EXHIBIT 4.7
WARRANT AGREEMENT
Kaire International, Inc., a Delaware corporation ("Company"), and American
Securities Transfer & Trust, Inc. ("AST"), 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, a Colorado corporation ("Warrant Agent"), agree as
follows:
1. PURPOSE. The Company proposes to publicly offer and issue (the "Public
Offering") 825,000 shares of the Company's $.01 par value common stock
shares ("Shares") and 1,000,000 warrants permitting the purchase of
1,000,000 Shares ("Warrant").
2. WARRANTS. Each Warrant will entitle the registered holder of a Warrant
("Warrant Holder") to purchase from the Company one Share at $6.60 per
share ("Exercise Price"). A Warrant Holder may exercise all or any number
of Warrants resulting in the purchase of a whole number of Shares.
3. EXERCISE PERIOD. The Warrants may be exercised at any time during the
period commencing September / X /, 2000 and ending at 3:00 p.m., Denver,
Colorado (5:00 p.m., New York) time on September / X /, 2004 ("Expiration
Date") except as changed by Section 12 of this Agreement. The Warrants may
be exercised prior to September / X /, 2000, only if the underwriter of the
Public Offering has consented to all of the Warrants being exercisable (the
"Advanced Exercise Date"). After the Expiration Date, any unexercised
Warrants will be void and all rights of Warrant Holders shall cease.
4. DETACHABILITY. The Shares and Warrants are being separately sold.
5. CERTIFICATES. The Warrant Certificates shall be in registered form only
and shall be substantially in the form set forth in EXHIBIT A attached to
this Agreement. Warrant Certificates shall be signed by, or shall bear the
facsimile signature of the President or a Vice President of the Company and
the Secretary or an Assistant Secretary of the Company and shall bear a
facsimile of the Company's corporate seal. If any person, whose facsimile
signature has been placed upon any Warrant Certificate or the signature of
an officer of the Company, shall have ceased to be such officer before such
Warrant Certificate is countersigned, issued and delivered, such Warrant
Certificate shall be countersigned, issued and delivered with the same
effect as if such person had not ceased to be such officer. Any Warrant
Certificate may be signed by, or made to bear the facsimile signature of,
any
person who at the actual date of the preparation of such Warrant
Certificate shall be a proper officer of the Company to sign such Warrant
Certificate even though such person was not such an officer upon the date
of the Agreement.
6. COUNTERSIGNING. Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent hereby is authorized to countersign and
deliver to, or in accordance with the instructions of, any Warrant Holder
any Warrant Certificate which is properly issued.
7. REGISTRATION OF TRANSFER AND EXCHANGES. Subject to the provisions of
Section 4, the Warrant Agent shall from time to time register the transfer
of any outstanding Warrant Certificate upon records maintained by the
Warrant Agent for such purpose upon surrender of such Warrant Certificate
to the Warrant Agent for transfer, accompanied by appropriate instruments
of transfer in form satisfactory to the Company and the Warrant Agent and
duly executed by the Warrant Holder or a duly authorized attorney. Upon
any such registration of transfer, a new Warrant Certificate shall be
issued in the name of and to the transferee and the surrendered Warrant
Certificate shall be cancelled.
8. EXERCISE OF WARRANTS; REDEMPTION
a. Any one Warrant or any multiple of one Warrant evidenced by any
Warrant Certificate may be exercised upon any single occasion on or
after the Exercise Date or the Advanced Exercise Date, as the case may
be, and on or before the Expiration Date. A Warrant shall be
exercised by the Warrant Holder by surrendering to the Warrant Agent
the Warrant Certificate evidencing such Warrant with the exercise form
on the reverse of such Warrant Certificate duly completed and executed
and delivering to the Warrant Agent, by cash or by certified or
official bank check payable to the order of the Company, the Exercise
Price for each Share to be purchased.
b. Upon receipt of a Warrant Certificate with the exercise form thereon
duly executed together with payment in full of the Exercise Price for
the Shares for which Warrants are then being exercised, the Warrant
Agent shall requisition from any transfer agent for the Shares, and
upon receipt shall make delivery of, certificates evidencing the total
number of whole Shares for which Warrants are then being exercised in
such names and denominations as are required for delivery to, or in
accordance with the instructions of, the Warrant Holder.
