WARRANT AGREEMENT
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NAVIDEC, INC.
AND
AMERICAN SECURITIES TRANSFER & TRUST, INC.
WARRANT AGENT
_____________ , 1996
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WARRANT AGREEMENT
THIS AGREEMENT dated as of ________________, 199__, between NAVIDEC, Inc.,
a Colorado corporation (the "Company"), and American Securities Transfer &
Trust, Inc., a transfer agency located in Denver, Colorado (the "Warrant
Agent").
WHEREAS:
In connection with a public offering (the "Public Offering"), the Company
has issued or will issue shares of Common Stock of the Company, no par value
("Common Stock") and Redeemable Common Stock Purchase Warrants entitling the
Registered Owner thereof to purchase shares of Common Stock (the 1,000,000
Warrants sold by the Company pursuant to the "firm" purchase agreements
contained in an underwriting agreement, a "Firm Warrant" or the "Firm
Warrants"); and
The Company also has granted or will grant the several underwriters (the
"Underwriters") of the Company's Public Offering, the option to purchase
additional Redeemable Common Stock Purchase Warrants entitling the Registered
Owner thereof to purchase shares of Common Stock to cover over-allotments
(the "Over-Allotment Warrants"); and
The Company also has issued or will issue upon effectiveness of the
Registration Statement (as hereinafter defined") to certain bridge financing
lenders (the "Bridge Holders") additional shares of Common Stock and
additional Redeemable Common Stock Purchase Warrants entitling the Registered
Owner thereof to purchase shares of Common Stock (the "Bridge Warrants"); and
The Company also has granted the representative of the several
Underwriters (the "Representative") of the Company's Public Offering pursuant
to the Underwriting Agreement purchase options (the "Purchase Options") to
purchase Common Stock and Redeemable Common Stock Purchase Warrants entitling
the Registered Owner thereof to purchase shares of Common Stock (the
"Representative's Warrants")(the Firm Warrants, the Over-Allotment Warrants,
the Bridge Warrants and the Representative's Warrants collectively, the
"Warrants"); and
The Company desires to provide for the issuance, registration, transfer,
exchange and exercise of certificates representing the Warrants (the "Warrant
Certificates"); and
The Company desires the Warrant Agent to act on behalf of the Company, and
the Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer and exchange of Warrant Certificates and exercise of
the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrant Certificates and the Warrants, and the
respective rights and obligations thereunder of the Company, the registered
holders of the Warrant Certificates and the Warrant Agent, the parties hereto
agree as follows:
1. DEFINITIONS. As used herein:
(a) "Bridge Warrants" shall mean 428,565 Warrants to purchase 428,565
shares of Common Stock, all of which will be registered on the Registration
Statement but none of which is subject to purchase by the Underwriters
pursuant to the Underwriting Agreement. The Bridge Warrants shall have
identical terms and conditions to those established for the Firm Warrants,
subject to their issuance in accordance with Section 2 hereof.
(b) "Common Stock" shall mean Common Stock, no par value per share, of the
Company, whether now or hereafter authorized, holders of which have the right
to participate in the distribution of earnings and assets of the Company
without limit as to amount or percentage.
(c) "Corporate Office" shall mean the place of business of the Warrant
Agent (or its successor) located in Denver, Colorado, which office is
presently located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
(d) "Effective Date" shall mean ____________, 199__, the date on which
the Company's Registration Statement is or will be declared effective by the
Securities and Exchange Commission.
(e) "Exercise Date" shall mean the date of surrender for exercise of any
Warrant Certificate, provided the exercise form on the back of the Warrant
Certificate or a form substantially similar thereto has been completed in
full by the Registered Owner or a duly appointed attorney and the Warrant
Certificate is accompanied by payment in full of the Exercise Price.
(f) "Exercise Period" shall mean the period commencing on the Effective
Date and extending to and through the Expiration Date.
(g) "Exercise Price" shall mean a purchase price of $_______ per share of
Common Stock (120% of the $_______ offering price of the Common Stock);
provided, however, that in the event the Company reduces the Exercise Price,
the Exercise Price shall be as established by the Company.
