EXHIBIT 4.3
▇▇▇▇.▇▇▇, INC.
AND
INTERWEST TRANSFER COMPANY, INC., WARRANT AGENT
WARRANT AGENCY AGREEMENT
Dated as of ___________, 2000
TABLE OF CONTENTS*
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 1. Appointment of Warrant Agent . . . . . . . . . . . . . . . . .4
Section 2. Form of Warrant. . . . . . . . . . . . . . . . . . . . . . . .4
Section 3. Countersignature and Registration. . . . . . . . . . . . . . .4
Section 4. Transfers and Exchanges. . . . . . . . . . . . . . . . . . . .4
Section 5. Exercise of Warrants . . . . . . . . . . . . . . . . . . . . .5
Section 6. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . .5
Section 7. Mutilated or Missing Warrants. . . . . . . . . . . . . . . . .6
Section 8. Reservation of Common Stock. . . . . . . . . . . . . . . . . .6
Section 9. Warrant Price. . . . . . . . . . . . . . . . . . . . . . . . .6
Section 10. Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 11. Fractional Interest. . . . . . . . . . . . . . . . . . . . . .9
Section 12. Notice to Warrant holders. . . . . . . . . . . . . . . . . . .9
Section 13. Disposition of Proceeds on Exercise of Warrants. . . . . . . 10
Section 14. Redemption of Warrants . . . . . . . . . . . . . . . . . . . 10
Section 15. Merger or Consolidation or Change of Name of Warrant Agent . 10
Section 16. Duties of Warrant Agent. . . . . . . . . . . . . . . . . . . 11
Section 17. Change of Warrant Agent. . . . . . . . . . . . . . . . . . . 12
Section 18. Identity of Transfer Agent . . . . . . . . . . . . . . . . . 13
Section 19. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 20. Supplements and Amendments. . . . . . . . . . . . . . . . . 13
Section 21. Successors. . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 22. Utah Contract . . . . . . . . . . . . . . . . . . . . . . . 13
Section 23. Benefits of this Agreement. . . . . . . . . . . . . . . . . 14
Section 24. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 14
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
EXHIBIT A . . . . . (Form of Redeemable Common Stock Purchase Warrant,
Election to Purchase and Assignment)
------------------
*This Table of Contents shall not be deemed a part of this Agreement and has no
bearing upon the interpretation of any of its terms and provisions.
WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT dated as of ________, 2000, between ▇▇▇▇.▇▇▇,
Inc., a Delaware corporation having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"), and Interwest Transfer Company, Inc.,1981
East ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ as warrant agent (the
"Warrant Agent").
WHEREAS, the Company proposes to distribute to its shareholders 1,000,000
series A stock purchase warrants (the "Warrants"), each Warrant entitling the
registered holder thereof to purchase one share of 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 exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth in this Agreement, and the Warrant Agent hereby accepts
such appointment.
Section 2. Form of Warrant. The text of the Warrants and of the form
of election to purchase shares on the reverse thereof shall be substantially
as set forth in Exhibit "A" attached hereto and made a part hereof. The per
share warrant exercise price and the number of shares issuable upon exercise
of the Warrants are subject to adjustment upon the occurrence of certain
events, all as hereinafter provided. The Warrants shall be executed on
behalf of the Company by the manual or facsimile signature of the present or
any future Chairman of the Board, President or Vice president of the Company,
attested by the manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
Warrants shall be dated as of the date of issuance by the Warrant Agent
either upon initial issuance or upon transfer or exchange.
Section 3. Countersignature and Registration. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof. The Warrants shall be
countersigned manually or by facsimile by the Warrant Agent (or by any successor
to the Warrant Agent then acting as warrant agent under this Agreement) and
shall not be valid for any purpose unless so countersigned. Warrants may be so
countersigned, however, by the Warrant Agent (or by its successor as warrant
agent) and be delivered by the Warrant Agent, notwithstanding that the persons
whose manual or facsimile signatures appear thereon as proper officers of the
Company shall have ceased to be such officers at the time of such
countersignature or delivery.
