CONSULTING CONTRACT
THIS CONTRACT made as of the 7th day of March 2000 by and between
Regenesis Holdings, Inc. ("Regenesis"), a Florida Corporation, having offices at
000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx and The Equity Group Inc. ("Equity") a New
York Corporation, having offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
WHEREAS, Regenesis desires to secure the services of Equity as a
consultant and Equity desires to provide such services to Regenesis;
NOW, THEREFORE, in consideration of mutual promises contained herein;
the parties hereto agree as follows:
1. Equity hereby agrees that it will render financial public
relations/investor relations services to Regenesis. The purpose of these
services, is to help Regenesis better communicate with the financial community
the media and with shareholders. The services shall include the introduction of
Regenesis to the financial community and to the business and financial media as
well as acting as the liaison between Regenesis and these audiences (Financial
Community and Media Relations); assisting in building corporate recognition in
the online investment community (Interactive Services); advising and assisting
in the planning and preparation of interim reports to shareholders; the
preparation and dissemination of press releases relating to important business
developments and the Road Show presentation, among others, as well as acting in
an advisory capacity with regard to Annual Reports (Editorial Services). Equity
will also provide the necessary administrative services to support this program
(Administrative Services) and the relevant market intelligence to stay fully
informed of Regenesis' position in the public marketplace (Market Intelligence),
and will advise Regenesis in all other areas relating to its posture as a public
company (Advisory Services).
2. The Term of this Contract shall commence on March 9, 2000 and shall
continue until March 8, 2003 unless terminated by Regenesis or Equity in
accordance with Paragraph 9 hereof.
3. (a) In consideration of the services to be rendered and performed by
Equity during the term of this Contract, Regenesis will pay Equity three
thousand dollars ($3,000) upon the signing of the Contract for the first month
of services and three thousand dollars ($3,000) per month at the beginning of
each subsequent month of the first year of the Contract, five thousand dollars
($5,000) per month at the beginning of each month of the second year of the
Contract, and seven thousand dollars ($7,000) per month at the beginning of each
month of the third year of the Contract.
(b) In addition, as an inducement for Equity entering into this
Contract, Regenesis will issue to Equity three Common Stock Purchase Warrants to
purchase a total of two hundred and sixteen thousand (216,000) shares of common
stock. Each Warrant will be exercisable for a five-year period. Warrant #1,
covering seventy two thousand (72,000) shares, and exercisable at two dollars
and fifty cents ($2.50) per share, will be fully vested and non forfeitable upon
the signing of the Contract Warrant #2, also covering seventy two thousand
(72,000) shares, will be exercisable at five dollars ($5.00) per share
commencing on the first year anniversary date of this Contract, unless Regenesis
or Equity terminates this Contract in accordance with Paragraph 9 hereof.
Warrant #3, also covering seventy two thousand (72,000) shares, will be
exercisable at seven dollars and fifty cents ($7.50) per share commencing on the
second year anniversary date of this Contract, unless Regenesis or Equity
terminates this Contract in accordance with Paragraph 9 hereof. These Warrants
have piggy-back registration rights as stated therein. (See attached Warranty
Agreements).
(c) Equity shall also be reimbursed for all reasonable and necessary
out-of-pocket expenses incurred in the performance of its duties, upon
presentation of monthly statements.
Regenesis Holdings, Inc.
Consulting Contract
(d) In the event Equity arranges for a financing, acquisition, merger,
corporate, sale, business combination or similar such transaction for Regenesis
or in the event Equity introduces Regenesis to any of the above transactions
through an intermediary, including but not limited to investment banking firms,
brokers, etc. (with such arrangements and introductions possibly occurring in
the course of Equity's financial public relations activities), Regenesis shall
pay a separate and additional fee to Equity at the time of closing of such
transaction(s), in accordance with applicable industry standards and mutually
agreed upon by Equity and Regenesis prior to such closing(s).
4. Equity will use its best efforts to perform these services for
Regenesis consistent with and specifically recognizing Equity's commitments and
obligations to other businesses for which it performs services.
5. Equity agrees that neither it nor its employees or agents will
during the term of this Contract, or at any time thereafter, disclose or divulge
or use, directly or indirectly, for its own benefit, any confidential
information, data, trade secrets, etc., relating to the business of Regenesis
learned in connection with its work for Regenesis. The provisions of this
paragraph shall survive the termination of this Contract, and shall continue
until such information, data, trade secrets, etc., becomes public knowledge
through no fault of Equity or any of its employees or agents.
