WARRANT AGREEMENT
▇▇▇▇▇▇▇ METALS GOLF CORP.
AND
INTERWEST TRANSFER CO., INC.
WARRANT AGENT
THIS WARRANT AGREEMENT (the "Agreement") is dated effective
as of _____________, 1998, between ▇▇▇▇▇▇▇ Metals Golf Corp., a
Nevada Corporation (the "Company"), and Interwest Transfer Co.,
Inc., Salt Lake City, Utah (the "Warrant Agent").
WHEREAS, the Company proposes to issue with respect to
shares of its Common Stock, Common Stock Purchase Warrants (the
"Warrants"), each of which will entitle the holder thereof to
purchase one share of Common Stock in the future at such time as
the conditions set forth in the Warrant Certificate are
fulfilled.
WHEREAS, in conjunction with the potential exercise of the
Warrants, the Company anticipates the issuance of _____________
shares of its Common Stock (the "Warrant Shares");
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 and
exchange of Warrant Certificates and exercise of the Warrants.
NOW, THEREFORE, in consideration of the promises and the
mutual agreements hereinafter set forth, it is agreed that:
1. WARRANTS/WARRANT CERTIFICATES. Each Warrant will, in
the future during the period specified in the Warrant
Certificate, upon fulfillment of the conditions and subject to
the terms set forth therein, entitle the holder (the "Registered
Holder" or, in the aggregate, the "Registered Holders") in whose
name the Warrant Certificate shall be registered on the books
maintained by the Warrant Agent to purchase one share of Common
Stock on exercise thereof, subject to modification and adjustment
as provided in Section 8. Warrant Certificates representing the
right to purchase Warrant Shares shall be executed by the
Company's President and attested to by the Company's Secretary or
Assistant Secretary, or shall bear facsimile signatures of such
officers, and shall be delivered to the Warrant Agent upon
execution of this Agreement for distribution to the Company's
shareholders pursuant to written instructions from the Company to
the Warrant Agent.
Subject to the provisions of Sections 3, 5, 6 and 8, the
Warrant Agent shall deliver Warrant Certificates in required
whole number denominations to Registered Holders in connection
with any transfer or exchange permitted under this Agreement.
Except as provided in Section 6 hereof, no Warrant Certificates
shall be issued except (i) Warrant Certificates initially issued
hereunder, (ii) Warrant Certificates issued on or after the
initial issuance date, upon the exercise of any Warrants, to
evidence the unexercised Warrants held by the exercising
Registered holder, and (iii) Warrant Certificates issued after
the initial issuance date, upon
any transfer or exchange of Warrant Certificates or replacements
of lost or mutilated Warrant Certificates.
2. FORM AND EXECUTION OF WARRANT CERTIFICATES. The
Warrant Certificates shall be substantially in the form attached
hereto as an exhibit. The Warrant Certificates shall be dated as
of the date of their issuance, whether on initial issuance,
transfer or exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
Each Warrant Certificate shall be numbered serially with the
designation "_________ Warrant", appearing on each Warrant
Certificate.
The Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless
so countersigned. In the event any officer of the Company who
executed the Warrant Certificates shall cease to be an officer of
the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the
Warrant Agent, such warrant Certificates may be countersigned,
issued and delivered by the Warrant Agent with the same force and
effect as though the person who signed such Warrant Certificates
had not ceased to be an officer of the Company.
3. EXERCISE. Subject to the provisions of Sections 4, 7
and 8, the Warrants, when evidenced by a Warrant Certificate, may
be exercised at the price per share set forth on the face thereof
(the "Exercise Price") in whole or in part, commencing on the
date of issuance (the "Initial Exercise Date") and terminating on
the date three years later, unless extended by the Company's
Board of Directors (the "Exercise Period"). A Warrant shall be
deemed to have been exercised immediately prior to the close of
business on the date (the "Exercise Date") of the surrender for
exercise of the Warrant Certificate. The exercise form shall be
executed by the Registered Holder thereof or his attorney duly
authorized in writing and will be delivered together with payment
to the Warrant Agent at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, (the "Corporate Office") or such other place as
designated by the Company, in cash or by official bank or
certified check, of an amount equal to the aggregate Exercise
Price, in lawful money of the United States of America.