(h) "Expiration Date" shall mean 5:00 P.M. Mountain Standard or Daylight
Time on the last day of the five year period commencing on the Effective
Date, subject to the terms provided in Section 5 herein for redemption and
subject to extension by the Board of Directors of the Company; provided
however, if such date shall be a holiday or a day on which banks are
authorized to close, then Expiration Date shall mean 5:00 p.m.,
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Mountain Standard or Daylight Time on the next following day which in the
State of Colorado is not a holiday or a day on which banks are authorized to
close. The Expiration Date may be extended from time to time, by resolution
of the Board of Directors of the Company, to a later date upon giving notice
to the Warrant Agent and the Registered Owners; provided, however, that
notice to the Registered Owners of an extension of the Expiration Date may be
made by publication or by release to Dow Xxxxx, X.X. Newswire or other means
of general distribution. If the Company redeems the Warrants as provided in
Section 5 of this agreement, the Expiration Date shall be the date fixed for
redemption.
(i) "Firm Warrants" shall mean 1,000,000 Warrants to purchase 1,000,000
shares of Common Stock, all purchased by the several Underwriters from the
Company and sold in the Public Offering in accordance with the Underwriting
Agreement.
(j) "Over-Allotment Warrants" shall mean 150,000 Warrants to purchase
150,000 shares of Common Stock, any or all of which may be purchased by the
Representative for the several Underwriters from the Company in accordance
with the Underwriting Agreement. The Over-Allotment Warrants shall have
identical terms and conditions to those established for the Firm Warrants,
subject to their issuance in accordance with Section 2 hereof.
(k) "Registered Owner" shall mean the person in whose name any Warrant
Certificate shall be registered on the books maintained by the Warrant Agent
pursuant to Section 6 of this Agreement.
(l) "Registration Statement" shall mean the Company's Registration
Statement on Form SB-2 (S.E.C. File No. 333-_______), as amended.
(m) "Representative" shall mean Xxxxxx Xxxxxxx & Associates, Inc., the
representative of the several Underwriters.
(n) "Representative's Warrants" shall mean 100,000 Redeemable Common Stock
Purchase Warrants to purchase 100,000 shares of Common Stock, issuable upon
exercise of the Representative's Purchase Options and all of which were or
will be registered on the Registration Statement. The Representative's
Warrants shall have identical terms and conditions to those established for
the Firm Warrants, subject to their issuance in accordance with Section 2
hereof.
(o) "Subsidiary" shall mean any corporation of which shares having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (regardless of whether the shares of any other class or classes
of such corporation shall have or may have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by
the Company or one or more subsidiaries of the Company.
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(p) "Warrant" or the "Warrants" shall mean and include up to 1,678,000
Warrants to purchase 1,678,565 authorized and unissued Shares of Common Stock
of the Company and, unless otherwise noted, shall include 1,000,000 Firm
Warrants, 150,000 Over-Allotment Warrants, 428,565 Bridge Warrants and
100,000 Representative's Warrants.
(q) "Warrant Agent" shall mean American Securities Transfer & Trust, Inc.,
or its successor, as the transfer agent and registrar of the Warrants.
(r) "Warrant Shares" shall mean and include up to 1,678,565 authorized and
unissued shares of Common Stock reserved for issuance on exercise of the
Warrants, and unless otherwise noted, shall include 1,000,000 shares of
Common Stock issuable upon exercise of the Firm Warrants, 150,000 shares of
Common Stock issuable upon exercise of the Over-Allotment Warrants, 428,565
shares of Common Stock issuable upon exercise of the Bridge Warrants, 100,000
shares of Common Stock issuable upon exercise of the Representative's
Warrants and any additional shares of Common Stock or other property which
may hereafter be issuable or deliverable on exercise of the Warrants pursuant
to Section 9 of this Agreement.
2. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES. Each Warrant shall
initially entitle the Registered Owner of the Warrant Certificates
representing such Warrant to purchase one share of Common Stock on exercise
thereof, subject to modification and adjustment as hereinafter provided in
Section 9. Warrant Certificates representing 1,000,000 Firm Warrants
evidencing the right to purchase an aggregate of 1,000,000 shares of Common
Stock of the Company shall be executed by the proper officers of the Company
and delivered to the Warrant Agent for countersignature on the Effective
Date. Certificates representing the Warrants to be delivered to the Warrant
Agent shall be in direct relation to the Common Stock sold in the Company's
Public Offering and shall be attached to certificates representing an equal
number of shares of Common Stock. The Warrant Certificates will be issued
and delivered on written order of the Company signed by an authorized
officer. The Warrant Agent shall deliver Warrant Certificates in required
whole number denominations to the persons entitled thereto in connection with
any transfer or exchange permitted under this Agreement.
The Over-Allotment Warrants shall carry identical terms and conditions to
those established for the Firm Warrants and outlined herein. Up to 150,000
Over-Allotment Warrants may be issued and such Over-Allotment Warrants shall
evidence the right of the Registered Owners thereof to purchase an aggregate
of up to 150,000 shares of Common Stock of the Company. Any Over-Allotment
Warrants to be issued will be executed by the proper officers of the Company
and delivered to the Warrant Agent for countersignature on exercise of the
option to purchase Over-Allotment Warrants by the several Underwriters in
accordance with the Underwriting Agreement. Certificates representing
Over-Allotment Warrants may be initially attached to certificates
representing an equal number of Over-Allotment shares of Common Stock of the
Company, but are not required to be so attached; it being the intent of the
parties that the Representative may exercise the over-allotment option to
purchase the Over-Allotment Common Stock and/or the Over-Allotment Warrants.
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The Bridge Warrants shall carry identical terms and conditions to those
established for the Firm Warrants and outlined herein. Up to 428,565 Bridge
Warrants may be issued and such Bridge Warrants shall evidence the right of
the Registered Owners thereof to purchase an aggregate of up to 428,565
shares of Common Stock of the Company. Any Bridge Warrants to be issued will
be executed by the proper officers of the Company and delivered to the
Warrant Agent for countersignature upon closing of the Public Offering.
Certificates representing Bridge Warrants need not be attached to
certificates for shares of Common Stock of the Company.
The Representative's Warrants shall carry identical terms and conditions
to those established for the Firm Warrants and outlined herein. Up to
100,000 Representative's Warrants may be issued and such Representative's
Warrants shall evidence the right of the Registered Owners thereof to
purchase an aggregate of up to 100,000 shares of Common Stock of the Company.
Any Representative's Warrants to be issued will be executed by the proper
officers of the Company and delivered to the Warrant Agent for
countersignature on exercise of the Representative's Purchase Options to
purchase shares of Common Stock and Representative's Warrants, which Purchase
Options may not be exercised prior one year from the Effective Date.
Certificates representing Representative's Warrants may be initially attached
to certificates representing an equal number of shares of Common Stock of the
Company, but are not required to be so attached.
Except as provided in Section 8 hereof, share certificates representing
the Warrant Shares shall be issued only on or after the Exercise Date on
exercise of the Warrants or on transfer or exchange of the Warrant Shares.
The Warrant Agent, if other than the Company's Transfer Agent, shall arrange
with the Transfer Agent for the issuance and registration of all Warrant
Shares.
3. FORM AND EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be substantially in the form attached as Exhibit "A" and may have such
letters, numbers or other marks of identification and such legends, summaries
or endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement. The Warrant Certificates shall be dated as of the date of
issuance, whether on initial issuance, transfer, exchange or in lieu of
mutilated, lost, stolen or destroyed Warrant Certificates.
Each Firm Warrant Certificate shall be initially issued only when attached
to a certificate representing the same number of shares of Common Stock as
Firm Warrants and shall be separately transferable from the certificate
representing shares of Common Stock immediately upon issuance. Warrant
Certificates issued upon exercise of the Over-Allotment Warrants or
Representative's Warrants may be issued with a certificate representing
shares of Common Stock, but need not be so issued. Bridge Warrants shall not
be attached to certificates for Common Stock.
The Warrant Certificates shall be executed on behalf of the Company by its
President and Secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the
Company's seal. The Warrant Certificates shall be manually countersigned by
the Warrant Agent and
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shall not be valid for any purpose unless so countersigned. In the event any
officer of the Company who executed the Warrant Certificates shall cease to
be an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent,
such Warrant Certificates may be countersigned, issued and delivered by the
Warrant Agent with the same force and effect as though the person who signed
such Warrant Certificates had not ceased to be an officer of the Company.
