WARRANT AGREEMENT
GOURMET HERB GROWERS, INC.
AND
INTERWEST TRANSFER CO., INC.
WARRANT AGENT
THIS WARRANT AGREEMENT (the "Agreement") is dated effective as
of , 1999, between Gourmet Herb Growers, Inc., a Nevada
Corporation (the "Company"), and Interwest Transfer Co., Inc., Salt
Lake City, Utah (the "Warrant Agent").
WHEREAS, the Company proposes to distribute as a dividend with
respect to its Common Stock, and issue to the shareholders of
record as of __________, 1999 (the record date), 800,000 Common
Stock Purchase Warrants (the "Warrants");
WHEREAS, in conjunction with the potential exercise of the
Warrants, the Company anticipates the issuance of up to 800,000
shares of its Common Stock (the "Warrant Shares");
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.
NOW, THEREFORE, in consideration of the promises and the
mutual agreements hereinafter set forth, it is agreed that:
1. WARRANTS/WARRANT CERTIFICATES. Each Warrant will, in the
future during the period specified in the Warrant Certificate, upon
fulfillment of the conditions and subject to the terms set forth
therein, 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 share of Common Stock on exercise
thereof, subject to modification and adjustment as provided in
Section 8. 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, or shall bear facsimile signatures of such officers, and
shall be delivered to the Warrant Agent upon execution of this
Agreement for distribution to the Company's shareholders pursuant
to written instructions from the Company to the Warrant Agent.
Subject to the provisions of Sections 3, 5, 6 and 8, 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 6 hereof, no Warrant Certificates shall be
issued except (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 unexer-
cised 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 replacements of
lost or mutilated Warrant Certificates.
2. FORM AND EXECUTION OF WARRANT CERTIFICATES. The Warrant
Certificates shall be substantially in the form attached hereto 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 Warrant Certificate shall be numbered serially with the
designation "A" 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 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.
3. EXERCISE. Subject to the provisions of Sections 4, 7 and
8, the Warrants, when evidenced by a Warrant Certificate, may be
exercised at a price (the "Exercise Price") of $1.25 per share, in
whole or in part, commencing on the date of issuance (the "Initial
Exercise Date") and terminating on June 30, 2002, unless extended
by the Company's Board of Directors (the "Exercise Period"), at any
time during such period that the Company's Registration Statement
with respect to the Warrant Shares is effective and current. The
Company shall promptly notify the Warrant Agent of the
effectiveness of such Registration Statement, any suspension of
effectiveness and of any such extension of the Exercise Periods.
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 thereof or his
attorney duly authorized in writing and will be delivered together
with payment to the Warrant Agent at 0000 Xxxx 0000 Xxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, (the "Corporate Office") or such other place
as designated by the Company, 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 4 have been
satisfied as of the Exercise Date. If any one of the conditions
precedent set forth in Section 4 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 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 Shares which shall be issuable on exercise thereof shall be
computed on the basis of the aggregate number of full shares
issuable on such exercise.
Within thirty days after the Exercise Date and in any event
prior to the pertinent Expiration 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. The Warrant Agent shall
promptly notify the Company in writing of any exercise and of the
number of Warrant Shares delivered and shall cause payment of an
amount in cash equal to the pertinent Exercise Price to be promptly
made to the order of the Company.
Upon the exercise of any Warrant, the Warrant Agent shall
promptly deposit the payment into a segregated 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 while acting in the
capacity as Warrant Agent will be paid by the Company. These
expenses, including delivery of exercised 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. This will serve as an interim accounting for the
Company's use during the exercise periods. A complete accounting
will be made by the Warrant Agent to the Company concerning all
persons exercising Warrants, the number of shares issued and the
amounts paid at the completion of the Exercise Period.
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
determination of holders of Common Stock entitled to such dividend
or other right.
4. 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 and delivery of Warrant Shares, 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
under the Act covering the issuance of the Warrant Shares during
the period the Warrants are exercisable, but there may be times
when no such registration statement will be currently effective.
The exercise of Warrants may be temporarily suspended without
liability to the Company during times when no such registration
statement is currently effective, or during times when, in the
reasonable opinion of the Board of Directors of the Company, such
suspension is necessary to preclude violation of any requirements
of applicable law of regulatory bodies having jurisdiction over the
Company. If any Warrant would expire during such a suspension,
then if exercise of such Warrant is duly tendered before its
expiration, such Warrant shall be exercisable and exercised (unless
the attempted exercise is withdrawn) as of the first day after the
end of such suspension. 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, as the case may be. No Warrant Shares shall be issued
unless and until any such registration requirements have been
satisfied.
The Registered Holder 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 Holder of the Warrant Certificate,
no such delivery shall be made unless the 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.
5. REGISTRATION OF TRANSFER. The Warrants are
NONTRANSFERABLE and Warrant Certificates may not be transferred in
whole or in part unless permitted by the Company. In any permitted
transfer, the 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 transfer in 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 canceled 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.
6. 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 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
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 canceled 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.
