WARRANT AGREEMENT
BETWEEN
DELTA-OMEGA TECHNOLOGIES, INC.
AND
AMERICAN SECURITIES TRANSFER, INC.
Warrant Agent
July 15, 1996
THIS AGREEMENT (the "Agreement") is dated as of July 15,
1996, between Delta-Omega Technologies, Inc., a Colorado
corporation (the "Company"), and American Securities Transfer,
Inc., Denver, Colorado (the "Warrant Agent").
WHEREAS, the Company desires to provide an opportunity to
certain Warrantholders to acquire the common shares underlying up
to 2,000,000 Class "Z" Common Stock Purchase Warrants, each
Warrant entitling the holder thereof to purchase one share of
common stock; and
WHEREAS, the Company desires to provide for issuance of
warrant certificates (the "Warrant Certificates") representing up
to 2,000,000 Class "Z" Common Stock Purchase Warrants; and
WHEREAS, 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 promises and the
mutual agreements hereinafter set forth, it is agreed that:
1. Warrants/Warrant Certificates. Each Warrant shall
entitle the holder (the "Registered Holder" or, in the aggregate,
the "Registered Holders") in whose name the Warrant Certificate
shall be registered on the books maintained by the Warrant Agent
to purchase one share of common stock of the Company 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, attested to by the Company's Secretary, and delivered
to the Warrant Agent upon execution of this Agreement.
Subject to the provisions of Sections 3, 5, and 6, 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 unexercised warrants held by the exercising
Registered holder, and (iii) Warrant Certificates issued after
the initial issuance date, upon any transfer or exchange of
Warrant Certificates, or replacements of lost or mutilated
Warrant Certificates.
2. Form and Execution of Warrant Certificates. The
Warrant Certificates shall be substantially in the form attached
as Exhibit A. The Warrant Certificates shall be dated as of the
date of their issuance, whether on initial issuance, transfer or
exchange, or in lieu of mutilated, lost, stolen or destroyed
Warrant Certificates.
Each such Warrant Certificate shall be numbered serially in
accordance with the common stock initially attached thereto with
the letter "WZ" appearing on each "Z" Warrant Certificate. The
Warrant Certificates may immediately be detached, and, in such
event, the Warrant Certificates may be issued by number preceded
by the letter "WZ" without regard to the number of the
certificate representing the common stock initially attached
thereto.
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/Over Subscription Procedures. Subject to the
provisions of Sections 4 and 8, the Class Z Warrants, when
evidenced by a Warrant Certificate, may be exercised at a price
(the "Exercise Price") of $.75 per share of common stock, in
whole or in part, at any time during the period (the "Exercise
Period") commencing immediately, and terminating on June 30, 2001
(the "Expiration Date") unless extended by a majority vote of the
Company's Board of Directors, but such vote notwithstanding, in
no case shall the Exercise Period be extended beyond the
Expiration Date. The Company shall promptly notify the Warrant
Agent of any such extension of the Exercise Period. 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, either by delivering
to its operations offices located at 000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000, or by mailing to its post office box at
X.X. Xxx 0000, Xxxxxx, Xxxxxxxx 00000-0000 (the "Operations
Office"), in cash, by wire transfer, 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. Upon the receipt of any Warrant for
exercise, as set forth herein, the Warrant Agent shall promptly
verbally notify the Company, with confirmation in writing of such
fact, of the name and address of the exercising Registered
Holder, and of the number of Warrant Shares to be delivered upon
such exercise. In addition, the Warrant Agent shall also, at
such time, verify that all of the conditions precedent to the
issuance of the 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 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 ten (10) days after the Exercise Date, pursuant to a
Stock Transfer Agreement dated _____________, 19___, between the
Company and the Warrant Agent, 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 Exercise Price to be promptly made 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 account at all times relevant hereto.
Simultaneously with the issuance of the Warrant Shares, upon
exercise of Class "Z" Common Stock Purchase Warrants, the
transfer agent shall deliver to the exercising Warrantholders
notice of his/her/its rights to acquire additional shares as part
of the Class "Z" Warrants over subscription rights. Should a
Class "Z" Registered Holder exercise the over subscription right,
the Warrant Agent shall accept the over subscription form, and
deposit the over subscription payment in escrow pending the
termination of the Class "Z" Warrant Exercise Period. Upon
termination of the Class "Z" Warrant offering, all over
subscriptions shall be filled to the extent that unexercised
Class "Z" Warrant Shares are available. Warrant Shares will be
issued to over subscribers, and escrowed funds delivered to the
Company. Should there be an excess of over subscriptions,
Warrant Shares shall be delivered pro rata to over subscribers
based on the number of shares subscribed for, and any unfilled
subscription price shall be refunded to the over subscribers
based on the number of subscribed for Warrant Shares that were
not delivered.
