1
EXHIBIT 6.9
SHARE EXCHANGE AGREEMENT BETWEEN DYNCOM INC.
AND OMICRON TECHNOLOGIES, INC.
2
Exhibit 6.9
AGREEMENT
This is an agreement, dated as of the 19th day of October, 1999, by and
between:
DynCom Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000-0000 ("DynCom")
Telephone: 000.000.0000
Fax: 000.000.0000
Omicron Technologies, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000-000
Xxxxxxxxxx, XX 00000 ("Omicron")
Telephone: 000.000.0000
Fax: 000.000.0000
WHEREAS, Omicron is in the business of acquisition, research and
development, and marketing of leading edge technologies for the aerospace,
telecommunications, defense, consumer electrons and Internet-based business
concepts, and
WHEREAS, DynCom is in the business of combining smart device,
biometric, proprietary, and Internet/ intranet technologies into effective and
efficient e-solutions, e-applications and e-products, and
WHEREAS, Omicron has provided DynCom with its Summary Business Plan
dated August 1999, and has established a corporate web site at
xxx.xxxxxxxxxxxxxxxxxx.xxx, and
WHEREAS, DynCom has provided Omicron with its Confidential Private
Placement Memorandum ("504") dated February 1, 1999, as updated and revised as
of July 15, 1999, and has established a corporate web site at xxx.x-x.xxx, and
WHEREAS, Omicron and DynCom each wish to establish a foundation that
will permit each of them to share technologies for mutual benefit, to develop a
solid and synergistic relationship, and to establish a reasonable basis for
commitments and productive efforts,
NOW, THEREFORE, DynCom and Omicron do hereby agree and covenant as
follows:
1. REPRESENTATIONS AND WARRANTIES. Each of the parties hereto hereby
warrants to the other as follows, and each party hereto confirms that the other
is
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
relying upon the accuracy of each of such representations and warranties in
connection with the acquisition of the shares and warrants that are the subject
matter of this agreement (the "Shares"), and the completion of the transactions
set out herein:
1.01 REPRESENTATIONS REGARDING THE SHARES.
(a) All of the Shares are free and clear of any and all
covenants, conditions, restrictions, voting trust
arrangements, rights of first refusal, options, liens and
adverse claims and rights whatsoever (collectively, "Share
Encumbrances"), and on the Closing Date, each of the parties
hereto will deliver to the other, good and marketable title to
such Shares free and clear of any and all Share Encumbrances
except as may be required by the applicable Securities laws
governing this transaction; and
(b) The person and persons acting for each of the respective
parties hereto has/have the full right power and authority to
enter into this agreement.
1.02 NON-CONTRAVENTION. The execution, delivery and performance of this
agreement, and the consummation of the transactions provided for herein, does
not (a) contravene or conflict with or constitute a material violation of any
provision of any applicable law binding upon or applicable to either of the
parties hereto or (b) result in the creation or imposition of any lien.
1.03 LITIGATION. There are no actions, suits, hearings, arbitrations,
audits, charges, orders (draft or otherwise), judgments, injunctions, decrees,
awards, writs, proceedings (public or private) or investigations that have been
brought by or against any governmental authority or any other person pending or,
to the knowledge of either of the parties hereto, threatened (collectively,
"Proceedings"), against or affecting the Shares or that seek to prevent, enjoin,
alter or delay the transactions provided for by this agreement.
1.04 REQUIRED CONSENTS. Schedule A lists all governmental or other
registrations, filings, applications, notices, transfers, consents, approvals,
orders, qualifications or waivers required under applicable law or otherwise
required to be obtained or made with any governmental authority to be obtained
by either of the parties hereto.