6. As a consultant for regenesis, Equity must at all times rely upon
the accuracy and completeness of the information supplied to Equity by
officers, directors, agents and employees of Regenesis. Regenesis hereby agrees
that in the event that Equity or any of its officers, directors, agents or
employees is a party or is threatened to be made a party or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), or to the extent that Equity or any
such indemnified person is a witness in any proceeding, by reason of the fact
that Equity is or was serving as a consultant to Regenesis, whether the basis of
such proceeding is alleged action or inaction in such capacity as a consultant
or in any other capacity while serving as a consultant. Equity or any such
person shall be indemnified and held harmless by Regenesis, to the fullest
extent permitted by applicable law, against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgements, fines, or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by Equity or any such person in connection therewith, and such
indemnification shall continue as to Equity or any such person after Equity has
ceased to be a consultant to Renegesis and shall inure to benefit of the
successors, heirs, executors and administrators or such persons; provided,
however, that Regenesis shall not be required to indemnify Equity or any such
person if Equity or any such person, as the case may be, was guilty of
negligence or misconduct. Equity or any such proceeding in advance of its final
disposition. This right to indemnification and the right to payment of expenses
incurred in defending a proceeding in advance of its final disposition shall not
be exclusive of any right which Equity may have.
7. Equity agrees to indemnify, hold harmless and defend Regenesis, its
directors, officers, employees and agents from and against any and all claims,
actions, proceedings, losses, liabilities, costs and expenses (including,
without limitation, reasonable attorneys' fees) incurred by any of them in
connection with or as the result of any negligence or misconduct by Equity or
any of its directors, officers, employees or agents, in connection with the
performance of Equity's services pursuant to this Contract.
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Regenesis Holdings, Inc.
Consulting Contract
8. In the event an action or proceeding is commenced with respect to
this Contract, the prevailing party shall be entitled to receive payment from
the other party of its legal fees and expenses.
9. This Contract may be terminated by Regenesis or Equity on either the
first or second year anniversary date of the commencement of services, upon 30
days prior written notice to such effect. In the event Regenesis or Equity
elects to so terminate this Contract(s) Regenesis shall be obligated to pay to
Equity fees and expense reimbursements with respect to the period through the
date of such termination; (b) Equity shall forfeit Warrants #2 and #3 if
terminated on the first year anniversary date, or Warrant #3 only if terminated
on the second year anniversary date; and (c) the provisions of Paragraph 5, 6 7
and 8 and shall survive such termination and continue in full force and effect.
10. This Contract will not be assigned (including by operation of law)
by either party hereto and shall be interpreted under the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date
above written.
THE EQUITY GROUP, INC. REGENESIS HOLDINGS, CORP.
By: /s/ eligible By: /s/ eligible
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WARRANTS FOR THE PURCHASE OF SHARES FOR COMMON STOCK
216,000 Shares No. _____
FOR VALUE RECEIVED, Regenesis Holdings, Inc. (the "Company"), a Florida
corporation, hereby certifies that The Equity Group Inc. is entitled to purchase
from the Company, at any time or from time to time prior to 5:00 P.M., New York
City time then current, on March 7, 2005, 216,000 fully paid and non-assessable
shares of common stock, $0.01 par value, of the Company at the aggregate
purchase price of $1,080,000.00 (computed on the basis of: year (1) 72,000 @
$2.50 per share; year (2) 72,000 @ $5.00 per share; year (3) 72,000 @ $7.50).
The aforementioned shares are subject to cancellation under the terms and
conditions of the Consulting Contract and are not exercisable until fully vested
therein. (Hereinafter, (i) said common stock, together with any other equity
securities which may be issued by the Company with respect thereto or in
substitution therefore, is referred to as "Common Stock," (ii) the shares of the
Common Stock purchasable hereunder are referred to as the "Warrant Shares,"
(iii) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price," and (iv) this warrant and all
warrants hereafter issued in exchanged or substitution for this warrant are
referred to as "Warrants") The Aggregate Warrant Price is not subject to
adjustment. The Per Share Warrant Price is subject to adjustment as hereinafter
provided; in the event of any such adjustment, the number of Warrant Shares
shall be adjusted such that it equals a number determined by dividing the
Aggregate Warrant Price by Per Share Warrant Price in effect immediately after
such adjustment.