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Such certificates for the Shares shall be deemed to be issued, and the
person whom such Shares are issued of record shall be deemed to have
become a holder of record of such Shares, as of the date of the
surrender of such Warrant Certificate and payment of the Exercise
Price, whichever shall last occur, provided that if the books of the
Company with respect to the Shares shall be deemed to be issued, and
the person to whom such Shares are issued of record shall be deemed to
have become a record holder of such Shares, as of the date on which
such books shall next be open (whether before, on or after the
Expiration Date) but at the Exercise Price, whichever shall have last
occurred, to the Warrant Agent.
c. If less than all the Warrants evidenced by a Warrant Certificate are
exercised upon a single occasion, a new Warrant Certificate for the
balance of the Warrants not so exercised shall be issued and delivered
to, or in accordance with, transfer instructions properly given by the
Warrant Holder until the Expiration Date.
d. All Warrant Certificates surrendered upon exercise of the Warrants
shall be cancelled.
e. Upon the exercise, or conversion 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.
f. (i) At any time that the Warrants are exercisable and on not less
than thirty (30) days notice, the Warrants may be redeemed, at the
option of the Company, at a redemption price of $.05 per Warrant,
provided the average closing bid price of the Shares receivable upon
exercise of the Warrant shall have exceeded $10.00 per share (the
"Target Price"), subject to adjustment as set forth in Section 13
hereof, for a period of twenty consecutive trading days immediately
prior to the date on which notice of redemption is given.
Warrantholders will be entitled to exercise Warrants at any time up to
the business day next preceding the redemption date.
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(ii) Providing the conditions set forth in Section 8(f) are met, and
the Company shall desire to exercise its right to redeem the Warrants,
it shall mail a notice of redemption to the holders of the Warrants to
be redeemed, first class, postage prepaid, within ten days after the
end of such foregoing period, not later than the thirtieth (30th) day
before the date fixed for redemption, at his/her last address as shall
appear on the records of the Company. Any notice mailed in the manner
provided herein shall be conclusively presumed to have been duly given
whether or not the holder receives such notice.
(iii) The notice of redemption shall specify (i) the redemption
price, (ii) the date fixed for redemption, (iii) the place where the
Warrant Certificates shall be delivered and the redemption price paid,
and (iv) that the right to exercise the Warrant shall terminate at
3:00 p.m. Denver, Colorado time (5:00 p.m. New York time) the
"Redemption Time") on the trading day immediately preceding the date
fixed for redemption. The date fixed for redemption of the Warrants
shall be the Redemption Date. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect the validity of
the proceedings for such redemption except as to a holder (a) to whom
notice was mailed; or (b) whose notice was defective. An affidavit of
the Secretary or an Assistant Secretary of the Company that notice of
redemption has been mailed shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(iv) Except as provided herein, any right to exercise a Warrant shall
terminate at the Redemption Time on the trading day immediately
proceeding the Redemption Date. On and after the Redemption Date, the
holders shall have no further rights except to receive, upon surrender
of the Warrant, the redemption price.
(v) From and after the Redemption Date, the Company shall, at the
place specified in the notice of redemption, upon presentation and
surrender to the Company by or on behalf of the holder thereof of one
or more Warrants to be redeemed, deliver or cause to be delivered to
or upon the written order of such holder a sum in cash equal to the
redemption price of each such Warrant. From and after the date fixed
for redemption and upon the deposit or setting aside by the Company of
a sum sufficient to redeem all the Warrants called for redemption,
such Warrants shall expire and become void and all rights hereunder
and under the Warrant Certificate, except the
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right to receive payment of the redemption price, shall cease.
(vi) If the Company's Shares are subdivided or combined into a
greater of smaller number of shares of Common Stock, the Target Price
shall be proportionately adjusted by the ratio which the total number
of shares of Common Stock outstanding immediately prior to such event
bears to the total number of shares to be outstanding immediately
after such event.
g. Expenses incurred by American Securities Transfer & Trust, Inc. while
acting in the capacity as Warrant Agent will be paid by the Company.