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.
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 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. Warrant Shares shall be issued with
the normal Rule 144 restrictive legend unless a registration
statement relating to the underlying shares is in effect on the
Exercise Date. The Company agrees to provide the Warrant Agent
with copies of the registration statement (if any), or necessary
legal opinions to allow for the issuance of the Warrant Shares.
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 secure such
registration or approval, as the case may be.
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 Warrant Certificates may
be transferred in whole or in part. Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its
corporate office. The Company shall execute, and the Warrant
Agent shall countersign, issue and deliver in exchange therefor,
the Warrant Certificate or Certificates which the holder making
the transfer shall be entitled to receive.
The Warrant Agent shall keep transfer books at its corporate
office, which shall register Warrant Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Warrant Certificate at such office, the Company
shall execute, and the Warrant Agent shall issue and deliver to
the transferee or transferees a new Warrant Certificate or
Certificates representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer
or exercise shall be duly endorsed, or be accompanied by a
written instrument or instruments, or transfer in form
satisfactory to the Warrant Agent. The established transfer fee
for any registration of transfer of Warrant Certificates shall be
paid by the Registered Holder or the person presenting the
Warrant Certificate for transfer. The Company may also require
payment of a sum sufficient to cover any tax or other government
charge that may be imposed in connection therewith.
All Warrant Certificates so surrendered, or surrendered for
exercise, or for exchange in case of mutilated Warrant
Certificates, shall be promptly cancelled by the Warrant Agent,
and thereafter retained by the Warrant Agent until termination of
the agency created by this Agreement. Prior to due presentment
for registration of transfer thereof, the Company and the Warrant
Agent may treat the Registered Holder of any Warrant Certificate
as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the
Company or the Warrant Agent) , and the parties hereto shall not
be affected by any notice to the contrary.
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 reissuance of a new
Warrant Certificate shall be required to indemnify the Company
and Warrant Agent, and also to post an open-penalty insurance
bond. In the event a Warrant Certificate is mutilated, such
Certificate shall be surrendered and cancelled by the Warrant
Agent prior to delivery of a new Warrant Certificate. Applicants
for a new Warrant Certificate shall also comply with such other
regulations, and pay such other reasonable charges as the Company
may prescribe.
7. Call Option. At any time on or after July 1, 2000 and
at any time, notwithstanding the date, that the common stock of
the Company has a closing bid price on ten consecutive trading
days of $2.00 per share or more, the Company shall have the right
and option, upon written notice to each Class "Z" Registered
Holder, to, at any time thereafter, call all of the Class "Z"
Warrants remaining outstanding and unexercised at the date fixed
for such call in such notice (the "Call Date") , which Call Date
shall be not less than 30 days after the date of such notice;
provided, however, that the Class "Z" Registered Holders shall in
any event have the right during the 30 day period immediately
following the date of such notice to exercise the Class "Z"
Warrants in accordance with the provisions of Section 3 hereof.
In the event any Class "Z" 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 Class "Z" Warrants so
exercised by the holders thereof. Said notice of call shall
require each Class "Z" Registered Holder to surrender to the
Company, on the Call Date, at the corporate office of the Warrant
Agent (or its successor), his/her/its Certificate or Certificates
representing the Class "Z" Warrants to be called.
Notwithstanding the fact that any Class "Z" Warrants called have
not been surrendered for cancellation on the Call Date, after the
Call Date, such Class "Z" Warrants shall be deemed to be expired,
and all rights of the holders of such unsurrendered Class "Z"
Warrants shall cease and terminate. The Company shall notify the
Warrant Agent verbally, with confirmation in writing, of the call
of the Class "Z" Warrants and of the Call 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 call
of the Class "Z" Warrants.