Section 4. Transfers and Exchanges. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon surrender thereof for
transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant shall be issued to the
transferee and the surrendered Warrant shall be canceled by the Warrant
Agent. Warrants so canceled shall be delivered by the Warrant Agent to the
Company from time to time upon request. Warrants may be exchanged at the
option of the holder thereof, when surrendered at the office of the Warrant
Agent, for another Warrant, or other Warrants of different denominations, of
like tenor and representing in the aggregate the right to purchase a like
number of shares of Common Stock.
Section 5. Exercise of Warrants. Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right which may
be exercised commencing at the opening of business on _______, 2000, and
terminating at 5:00 p.m., Mountain time, on _______, 2003, (the "Expiration
Date") to purchase from the Company (and the Company shall issue and sell to
such registered holder of Warrants) the number of fully paid and
non-assessable shares of Common stock specified in such Warrants, upon
surrender to the Company at the office of the Warrant Agent of such Warrants,
with the form of election to purchase on the reverse thereof duly filled in
and signed, and upon payment to the Company of the Warrant Price, as defined
and determined in accordance with the provisions of Sections 9 and 10 of this
Agreement, for the securities in respect of which such Warrants are then
exercised. Payment of such Warrant Price shall be made in cash or by
certified check or bank draft to the order of the Company. No adjustment
shall be made for any cash dividends on any shares of Common Stock issuable
upon exercise of a Warrant. Subject to Section 6 hereof, upon such surrender
of Warrants, and payment of the Warrant Price as aforesaid, a certificate or
certificates for the number of full shares of Common Stock so purchased upon
the exercise of such Warrants shall be issued to the registered holder of
such Warrants or, upon the written order of such registered holder, in such
name or names as such registered holder may designate. Such certificate or
certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a holder of record of such
securities as of the date of the surrender of such Warrants and payment of
such Warrant Price as aforesaid; provided, however, that if at the date of
surrender of such Warrants and payment of such Warrant Price, the transfer
books for the shares of Common Stock or other class of securities purchasable
upon the exercise of such Warrant shall be closed, the certificates for the
shares of Common Stock and Warrants, if any, in respect of which such
Warrants are then exercised shall be issuable as of the date on which such
books shall be opened (whether before, on, or after, the Expiration Date),
and until such date the Company shall be under no duty to deliver any
certificate for such securities; provided, further, however, that such
transfer books, unless otherwise required by law or by applicable rule of any
national securities exchange, shall not be closed at any one time for a
period longer than twenty (20) days. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the registered holders
thereof, either as an entirety or from time to time for part only of the
securities specified therein and, in the event that any Warrant is exercised
in respect of less than all of the securities specified therein at any time
prior to the date of expiration of the Warrant, a new Warrant or Warrants
will be issued to such registered holder of the remaining number of
securities specified in the Warrant so surrendered, and the Warrant Agent is
hereby irrevocably authorized to countersign and to deliver the required new
Warrants pursuant to the provisions of this Section
5 and of Section 3 hereof, and the Company, whenever requested by the Warrant
Agent, will supply the Warrant Agent with Warrants duly executed on behalf of
the Company for such purpose.
Section 6. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of securities issuable upon
the exercise of the Warrants; provided, however, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue or delivery of any certificates for securities
in a name other than that of the registered holder of Warrants in respect of
which such securities are issued, and in such case neither the Company nor
the Warrant Agent shall be required to issue or deliver any certificate for
securities or any Warrant until the person requesting the same has paid to
the Company the amount of such tax or has established to the Company's
satisfaction that such tax has been paid.
Section 7. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost stolen or destroyed, the Company may in its
discretion issue and the Warrant Agent shall countersign and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant,
or in lieu of and substitution for the Warrant lost, stolen or destroyed, a
new Warrant of like tenor and representing an equivalent right or interest,
but only upon receipt of evidence satisfactory to the Company and the Warrant
Agent of such loss, theft or destruction of such Warrant and, in the case of
a lost, stolen or destroyed Warrant, indemnity, if requested, also
satisfactory to them. Applicants for such substitute Warrants shall also
comply with such other reasonable regulations and pay such reasonable charges
as the Company or the Warrant Agent may prescribe.