7. CALL OPTION. At any time, whether or not the Company's
Registration Statement with respect to the Warrant Shares is then
current and effective, the Company shall have the right and option
with respect to each of the Warrants, upon thirty (30) days written
notice to each Warrantholder (or such longer period as is required
under any applicable law), to call, redeem and acquire each of the
Warrants which remain outstanding and unexercised at the date
specified for such redemption in such notice (the "Redemption
Date"), which Redemption Date shall be 30 days after the date of
such notice, for an amount equal to $.01 per Warrant; provided,
however, that if the Company's Registration Statement is then
current and effective, the Warrantholders shall have the right
during the 30-day period immediately following the date of such
notice to exercise the Warrants in accordance with the provisions
of Section 3 hereof. In the event any Warrants are exercised
during such 30-day period, this call option shall be deemed not to
have been exercised by the Company as to the Warrants so exercised
by the holders thereof. Said notice of redemption shall require
each Warrantholder to surrender to the Company, on the Redemption
Date, at the Corporate Office of the Warrant Agent (or its
successor), his certificate or certificates representing the
Warrants to be redeemed. Notwithstanding the fact that any Warrants
called for redemption have not been surrendered for redemption and
cancellation on the Redemption Date, after the Redemption Date,
such Warrants shall be deemed to be expired and all rights of the
holders of such unsurrendered Warrants shall cease and terminate,
other than the right to receive the redemption price of $.01 per
Warrant for such Warrants, without interest provided, however, that
such right to receive the redemption price of $.01 per Warrant for
such Warrants shall itself expire on the Expiration Date of the
Warrants. The Company shall notify the Warrant Agent verbally,
with confirmation in writing, of the call of the Warrants and of
the Redemption Date and the Company shall instruct the Warrant
Agent accordingly as to the procedures to be followed by the
Warrant Agent in connection with the redemption of the Warrants.
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
each Warrant shall be the number derived by dividing such adjusted
pertinent Exercise Price into the original pertinent Exercise
Price. The pertinent 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 any other class of the Company or
securities convertible into shares of Common Stock shall be treated
as a dividend paid in Common Stock to the extent that shares of
Common Stock are issuable on the conversion thereof.
(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, or dissolves, liquidates or
winds up its affairs, prompt, proportionate, equitable, lawful and
adequate provision shall be made as part of the terms of any such
sale, dissolution, liquidation or winding up such that the holder
of a Warrant may thereafter receive, on exercise thereof, in lieu
of each share of Common Stock of the Company which he would have
been entitled to receive, the 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; provided,
however, that in the event of any such sale, dissolution,
liquidation or winding up, the right to exercise this Warrant
shall terminate on a date fixed by the Company, such date to be not
earlier than 4:00 p.m., Eastern Time, on the 10th 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
holders thereof at such addresses as may appear on the books of the
company.
(c) In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall determine to take a
record of the holders of its Common Stock for the purpose of
determining shareholders entitled to receive any share dividend 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 securities or assets deliverable on exercise of the Warrants
pursuant to the foregoing provisions, the Company shall give to the
Registered Holders of the Warrants at the addresses as may appear
on the books of the Company at least 10 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 Common Shares or other shares,
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 Holders of the Warrant
Certificates of any corporate action hereunder, the failure of the
Company to give notice shall not invalidate such corporate action
of the Company.
(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 of the Company, the
modification, renewal or extension of any plan now in effect or
hereafter created, or the issuance of Common Stock, on exercise of
any options pursuant to such plans, in connection with
compensation arrangements for officers, employees or agents of the
Company or any subsidiary, and the like or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any
type (therefore, the antidilution provisions of this Section 8 will
not apply in the event a merger or acquisition is undertaken by the
Company).
(e) This Agreement shall be incorporated by reference on the
Warrant Certificates.
Upon any adjustment of the exercise Price required to be made
pursuant to this Section 8, the Company within 30 days thereafter
shall (A) 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 (B) 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 and the Registered
Holders of any such reductions in the Exercise Price.
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 representation 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 4.
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,
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 30 days' prior written notice
to the other party. At least 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 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
succession 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 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 interests of the holders of Warrant Certificates;
provided, however, this Agreement shall not otherwise be modified,
supplemented or altered in any other respect except with the
consent in writing of the registered holders of Warrant
Certificates representing not less than 51% of each class of
Warrants outstanding. Additionally, except as provided in Section
8, no change in the number or nature of the Warrant Shares
purchasable on exercise of a Warrant, increase the purchase price
therefor, or the acceleration of the Expiration Date of a Warrant
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, opinions or
requests (however characterized or described) required or
authorized hereunder shall be deemed given sufficiently if in
writing and sent by registered or certified mail, return receipt
requested and postage prepaid, or by tested telex, telegram or
cable to the last known address of the Company, the Warrant Agent
and if to the Registered Holder of a Purchase 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 Purchase 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 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
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 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 Nevada. 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 discharge is sought to be enforced. The
headings of this Agreement are for convenience in reference 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.
GOURMET HERB GROWERS, INC.
By
Authorized Officer
THE WARRANT AGENT:
INTERWEST TRANSFER CO., INC.
By
Authorized Officer
WARRAGR1.wpd