These expenses, including delivery of exercised share certificate 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, names of
registered Warrant Holder(s) and the net amount of exercised funds
remitted will be given to the Company with the payment of each
exercise amount.
h. At the time of exercise of the Warrant(s), the transfer fee is to be
paid by ______________. In the event the shareholder must pay the fee
and fails to remit same, the fee will be deducted from the proceeds
prior to distribution to the Company.
9. TAXES. The Company will pay all taxes attributable to the initial issuance
of Shares upon exercise of Warrants. The Company shall not, however, be
required to pay any tax which may be payable in respect to any transfer
involved in any issue of Warrant Certificates or in the issue of any
certificates of Shares in the name other than that of the Warrant Holder
upon the exercise of any Warrant.
10. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant Certificate is
mutilated, lost, stolen or destroyed, the Company and the Warrant Agent
may, on such terms as to indemnify or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant
Certificate, include the surrender thereof), and upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such mutilation, loss,
theft or destruction, issue a substitute Warrant Certificate of like
denomination or tenor as the Warrant Certificate so mutilated, lost, stolen
or destroyed. Applicants for substitute Warrant Certificates shall comply
with such other reasonable regulations and pay any reasonable charges as
the Company or the Warrant Agent may prescribe.
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11. RESERVATION OF SHARES. For the purpose of enabling the Company to satisfy
all obligations to issue Shares upon exercise of Warrants, the Company will
at all times reserve and keep available free from preemptive rights, out of
the aggregate of its authorized but unissued shares, the full number of
Shares which may be issued upon the exercise of the Warrants will upon
issue be fully paid and nonassessable by the Company and free from all
taxes, liens, charges and security interests with respect to the issue
thereof.
12. GOVERNMENTAL RESTRICTIONS. If any Shares issuable upon the exercise of
Warrants require registration or approval of any governmental authority,
the Company will endeavor to secure such registration or approval; provided
that in no event shall such Shares be issued, and the Company shall have
the authority to suspend the exercise of all Warrants, until such
registration or approval shall have been obtained; but all Warrants, the
exercise of which is requested during any such suspension, shall be
exercisable at the Exercise Price. If any such period of suspension
continues past the Expiration Date, all Warrants, the exercise of which
have been requested on or prior to the Expiration Date, shall be
exercisable upon the removal of such suspension until the close of business
on the business day immediately following the expiration of such
suspension.
13. ADJUSTMENTS. Subject and pursuant to the provisions of this Section 13,
the Warrant Price and number of Shares subject to this Warrant shall be
subject to adjustment from time to time as set forth hereinafter.
a. Except as hereinafter provided in the event the Company shall, at any
time or from time to time after the date hereof, sell any Shares for a
consideration per share less than the lower of (i) the closing bid price of
the Shares as reported on NASDAQ on the trading date next preceding such
sale (the "Market Price"), or (ii) the Warrant Price then in effect, or
issue any Shares as a stock dividend to the holders of the Shares or
subdivide or combine the outstanding Shares into a greater or lesser number
of Shares (any such sale, issuance, subdivision or combination being herein
called a "Change of Shares"), then, and hereafter immediately before the
date of such sale or the record date for each Change of Shares, the Warrant
Price for the Warrants (whether or not the same shall be issued and
outstanding) in effect immediately prior to such Change of Shares shall be
changed to a price (including any applicable fraction of a cent to the
nearest cent) determined by dividing (1) the product of (a) the Warrant
Price in effect immediately before such Change of Shares and (b) the sum
(i) the total number of shares of Common Stock outstanding
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immediately prior to such Change of Shares, and (ii) the number of shares
determined by dividing (A) the aggregate consideration, if any, received by
the Company upon such consideration, issuance, subdivision or combination
by (3) the lesser of (x) the Market Price, or (y) the Warrant Price, in
effect immediately prior to such Change of Shares; by (2) the total number
of shares of Common Stock outstanding immediately after such Change of
Shares.