Section 8. Reservation of Common Stock. There have been reserved,
and the Company shall at all times keep reserved, out of the Company's
authorized and unissued shares of Common Stock, a number of shares sufficient
to provide for the exercise of the right of purchase represented by the
Warrants, and the transfer agent for the share's of Common Stock and every
subsequent transfer agent for the shares of the Company's capital stock
issuable upon the exercise of any of the rights of purchase aforesaid are
hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued shares as shall be required for such
purpose. The Company agrees that all shares of Common Stock issued upon
exercise of the Warrants shall be, at the time of delivery of the
certificates for such shares of Common Stock, validly issued and outstanding,
fully paid and non-assessable and shall be listed on any national securities
exchange upon which the other shares of Common Stock are then listed. So long
as any unexpired Warrants remain outstanding, the Company will file such
post-effective amendments to the Registration Statement on Form SB-2
(Registration No. 33-_____) filed pursuant to the Securities Act of 1933, as
amended, with respect to the Warrants (or such other registration statements
or post-effective amendments or supplements) as may be necessary to permit it
to deliver to each person exercising a Warrant, a Prospectus meeting the
requirements of Section 10(a) of such Act and otherwise complying therewith,
and will deliver such a Prospectus to each such person. The Company will keep
a copy of this Agreement on file with the transfer agent for the shares of
Common Stock and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by
the Warrants. The Warrant Agent is hereby irrevocable authorized to
requisition from time to time from such transfer agent stock certificates
required to honor outstanding Warrants. The Company will supply such transfer
agent with duly executed stock certificates for such purpose. All Warrants
surrendered in the exercise of the rights thereby evidenced shall be canceled
by the Warrant Agent and shall thereafter be delivered to the Company, and
such canceled Warrants shall constitute sufficient evidence of the number of
shares of Common Stock and other securities which have been issued upon the
exercise of such Warrants. Promptly after the date of expiration of the
Warrants, the Warrant Agent shall certify to the Company the total aggregate
amount of unexpired Warrants then outstanding, and thereafter no shares of
Common Stock shall be subject to reservation in respect to such Warrants
which shall have expired.
Section 9. Warrant Price. The Warrant price (the "Warrant Price") at
which shares of Common Stock shall be purchasable pursuant to the Warrants
shall be $3.00 per share unless reduced by the Company and shall be subject
to adjustment, as provided in Section 10 hereof. After the expiration date,
any Warrants which have not been exercised will be void.
Section 10. Adjustments. Subject and pursuant to the provisions of
this Section 10, the Warrant Price and number and kind of securities
purchasable upon exercise of the Warrants shall be subject to adjustment from
time to time if any of the following circumstances shall occur after the
initial issuance of the Warrants, all as hereinafter set forth:
(a) If the Company shall at any time subdivide its outstanding
shares of Common Stock by recapitalization, reclassification or split-up
thereof, or if the Company shall declare a stock dividend or distribute
shares of Common Stock to its stockholders, the number of shares of Common
Stock purchasable upon exercise of the Warrants immediately prior to such
subdivision shall be proportionately increased in each instance, and if the
Company shall at any time combine the outstanding shares of Common Stock by
recapitalization, reclassification or combination thereof, the number of
shares of Common Stock purchasable upon exercise of the Warrants immediately
prior to such combination shall be proportionately decreased in each
instance. Any such adjustment and adjustment to the Warrant Price pursuant
to Section 10(b) hereof shall be effective at the close of business on the
effective date of such subdivision or combination or, if any adjustment is
the result of a stock dividend or distribution, then the effective date for
such adjustment based thereon shall be the record date therefor.
(b) If the Company after the date hereof shall distribute to
all of the holders of its shares of Common Stock any security (except as
provided in the preceding paragraph of this Section 10) or other assets
(other than a distribution made as a dividend payable out of earnings or out
of any earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the Company), the Board of Directors shall
be required to make such equitable adjustment in the Warrant Price in effect
immediately prior to the record date of such distribution as may be necessary
to preserve to the holders of the Warrants rights substantially proportionate
to those enjoyed hereunder by such holder immediately prior to the happening
of such distribution. Any such adjustment shall become effective as of the
day following the record date for such distribution.