4. EXERCISE. In accordance with Section 1(f) of this Agreement, the
Warrants will become exercisable on the Effective Date. The exercise of
Warrants in accordance with this Agreement shall only be permitted during the
Exercise Period.
Warrants shall be deemed to have been exercised immediately prior to the
close of business on the Exercise Date. The exercise form shall be executed
by the Registered Owner thereof or his attorney duly authorized in writing
and shall be delivered together with payment to the Warrant Agent, in cash or
by official bank or certified check, of an amount in lawful money of the
United States of America. Such payment shall be in an amount equal to the
Exercise Price as hereinabove defined.
The person entitled to receive the number of Warrant Shares deliverable on
such exercise shall be treated for all purposes as the Registered Owner of
such Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares. If Warrants represented by more than one Warrant Certificate
shall be exercised at one time by the same Registered Owner, 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.
As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be issued
and delivered by the Transfer Agent 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 deliverable on exercise of any Warrant.
The Warrant Agent shall promptly notify the Company in writing of any
exercise and of the number of Warrant Shares caused to be delivered and shall
cause payment of an amount in cash equal to the Exercise Price to be made
promptly to the order of the Company. The parties contemplate such payments
will be made by the Warrant Agent to the Company on a weekly basis and will
consist of collected funds only. The Warrant Agent shall hold any proceeds
collected and not yet paid to the Company in a Federally-insured escrow
account at a commercial bank selected by agreement of the Company and the
Warrant Agent, at all times relevant hereto. Following a determi-nation by
the Warrant Agent that collected funds have been received, the Warrant Agent
shall cause the Transfer Agent to issue share certificates representing the
number of Warrant Shares purchased by the Registered Owner.
Expenses incurred by the Warrant Agent, including administrative costs,
costs of maintaining records and other expenses, shall be paid by the Company
according to the standard fees imposed by the Warrant
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Agent for such services. All expenses incurred by the Warrant Agent and to
be paid by the Company shall be deducted from the escrow account prior to
distribution of funds to the Company.
A detailed accounting statement setting forth the number of Warrants
exercised, the number of Warrant Shares issued, the net amount of exercised
funds and all expenses incurred by the Warrant Agent shall be transmitted to
the Company on payment of each exercise amount. Such accounting statement
shall serve as an interim accounting for the Company during the Exercise
Period. The Warrant Agent shall render to the Company, at the completion of
the Exercise Period, a complete accounting setting forth the number of
Warrants exercised, the identity of persons exercising such Warrants, the
number of Warrant Shares issued, the amounts distributed to the Company, and
all expenses incurred by the Warrant Agent.
The Company may be required to deliver a prospectus that satisfies the
requirements of Section 10 of the Securities Act of 1933, as amended (the
"1933 Act") with delivery of the Warrant Shares and must have a registration
statement (or a post-effective amendment to an existing registration
statement) effective under the 1933 Act in order for the Company to comply
with any such prospectus delivery requirements. The Company will advise the
Warrant Agent of the status of any such registration statement under the 1933
Act and of the effectiveness of the Company's registration statement or lapse
of effectiveness.
No issuance of Warrant Shares shall be made unless there is an effective
registration statement under the 1933 Act, and registration or qualification
of the Warrant Shares, or an exemption therefrom, has been obtained from
state or other regulatory authorities in the jurisdiction in which such
Warrant Shares are sold. The Company will provide to the Warrant Agent
written confirmation of all such registration or qualification, or an
exemption therefrom, when requested by the Warrant Agent.
