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EXHIBIT 4.6
WARRANT AGREEMENT
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VISTA LASER CENTERS OF THE PACIFIC, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
WARRANT AGENT
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This Warrant Agreement (the "Agreement") is dated as __________________
__________, 1996, between Vista Laser Centers Of The Pacific, Inc., a Nevada
corporation (the "Company"), and American Stock Transfer & Trust Company, New
York City, New York (the "Warrant Agent").
WHEREAS, the Company proposes to distribute to in a registered unit
offering (the "Offering") up to 690,000 Class C Common Stock Purchase Warrants
(the "C Warrants") to purchase additional shares of Common Stock upon the terms
and conditions set forth in the Registration Statement on Form SB-2 to be
declared effective by the Securities and Exchange Commission; and
WHEREAS, after such proposed distribution, the Company anticipates its
issuance of up to 690,000 shares of Common Stock (the "Warrant Shares"); and
WHEREAS, the Company desires to provide for issuance of warrant
certificates (the "Warrant Certificates") representing up to 690,000 Class C
Warrants and the issuance of up to 690,000 Warrant Shares upon the exercise of
the Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer and exchange of Warrant Certificates and
exercise of the Warrants and the issuance of the Warrant Shares.
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed that:
1. Warrants/Warrant Certificates. Each Class C Warrant shall 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 (1) share of Common Stock of the
Company on exercise thereof, subject to modification and adjustment as provided
in Section 8 and the Company's right of redemption as provided in Section 4.
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 and delivered to the Warrant Agent upon execution of this
Agreement. Such Warrant Certificates shall be attached to certificates
representing an aggregate of up to 690,000 units of Company Common Stock and
Class C Warrants and distributed to the purchasers in the Offering.
Subject to the provisions of Sections 3, 6 and 7, 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 7 hereof, no Warrant Certificates
shall be issued except:
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(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 replacement of lost or mutilated
Warrant Certificates.
2. Form and Execution of Warrant Certificates. The Warrant Certificates
shall be substantially in the form attached as Exhibit A. 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 such Warrant Certificate shall be numbered serially with the
designation "C-W" 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 any
event, if 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 5 and 8, the
Warrants when evidenced by a Warrant Certificate, may be exercised at a price
(the "Exercise Price") of $6.00 per share of Common Stock in whole or in part at
any time during the period (the "Exercise Period") commencing the date (the
"Initial Exercise Date") of the Company's Prospectus and terminating on
__________________________, 2001 (the "Expiration Date"). 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 or his
attorney duly authorized in writing and will be delivered together with payment
to the Warrant Agent at its corporate offices (the "Corporate Office"), 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 5, have been
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satisfied as of the Exercise Date. If any one of the conditions precedent set
forth in Section 5 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 payment 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 Warrant Shares which shall be issuable on exercise thereof shall be
computed on the basis of the aggregate number of full Warrant Shares issuable on
such exercise.
Within fifteen (15) days after the Exercise 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.
Upon the exercise of any Warrant, the Warrant Agent shall promptly
deposit the payment into an escrow 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 will be paid by the Company.
These expenses, including delivery of 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.
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 determinations of holders of Common
Stock entitled to such dividend or other right.
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4. Redemption of Warrants. The Company may redeem the Warrants upon the
notice (as described below) at any time and from time to time after the
Company's Common Stock shall have traded in the over-the-counter market or on a
stock exchange registered with the SEC at a bid price equal to or in excess of
$8.00 per share for ten (10) consecutive days. The Warrants may be redeemed by
the Company in whole or in part, by paying to the holder of record the sum of
Twenty-Five Cents ($.25) per Warrant (the "Redemption Price").
The Company shall give notice of its election to redeem this Warrant by
providing to the Warrant Agent a copy of such notice, which the Warrant Agent
shall mail, postage prepaid, to the Registered Holders of the Warrants, not less
than thirty (30) days nor more than ninety (90) days prior to the date
designated as the date of redemption, addressed to the Registered Holders'
addresses as appearing on the books of the Company.
Prior to the Warrant Agent's providing the notice to the Registered
Holders as required above, the Company shall have registered for distribution
with the SEC, and the states wherein at least seventy-five percent (75%) of the
Registered Holders of all Warrants to be redeemed reside, an effective and
current registration statement on the number of shares of the Company's Common
Stock equal to the number of Warrants to be redeemed. In the event the Company
Common Stock cannot be registered for distribution in the state in which any
Registered Holder resides, such Registered Holder shall not be permitted to
exercise his Warrant.
If only a portion of the Company's Class C Warrants then outstanding is
to be redeemed at a given time, the Company shall select the Class C Warrants to
be redeemed by lot or pro rata, in whatever reasonable manner the Company's
Board of Directors shall determine.
On and after the date of redemption specified in the notice, the
Registered Holders of the Warrants shall be entitled to receive the Redemption
Price hereof, upon presentation and surrender of the Warrants at the place
designated in such notice. Three (3) days prior to the date of redemption the
Company shall deposit with the Warrant Agent a sum equal to the maximum amount
to be paid to all Registered Holders upon the redemption of the Warrants.