(c) Whenever the number of shares of Common Stock purchasable
upon the exercise of any of the Warrants is required to be adjusted as
provided in this Section 10, the Warrant Price shall be adjusted (to the
nearest cent) in each instance by multiplying such Warrant Price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be
the number of shares of Common Stock purchasable upon the exercise of the
Warrants immediately prior to such adjustment, and (y) the denominator of
which shall be the number of shares of Common Stock so purchasable
immediately thereafter.
(d) In case of any reclassification of the outstanding shares
of Common Stock, other that a change covered by Section 10(a) hereof or which
solely affects the par value of such shares of Common Stock, or in the case
of any merger or consolidation of the Company with or into another
corporation (other that a consolidation merger in which the Company is the
continuing corporation and which does not result in any reclassification or
capital reorganization of the outstanding shares of Common Stock), or in the
case of any sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the holders of the Warrants shall have the
right thereafter (until the expirations of the respective rights of exercise
of the Warrants) to receive upon the exercise thereof, for the same aggregate
Warrant Price payable hereunder immediately prior to such event, the kind and
amount of shares of stock or other securities or property receivable upon
such reclassification, capital reorganization, merger or consolidation, or
upon the dissolution following any sale or other transfer, which a holder of
the number of shares of Common Stock of the Company would obtain upon
exercise of the Warrants immediately prior to such event; and if any
classification also results in a change in shares of Common Stock covered by
Section 10(a) hereof, then such adjustment shall be made pursuant to both
Section 10(a) hereof and this Section 10(d). The provisions of this Section
10(d) shall similarly apply to successive reclassifications, or capital
reorganizations, mergers or consolidations, sales or other transfers.
(e) In case of the dissolution, liquidation or winding-up of
the Company, all rights under any of the Warrants not redeemed or expired by
their terms shall terminate on a date fixed by the Company, such date so
fixed to be not earlier than the date of the commencement of the proceedings
for such dissolution, liquidation or winding-up and not later than thirty
(30) days after such commencement date. Notice of such termination or
purchase rights shall be given to the registered holder of the Warrants as
the same shall appear on the books of the Company maintained by the Warrant
Agent, by certified or registered mail at least thirty (30) days prior to
such termination date.
(f) In case the Company shall, at any time prior to the
Expiration Date of the Warrants, and prior to the exercise thereof, offer to
the holders of its Common Stock any right to subscribe for additional shares
of any class of the Company, then the Company shall give written notice
thereof to the registered holders of the Warrants not less than thirty (30)
days prior to the date on which the books of the Company are closed or a
record date fixed for the determination of stockholders entitled to such
subscription rights. Such notice shall specify the date as to which the
books shall be closed or record date be fixed with respect to such offer or
subscription, and
the right of the holders to participate in such offer or subscription shall
terminate if the Warrants shall not be exercised on before the date of such
closing of the books or such record date.
(g) If the Company after the date hereof shall take any action
affecting the shares of its Common Stock, other than that action described in
this Section 10, which, in the opinion of the Board of Directors of the
Company, would materially affect the rights of the holders of the Warrants or
the Warrant Price, the number of shares of Common Stock purchasable on
exercise of the Warrants shall be adjusted in each instance and at such time
as the Board of Directors of the Company, in good faith, may determine to be
equitable under the circumstances.
(h) The form of Warrants need not be changed because of any
change pursuant to this Section 10, and Warrants issued after any such change
may state the same nominal Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this Agreement, without
altering the rights of registered holders of the Warrants to claim the
benefit of changes pursuant to this Agreement, without altering the rights of
registered holders of the Warrants to claim the benefit of changes pursuant
to this Section 10. However, the Company may at any time in its sole
discretion (which shall be conclusive) make any change in the form of
Warrants that the Company may deem appropriate and that does not affect the
substance thereof; and any Warrants thereafter issued or countersigned,
whether to exchange or in substitution of any outstanding Warrants or
otherwise, may be in the form as so changed.
(i) Any changes or adjustments in the number of shares of
Common Stock purchasable upon the exercise of the Warrants or in the exercise
price of Warrants, as required or authorized by this Section 10, shall be
made with respect to all authorized Warrants whether or not they have yet
been issued or outstanding at the time of the occurrence of the circumstance
leading to such change or adjustment.
Section 11. Fractional Interest. The Company shall not be required
to issue fractions of shares of Common Stock on the exercise of Warrants.