5. REDEMPTION. The Company may, at its option, redeem the Warrants in
whole, but not in part, for a redemption price of $.05 per Warrant, on 30
days' prior written notice to the Registered Owners. The right to redeem the
Warrants may be exercised by the Company only in the event (i) the closing
bid price for Company's shares of Common Stock has exceeded 140% of the
initial public offering price of the Common Stock during a period of at least
20 consecutive trading days within the thirty day period immediately
preceding any notice of the call for redemption, (ii) the Company has a
registration statement (or a post-effective amendment to an existing
registration statement) pertaining to the Warrant Shares effective under
federal law, which registration statement would enable a Registered Owner to
exercise the Warrants provided the Registered Owner resides in a jurisdiction
in which exercise is permitted, and (iii) the expiration of the 30 day notice
period is within the Exercise Period. In the event the Company exercises its
right to redeem the Warrants, the Expiration Date will be deemed to be, and
the Warrants will be exercisable until the close of business on, the date
fixed for redemption in such notice. If any Warrant called for redemption is
not exercised by such time, it will cease to be exercisable and the
Registered Owner thereof will be entitled only to the redemption price.
6. RESERVATION OF SHARES AND PAYMENT OF TAXES. The Company covenants
that it will at all times reserve and have available from its authorized
shares of Common
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Stock such number of shares of Common Stock as shall then be issuable on
exercise of all outstanding Warrants. The Company covenants that all Warrant
Shares 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 Registered Owner shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect to the issuance
of the Warrants, or the issuance, transfer or delivery of any Warrant Shares
on exercise of the Warrants. In the event the Warrant Shares are to be
delivered in a name other than the name of the Registered Owner of the
Warrant Certificates, no such delivery shall be made unless the person
requesting the same has paid to the Warrant Agent or Transfer Agent the
amount of any such taxes or charges incident thereto.
The Company will supply the Warrant Agent with blank Warrant Certificates,
so as to maintain an inventory satisfactory to the Warrant Agent. The
Company will file with the Warrant Agent a statement setting forth the name
and address of its Transfer Agent for Warrant Shares and of each successor
Transfer Agent, if any.
7. REGISTRATION OF TRANSFER. The Warrant Certificates may be transferred
in whole or in part and may be separately transferred from the Common Stock
share certificate to which such Warrant Certificate is attached upon initial
issuance, if any. Warrant Certificates to be exchanged shall be surrendered
to the Warrant Agent at its cor-porate 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 on
which Warrant Certificates and the transfer thereof shall be registered. 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 of transfer in form satisfactory to the Company and the Warrant
Agent.
Prior to due presentment for registration of transfer thereof, the Company
and the Warrant Agent may treat the Registered Owner 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.
8. LOSS OR MUTILATION. On receipt by the Company and the Warrant Agent
of evidence satisfactory as to the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate, the Company
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shall execute and the Warrant Agent shall countersign and deliver in lieu
thereof, a new Warrant Certificate representing an equal aggregate number of
Warrants. In the case of loss, theft or destruction of any Warrant
Certificate, the Registered Owner requesting issuance of a new Warrant
Certificate shall be required to secure an indemnity bond in favor of 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 substitute Warrant Certificate shall
also comply with such other regulations and pay such other reasonable charges
as the Company may prescribe.
9. ADJUSTMENT OF EXERCISE PRICE AND SHARES.
(a) If at any time prior to the expiration of the Warrants by their terms
or by exercise, the Company increases or decreases the number of its issued
and outstanding shares of Common Stock, or changes in any way the rights and
privileges of such shares of Common Stock, by means of (i) the payment of a
share dividend or the making of any other distribution on such shares of
Common Stock payable in its shares of Common Stock, (ii) a split or
subdivision of shares of Common Stock, or (iii) a consolidation or
combination of shares of Common Stock, then the Exercise Price in effect at
the time of such action and the number of Warrants required to purchase each
Warrant Share at that time shall be proportionately adjusted so that the
numbers, rights and privileges relating to the Warrant Shares then
purchasable upon the exercise of the Warrants shall be increased, decreased
or changed in like manner, for the same aggregate purchase price set forth in
the Warrants, as if the Warrant Shares purchasable upon the exercise of the
Warrants immediately prior to the event had been issued, outstanding, fully
paid and nonassessable at the time of that event. Any dividend paid or
distributed on the shares of Common Stock in shares of any other class of
shares of the Company or securities convertible into shares of Common Stock
shall be treated as a dividend paid in shares of Common Stock to the extent
shares of Common Stock are issuable on the payment or conversion thereof.