For the purposes of any adjustment to be made in accordance with this
Section 13a. the following provisions shall be applicable: In case of the
issuance or sale of Shares (or of other securities deemed hereunder to
involve the issuance or sale of Shares) for a consideration part or all of
which shall be cash, the amount of the cash portion of the consideration
therefor deemed to have been received by the Company shall be (i) the
subscription price (before deducting any commissions or any expenses
incurred in connection therewith), if Shares of are offered by the Company
for subscription, or (ii) the public offering price (before deducting
therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others
performing similar services, or any expenses incurred in connection
therewith), if such securities are sold to underwriters or dealers for
public offering without a subscription offering, or (iii) the gross amount
of cash actually received by the Company for such securities, in any other
case.
b. In case of the issuance or sale (otherwise than as a dividend or other
distribution on any stock of the Company, and otherwise than on the
exercise of options, rights or warrants or the conversion or exchange of
convertible or exchangeable securities) of Shares (or of other securities
deemed hereunder to involve the issuance or sale of Shares) for a
consideration part or all of which shall be other than cash, the amount of
the consideration therefor other than cash deemed to have been received by
the Company shall be the value of such consideration as determined in good
faith by the Board of Directors of the Company.
c. Shares issuable by way of dividend or other distribution on any stock
of the Company shall be deemed to have been issued immediately after the
opening of business on the day following the record date for the
determination of shareholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
d. The reclassification of securities of the Company other than Shares
into securities including Shares shall be deemed to involve the issuance of
such Shares of for a consideration
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other than cash immediately prior to the close of business on the date
fixed for the determination of security holders entitled to receive such
Shares, and the value of the consideration allocable to such Shares shall
be determined as provided in subsection b. of this Section 13.
e. The number of Shares at any one time outstanding shall be deemed to
include the aggregate maximum number of shares issuable (subject to
readjustment upon the actual issuance thereof) upon the exercise of
options, rights or warrants and upon the conversion or exchange of
convertible or exchangeable securities.
f. Upon each adjustment of the Warrant Price pursuant to this Section 13,
the number of Shares purchasable upon the exercise of each Warrant shall be
the number derived by multiplying the number of Shares purchasable
immediately prior to such adjustment by the Warrant Price in effect prior
to such adjustment and dividing the product so obtained by the applicable
adjusted Warrant Price.
g. In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for Shares, or issue any
securities convertible into or exchangeable for Shares, for a consideration
per share (determined as provided in Section 13 a. and as provided below)
less than the lower of (i) the Market Price, or (ii) the Warrant Price in
effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, or without
consideration (including the issuance of any such securities by way of
dividend or other distribution), the Warrant Price for the Warrants
(whether or not the same shall be issued and outstanding) in effect
immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, as the case may be, shall be
reduced to a price determined by making the computation in accordance with
the provisions of Section 13 a. hereof, provided that:
(1) The aggregate maximum number of Shares as the case may be,
issuable or that may become issuable under such options, rights or
warrants (assuming exercise in full even if not then currently
exercisable or currently exercisable in full) shall be deemed to be
issued and outstanding at the time such options, rights or warrants
were issued, for a consideration equal to the minimum purchase price
per share provided for in such options, rights or warrants at the time
of issuance, plus the consideration, if any, received by the Company
for such options, rights or warrants; provided, however, that upon
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the expiration or other termination of such options, rights or
warrants, if any thereof shall not have been exercised, the number of
Shares deemed to be issued and outstanding pursuant to this subsection
(and for the purposes of subsection e. of Section 13 hereof) shall be
reduced by the number of Shares as to which options, warrants and/or
rights shall have expired, and such number of Shares shall no longer
be deemed to be issued and outstanding, and the Purchase Price then in
effect shall forthwith be readjusted and thereafter be the price that
it would have been had adjustment been made on the basis of the
issuance only of the Shares actually issued plus the Shares remaining
issuable upon the exercise of those options, rights or warrants as to
which the exercise rights shall not have expired or terminated
unexercised.