Final fractions of shares amounting to less than one-half of a share shall be
disregarded. Final fractions of a share amounting to one-half a share or
more shall be rounded to the nearest whole share.
Section 12. Notice to Warrantholders.
(a) Upon any adjustment of the Warrant Price and the number of
shares issuable on exercise of a Warrant, then and in each such case the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting form such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price upon
the exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
(b) In case at any time:
(i) the Company shall pay any dividends payable in
stock upon its Common Stock or make any distribution (other than regular cash
divides) including any
distribution of assets as a liquidating or partial liquidating dividend to
the holders of its Common Stock;
(ii) the Company shall offer for subscription pro rate
to the holders of its Common Stock any additional shares of stock of any
class or other rights;
(iii) there shall be any capital reorganization, any
stock distribution, combination or reclassification of the capital stock of
the Company, or any consolidation or merger of the Company with or sale of
all or substantially all of its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation, or winding-up of the Company; then, in any one or
more such cases, the Company shall give written notice to each registered
holder of Warrants, and publish the same in the manner set forth in this
Section 12, of the date on which (i) the books of the Company shall close or
record shall be taken for purposes of any such dividend, distribution, stock
split, or subscription rights, or (ii) such reorganization, reclassification,
consolidation, merger, sale dissolution, liquidation, or winding-up shall
take place, as the case may be. Such notice shall also specify the date as
of which the holders of Common Stock of record shall participate in such
dividend, distribution, or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding up, as the case may be. Such notice
shall be given at least thirty (30) days prior to the action in question and
not less than thirty (30) days prior to the record date or the date on which
the Company's transfer books are closed in respect thereof. Failure to give
such notice, or any defect therein, shall not affect the legality or validity
of any of the matters set forth in this Section 12 inclusive.
(c) The Company shall cause copies of all financial statements
and reports, proxy statements and other documents as it shall send to its
stockholders to be sent by fist-class mail, postage prepaid, on the date of
mailing to such stockholders, to each registered holder of Warrants at his
address appearing on the Warrant register as of the record date for the
determination of the stockholders entitled to such documents.
Section 13. Disposition of Proceeds on Exercise of Warrants.
(a) The Warrant Agent shall promptly forward to the Company
all monies received by the Warrant Agent for the purchase of shares of Common
Stock through the exercise of the Warrants.
(b) The Warrant Agent shall keep copies of this Agreement
available for inspection by holders of Warrants during normal business hours.
Section 14. Redemption of Warrants. The Warrants are redeemable by
the Company at any time prior to the Expiration Date on not less than thirty
(30) days prior written notice, at a redemption price of $.01 per Warrant.
If the Company shall elect to redeem Warrants as
permitted by this Section 14, notice of redemption shall be given to the
holders of all outstanding Warrants to whom the redemption shall apply by
mailing by first-class mail a notice of such redemption, not less than thirty
(30) nor more than sixty (60) days prior to the date fixed for redemption, to
their last addresses as they shall appear upon the registry books, but
failure to give such notice by mailing to the holder of any Warrants, or any
defect therein, shall not affect the legality or validity of the proceedings
for the redemption of any other Warrants. The notice of redemption to each
holder of Warrants shall specify the date fixed for redemption and the
redemption price at which Warrants are to be redeemed, and shall state that
payment of the redemption price of the Warrants will be made at the office of
the Warrant Agent upon presentation and surrender of such Warrants, and shall
also state that the right to exercise the Warrants so redeemed will terminate
as provided in this Agreement (stating the date of such termination) and
shall state the then current Warrant Price. If the giving of notice of
redemption shall have been completed as above provided, and if funds
sufficient for the redemption of the Warrants shall have been deposited with
the Warrant Agent for such purpose, the right to exercise the Warrants shall
terminate at the close of business on the business day proceeding the date
fixed for redemption, and the holder of each Warrant shall thereafter be
entitled upon surrender of his Warrants only to receive the redemption price
thereof, without interest.