1.05 FULL DISCLOSURE. The information contained in the documents,
certificates and written statements (including this agreement and the schedules
and exhibits hereto) furnished to either party by or on behalf of the other
party for use in connection with this agreement or the transactions provided for
by this agreement is true and complete in all material respects and does not, to
the best of the knowledge of the providing party and of the receiving party
after conducting an inquiry which a reasonably prudent person would make under
the circumstances,
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
1.06 EXISTENCE AND POWER. Each of the parties hereto is a corporation
duly incorporated, organized and validly existing under the laws of, in the case
of Omicron, the State of Florida, and in the case of DynCom, the State of
Colorado, and each has all corporate power and all governmental licenses,
authorizations, permits, consents and approvals required to carry on the
business as now conducted and to own and operate the business as now owned and
operated. Each of the corporations is not required to be qualified to conduct
business in any jurisdiction other than: (a) the jurisdictions in which each of
said parties is duly qualified to do business and (b) such jurisdictions where
the failure to be so qualified, whether individually or in the aggregate, would
not have a material adverse effect. No proceedings have been taken or authorized
by either of the parties hereto, or by any other person, with respect to the
bankruptcy, insolvency, liquidation, dissolution or winding-up of either of the
parties hereto or with respect to any amalgamation, merger, consolidation,
arrangement or reorganization relating to either of the parties hereto.
1.07 AUTHORIZATION. The execution, delivery and performance by each of
the parties hereto of this agreement and the consummation thereby of the
transactions provided for herein are within the respective powers of each of the
parties hereto and have been duly authorized by all necessary action on the
respective parts of each of the parties hereto. This agreement has been duly and
validly executed by each of the parties hereto and constitutes a legal, valid
and binding agreement of each such party enforceable in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights and
subject to general principles of equity.
1.08 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by each of the parties hereto of this agreement requires no action
by, consent or approval of, or filing with, any governmental authority other
than as expressly referred to in this agreement.
1.09 NON-CONTRAVENTION. The execution, delivery and performance of this
agreement by each of the parties hereto, and the consummation by each such party
of the transactions provided for herein, do not and will not (a) contravene or
conflict with the articles or bylaws of each of the respective parties; (b)
contravene or conflict with or constitute a material violation of any provision
of any applicable law binding upon or applicable to each of the parties hereto,
the business or the Shares and would not, individually or in the aggregate have
a material adverse effect; (c) constitute a default under or give rise to any
right of termination, cancellation or acceleration of, or to a loss of any
benefit to which each of the parties hereto is entitled, under any contract to
which either of the parties hereto is a party or any permit or similar
authorization relating to such party, its business or the Shares by which such
party, its business or the Shares may be bound or affected; or (d) result in the
creation or imposition of any lien.
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
1.10 OMICRON CAPITAL STOCK. The authorized capital stock of Omicron
consists solely of:
(a) 50,000,000 shares of common shares, of which 29,846,460 common
shares are issued and outstanding on the date hereof and held
by shareholders, and
(b) All such issued and outstanding shares have been duly and
validly authorized and issued and are validly outstanding,
fully paid and non-assessable. The shares represent all of the
issued and outstanding shares of Omicron. Omicron does not
hold any of the issued and outstanding shares in the treasury
of the Corporation, and there are not outstanding (i) any
options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron except as set out in Schedule B
attached hereto and as contemplated by this agreement, (ii)
any securities convertible into or exchangeable for such
shares except as set out in Schedule B attached hereto or
(iii) any other commitments of any KIND FOR the issuance of
additional shares of Omicron, options, warrants or other
securities of Omicron except as set out in Schedule B attached
hereto.
1.11 DYNCOM CAPITAL STOCK. The authorized capital stock of DynCom
consists solely of:
(a) 100,000,000 shares of common shares no par value, of which
3,315,000 common shares are issued and outstanding on the date
hereof and held by shareholders, and
(b) 5,000,000 shares of preferred shares, non-voting, authorized
but none issued and outstanding, and
(c) All such issued and outstanding shares have been duly and
validly authorized and issued and are validly outstanding,
fully paid and non-assessable. The shares represent all of the
issued and outstanding shares of DynCom. DynCom does not hold
any of the issued and outstanding shares in the treasury of
the Corporation, and there are not outstanding (i) any
options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron except as set out in Schedule C
attached hereto and as contemplated by this agreement, (ii)
any securities convertible into or exchangeable for such
shares except as set out in Schedule C attached hereto or
(iii) any other commitments of any kind for the issuance of
additional shares of DynCom, options, warrants or other
securities of DynCom except as set out in Schedule C attached
hereto.