Unless Warrant Shares may not be issued as provided herein,
the person entitled to receive the number of Warrant Shares
deliverable on such exercise shall be treated for all purposes as
the holder of such Warrant Shares as of the close of business on
the Exercise date. In addition, the Warrant Agent shall also, at
such time, verify that all of the conditions precedent to the
issuance of Warrant Shares set forth in Section 4 have been
satisfied as of the Exercise Date. If any one of the conditions
precedent set forth in Section 4 are not satisfied as of the
Exercise Date, the Warrant Agent shall request written
instructions from the Company as to whether to return the Warrant
and pertinent Exercise Price to the exercising Registered Holder
or to hold the same until all such conditions have been
satisfied. The Company shall not be obligated to issue any
fractional share interests in Warrant Shares issuable or
deliverable on the exercise of any Warrant or scrip or cash
therefor and such fractional shares shall be of no value
whatsoever. If more than one Warrant shall be exercised at one
time by the same Registered Holder, the number of full Shares
which shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full shares issuable on such
exercise.
Within thirty days after the Exercise Date and in any event
prior to the pertinent Expiration Date, the Warrant Agent shall
cause to be issued and delivered to the person or persons
entitled to receive the same, a certificate or certificates for
the number of Warrant Shares deliverable on such exercise. No
adjustment shall be made in respect of cash dividends on Warrant
Shares delivered on exercise of any Warrant. The Warrant Agent
shall promptly notify the Company in writing of any exercise and
of the number of Warrant Shares delivered and shall cause payment
of an amount in cash equal to the pertinent Exercise Price to be
promptly made to the order of the Company.
Upon the exercise of any Warrant, the Warrant Agent shall
promptly deposit the payment into a segregated account
established by mutual agreement of the Company and the Warrant
Agent at a federally insured commercial bank. All funds
deposited in the escrow account will be disbursed on a weekly
basis to the Company once they have been determined by the
Warrant Agent to be collected funds. Once the funds are
determined to be collected the Warrant Agent shall cause the
share certificate(s) representing the exercised Warrants to be
issued.
Expenses incurred by the Warrant Agent while acting in the
capacity as Warrant Agent will be paid by the Company. These
expenses, including delivery of exercised share certificates to
the shareholder, will be deducted from the exercise fee submitted
prior to distribution of funds to the Company.
A detailed accounting statement relating to the number of
shares exercised and the net amount of exercised funds remitted
will be given to the Company with the payment of each exercise
amount. This will serve as an interim accounting for the
Company's use during the exercise periods. A complete accounting
will be made by the Warrant Agent to the Company concerning all
persons exercising Warrants, the number of shares issued and the
amounts paid at the completion of the Exercise Period.
The Company may deem and treat the Registered Holder of the
Warrants at any time as the absolute owner thereof for all
purposes, and the Company shall not be affected by any notice to
the contrary. The Warrants shall not entitle the holder thereof
to any of the rights of shareholders or to any dividend declared
on the Common Stock unless the holder shall have exercised the
Warrants and purchased the shares of Common Stock prior to the
record date fixed by the Board of Directors of the Company for
the determination of holders of Common Stock entitled to such
dividend or other right.
4. RESERVATION OF SHARES AND PAYMENT OF TAXES. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of shares
as shall then be issuable on the exercise of all outstanding
Warrants. The Company covenants that all Warrant Shares which
shall be so issuable shall be duly and validly issued, fully paid
and nonassessable, and free from all taxes, liens and charges
with respect to the issue thereof.
If any shares of Common Stock to be reserved for the purpose
of exercise of Warrants hereunder require any other registration
with or approval of any government authority under any federal or
state law before such shares may be validly issued or delivered,
then the Company covenants that it will in good faith and as
expeditiously as possible endeavor to secure such registration or
approval, as the case may be. No Warrant Shares shall be issued
unless and until any such registration requirements have been
satisfied.