1. Exercise of Warrant:
(a) This Warrant may be exercised, in whole at any time or in part from time
prior to 5:00 P.M., New York City time then current, on March 7, 2005 (the
"Expiration Date"), by the holder of this Warrant (the "Holder") by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) at the address set forth in Subsection 10(a) hereof, together with
proper payment if the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part. Payment for the Warrant Shares shall be
made by check, payable to the order of the Company. If this Warrant is exercised
in part, this Warrant must be exercised for a number if whole shares of the
Common Stock, and the Holder is enticed to receive a new Warrant covering the
number of Warrant Shares in respect of which this Warrant has not been exercised
and setting forth the proportioned part of the Aggregate Warrant applicable to
such Warrant Shares. Upon such exercise and surrender if this Warrant, the
Company will (i) issue a certificate or certificates in the name of the Holder
for the largest number of whole shares of the Common Stock to which the Holder
shall be entitled and, if this Warrant is exercise in whole, in lieu of any
fractional share of the Common Stock to which the Holder shall be entitled, pay
cash equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(ii) deliver the order securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares.
The Company agrees that, prior to the expiration of this Warrant, the Company
will at all times have authorized and in reserve, and will keep available,
solely for issuance or delivery upon the exercise of this Warrant, such number
of shares of the Common Stock and such amount of other securities and properties
as from time to time shall be deliverable to holder upon the exercise if this
Warrant, free and clear of all restrictions on sale or transfer (except such as
may b imposed under applicable federal and state securities laws) and free and
clear of all preemptive rights and all other rights to purchase securities of
the Company.
3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of this Warrant, the
Company shall distribute to the holders of its outstanding Common Stock, (i)
securities, other than shares of Common Stock, or (ii) property, other than cash
not out of earned surplus, without payment therefore, then and in each such
case, the Holder, upon the exercise of this Warrant, shall be entitled to
received the securities and property which the Holder would hold on the date of
such exercise if, on the date of this Warrant the Holder had been the holder of
record of the number of shares of the Common Stock subscribed for upon such
exercised and, during the period from the date of this Warrant to and including
the date of such exercise, had retained such shares and the securities and
properties receivable by the Holder during such period. Notice of each such
distribution shall be forthwith mailed to the Holder.
(b) If, at any time or from time to time after the date of this Warrant, the
Company shall (i) pay dividend or make a distribution of its capital stock in
shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares or (iv) issue by reclassification of its
Common Stock any shares of capital stock of the Company, the Per Share Price
Warrant Price and Warrant Shares in effect immediately prior to such action
shall be adjusted so that the Holder of any Warrant thereafter exercised shall
be entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would have owned or been entitled to received at
Aggregate Warrant Price he would have paid or have been entitled to pay
immediately following the happening of any of the events described above had
such Warrant been exercised immediately prior thereto. An adjustment made
pursuant to this (b) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this (b),
the holder of any Warrant thereafter surrendered for exercise shall become
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entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital Stock of the Company, Board of Directors (whose
reasonable determination shall be described in a written notice to the Holder of
any Warrant promptly after such adjustment) shall determined the allocation of
the adjusted Per Share Warrant Price between or among shares of such classes or
capital stock or shares of Common Stock and other capital stock.
(c) Except as provided in 3(e), in case the company shall hereafter issue or
sell any shares of Common Stock for a consideration Per Share Warrant Price in
effect immediately prior to such issuance or sale, the Per Share Warrant Price
shall be adjusted as of the date such issuance or sale so that the same shall
equal the price determined by dividing (i) the sum of (A) the number shares of
Common Stock outstanding immediately prior to such issuance or sale multiplied
by the Per Share Warrant Price plus (B) the consideration received by the
Company upon such issuance or sale by (ii) the total number of shares of Common
Stock outstanding after issuance or sale.
(d) Except as provided in 3(e) in case the Company shall hereafter issue or sell
any rights, option warrants or securities convertible into Common Stock
entitling the holders thereof to purchase the Common Stock or to convert such
securities into Common Stock at a price per share (determined by dividing (i)
the total amount, if any received or receivable by the Company in consideration
of the issuance or sale of such rights, options, warrants or convertible
securities plus the total consideration, if any, payable to the Company upon
exercise or conversion thereof (the "Total Consideration") by (ii) the number of
additional shares of Common Stock issuable upon exercise or conversion of such
securities) less than the then Per Share Warrant Price in effect on the date of
such issuance or sale, the Per Share Warrant Price shall be adjusted as of the
date of such issuance or sale so that the same shall equal the price determined
by dividing (i) the sum of (A) the number shares of Common Stock outstanding on
the of such issuance or sale multiplied by Per Share Price plus (B) the total
Consideration by (ii) the number of shares of Common Stock outstanding on the
date such issuance or sale plus maximum number of additional shares of Common
Stock issuable upon exercise or conversion of such securities.