2. DYNCOM SHARES. DynCom hereby agrees to deliver to Omicron at Closing 600,000
shares of the common stock of DynCom Inc., represented by a certificate
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
duly signed and sealed, which shares shall be free and clear of all encumbrances
and liens, except that such shares may, pursuant to the securities laws and
regulations of the United States of America, bear a restrictive legend limiting
transfer in accordance with such laws and regulations.
3. DYNCOM WARRANTS. DynCom hereby agrees to deliver to Omicron at Closing
600,000 warrants, each warrant being for one share of the common stock of DynCom
Inc., which shares, when the warrants are exercised, shall be represented by a
certificate duly signed and sealed, which shares shall be free and clear of all
encumbrances and liens, except that such shares shall, pursuant to the
securities laws and regulations of the United States of America, bear a
restrictive legend limiting transfer in accordance with such laws and
regulations. The form of the warrants and the terms thereof are set out in
Exhibit A.
4. OMICRON SHARES. Omicron hereby agrees to deliver to DynCom at Closing 200,000
shares of the common stock of Omicron Technologies, Inc., represented by a
certificate duly signed and sealed, which shares shall be free and clear of all
encumbrances and liens, except that such shares may, pursuant to the securities
laws and regulations of the United States of America, bear a restrictive legend
limiting transfer in accordance with such laws and regulations.
5. REGISTRATION OF SHARES. The parties hereto, Omicron and DynCom, do each
hereby agree that, subject to the securities laws and regulations of the United
States of America as in effect from time to time and further subject to
reasonableness under the overall circumstances and without undue cost and
effort, to use reasonable best efforts to cause the common stocks that are the
subject of this agreement to become registered for public trading. Either of the
parties hereto may at any time request the other party to cause the other
party's shares that are the subject of this agreement to be registered, which
request shall not be unreasonably denied, provided that the requesting party
provides the necessary funds and assistance to enable such registration. Nothing
in this paragraph nor in this agreement precludes the parties hereto from
mutually agreeing to further provisions regarding the status or disposition of
the shares that are the subject of this agreement.
6. CLOSING. The parties hereto, Omicron and DynCom, do each hereby agree that
the Closing, at which time and place the respective documents are to be
exchanged, shall be held under the auspices of such person and at such place as
the parties may mutually agree in writing on or before Friday, October 29, 1999,
at 5:00 p.m., PDT. The parties hereto, Omicron and DynCom, do each hereby agree
to use their best efforts to cause the Closing to take place as provided herein.
If the Closing does not take place on or before such time due to the actions or
inactions of one party, the other party has the right to terminate this
agreement without further obligation, or to declare that this agreement is void
ab initio.
7. ENTIRE AGREEMENT. This agreement (including the schedules and exhibits
referred to herein, which are hereby incorporated by reference) constitutes the
entire agreement between parties hereto with respect to the subject matter
hereof
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
and supersedes all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter of this
agreement.
8. THIRD PARTIES. Neither this agreement nor any provision hereof is intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
9. NOTICES. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given (i) if personally delivered,
when so delivered, (ii) if mailed, two business days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth above, (iii) if given by telex
or fax, once such notice or other communication is transmitted to the telex or
fax number set forth above and the appropriate answer BACK or telephonic
confirmation is received, provided that such notice or other communication is
promptly thereafter mailed in accordance with the provisions of clause (ii)
above or (iv) if sent through an overnight delivery service in circumstances
under which such service guarantees next day delivery, the day following being
so sent. Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
10. AMENDMENTS; NO WAIVERS.
(a) Any provision of this agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by ALL PARTIES hereto, or
in the case of a waiver, by the party against whom the waiver
is to be effective. This agreement may be assigned, modified,
changed or amended only by the written consent of both of the
parties hereto, which consent shall not be unreasonably
withheld.