The Registered Holder shall pay all documentary, stamp or
similar taxes and other government charges that may be imposed
with respect to the issuance of the Warrants, or the issuance,
transfer or delivery of any Warrant Shares on exercise of the
Warrants. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered Holder of the
Warrant Certificate, no such delivery shall be made unless the
person requesting the same has paid to the Warrant Agent the
amount of any such taxes or charges incident thereto.
In the event the Warrant Agent ceases to also serve as the
stock transfer agent for the Company, the Warrant Agent is
irrevocably authorized to requisition the Company's new transfer
agent from time to time for Certificates of Warrant Shares
required upon exercise of the Warrants, and the Company will
authorize such transfer agent to comply with all such
requisitions. The Company will file with the Warrant Agent a
statement setting forth the name and address of its new transfer
agent, for shares of Common Stock or other capital stock issuable
upon exercise of the Warrants and of each successor transfer
agent.
5. REGISTRATION OF EXERCISE OR TRANSFER. The Warrant
Certificates may be exercised or transferred in whole or in part
if permitted by the Company. In any permitted exercise or
transfer, the Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at its Corporate Office. The
Company shall execute and the Warrant Agent shall countersign,
issue and deliver in exchange therefor the Warrant Certificate or
Certificates which the holder making the exercise or transfer
shall be entitled to receive.
The Warrant Agent shall keep transfer books at its Corporate
Office which shall register Warrant Certificates and the transfer
thereof. On due presentment for registration of transfer of any
Warrant Certificate at such office, the Company shall execute and
the Warrant Agent shall issue and deliver to the transferee or
transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants. All Warrant
Certificates presented for registration of transfer or exercise
shall be duly endorsed or be accompanied by a written instrument
or instruments or transfer in form satisfactory to the Company
and the Warrant Agent. At the time of exercise, the transfer fee
shall be paid by the Company. The Company may require payment of
a sum sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Warrant Certificates so surrendered, or surrendered for
exercise, or for exchange in case of mutilated Warrant
Certificates, shall be promptly canceled by the Warrant Agent and
thereafter retained by the Warrant Agent until termination of the
agency created by this Agreement. Prior to due presentment for
registration of transfer thereof, the Company and the Warrant
Agent may treat the Registered Holder of any Warrant Certificate
as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the
Company or the Warrant Agent), and the parties hereto shall not
be affected by any notice to the contrary.
6. LOSS OR MUTILATION. On receipt by the Company and the
Warrant Agent of evidence satisfactory as to the ownership of and
the loss, theft, destruction or mutilation of any Warrant
Certificate, the Company shall execute, and the Warrant Agent
shall countersign and deliver in lieu thereof, a new Warrant
Certificate representing an equal aggregate number of Warrants.
In the case of loss, theft or destruction of any Warrant
Certificate, the individual requesting issuance of a new Warrant
Certificate shall be required to indemnify the Company and
Warrant Agent in an amount satisfactory to each of them. In the
event a Warrant Certificate is mutilated, such certificate shall
be surrendered and canceled by the Warrant Agent prior to
delivery of a new Warrant Certificate. Applicants for a new
Warrant Certificate shall also comply with such other regulations
and pay such other reasonable charges as the Company may
prescribe.