(e) No adjustment in the Per Share Warrant Price shall be required in the case
of (i) the issuance of Common Stock upon the exercise of options which may be
granted in the ordinary course of business under the Company's official employee
stock option plan as in effect on the date hereof or (ii) the issuance of shares
pursuant to the exercise of this Warrant.
(f) In case of any consolidation or merger to which the Company is a party other
than a merger or consolidation in which the Company's is the continuing
corporation, or in case of any sale or conveyance to another entity of the
assets or other property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
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entity (including any exchange effected in connection with a merger of any other
corporation with the Company), the Holder of this Warrant shall have the right
thereafter convert such Warrant into the kind and amount of securities, cash or
other property which he would have owned or have been entitled to received
immediately after such consolidation, merger, statutory, exchange, sale or
conveyance had this Warrant been exercised immediately prior to the effective
date of such consolidation, merger, statutory exchange, sale or conveyance and
in any such case, if necessary, appropriate adjustments shall be made in the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
provisions set forth in Section 3 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of this
Warrant. The above provisions of this 3(f) shall similarly apply to successive
consolidations, mergers statutory exchanges, sales or conveyances. Notice of any
such consolidation, merger, statutory exchange, sale or conveyance, and of said
provisions so propose to be made, shall be mailed to the Holder not less than
twenty (20) days prior to such event. A sale of all pr substantially all of the
assets of the Company for a consideration consisting primarily of securities
shall be deemed a consolidation merger for the foregoing purposes.
(g) Whenever the Per Share Warrant Price is adjusted as provided in this Section
3 and upon any modification of the rights of the Holder of this Warrant in
accordance with this Section 3, Company shall, at its own expense, within ten
(10) days of such adjustment or modification, deliver to the holder of this
Warrant a certificate of the principal financial officer of the Company setting
forth the Per Share Warrant Price and the number of Warrant Shares after such
adjustment or the effect of such modification, a brief statement of the facts
requiring such adjustment or modification and the manner of computing the same.
In addition, within thirty (30) days of the end of the Company's fiscal year
next following any such adjustment or modification, the Company shall, at its
own expense, deliver to the Holder of this Warrant a certificate of a firm of
independent public accountants of recognized standing reasonably selected by the
Board of Directors (which may be the regular auditors of the Company) setting
forth the same information as required by such principal financial officer
certificate.
(h) If the Board of Directors of the Company shall declare any dividend or other
distribution in cash with respect to the Common Stock, other than out of earned
surplus, the Company shall mail notice thereof to the Holder not less than
twenty (20) days prior to the record date fixed for determining shareholders
entitled to participate in such dividend or other distribution.
4. Fully Paid Stock: Taxes
The Company agrees that the shares of the Common Stock represented by
each and every certificate for Warrant Shares delivered on the exercise of this
Warrant in accordance with the terms hereof shall, at the time of such delivery,
be validly issued and outstanding, fully paid and non-assessable and not subject
to preemptive rights or other contractual rights to purchase securities of the
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Company, and the Company will take all such actions as may be necessary to
assure that the par value, if any, per share of the Common Stock is at all times
equal to or less than the then Per Share Warrant Price. The Company further
covenants and agrees that if it will pay, when due and payable, any and all
federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any Warrant Share or certificate.