(b) In the event, prior to the expiration of the Warrants by exercise or
by their terms, the Company shall be recapitalized by reclassifying its
outstanding shares of Common Stock into shares with a different par value, or
by changing its outstanding shares of Common Stock to shares without par
value or in the event of any other material change of the capital structure
of the Company or of any successor corporation by reason of any
reclassification, recapitalization or conveyance, prompt, proportionate,
equitable, lawful and adequate provision shall be made whereby any Registered
Owner of the Warrants shall thereafter have the right to purchase, on the
basis and the terms and conditions specified in this Agreement, in lieu of
the Warrant Shares theretofore purchasable on the exercise of any Warrant,
such securities or assets as may be issued or payable with respect to or in
exchange for the number of Warrant Shares theretofore purchasable on exercise
of the Warrants had such reclassification, recapitalization or conveyance not
taken place; and in any such event, the rights of any Registered Owner of a
Warrant to any adjustment in the number of Warrant Shares purchasable on
exercise of such Warrant, as set forth above, shall continue and be preserved
in respect of any stock, securities or assets which the Registered Owner
becomes entitled to purchase.
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(c) In the event the Company, at any time while the Warrants shall remain
unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part
of the terms of such sale, dissolution, liquidation or winding up such that
the Registered Owner of a Warrant may thereafter receive, on exercise
thereof, in lieu of each Warrant Share which he would have been entitled to
receive, the same kind and amount of any stock, securities or assets as may
be issuable, distributable or payable on any such sale, dissolution,
liquidation or winding up with respect to each share of Common Stock of the
Company; provided, however, that in the event of any such sale, dissolution,
liquidation or winding up, the right to exercise the Warrants shall terminate
on a date fixed by the Company, such date to be not earlier than 5:00 P.M.,
Mountain Time, on the 30th day next succeeding the date on which notice of
such termination of the right to exercise the Warrants has been given by mail
to the Registered Owners thereof at such addresses as may appear on the books
of the Company.
(d) On exercise of the Warrants by the Registered Owners, the Company
shall not be required to deliver fractions of Warrant Shares; provided,
however, that the Company shall make prompt, proportionate, equitable, lawful
and adequate provisions in respect of any such fraction of one Warrant Share
either on the basis of adjustment in the then applicable Exercise Price or a
purchase of the fractional interest at the price of the Company's shares of
Common Stock or such other reasonable basis as the Company may determine.
(e) In the event, prior to expiration of the Warrants by exercise or by
their terms, the Company shall determine to take a record of the holders of
its shares of Common Stock for the purpose of determining shareholders
entitled to receive any stock dividend, distribution or other right which
will cause any change or adjustment in the number, amount, price or nature of
the shares of Common Stock or other stock, securities or assets deliverable
on exercise of the Warrants pursuant to the foregoing provisions, the Company
shall give to the Registered Owners of the Warrants at the addresses as may
appear on the books of the Company at least 30 days' prior written notice to
the effect that it intends to take such a record. Such notice shall specify
the date as of which such record is to be taken; the purpose for which such
record is to be taken; and the number, amount, price and nature of the shares
of Common Stock or other stock, securities or assets which will be
deliverable on exercise of the Warrants after the action for which such
record will be taken has been completed. Without limiting the obligation of
the Company to provide notice to the Registered Owners of the Warrants of any
corporate action hereunder, the failure of the Company to give notice shall
not invalidate such corporate action of the Company.
(f) The Warrants shall not entitle the Registered Owner thereof to any of
the rights of shareholders or to any dividend declared on the shares of
Common Stock unless the Warrant is exercised and the Warrant Shares purchased
prior to the record date fixed by the Board of Directors of the Company for
the determination of holders of shares of Common Stock entitled to such
dividend or other right.
(g) No adjustment of the Exercise Price shall be made as a result of or in
connection with (i) the issuance of shares of Common Stock of the Company
pursuant to options, warrants, employee stock ownership
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plans and share purchase agreements outstanding or in effect on the date
hereof, (ii) the establishment of additional option plans of the Company, the
modification, renewal or extension of any plan now in effect or hereafter
created, or the issuance of shares of Common Stock on exercise of any options
pursuant to such plans, and (iii) the issuance of shares of Common Stock in
connection with compensation arrangements for officers, employees or agents
of the Company or any subsidiary, and the like.