7. CALL OPTION. At any time after the closing bid price
of the Company's common stock equals or exceeds _______________
(including any adjustment or reduction of such price pursuant
to Section 8 or 9 hereof), for ______ consecutive trading days,
the Company shall have the right and option with respect to the
Warrants, upon thirty (30) days written notice to each Warrantholder
(or such longer period as is required under any applicable law), to
call, redeem and acquire all of the Warrants which remain outstanding
and unexercised at the date specified for such redemption in such
notice (the "Redemption Date"), which Redemption Date shall be 30
days after the date of such notice, for an amount equal to $.01
per Warrant; provided, however, the Warrantholders shall have the
right during the 30-day period immediately following the date of
such notice to exercise the Warrants in accordance with the
provisions of Section 3 hereof. In the event any Warrants are
exercised during such 30-day period, this call option shall be
deemed not to have been exercised by the Company as to the
Warrants so exercised by the holders thereof. Said notice of
redemption shall require each Warrantholder to surrender to the
Company, on the Redemption Date, at the Corporate Office of the
Warrant Agent (or its successor), his certificate or certificates
representing the Warrants to be redeemed. Notwithstanding the
fact that any Warrants called for redemption have not been
surrendered for redemption and cancellation on the Redemption
Date, after the Redemption Date, such Warrants shall be deemed to
be expired and all rights of the holders of such unsurrendered
Warrants shall cease and terminate, other than the right to
receive the redemption price of $.01 per Warrant for such
Warrants, without interest provided, however, that such right to
receive the redemption price of $.01 per Warrant for such
Warrants shall itself expire on the Expiration Date of the
Warrants. The Company shall notify the Warrant Agent verbally,
with confirmation in writing, of the call of the Warrants and of
the Redemption Date and the Company shall instruct the Warrant
Agent accordingly as to the procedures to be followed by the
Warrant Agent in connection with the redemption of the Warrants.
8. ADJUSTMENT OF EXERCISE PRICE AND SHARES. After each
adjustment of the Exercise Price pursuant to this Section 8, the
number of shares of Common Stock purchasable on the exercise of
each Warrant shall be the number derived by dividing such
adjusted pertinent Exercise Price into the original pertinent
Exercise Price. The pertinent Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the Warrants
by exercise or by their terms, the Company shall issue any shares
of its Common Stock as a share dividend or shall subdivide the
number of outstanding shares of Common Stock into a greater
number of shares, then, in either of such events, the Exercise
Price per share of Common Stock purchasable pursuant to the
Warrants in effect at the time of such action shall be reduced
proportionately and the number of shares purchasable pursuant to
the Warrants shall be increased proportionately. Conversely, in
the event the Company shall reduce the number of shares of its
outstanding Common Stock by combining such shares into a smaller
number of shares, then, in such event, the Exercise Price per
share purchasable pursuant to the Warrants in effect at the time
of such action shall be increased proportionately and the number
of shares of Common Stock at that time purchasable pursuant to
the Warrants shall be decreased proportionately. Any dividend
paid or distributed on the Common Stock in shares of any other
class of the Company or securities convertible into shares of
Common Stock shall be treated as a dividend paid in Common Stock
to the extent that shares of Common Stock are issuable on the
conversion thereof.
(b) In the event the Company, at any time while the
Warrants shall remain unexpired and unexercised, shall sell all
or substantially all of its property, or dissolves, liquidates or
winds up its affairs, prompt, proportionate, equitable, lawful
and adequate provision shall be made as part of the terms of any
such sale, dissolution, liquidation or winding up such that the
holder of a Warrant may thereafter receive, on exercise thereof,
in lieu of each share of Common Stock of the Company which he
would have been entitled to receive, the same kind and amount of
any share, securities, or assets as may be issuable,
distributable or payable on any such sale, dissolution,
liquidation or winding up with respect to each share of Common
Stock of the Company; provided, however, that in the event of any
such sale, dissolution, liquidation or winding up, the right to
exercise this Warrant shall terminate on a date fixed by the
Company, such date to be not earlier than 4:00 p.m., Eastern
Time, on the 10th day next succeeding the date on which notice of
such termination of the right to exercise the Warrants has been
given by mail to the holders thereof at such addresses as may
appear on the books of the company.