Section 15. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation or company which may succeed to the business of the
Warrant Agent by any merger consolidation or otherwise to which the Warrant
Agent shall be a party, or any corporation or company succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent
under the provision of Section 17 hereof. In case, at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have
been countersigned, any successor to the Warrant Agent may countersign such
Warrants; and in all such cases such Warrants shall have the full force
provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrants so countersigned; and in case at the time any of
the Warrants shall not have been countersigned, the Warrant Agent may
countersign such Warrants either in its prior name or in its changed name;
and in all such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement.
Section 16. Duties of Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Warrants, by
their acceptance thereof, shall be bound:
(a) The statements of fact and recitals contained herein and
in the Warrants shall be taken as statements of the Company, and the Warrant
Agent assumes no responsibility for the correctness of any of the same except
such as describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution of
the Warrants except as herein expressly provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrants to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrants in respect of an action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or with respect to 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 parities.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution
of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement, and to indemnify the
Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees for any thing done or omitted by
the Warrant Agent in the execution of this Agreement except as a result of
the Warrant Agent's negligence, willful misconduct or bad faith.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve expenses unless the Company or one or more registered
holders of Warrants shall furnish the Warrant Agent with reasonable security
and indemnity for any cost and expense which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such action
as the Warrant Agent may consider proper, whether with or without any such
security or indemnity. All rights of action under this Agreement or under any
of the Warrants may be enforced by the Warrant Agent without the possession
of any oft he Warrants or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as Warrant
Agent, and any recovery of judgement shall be for the ratable benefit of the
registered holders of the Warrants, as their respective right of interest may
appear.
(g) The Warrant Agent and any stockholder, director, officer,
partner or employee of the Warrant Agent and any stockholder, director,
officer, partner or employee of the Warrant Agent may buy, sell or deal in
any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction which the Company may be
interested, or contract with or lend money to or otherwise act as fully and
freely as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent and
not in a ministerial capacity, and its duties shall be determined solely by
the provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own negligence, willful misconduct or bad faith.
(i) The Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys, agents or employees, and the Warrant
Agent shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys, agents or employees or for any loss to the
Company resulting from such neglect or misconduct, provided reasonable care
has been exercised in the selection and continued employment thereof.
(j) Any request, direction, election, order or demand of the
Company shall be sufficiently evidenced by an instrument signed in the name
of the Company by its Chairman of the Board, President or a Vice President or
its Secretary or an Assistant Secretary or its Treasurer or an Assistant
Treasurer (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Warrant Agent by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company.
Section 17. Change of Warrant Agent The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by mailing such
notice to holders at their addresses appearing on the Warrant register, of
such resignation, specifying a date when such resignation shall take effect.
The Warrant Agent may be removed by like notice to the Warrant Agent from the
Company and by like mailing of notice to the holders of Warrants. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable
of acting, the Company shall appoint a successor to the Warrant Agent. If
the Company shall fail to make such appointment within a period of thirty
(30) days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or
by the registered holder of a Warrant (who shall, with such notice, submit
his Warrants for inspection by the Company), then the registered holder of
any Warrant may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Any successor warrant
agent, whether appointed by the Company or by such a court, shall be a bank
or trust company, in good standing, incorporated under the laws of any state
or the United States of America. After appointment the successor warrant
agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as warrant agent without
further act or deed; but the former Warrant Agent shall deliver and transfer
to the successor warrant agent all canceled Warrants, records and property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Failure to file or mail
any notice provided for in this Section, however, or any defect therein,
shall not affect the legality or validity
of the resignation or removal of the Warrant Agent or the appointment of the
successor warrant agent, as the case may be.
Section 18. Identity of Transfer Agent. Forthwith upon the
appointment of any transfer agent for the shares of Common Stock or of any
subsequent transfer agent for shares of Common Stock or other shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such transfer agent.
Section 19. Notice. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any
Warrants to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed
in writing by the Company with the Warrant Agent) as follows:
▇▇▇▇.▇▇▇, Inc.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attorney at Law
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
Interwest Transfer Company, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 20. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interest of the holders of Warrants.
Section 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 22. Utah Contract. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
Utah and for all purposes shall be construed in accordance with the laws of said
state.
Section 23. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrants any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrants.
Section 24. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
▇▇▇.▇▇▇, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Interwest Transfer Company,
Inc.,Warrant Agent
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President