(b) No waiver by a party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional
or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of
any prior or subsequent occurrence. No failure or delay by a
party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
cumulative and not exclusive of any rights or remedies
provided by law.
11. EXPENSES. All costs and expenses incurred in connection with this agreement
and enclosing and carrying out the transactions provided for herein shall be
paid by the party incurring such cost or expense. This provision shall survive
the termination of this agreement.
12. SUCCESSORS AND ASSIGNS. This agreement shall be binding upon and enure to
the benefit, of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns. No
party hereto may assign either this agreement or any of its rights, interests or
obligations hereunder without the prior written approval of each other party,
which approval shall not be unreasonably withheld.
13. GOVERNING LAW. This agreement shall be governed by, and interpreted and
enforced in accordance with, the laws in force in the State of Colorado and the
federal laws of the United States of America applicable therein (excluding any
conflict of laws rule or principle that might refer such interpretation to the
laws of another jurisdiction). Each party irrevocably submits to the
nonexclusive jurisdiction of the courts of Colorado with respect to any matter
arising hereunder or related hereto, subject to the provisions of Article 20 of
this agreement.
14. COUNTERPARTS; EFFECTIVENESS. This agreement and the documents relating to
the transactions contemplated by this agreement may be signed in any number of
counterparts and the signatures delivered by telecopy, each of which shall be
deemed to be an original, with the same effect as if the signatures thereto were
upon the same instrument and delivered in person. This agreement and such
documents shall become effective when each party thereto shall have received a
counterpart thereof signed by the other parties thereto. In the case of delivery
by telecopy by any party, that party shall forthwith deliver a manually executed
original to each of the other parties.
15. CAPTIONS. The captions herein are included for convenience of reference only
and shall be ignored in the construction or interpretation hereof. All
references to an Article or Section include all subparts thereof.
16. SEVERABILITY. If any provision of this agreement, or the application thereof
to any person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable or void, the remainder of this
agreement and such provisions as applied to other persons, places and
circumstances shall remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms shall provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this agreement was
executed or last amended.
17. CONSTRUCTION. The parties hereto intend that each representation, warranty,
and covenant contained herein shall have independent significance. If any party
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
has breached any representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) that the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or
covenant.
18. CUMULATIVE REMEDIES. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
19. TRANSMISSION BY FACSIMILE. The parties hereto agree that this agreement may
be transmitted by facsimile or such similar device and that the reproduction of
signatures by facsimile or such similar device will be treated as binding as if
originals and each party hereto undertakes to provide each and every other party
hereto with a copy of the Agreement bearing original signatures forthwith upon
demand.
20. ARBITRATION. In the event that a dispute arises with respect to this
agreement, the parties hereto, DynCom and Omicron, agree to seek in good faith
to resolve the dispute among themselves, and, if such efforts are not fruitful,
to promptly seek third party mediation. In the event that such efforts do not
promptly resolve the dispute, the parties do each agree that the dispute may be
submitted to binding arbitration under the auspices of the American Arbitration
Association and pursuant to the rules thereof, with the prevailing party to be
compensated for all reasonable legal expenses. Each party hereto hereby
renounces any and all rights to seek redress from the courts, except to enforce
a decision by rendered by arbitration.
IN WITNESS WHEREOF, each of the parties hereto has caused this
agreement to be signed and sealed, as of the date set forth above.
OMICRON TECHNOLOGIES, INC. DYNCOM INC.