(c) In the event, prior to the expiration of the Warrants
by exercise or by their terms, the Company shall determine to
take a record of the holders of its Common Stock for the purpose
of determining shareholders entitled to receive any share
dividend or other right which will cause any change or adjustment
in the number, amount, price or nature of the shares of Common
Stock or other securities or assets deliverable on exercise of
the Warrants pursuant to the foregoing provisions, the Company
shall give to the Registered Holders of the Warrants at the
addresses as may appear on the books of the Company at least 10
days prior written notice to the effect that it intends to take
such a record. Such notice shall specify the date as of which
such record is to be taken; the purpose for which such record is
to be taken; and the number, amount, price and nature of the
Common Shares or other shares, securities or assets which will be
deliverable on exercise of the Warrants after the action for
which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the
Registered Holders of the Warrant Certificates of any corporate
action hereunder, the failure of the Company to give notice shall
not invalidate such corporate action of the Company.
(d) No adjustment of the Exercise Price shall be made as a
result of or in connection with (i) the issuance of Common Stock
of the Company pursuant to options, warrants and share purchase
agreements outstanding or in effect on the date hereof, (ii) the
establishment of additional option plans of the Company, the
modification, renewal or extension of any plan now in effect or
hereafter created, or the issuance of Common Stock, on exercise
of any options pursuant to such plans, in connection with
compensation arrangements for officers, employees or agents of
the Company or any subsidiary, and the like or (iii) the issuance
of Common Stock in connection with an acquisition or merger of
any type (therefore, the antidilution provisions of this Section
8 will not apply in the event a merger or acquisition is
undertaken by the Company).
(e) This Agreement shall be incorporated by reference on
the Warrant Certificates.
Upon any adjustment of the exercise Price required to be
made pursuant to this Section 8, the Company within 30 days
thereafter shall (A) cause to be filed with the Warrant Agent a
certificate setting forth the pertinent Exercise Price after such
adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based,
and (B) cause to be mailed to each of the Registered Holders of
the Warrant Certificates written notice of such adjustment.
9. REDUCTION IN EXERCISE PRICE AT COMPANY'S OPTION. In
addition to any adjustments made to the Exercise Price pursuant
to Section 8, the Company's Board of Directors may, at its sole
discretion, reduce the Exercise Price of the Warrants in effect
at any time either for the life of the Warrants or any shorter
period of time determined by the Company's Board of Directors.
The Company shall promptly notify the Warrant Agent and the
Registered Holders of any such reductions in the Exercise Price.
10. DUTIES. Compensation and Termination of Warrant Agent.
The Warrant Agent shall act hereunder as agent and in a
ministerial capacity for the Company, and its duties shall be
determined solely by the provisions hereof. The Warrant Agent
shall not, by issuing and delivering Warrant Certificates or by
any other act hereunder, be deemed to make any representation as
to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of the Common
Stock or other property delivered on exercise of any Warrant.
The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of the Warrant Certificates to make
or cause to be made any adjustment of the Exercise Price or to
determine whether any fact exists which may require any such
adjustments.
The Warrant Agent shall not (i) be liable for any recital or
statement of fact contained herein or for any action taken or
omitted by it in reliance on any 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 except for its own negligence or
willful misconduct, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or
willful misconduct.
The Company agrees to indemnify the Warrant Agent against
any and all losses, expenses and liabilities which the Warrant
Agent may incur in connection with the delivery of copies of the
Company's prospectus to exercising Registered Holders upon the
exercise of any Warrants as set forth in Section 4.
The Warrant Agent may at any time consult with counsel
satisfactory to it (which may be counsel for the Company) and
shall incur no liability or responsibility for any action taken
or omitted by it in good faith in accordance with the opinion or
advice of such counsel. Any notice, statement, instruction,
request, direction, order or demand of the Company shall be
sufficiently evidenced by an instrument signed by its President
and attested by its Secretary or Assistant Secretary. The
Warrant Agent shall not be liable for any action taken or omitted
by it in accordance with such notice, statement, instruction,
request, order or demand.