5. Registration Under Securities Act of 1933
The Company agrees that if, at any times and from time to time during the period
ending on March 7, 2005 the Holder and/or the holders of any other Warrants
and/or Warrant Shares who or which shall hold not less than 50% of the Warrants
and/or Warrant Shares outstanding at such time not previously sold pursuant to
this Section 5, request that the Company file a registration statement under the
Securities Act of 1933 (the "Act") covering all or any of the Warrant Shares,
the Company will (i) promptly notify the Holder and all other registered
holders, if any, of other Warrants and/or Warrant Shares that such registration
statement will be filed and that the Warrant Shares which are then held, and/or
which may be acquired upon the exercise of Warrants, by the Holder and such
holders will be included in such registration statement at the Holder's and such
holder's request (ii) cause such registration statement to cover all Warrant
Shares which it has been so requested to include, (iii) use its best efforts to
cause such registration statement to become effective as soon as practicable and
to remain effective and current and (iv) take all other action necessary under
any federal or state law or regulation of any governmental authority to permit
all Warrant Shares which it has been so requested to include in such
registration statement to be sold or otherwise disposed of and will maintain
such compliance with each such federal and state law and regulation of any
governmental authority for the period of necessary for the Holder and such
holders to effect the proposed sale or other disposition.
(b) The Company agrees that if, at any time and from time to time Board of
Directors of the Company shall authorize the filing of registration statement
(any such registration statement being sometimes hereinafter called a "
Subsequent Registration Statement ") under the Act (otherwise than pursuant to
5(a) hereof) in connection with the proposed offer to any of its securities by
it or any of its shareholders, the Company will (i) promptly notify the Holder
and all other registered holder, if any, of other Warrants and/or Warrant Shares
that such Subsequent Registration Statement will be filed and the Warrant Shares
which are then held, and/or which may be acquired upon the exercise of the
Warrants, by the Holder and such Holders will be included in such Subsequent
Registration Statement at the Holder's and such holder's request, (ii) cause
such Subsequent Registration Statement to cover all Warrant Shares which it has
been so requested to include, (iii) cause such Registration Statement to become
effective as soon as practicable and to remain effective and current and (iv)
take all other action necessary under any federal or state law regulation of any
governmental authority to permit all Warrant Shares which it has been so
5
requested to include in such Subsequent Registration Statement to be sold or
otherwise disposed of governmental authority for the period necessary for the
Holder and such holders to effect the proposed sale or other disposition
(c) Whenever the Company is required pursuant to the provisions of this Section
5 to include Warrant Shares in a Subsequent Registration Statement or in a
registration statement pursuant to 5(a) hereof, the Company shall (i) furnish
each holder of any such Warrant Shares and each underwriter of such Warrant
Shares with such copies of the prospectus, including the preliminary prospectus,
conforming to the Act (and such other documents as each such holder or each such
underwriter may reasonably request ) in order to facilitate the sale or
distribution of the Warrant Shares, (ii) use its best efforts to register or
qualify such Warrant Shares under the blue sky laws (to the extend applicable)
of such jurisdiction or jurisdiction as the holders of any such Warrant Shares
and each underwriter of Warrant Shares being sold by such holders shall
reasonably request and (iii) take such other actions as may be reasonably
necessary or advisable to enable such holders and such underwriters to
consummate the sale or distribution in such jurisdiction or jurisdiction in
which such holders shall have reasonably requested that the Warrant Shares be
Sold.
(d) The Company shall pay all expenses incurred in connection with any
registration or other action pursuant to the provision of this Section 5,
including the attorney's fees and expenses of the holders(s) of the Warrant
Shares covered by such registration incurred in connection with such
registration or other action other than underwriting discounts and applicable
transfer taxes relating to the Warrants Shares.