By: /s/ B. E. Xxxxxxx By: /s/ Xxxx Xxxxxxx
----------------------- ---------------------------------
Signature Signature
B. E. Xxxxxxx Xxxx Xxxxxxx
-------------------------- -------------------------------------
Printed Name Printed Name
President Chairman
------------------------- -------------------------------------
Title Title
/s/ Sak Xxxxxx /s/ Xxxxxxx X. Xxx
------------------------- -------------------------------------
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
Witness Signature Witness Signature
Sak Xxxxxx Xxxxxxx X. Xxx
-------------------------- ----------------------------------
Printed Name Printed Name
CFO CFO, Secretary and Treasurer
-------------------------- ----------------------------------
Title Title
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE A.
Pursuant to the provisions of Section 1.04, this Schedule A lists all
governmental or other registrations, filings, applications, notices, transfers,
consents, approvals, orders, qualifications or waivers required under applicable
law or otherwise required to be obtained or made with any governmental authority
to be obtained by either of the parties hereto:
As to DynCom Inc.:
None.
As to Omicron Technologies, Inc.:
None.
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE B.
Pursuant to the provisions of Section 1.10(b), this Schedule B lists all
outstanding (i) options, warrants, rights of first refusal or other rights to
purchase any shares of Omicron, other than those as contemplated by this
agreement, (ii) any securities convertible into or exchangeable for such shares
or (iii) any other commitments of any kind for the issuance of additional shares
of Omicron, options, warrants or other securities of Omicron:
B.1. Common Stock Options Outstanding
Ess Inc. 250,000 @ $1.00 per share
Fairwind Technologies Ltd. 6,025 @ $2.31 per share
Common Stock Options for existing and future officers, directors,
consultants and employees of Omicron will be considered and issued as
warranted by Omicron's management.
B.2. Warrants convertible to common stock of Omicron may be issued in the future
for services rendered or other valuable consideration to Omicron.
B.3. Common stock of Omicron may be issued as consideration for future
acquisitions such as the remaining interests in the Active Pixel Sensor
(APS) technology and APS Wireless technology. Common stock Omicron may also
be issued in the future in conjunction with private placement financings.
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
SCHEDULE C.
Pursuant to the provisions of Section 1.11(c), this Schedule C lists all
outstanding (i) options, warrants, rights of first refusal or other rights to
purchase any shares of DynCom, other than those as contemplated by this
agreement, (ii) any securities convertible into or exchangeable for such shares
or (iii) any other commitments of any kind for the issuance of additional shares
of DynCom, options, warrants or other securities of DynCom:
C.1. On May 15, 1999, the Board of Directors of DynCom Inc. approved the
Directors and Advisors Option Plan which provides for the issuance of options to
purchase up to 180,000 of DynCom's common stock at an exercise price of $0.10
per share. Each of the Directors elected at the 1999 Annual Meeting of
Shareholders, each Director elected prior to the 2000 Annual Meeting of
Shareholders, and advisors participating on advisory boards or committees, are
eligible to receive the options. Options may be granted under the Directors and
Advisors Option Plan for services until the 2000 Annual Meeting of Shareholders.
Options subject to issuance under the plan expire on the business day prior to
the 2001 Annual Meeting of Shareholders. As of October 18, 1999, 4,500 such
options have been issued; none of these options has been exercised. Common Stock
Options for existing and future officers, directors, advisors, consultants and
employees of DynCom will be considered and issued as warranted by DynCom's
management.
C.2. On May 15, 1999, the Board of Directors of DynCom Inc. approved the
Officers and Advisors Option Plan which provides for the issuance of options to
purchase up to 600,000 of DynCom's common stock at an exercise price of $0.10
per share. Each officer elected at or after the 1999 Annual Meeting of Directors
and prior to the 2000 Annual Meeting of Shareholders, and advisors participating
on advisory boards or committees, are eligible to receive the options. Options
may be granted under the Officers and Advisors Option Plan for services until
the 2000 Annual Meeting of Shareholders. Options subject to issuance under the
plan expire on the business day prior to the 2001 Annual Meeting of
Shareholders. As of October 18, 1999, 150,000 such options have been issued;
none of these options has been exercised. Common Stock Options for existing and
future officers, directors, advisors, consultants and employees of Omicron will
be considered and issued as warranted by Omicron's management.