(2) The aggregate maximum number of Shares issuable or that may
become issuable upon conversion or exchange of any convertible or
exchangeable securities (assuming conversion or exchange in full even
if not then currently convertible or exchangeable in full) shall be
deemed to be issued and outstanding at the time of issuance of such
securities, for a consideration equal to the consideration received by
the Company for such securities, plus the minimum consideration, if
any, receivable by the Company upon the conversion or exchange
thereof; provided, however, that upon the expiration or other
termination of the right to convert or exchange such convertible or
exchangeable securities (whether by reason of redemption or
otherwise), the number of Shares deemed to be issued and
outstanding pursuant to this subsection 13 g. (2) (and for the
purposes of subsection 13 e. hereof) shall be reduced by the number
of shares as to which the conversion or exchange rights shall have
expired or terminated unexercised, and such number of shares shall
no longer be deemed to be issued and outstanding, and the Warrant
Price then in effect shall forthwith be readjusted and thereafter
be the price that it would have been had adjustment been made on
the basis of the issuance only of the shares actually issued plus
the shares remaining issuable upon conversion or exchange of those
convertible or exchangeable securities as to which the conversion
or exchange rights shall not have expired or terminated unexercised.
(3) If any change shall occur in the exercise price per share
provided for in any of the options, rights or warrants referred to in
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subsection 13 b., or in the price per share or ratio at which the
securities referred to in subsection 13 g. are convertible or
exchangeable, such options, rights or warrants or conversion or
exchange rights, as the case may be, to the extent not theretofore
exercised, shall be deemed to have expired or terminated on the date
when such price change became effective in respect of shares not
theretofore issued pursuant to the exercise or conversion or exchange
thereof, and the Company shall be deemed to have issued upon such date
new options, rights or warrants or convertible or exchangeable
securities.
h. In case of any reclassification or change of outstanding Shares
issuable upon exercise of the Warrants (other than a change in par value,
or from par value to no par value, or from no par value to par value or as
a result of subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger
with a subsidiary in which merger the Company is the continuing corporation
and which does not result in any reclassification or change of the then
outstanding Shares or other capital stock issuable upon exercise of the
Warrants) or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety,
then, as a condition of such reclassification, change, consolidation,
merger, sale or conveyance, the Company, or such successor or purchasing
corporation, as the case may be, shall make lawful and adequate provision
whereby the registered holder of each Warrant then outstanding shall have
right thereafter to receive on exercise of such Warrant the kind and amount
of securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
securities issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance and
shall forthwith file at the Corporate Office of the Warrant Agent a
statement signed by its President or a Vice President and by its Treasurer
or an Assistant Treasurer or its Secretary or an Assistant Secretary
evidencing such provision. Such provisions shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in subsection 13 a. The above provisions of
this subsection 13 h. shall similarly apply to successive reclassifications
and changes of Shares and to successive consolidations, mergers, sales or
conveyances.
i. After each adjustment of the Purchase Price pursuant to this Section
13, the Company will promptly prepare a certificate signed by the Chairman
or President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant
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Secretary, of the Company setting forth: (i) the Warrant Price as so
adjusted, (ii) the number of Shares purchasable upon exercise of each
Warrant, after such adjustment, and (iii) a brief statement of the facts
accounting for such adjustment. The Company will promptly file such
certificate with the Warrant Agent and cause a brief summary thereof to be
sent by ordinary first class mail to each registered holder at his last
address as it shall appear on the registry books of the Warrant Agent. No
failure to mail such notice nor any defect therein or in the mailing
thereof shall affect the validity thereof except as to the holder to whom
the Company failed to mail such notice, or except as to the holder whose
notice was defective. The affidavit of any officer of the Warrant Agent or
the Secretary or an Assistant Secretary of the Company that such notice has
been mailed, shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
j. No adjustment shall be made:
(i) upon the issuance of the Warrants (including Shares issued upon
exercise of those warrants);
(ii) upon the issuance of Shares and warrants (including Shares issued
upon exercise of those warrants) issued prior to or in connection with
the Public Offering;
(iii) upon the issuance or sale of Shares issuable upon the exercise
of any stock options granted under any stock option plan of the
Company; or
(iv) if the amount of said adjustment shall be less than five cents
($.05) per share of Common Stock, provided, however, that in such
case, any adjustment that would otherwise be required then to be made
shall be carried forward and shall be made at the time of and together
with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least five cents
($.05) per Share.