(e) The " Market Price" of Common Stock shall mean the price of a share of
Common Stock on the relevant date, determined on the basis of the last reported
sale price of Common Stock as reported on the NASDAQ National Market System
("NASDAQ") or, if there is no such reported sale on the day in question, on the
basis of the average of the closing bid and asked quotations as so reported or,
if the Common Stock is not listed on NASDAQ, the last reported sale price of the
Common Stock on such other national securities exchange upon which the Common
Stock is listed or, on any national securities exchange, on the basis of the
basis of the closing bid and asked quotations on the day in question in the
over-the-counter market as reported by National Association of Securities
Dealers' Automated Quotations System or, if not so quoted, as reported by
National Quotation Bureau, Incorporated or any similar organization or, if not
so reported, by a qualified, independent third party appraiser jointly selected
by the holders of the Warrants and the Company whose cost shall be borne by the
Company.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless each selling holder of
Warrant Shares and each person who controls any such selling holder within the
meaning of Section 15 of the Act, and each and all of them, from and against any
and all losses, claims, damage, liabilities or actions, joint or several, to
which any selling holder of Warrant Shares or they or any of them may become
subject under the Act or otherwise and to reimburse the persons indemnified as
6
above for any legal or other expenses (including the cost of, and for the
personnel time spent in connection with, any investigation, testimony and
preparation) incurred by them in connection with any litigation or threatened
litigation, whether or not resulting in any liability, but only insofar as such
losses, claims, damages liabilities or actions arise out of, or are based
upon,(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement pursuant to which Warrant Shares were
registered under the Act (hereinafter called "Registration Statement"), any
preliminary prospectus, the final prospectus or any amendment or supplement
thereto (or in any application or document filed in connection therewith) or
document executed by the Company based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to register or
qualify the Warrant Shares under the securities laws thereof or the omission or
alleged to state omission to state therein a material fact required to be stated
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) the employment by the
Company of any device, scheme or artifice to defraud, or the engaging by the
Company in any act, practice or courses of business which operates or would
operate as a fraud or deceit, or any conspiracy with respect thereto, in which
the Company shall participate, in connection with the issuance and sale of any
of the Warrant Shares; provided, however that (i) the indemnity agreement
contained in this (a) shall not extend to any selling holder of Warrant Shares
in respect of any such losses, claims , damages, liabilities or actions arising
out of, arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was based upon and made in conformity with information furnished in
writing to the Company by selling holder of Warrant Shares specifically for use
in connection with the preparation of such Registration Statement, any final
prospectus, any preliminary prospectus or any such amendment or supplement
thereto. The Company agrees to pay any legal and other expenses for which it is
liable under this (a) from time to time within thirty (30) days after its
receipt of a xxxx therefore.
(b) Each selling holder of Warrant Shares, severally and not jointly, will
indemnify and hold harmless the Company its directors, its officers who shall
have signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act to the same extend as the
foregoing indemnity from the Company, but in each case to the extend, and only
to extend, that any statement in or omission from or alleged omission from such
Registration Statement, any final prospectus, any preliminary prospectus or any
amendment or supplement thereto was made in reliance upon information furnished
in writing to the Company by such selling holder specifically for use in
connection any such amendment or supplement thereto; provided, however, that the
total obligation of any holder of Warrant Shares to indemnify any and all such
indemnified parties the provision of this (b) shall be limited to the product of
the number of Warrant Shares being sold by the selling holder and the excess of
the Market Price of the Common Stock on the date of the sale to the public of
these Warrant Shares over the Per Share Warrant Price. Each selling holder of
Warrant Shares to pay any legal and other expenses for which it is liable under
(b) from time to time thirty (30) days after receipt of a xxxx therefore.
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(c) If any action is brought against a person entitled to indemnification
pursuant to the foregoing 6 (a) or (b) (an "indemnified party") in respect of
which indemnity may be sought against a person granting indemnification (an
"indemnifying party") pursuant to such 6 (a) or (b), such indemnified party
shall promptly notify such indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party of any such action
shall not release the indemnifying party from any liability it may have to such
indemnified party in accordance with (a) or (b) of this Section 6. In case any
such action is brought against an indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party against
which a claim is to be made will entitled to participate therein at its own
expense and, to the extend that it may wish, to assume at its own expense the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that (i) if the defendants in any such action include both
the indemnified party and the indemnifying party shall have reasonably concluded
based upon advice of counsel that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party shall have the right to select separate
counsel to assume such legal defenses and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties and (ii)
in any event, the indemnified party shall be entitled to have counsel chosen by
such indemnified party participate in, but not conduct, the defense at the
expense of the indemnifying party. Upon receipt of notice from indemnified party
to such indemnified party of its election to as assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defense in accordance with
provisos (i) or (ii) to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party. An
indemnifying party shall not be liable for any settlement of any action or
proceeding effected by an indemnified party without the indemnifying party's
written consent, which consent shall not be unreasonably withheld.
(d) In order to provide for an equitable contribution in circumstances in
which the indemnity agreement provided for in (a) of this Section 6 is
unavailable to a selling holder of Warrant Shares in accordance with its terms,
the Company and the selling holder of Warrant Shares shall contribute to the
aggregate losses, claims, damages and liabilities, of the nature contemplated by
said indemnity agreement, incurred by the Company and the selling holder of
Warrant Shares, in such proportions as is appropriate to reflect the relative
benefits received by the Company and the selling holder of Warrant Shares from
any offering of the Warrant Shares; provided, however, that if such allocation
is not permitted by applicable law or if the indemnified party failed to give
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the notice required under (c) of this Section 6, then the relative fault of the
Company and the selling holder of Warrant Shares in connection with the
statements or omissions which resulted in such losses, claims, damages and
liabilities and other relevant equitable considerations will be considered
together with such relative benefits and provided, however, that the limitations
in the proviso in (b) of this Section 6 shall apply in all cases.