C.3. On May 29, 1999, the Board of Directors approved the Shareholders Option
Plan. The Shareholders Option Plan is nonqualified and grants an option to
purchase one share of the Company's common stock for every five shares held by
shareholders of record on May 29, 1999. There are a total of 533,600 common
shares subject to option under the plan. The options expire on the business day
preceding the 2000 Annual Meeting of Shareholders. The options are exercisable
at the lower of $0.70 per share, or, if the shares become publicly traded, at
70% of the average price of shares traded on the day the option is exercised.
Options for the 533,600 shares of common stock are outstanding; none of these
options has been exercised. DynCom does not presently anticipate any further
shareholder option plans, but such may be issued if warranted by DynCom's
management.
C.4. On September 13, 1999, the Corporation entered into an agreement with Xx.
Xxx Xxxxxxx, a member of the Corporation's Healthcare Advisory Board, pursuant
to which Xx. Xxxxxxx agreed to lend $50,000 to DynCom, and incidental to the
transaction DynCom agreed to issue 60,000 shares to Xx. Xxxxxxx. Xx. Xxxxxxx
made a loan of $10,000, and the agreement is being renegotiated. Consideration
is being given to a larger amount of money, approximately $200,000, as to which
the terms and the number of shares has not yet been fixed.
C.5. Warrants convertible to common stock of DynCom may be issued in the future
for services rendered and/or other valuable consideration to DynCom.
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AGREEMENT BY AND BETWEEN: OMICRON TECHNOLOGIES, INC., AND DYNCOM INC.
EXHIBIT A
COMMON STOCK PURCHASE WARRANT
Attached
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COMMON STOCK PURCHASE WARRANT
Exercise Price: $1.00
THIS WARRANT REPRESENTS THE RIGHT TO PURCHASE
UP TO 600,000 SHARES OF THE COMMON STOCK OF
DYNCOM INC.
FOR VALUE RECEIVED, DYNCOM INC., a Colorado corporation, (the Company), promises
to sell and deliver to OMICRON TECHNOLOGIES, INC. (the Holder) up to 600,000
shares of the Common Stock, no par value, of the Company, upon the payment by
the Holder to the Company of the price of $1.00 per share (being the Exercise
Price), in U. S. Funds and which will be accepted subject to collection. This
Warrant is issued on this 19th day of October, 1999.
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or part)
have not been registered under the Securities Act of 1933, as amended (the Act),
nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the
Warrants and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not
then required and that this Warrant and the underlying
securities may be sold, transferred or otherwise disposed of
in the manner contemplated without registration under the Act.
All Warrants presented for transfer must be accompanied by a duly executed and
completed Form Of Assignment. Prior to the effectiveness of any future
registration statement covering this Warrant Agreement, the Company may accept
or reject such transfer attempt, based upon its counsel's opinion as to whether
or not such an event may take place in the absence of an effective registration.
In case of rejection, the Company shall not have any legal obligation to
effectuate such transfer.
16
1. WARRANT EXERCISE
The Holder shall be entitled to purchase up to 600,000 shares the Common Stock
of the Company, at any time from the date of this agreement, and from time to
time, until the Expiration Date.
To exercise this Warrant, in whole or in part, the Holder shall tender payment
in U.S. funds, to the Company of the Exercise Price per share, multiplied by the
number of shares bring purchased, with a properly completed Form Of Exercise,
together with this Original Warrant Agreement.
If an exercise is for less than the aforesaid shares, the Company shall issue a
new Warrant to the Holder, covering the unexercised shares, upon the same terms
and conditions hereof.
2. DEMAND REGISTRATION.
At any time prior to the Expiration Date, the Holder may by written notice to
the Company request that the Company cause a registration statement covering the
Warrant(s) and the underlying shares be filed with the Securities And Exchange
Commission, (S.E.C.) as expeditiously as possible after such notice. Subject to
reasonableness under the overall circumstances and without undue cost and
effort, the Company shall use its reasonable best efforts to cause such filing.