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 Certificate or the
Warrants represented thereby or of the Warrant Shares or other property
delivered on exercise of any Warrant. The Warrant Agent shall not 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 or in the Warrant Certificates, or (iii) be liable for any act or
omission in connection with this Agreement except for its own negligence or
willful misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to it
(who 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, direction, 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, expen-ses 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
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as a result of the Warrant Agent's own negligence or willful misconduct) on
30 days' prior written notice to the other party. At least 30 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
Owner of each Warrant Certificate. On such resignation or termination, the
Company shall appoint a new Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of the resignation by the Warrant Agent, then the Registered Owner of
any Warrant Certificate may apply to any court of competent jurisdiction for
the appointment of a new Warrant Agent. Any new Warrant Agent, whether
appointed by the Company or by such court, shall be a bank or trust company
having a capital and surplus, as shown by its last published report to its
shareholders, of not less than $1,000,000, and having its principal office in
the United States.
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 Owner 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.
Any such successor Warrant Agent shall promptly cause notice of its
succession as Warrant Agent to be mailed to the Company and to the Registered
Owner 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 it subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company
and otherwise deal with the Company in the same manner and to the same extent
and with like effect as though it were not Warrant Agent. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company.
11. MODIFICATION OF AGREEMENT. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement they
shall deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained. Additionally,
the parties may make any changes or corrections deemed necessary which shall
not adversely affect the interests of the Registered Owners 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
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Registered Owners of Warrant Certificates representing not less than a
majority of the Warrants outstanding. Additionally, no change in the number
or nature of the Warrant Shares purchasable on exercise of a Warrant or the
Exercise Price therefor shall be made without the consent in writing of the
Registered Owner of the Warrant Certificate representing such Warrant, other
than such changes as are specifically prescribed by this Agreement.
12. NOTICES. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall
be deemed given sufficiently in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to, in the case of the Company:
NAVIDEC, Inc.
00 Xxxxxxxxx Xxxxx, Xxxxxxxx X, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
and in the case of the Warrant Agent:
American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx X. Xxxx, Esq.
Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C.
Suite 4700
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
and if to the Registered Owner of a Warrant Certificate, at the address of
such Registered Owner as set forth on the books maintained by the Warrant
Agent.
13. PERSONS BENEFITING. 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 Registered Owners and beneficial owners from
time to time of the Warrant Certificates. Nothing in this Agreement is
intended or shall be construed to confer on any other person any right,
remedy or claim or to impose on any other person any duty, liability or
obligation.
14. FURTHER INSTRUMENTS. The parties shall execute and deliver any
and all such other instruments and shall take any and all such other actions
as may be reasonable or 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
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other provision of this Agreement, which shall otherwise remain in full force
and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory
or jurisdiction in which made.
16. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a
subsequent breach of this Agreement. The consent of any party where required
hereunder to any 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 provision hereof
waived or discharged except in writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. The
headings of this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning thereof. 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 mentioned.
THE COMPANY:
NAVIDEC, Inc.
(CORPORATE SEAL)
By:
----------------------------------
Xxxxx Xxxxxx, President
ATTEST:
-------------------------------
Xxxxx X. Xxxxxxxxxxx, Secretary
THE WARRANT AGENT:
AMERICAN SECURITIES TRANSFER & TRUST, INC .
By:
----------------------------------
ATTEST: Title:
-------------------------------
-------------------------------
Title:
-------------------------
-00-
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF ARAPAHOE )
Subscribed and sworn to before me by Xxxxx Xxxxxx, President of NAVIDEC,
Inc., this ____ day of ________, 199__.
Witness my hand and official seal.
----------------------------------------
( S E A L ) Notary Public
My commission expires:
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
Subscribed and sworn to before me by ___________________________,
____________________ of American Securities Transfer & Trust, Inc., this ___
day of ______, 199__.
Witness my hand and official seal.
----------------------------------------
( S E A L ) Notary Public
My commission expires:
DCR\Navidec\Warrant.Agr
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