(e) The respective indemnity and contribution agreements by the Company and the
selling holder of Warrant Shares in (a), (b), (c) and (d) of this Section 6
shall remain operative and in full force and effect regardless of (i) any
investigation made by any selling holder of Warrant Shares or by or on behalf of
any person who controls such selling holder or by Company or any controlling
person of the Company or any director or any officer of the Company, (ii)
payment for any of the Warrant Shares or (iii) any termination of this
Agreement, and shall survive the delivery of the Warrant Shares, and heir or
successor of the Company, or of any selling holder of Warrant Shares, as the
case may be, shall be entitled to the benefit of such respective indemnity and
contribution agreements. The respective indemnity and contribution agreements by
the Company and the selling holder of Warrant Shares contained in (a),(b),(c)
and (d) of this Section 6 shall be in addition to any liability which the
Company and the selling holder of Warrant Shares may otherwise have.
7. Limited Transferability
(a) This Warrant is not transferable or assignable by the Holder except in whole
or in part (i) to The Equity Group, Inc. or any successor firm or corporation of
The Equity Group, Inc.; (ii) to any of the principals, shareholders, directors,
officers or employees of The Equity Group, Inc. or any of such successor firm or
(iii) in the case of an individual, pursuant to such individual's last will and
testament or the laws of descent and distribution and is so transferable only
upon the books of the Company which it shall cause to be maintained for the
purpose. The Company may treat the registered holder of this Warrant as he/she
or it appears on the Company's books at any time as the Holder for all purposes.
The Company shall permit any holder of a Warrant of his duty authorized
attorney, upon written request during ordinary business hours, to inspect and
copy or make extracts from its books showing the registered holders of Warrants.
All Warrants will be dated the same date as this Warrant.
(b) By acceptance hereof, the Holder represents and warrants that this Warrant
is being acquired, and all Warrant Shares to be purchased upon the exercise of
this Warrant will be acquired, by Holder solely for the account of such Holder
and not with a view to the fractionalization and distribution thereof and will
not be sold or transferred except in accordance with the applicable provisions
of the Act and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder, and the Holder agrees that neither this
Warrant not any of the Warrant Shares may be sold or transferred except under
cover of a Registration Statement under the Act which is effective and current
with respect to such Warrant Shares or pursuant to an opinion, in form and
substance reasonably acceptable to the Company's counsel, that registration
under the Act is not required in connection with such sale or transfer. Any
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Warrant Shares issued upon exercise of this Warrant shall bear the following
legend:
" The securities represented by this certificate have not been
registered under the Securities Act of 1933 and are restricted
securities within the meaning thereof. Such securities may not be sold
or transferred except pursuant to a registration statement under such
Act which is effective and current with respect to such securities or
pursuant to an opinion of counsel reasonably satisfactory to the issuer
of such securities that such sale or transfer is exempt firm the
registration requirements of such Act"
8. Loss, etc, of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder a new Warrant of like date, tenor and denomination.
9. Warrant Holder Not Shareholders.
Except as otherwise provided herein, this Warrant does not confer upon the
Holder any right to vote or to consent to or receive notice as a shareholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a shareholder, prior to the exercise hereof.
10. Communication
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall be
deemed to have given if, the same is in writing and is mailed by first-class
mail, postage prepaid, addressed to:
(a) The Company at 000 Xxxxxxxxxx, 0xx Xxxxx Xxxxx Xxxxx, XX 00000, Attention:
Xxxxxxxx Xxxxx or such other address as the Company has designated in writing to
the Holder; or
(b) The Holder at 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxxxxx or such other address as the Holder has designated in
writing to the Company.
11. Headings
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
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12. Applicable Law
This Warrant shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to the principles of conflicts of
law thereof.
IN WITNESS WHEREOF, Regenesis Holdings, Inc. has caused this Warrant to be
signed by its President and its corporate seal to be hereunto affixed and
attested by its Secretary on this 7th day of March 2000.
ATTEST:
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxxx Xxxxx
-------------------- ------------------
Secretary President
[ Corporate Seal ]
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