The Company shall not unreasonably deny any such request. The Holder shall bear
all of the reasonable cost and expenses to file such registration statement with
the S.E.C. and all applicable Blue Sky filings.
The Company shall not be obligated to file a registration statement with the
S.E.C. at a time when it would require a special financial audit be undertaken
to furnish the appropriate financial statements for such registration statement,
or when under the overall circumstances such a filing would not be in the best
interest of the Company.
The Holder shall cooperate fully with the Company by providing all necessary and
relevant information required to effectuate a registration statement.
3. PIGGYBACK REGISTRATION
At any time prior to the Expiration Date, should the Company file a new
registration statement under the Act covering any securities to be issued by the
Company, (other than a registration statement on Form S-8 or S-20 or any Form
which does not include substantially the same information as would be required
for the general registration of securities) the Company shall give prompt
written notice to the Holder, offering to include in such registration statement
any of the Warrants and underlying shares hereof. The Company
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shall bear all of the reasonable cost of such filings. The Holder must notify
the Company within twenty days of receipt of the aforesaid notice of his/her/its
intention to participate in this registration.
The Holder shall cooperate fully with the Company in the preparation of such
registration statement by furnishing information required for such filings. All
piggyback registration rights terminate on the Expiration Date.
4. STOCKHOLDER RIGHTS
By virtue of this Warrant, the Holder hereof is not entitled to any legal or
equitable rights, including voting rights, as a shareholder in the Company.
5. ANTI-DILUTION PROVISIONS
The number of shares underlying this Warrant may be proportionately increased in
the event that the Company causes to be more shares as a stock dividend or other
such reclassification, or conversely, proportionately decreased if a reverse
split or other such reclassification is declared. In the event that shareholders
are granted the right to purchase additional shares from the proceeds of a cash
dividend by the Company, such event shall be treated as a stock dividend as
relates to the Holder's anti-dilutive rights.
6. SUCCESSOR CORPORATION
All rights granted to the Holder hereof shall survive any merger, consolidation
or other business combination of the Company with another (successor) entity.
The Holder shall have the same anti-dilutive rights in such case, in the
securities of the new entity.
7. EXERCISE PRICE ADJUSTMENTS
Upon the occurrence of each event requiring an adjustment in the Exercise Price,
or the number of underlying shares, the Company shall give prompt written
notice, setting forth the computation used to arrive at the adjusted price or
number of underlying shares. The computations shall be made by the Company's
Chief Financial Officer or the Company's accountants. Such computations shall be
conclusive and binding upon the Holder unless the Holder gives written objection
to the Company within fourteen calendar days from the date of the Company's
initial notice.
8. DISSOLUTION OR LIQUIDATION OF THE COMPANY
In the event that the Company is dissolved, or otherwise liquidates a
substantial portion (i.e., 60% or more) of its assets with the intent to make a
distribution to shareholders of the
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proceeds therefrom (including the sale of assets of a wholly-owned subsidiary)
the Holder shall be entitled, after proper exercise of the Warrants, in whole or
in part, to participate in the distribution on the same terms and conditions as
are all of the other shareholders.
In such event, the Company shall give 30 days written notice to the Holder.
Failure of the Holder to exercise within 30 calendar days from the date of the
Company's notice, shall cause all such rights in the Warrants to terminate. The
Company may finalize the intended transaction but it may not make any
shareholder distribution during the 30 day notice period.
9. NON-ADJUSTMENT EVENTS
It is acknowledged and agreed that no price or quantity adjustments shall be
required in the event that the Company issues shares of its common stock: a)
upon the exercise of Warrants or options granted previously to the date hereof,
or b) pursuant to any stock option plan or employee benefit plan, or c) for any
purpose in connection with debt or equity offerings.
10. AVAILABLE SHARES
The Company agrees to reserve and keep available out of its authorized, and
issued capital shares, sufficient shares to cover the exercise of all of the
shares covered by this Warrant Agreement. Further, that upon issuance, such
shares shall be validly issued, fully paid and non-assessable.