From and after the date of the redemption specified in the required
notice (unless the Company defaults in providing money for the payment of the
Redemption Price), all rights of the Registered Holders of the Warrants shall
cease, except for the right to receive the Redemption Price hereof, without
interest, and the Warrants shall no longer be deemed to be outstanding.
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5. 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.
The Company and the Warrant Agent acknowledge that the Company will be
required, pursuant to the Securities Act of 1933, as amended (the "Act"), to
deliver to each Registered Holder, upon the exercise of Warrants, a prospectus
covering the issuance of the Warrant Shares which meets the requirements of the
Act, which prospectus must be a part of an effective registration statement
under the Act at the time that the Warrant is exercised. No Warrants may be
exercised nor may Warrant Shares be issued by the Company's transfer agent or
delivered by the Warrant Agent unless, on the Exercise Date: (i) the Company has
an effective registration statement covering the issuance of the Warrant Shares
under the Act; (ii) the Warrant Agent has copies of the prospectus which is a
part of such effective registration statement and which the Warrant Agent hereby
agrees to deliver with the Warrant Shares; and (iii) the Warrant Shares may
legally be issued and delivered to the exercising Registered Holder under the
securities laws of the state in which such Registered Holder resides.
The Company agrees to use its best efforts to maintain, to the extent
required by the Act, an effective registration statement covering the issuance
of the Warrant Shares during the period the Warrants are exercisable. The
Company further agrees, from time to time, to furnish the Warrant Agent with
copies of the Company's prospectus to be delivered to exercising Registered
Holders, as set forth above.
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. No Warrant Shares shall be issued unless and until any such
registration requirements have been satisfied or such approval has been
obtained.
The Registered Holder shall pay all documentary, stamp or similar taxes
and other governmental 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
the name other than the name of the Registered Holder of the Warrant
Certificate, no such delivery shall be made unless the
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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.
6. Registration of Transfer. The Warrant Certificates may be
transferred in whole or in part. 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
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 transferred in a 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
cancelled 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.
7. Loss or Mutilation. On receipt by the Company and the Warrant Agent
of evidence satisfactory as to the ownership of the loss, theft, destruction or
mutilation of any Warrant Certificate,
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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
Certificates, 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 cancelled 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.
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 such Warrants shall be the number derived
by dividing such adjusted Exercise Price into the original Exercise Price. The
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 Common Stock of the
Company shall be treated as a share dividend pursuant to the preceding
sentence. However, any dividend paid or distributed on the Common Stock
in securities of the Company other than Common Stock, regardless if
exercisable for or convertible into Common Stock of the Company, shall
not be treated as a share dividend pursuant to the penumbra sentence.
(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, and thereafter dissolves, liquidates or winds up
its affairs, then no provision need be made as part of the terms of any
such sale, dissolution, liquidation or winding up to allow
Warrantholders to exercise all or any Warrants held, in order to
receive the
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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.
(c) Notwithstanding the provisions of this Section 8, no
adjustment on the Exercise Price shall be made whereby such price is
adjusted in an amount less than $.05 or until the aggregate of such
adjustments shall equal or exceed $.05.
(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, common stock purchase warrants or security
offerings of the Company, the modification, renewal or extension of any
such plan, warrants or offerings now in effect or hereafter created, or
the issuance of Common Stock on exercise of any such options or
warrants; or (iii) the issuance of Common Stock in connection with an
acquisition or merger of any type.
(e) This Warrant Agreement shall be incorporated by referenced
on the Warrant Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock issuable
upon exercise of the Warrants, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable shares of such Common
Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be made pursuant
to this Section 8, the Company within thirty (30) days thereafter shall: (i)
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 (ii) 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 of any such reductions in the
Exercise Price.
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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 representations 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 5.
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,
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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 thirty (30) days prior
written notice to the other party. At least fifteen (15) days prior to the date
such resignation is to become effective, the Warrant Agent shall cause a copy of
such notice of resignation to be mailed to the Registered Holder of each 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 thirty (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 successor 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
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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 interest of the holders of Warrant Certificates; provided, however,
this Agreement shall not otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered Holders of Warrant
Certificates representing not less than fifty-one percent (51%) of the Warrants
outstanding. Additionally, except as provided in Sections 8 and 9, no change in
the number or nature of the Warrant Shares purchasable on exercise of a Warrant,
or increase of the purchase price therefor 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, options or requests
(however characterized or described) required or authorized hereunder shall be
deemed sufficient if made in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by tested telex, telegram or
cable to the principal office of the addressee, and if to the Registered Holder
of a 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 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 hereto 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
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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 to 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 the breach of this Agreement will constitute
a waiver of any other right or remedy. 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 Colorado. 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
discharged is sought to be enforced. The headings of this Agreement are for
convenience and references 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.
VISTA LASER CENTERS OF THE PACIFIC, INC.
By:
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Xxxxx X. Xxxxx III, President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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, Authorized Officer
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