k. The foregoing provisions notwithstanding on the effective date of any
new Warrant Price the number of shares as to which any Warrant may be
exercised shall be increased or decreased so that the total sum payable to
the Company on the exercise of such Warrant shall remain constant.
l. The form of Warrant need not be changed because of any change pursuant
to this Section, and Warrants issued after such change may state the same
Warrant Price and the same number of shares as is stated in the Warrants
initially issued pursuant to this Agreement. However, the Company may at
any
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time in its sole discretion (which shall be conclusive) make any change in
the form of Warrant that the Company may deem appropriate and that does not
effect the substance thereof; and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding
Warrant or otherwise, may be in the form as so changed.
14. NOTICE TO WARRANT HOLDERS. Upon any adjustment as described in Section 13,
the Company within 20 days thereafter shall (i) cause to be filed with the
Warrant Agent a certificate signed by a Company officer setting forth the
details of such adjustment, the method of calculation and the facts upon
which such calculation is based, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein, and (ii)
cause written notice of such adjustments to be given to each Warrant Holder
as of the record date applicable to such adjustment. Also, if the Company
proposes to enter into any reorganization, reclassification, sale of
substantially all of its assets, consolidation, merger, dissolution,
liquidation or winding up, the Company shall give notice of such fact at
least 20 days prior to such action to all Warrant Holders which notice
shall set forth such facts as indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the Exercise
Price and the kind and amount of the shares or other securities and
property deliverable upon exercise of the Warrants. Without limiting the
obligation of the Company hereunder to provide notice to each Warrant
Holder, failure of the Company to give notice shall not invalidate any
corporate action taken by the Company.
15. NO FRACTIONAL WARRANTS OR SHARES. The Company shall not be required to
issue fractions of Warrants upon the reissue of Warrants, any adjustments
as described in Section 13 or otherwise; but the Company in lieu of issuing
any such fractional interest, shall round up or down to the nearest full
Warrant. If the total Warrants surrendered by exercise would result in the
issuance of a fractional share, the Company shall not be required to issue
a fractional share but rather the aggregate number of shares issuable will
be rounded up or down to the nearest full share.
16. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall have any
rights of a shareholder of the Company, either at law or equity, and the
rights of the Warrant Holders, as such, are limited to those rights
expressly provided in this Agreement or in the Warrant Certificates. The
Company and the Warrant Agent may treat the registered Warrant Holder in
respect of any Warrant Certificates as the absolute owner thereof for all
purposes notwithstanding any notice to the contrary.
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17. WARRANT AGENT. The Company hereby appoints the Warrant Agent to act as the
agent of the Company and the Warrant Agent hereby accepts such appointment
upon the following terms and conditions by all of which the Company and
every Warrant Holder, by acceptance of his Warrants, shall be bound:
a. Statements contained in this Agreement and in the Warrant Certificates
shall be taken as statements of the Company. The Warrant Agent
assumes no responsibility for the correctness of any of the same
except such as describes the Warrant Agent or for action taken or to
be taken by the Warrant Agent.
b. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the Company's covenants contained in
this Agreement or in the Warrant Certificates.
c. The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall
incur no liability or responsibility to the Company or to any Warrant
Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the
advice of such counsel, provided the Warrant Agent shall have
exercised reasonable care in the selection and continued employment of
such counsel.
d. The Warrant Agent shall incur no liability or responsibility to the
Company or to any Warrant Holder for any action taken in reliance upon
any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument believed by it to be genuine or to have
been signed, sent or presented by the proper party or parties.
e. The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes
and governmental charges and all other charges of any kind or nature
incurred by the Warrant Agent in the execution of this Agreement and
to indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and counsel fees, for this
Agreement except as a result of the Warrant Agent's negligence or bad
faith.
f. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take
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any other action likely to involve expense unless the Company or one
or more Warrant Holders shall furnish the expenses which may be
incurred in connection with such action, suit or legal proceeding, but
this provision shall not affect the power of the Warrant Agent to take
such action as the Warrant Agent may consider proper, whether with or
without any such security or indemnity. All rights of action under
this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgement shall be for the ratable
benefit of the Warrant Holders as their respective rights or interest
may appear.
g. The Warrant Agent and any shareholder, director, officer or employee
of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and freely
as though it were not Warrant Agent under this Agreement. Nothing
herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
18. SUCCESSOR WARRANT AGENT. Any corporation into which the Warrant Agent may
be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to
the Warrant Agent hereunder without the execution or filing of any paper or
any further act of a party or the parties hereto. In any such event or if
the name of the Warrant Agent is changed, the Warrant Agent or such
successor may adopt the countersignature of the original Warrant Agent and
may countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent.