11. MISCELLANEOUS
a) LOSS OF WARRANT. In the event of the loss, theft, destruction or mutilation
of this Warrant Agreement, the Company shall execute and deliver a new Warrant
in exchange for and upon the surrender and cancellation of such mutilated or
defaced Warrant. If the Warrant Agreement was lost or stolen, the Company may,
at its option, as a condition to the execution and delivery of a new Warrant
Agreement, require that the Holder produce satisfactory indemnity to the
Company. The Holder may be required to post a surety bond to protect the Company
from conflicting claims.
b) RECORD OWNER. At the time this Warrant is surrendered for exercise, together
with the completed Form of Exercise and the monetary consideration required, the
person so exercising shall be deemed to be the Holder of record, notwithstanding
that the stock transfer books of the Company shall then be closed, or that
certificates representing such securities shall be actually delivered to such
person.
c) FRACTIONAL SHARES. No fractional shares shall be issued under any
circumstances. The Holder may elect to remit additional funds to obtain the next
full share, or the Company may reimburse the Holder for such fractional amount.
In no event shall the
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Company issue more shares than were duly registered in accordance with the
federal and state securities laws, or to which an exemption therefrom applies.
d) NOTICES. All notices required hereunder shall be in writing, delivered by
certified, registered or express mail, return receipt requested, to the address
of record of the party being noticed. All time periods to be determined under
notice shall be so counted from the actual date of mailing. The address of
record for DynCom Inc. is: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxxx, XX
00000-0000. The Holder is responsible for providing DynCom with his/her/its
address of record.
e) STOCK ISSUANCE TAXES. The Company shall bear full responsibility for payment
of any federal or state stock issuance taxes which may be required.
f) TRANSFER RESTRICTIONS. This Warrant, and its underlying shares of common
stock have not been registered under the Act. Accordingly, this Warrant
Agreement, including replacements, shall bear the following legend upon its
face:
TRANSFER RESTRICTION NOTICE.
This Warrant, and the securities issuable upon its exercise (in whole or part)
have not been registered under the Securities Act of 1933, as amended (the Act),
nor the securities laws of any other jurisdiction, and may not be sold,
transferred or otherwise disposed of unless:
i) an appropriate S.E.C. Registration Statement covering the
Warrants and their underlying securities is in effect; or
ii) Company counsel is satisfied that such registration is not
then required and that this Warrant and the underlying
securities may be sold, transferred or otherwise disposed of
in the manner contemplated without registration under the Act.
All Warrants presented for transfer must be accompanied by a duly
executed and completed Form Of Assignment. Prior to the effectiveness of any
future registration statement covering this Warrant Agreement, the Company may
accept or reject such transfer attempt, based upon its counsel's opinion as to
whether or not such an event may take place in the absence of an effective
registration. In case of rejection, the Company shall not have any legal
obligation to effectuate such transfer.
g) ENTIRE BINDING AGREEMENT. This agreement is subject to the agreement dated
October 19, 1999, by and between the Company and the Holder, of which agreement
this agreement is a part.
h) INTERPRETIVE LAW. This Warrant Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado. In the event of a
controversy arising herefrom, it is agreed and consented to that jurisdiction
and venue of the courts of the State of Colorado.
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12. Expiration Date.
This Warrant expires at 5.00 P.M. (Eastern Time) on the first anniversary of the
date of execution hereof, to wit, on October 19, 2000. In the event that the
Holder demands registration (paragraph 2 above) of the Warrant and the
underlying shares, this Warrant Agreement shall not terminate until the
expiration of six (6) months from the effective date of such registration, or
upon the exercise hereof, which ever occurs first. The purpose of this provision
is to assure that the Holder does not suffer the loss of the right to exercise
hereunder from a delay in the effectiveness of a registration, for any reason.
IN WITNESS WHEREOF, the Company, by its duly authorized officers has
executed this Warrant on the 19th day of October, 1999.