The Company agrees to pay the Warrant Agent reasonable
compensation for its services hereunder and to reimburse the
Warrant Agent for its reasonable expenses. The Company further
agrees to indemnify the Warrant Agent against any and all losses,
expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the
execution of its duties and powers hereunder, excepting losses,
expenses and liabilities arising as a result of the Warrant
Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may
terminate the Warrant Agent and the Warrant Agent shall be
discharged from all further duties and liabilities hereunder
(except liabilities arising as a result of the Warrant Agent's
own negligence or willful misconduct), on 30 days' prior written
notice to the other party. At least 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 Warrant Certificate. On such
resignation or termination the Company shall appoint a new
warrant agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified
in writing of the resignation by the Warrant Agent, then the
registered holder of any Warrant Certificate may apply to any
court of competent jurisdiction for the appointment of a new
warrant agent.
After acceptance in writing of an appointment of a 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; provided, however, if 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. The Company shall file a
notice of appointment of a new warrant agent with the resigning
Warrant Agent and shall forthwith cause a copy of such notice to
be mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new
warrant agent may be converted or merged, or 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
shall be a successor Warrant Agent under this Agreement, provided
that such corporation is eligible for appointment as a 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 Holder of each Warrant Certificate.
No further action shall be required for establishment and
authorization of such successor warrant agent.
The Warrant Agent, its officers or directors and its
subsidiaries or affiliates may buy, hold or sell 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.
11. MODIFICATION OF AGREEMENT. The Warrant Agent and the
Company may by supplemental agreement make any changes or
corrections in this Agreement (i) that they shall deem
appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained; or
(ii) that they may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Warrant
Certificates; provided, however, this Agreement shall not
otherwise be modified, supplemented or altered in any other
respect except with the consent in writing of the registered
holders of Warrant Certificates representing not less than 51% of
each class of Warrants outstanding. Additionally, except as
provided in Section 8, no change in the number or nature of the
Warrant Shares purchasable on exercise of a Warrant, increase the
purchase price therefor, or the acceleration of the Expiration
Date of a Warrant shall be made without the consent in writing of
the Registered Holder of the Warrant Certificate representing
such Warrant, other than such changes as are specifically
prescribed or allowed by this Agreement.
12. NOTICES. All notices, demands, elections, opinions or
requests (however characterized or described) required or
authorized hereunder shall be deemed given sufficiently if in
writing and sent by registered or certified mail, return receipt
requested and postage prepaid, or by tested telex, telegram or
cable to the last known address of the Company, the Warrant Agent
and if to the Registered Holder of a Purchase Warrant
Certificate, at the address of such holder as set forth on the
books maintained by the Warrant Agent.
13. BINDING AGREEMENT. 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 Purchase Warrant Certificates. Nothing in this
Agreement is intended or shall be construed to confer upon any
other person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. FURTHER INSTRUMENTS. The parties shall execute and
deliver any and all such other instruments and shall take any and
all other actions as may be reasonably necessary to carry out the
intention of this Agreement.
15. SEVERABILITY. If any provision of this Agreement shall
be held, declared or pronounced void, voidable, invalid,
unenforceable, or inoperative for any reason by any court of
competent jurisdiction, government authority or otherwise, such
holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance
with its terms, and the effect of such holding, declaration or
pronouncement shall be limited to the territory or jurisdiction
in which made.
16. WAIVER. All the rights and remedies of either party
under this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or failure
on the part of either party in the exercise of any right or
remedy arising from a breach of this Agreement shall operate as a
waiver of any subsequent right or remedy arising from a
subsequent breach of this Agreement. The consent of any party
where required hereunder to act or occurrence shall not be deemed
to be a consent to any other action or occurrence.
17. GENERAL PROVISIONS. This Agreement shall be construed
and enforced in accordance with, and governed by, the laws of the
State of Nevada. Except as otherwise expressly stated herein,
time is of the essence in performing hereunder. This Agreement
embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement may not
be modified or amended or any term or provisions hereof waived or
discharged except in writing signed by the party against whom
such amendment, modification, waiver or discharge is sought to be
enforced. The headings of this Agreement are for convenience in
reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
▇▇▇▇▇▇▇ METALS GOLF CORP.
By
Authorized Officer
THE WARRANT AGENT:
INTERWEST TRANSFER CO., INC.
By
Authorized Officer
WARRAGR.MMG