19. CHANGE OF WARRANT AGENT. The Warrant Agent may resign or be discharged by
the Company from its duties under this Agreement by the Warrant Agent or
the Company, as the case may be, giving notice in writing to the other, and
by giving a date when such resignation or discharge shall take effect,
which notice shall be sent at least 30 days prior to the date so specified.
If the Warrant Agent shall resign, be discharged
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or shall otherwise become incapable of acting, the Company shall appoint a
successor to the 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 such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by any Warrant Holder or after discharging the Warrant
Agent, then any Warrant Holder may apply to the District Court for Denver
County, Colorado, for the appointment of a successor to the Warrant Agent.
Pending appointment of a successor to the Warrant Agent, either by the
Company or by such Court, the duties of the Warrant Agent shall be carried
out by the Company. Any successor Warrant Agent, whether appointed by the
Company or by such Court, shall be a bank or a trust company, in good
standing, organized under the laws of the State of Colorado or of the
United States of America, having its principal office in Denver, Colorado
and having at the time of its appointment as Warrant Agent, a combined
capital and surplus of at least four million dollars. After appointment,
the successor Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if had been originally named as Warrant
Agent without further act or deed and the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the
time held by it thereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for effecting the delivery or transfer.
Failure to give any notice provided for in the section, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the
successor Warrant Agent, as the case may be.
20. NOTICES. Any notice or demand authorized by this Agreement to be given or
made by the Warrant Agent or by any Warrant Holder to or on the Company
shall be sufficiently given or made if sent by mail, first class, certified
or registered, postage prepaid, addressed (until another address is filed
in writing by the Company with the Warrant Agent), as follows:
Kaire International, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Any notice or demand authorized by this Agreement to be given or made by
any Warrant Holder or by the Company to or on the Warrant Agent shall be
sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
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American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Any distribution, notice or demand required or authorized by this Agreement
to be given or made by the Company or the Warrant Agent to or on the
Warrant Holders shall be sufficiently given or made if sent by mail, first
class, certified or registered, postage prepaid, addressed to the Warrant
Holders at their last known addresses as they shall appear on the
registration books for the Warrant Certificates maintained by the Warrant
Agent.
21. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Agent may from
time to time supplement or amend this Agreement without the approval of any
Warrant Holders in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be defective or inconsistent with
any other provisions herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant
Agent may deem necessary or desirable.
22. SUCCESSORS. All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
23. TERMINATION. This Agreement shall terminate at the close of business on
the Expiration Date or such earlier date upon which all Warrants have been
exercised; provided, however, that if exercise of the Warrants is suspended
pursuant to Section 12 and such suspension continues past the Expiration
Date, this Agreement shall terminate at the close of business on the
business day immediately following expiration of such suspension. The
provisions of Section 17 shall survive such termination.
24. GOVERNING LAWS. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State
of Colorado and for all purposes shall be construed in accordance with the
laws of said State.
25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed
to give any person or corporation other than the Company, the Warrant Agent
and the Warrant Holders any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and the Warrant Holders.
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26. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to
be an original and all such counterparts shall together constitute but one
and the same instrument.
Date: September , 1998
KAIRE INTERNATIONAL, INC.
A DELAWARE CORPORATION
By:
------------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
SEAL
ATTEST:
----------------------------
Secretary: Xxxx X. Xxxxxxxx
AMERICAN SECURITIES TRANSFER & TRUST, INC., A
COLORADO CORPORATION
By:
------------------------------
Vice President:
SEAL
ATTEST:
----------------------------
Secretary:
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