resign its duties and be discharged
from all further duties and liabilities hereunder (except liabilities arising as
a result of the Warrant Agent's own gross negligence or willful misconduct),
after giving thirty (30) days prior written notice to the Company. At least
fifteen (15) days prior to the date such resignation is to become effective, the
Warrant Agent shall cause a copy of such notice of resignation to, be mailed to
the Registered Holder of each notify the Company in writing of such fact and of
the number Class A Warrant Certificate at the Company's expense. Upon such
resignation the Company shall appoint in writing a new warrant agent. If the
Company shall fail to make such appointment within a period of thirty (30) days
after it has been notified in writing of such resignation by the resigning
Warrant Agent, then the Registered Holder of any Class A Warrant Certificate may
apply to any court of competent jurisdiction for the appointment of a new
warrant agent. Any new warrant agent, whether appointed by the Company or by
such a court, shall be a bank or trust company having a capital and surplus, as
shown by its last published report to its stockholders, of not less than ten
million dollars ($10,000,000) or a stock transfer company doing business in New
York, New York. After acceptance in writing of such appointment by the new
warrant agent is received by the Company, such new warrant agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named herein as the warrant agent without any further assurance,
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done at the expense of the Company and shall be legally and
validly executed and delivered by the resigning Warrant Agent. Not later than
the effective date of any such appointment, the Company shall file, notice
thereof with the resigning Warrant Agent and shall forthwith cause a copy of
such notice to be mailed to the Registered Holder of each Class A Warrant
Certificate.
(g) Any corporation into which the Warrant Agent or any new
warrant agent may be converted or merged, any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party, or any corporation succeeding to the corporate trust business of the
Warrant Agent or any new warrant agent shall be a successor warrant agent under
this Agreement without any further act, provided that such corporation is
eligible for appointment as successor to the Warrant Agent under the provisions
of the preceding paragraph. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed to the Company and
to the Registered Holders of each Class A Warrant Certificate.
-15-
<PAGE>
(h) The Warrant Agent, its subsidiaries and affiliates, and
any of its or their officers or directors, may buy and hold or sell Class A
Warrants or other securities of the Company and otherwise deal with the Company
in the same manner and to the same extent and with like effect as though it were
not Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company or for any other legal entity.
SECTION 11. Modification of Agreement.
The Warrant Agent and the Company may by supplemental
agreement make any changes or corrections in this Agreement (a) that they shall
deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or to manifest mistake or error herein contained, or (b)
that they may deem necessary or desirable an which shall not adversely affect
the interests of the holders of Class A Warrant Certificates; provided, however,
that this Agreement shall not otherwise be modified, supplemented or altered in
any respect except with the consent in writing of the Registered Holders holding
not less than sixty-six and two-thirds percent (66-2/3%) of the Warrants then
outstanding; provided, further, that no change in the number or nature of the
securities purchasable upon the exercise of any Class A Warrant, and no change
that increases the Purchase Price of any Class A Warrant, other than such
changes as are specifically set forth in this Agreement as originally executed,
shall be made without the consent in of each Registered Holders affected by such
change.
SECTION 12. Notices.
All notices, request, consents and other communications
hereunder shall be in writing and shall be deemed to leave been made when
delivered or mailed first-class postage prepaid or delivered to a telegraph
office for transmission, if to the Registered Holder of a Class A Warrant
Certificate, at the address of such holder as shown on the registry books
maintained by the Warrant Agent; if to the Company at 12030 Sunrise Valley
Drive, Reston, New York 20191, Attention: Michael J. Black, Chairman and Chief
Executive Officer, or at such other address as may have been furnished to the
Warrant Agent in writing by the Company; and if to, the Warrant Agent, at its
Corporate Office.
-16-
<PAGE>
SECTION 13. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of laws.
SECTION 14. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of the Company, the Warrant Agent and their respective successors and assigns
and the holders from time to time of the, Class A Warrants or any of them.
Except as hereinafter stated, nothing in this Agreement is intended or shall be
construed to confer upon any other person any right, remedy or claim or to
impose upon any other person any duty, liability or obligation.
SECTION 15. Counterparts.
This Agreement may be executed in several counterparts which
taken together shall constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
-17-
<PAGE>
H-QUOTIENT, INC. CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
As Warrant Agent
By:______________________________ By:_______________________________
Name: Michael J. Black Name: Michael Nelson
Title: Chairman & Chief Executive Officer Title:
-18-