8. Adjustment of Exercise Price and Shares. The Exercise
Price shall be subject to adjustment as follows:
(a) In the event, prior to the expiration of the
Warrants by exercise or by their terms, the Company shall issue
any shares of its common stock as a share dividend, or shall
subdivide the number of outstanding shares of common stock into a
greater number of shares, then, in either of such events, the
Exercise Price per share of common stock purchasable pursuant to
the Warrants in effect at the time of such action shall be
reduced proportionately, and the number of shares purchasable
pursuant to the Warrants shall be increased proportionately.
Conversely, in the event the Company shall reduce the number of
shares of its outstanding common stock by combining such shares
into a smaller number of shares, then, in such event, the
Exercise Price per share purchasable, pursuant to the Warrants in
effect at the time of such action, shall be increased
proportionately, and the number of shares of common stock at that
time purchasable pursuant to the Warrants shall be decreased
proportionately. Any dividend paid or distributed on the common
stock in shares of 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 5:00 p.m., Mountain
Standard Time, on the 30th day next succeeding the date on which
notice of such termination or the right to exercise the Warrants
has been given by mail to the Registered Holders thereof at such
addresses as may appear on the books of the Company.
(c) Notwithstanding the provisions of this Section 7,
no adjustment on the Exercise Price shall be made whereby such
Price is adjusted in an amount less than $.02 or until the
aggregate of such adjustments shall equal or exceed $.05.
(d) 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 share 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.
(e) No adjustment of the Exercise Price shall be made
as a result of or in connection with (i) the sale of additional
shares of Common Stock for less than the exercise price of the
Warrants or the current market price of the Company's securities,
(ii) the issuance of Common Stock of the Company pursuant to
options, warrants and share purchase agreements outstanding or in
effect on the date hereof, (iii) the establishment of additional
option plans of the Company, the modification, renewal or
extension or any plan now in effect or hereafter created, or the
issuance of Common Stock on exercise of any options pursuant to
such plans, (iv) the issuance of Common Stock in connection with
an acquisition or merger of any type in which the Company is the
surviving corporation (therefore, the anti-dilution provisions of
this Section 8 will not apply in the event such a merger or
acquisition is undertaken by the Company), or (v) in connection
with compensation arrangements for officers, employees or agents
or the Company or any subsidiary, and the like.
(f) This Warrant Agent Agreement shall be incorporated
by reference on the Warrant Certificates.
Before taking any action which would cause an
adjustment reducing the Exercise Price below the then par value
of the shares of Common Stock issuable upon exercise of the
Warrants, the Company will take any corporate action which may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted
Exercise Price.
Upon any adjustment of the Exercise Price required to
be made pursuant to this Section 8, the Company within 30 days
thereafter shall (A) cause to be filed with the Warrant Agent a
certificate setting forth the 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. Duties, Compensation and Termination of Warrant Agent.
The Warrant Agent shall act hereunder as agent and in a
ministerial capacity for the Company, and its duties shall be
determined solely by the provisions hereof. The Warrant Agent
shall not, by issuing and delivering Warrant Certificates or by
any other act hereunder, be deemed to make any representations as
to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of the Common
Stock or other property delivered on exercise of any Warrant.
The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of the Warrant Certificates to make
or cause to be made any adjustment of the Exercise Price or to
determine whether any fact exists which may require any such
adjustments.
The Warrant Agent shall not (i) be liable for any recital or
statement of fact contained herein or for any action taken or
omitted by it in reliance on any Warrant Certificate or other
document or instrument believed by it in good faith to be genuine
and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the
Company to comply with any of its covenants and obligations
contained in this Agreement except for its own negligence or
willful misconduct, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or
willful misconduct.
The Company agrees to indemnify the Warrant Agent against
any and all losses, expenses and liabilities which the Warrant
Agent may incur in connection with the delivery of copies of the
Company's prospectus to exercising Registered Holders upon the
exercise of any Warrants as set forth in Section 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 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 all compensation
for its services hereunder and to reimburse the Warrant Agent for
its expenses as set forth in the attached fee schedule. 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,
at the expense of the Company, 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, including
the Placement Agent, may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. All
costs incurred by any Registered Holder in connection with the
appointment of a new warrant agent, including but not limited to
all legal fees and out-of-pocket expenses, shall be borne and
paid for by the Company. Any new warrant agent, whether
appointed by the Company or by such court, shall be a bank or
trust Company or professional transfer agent having a capital and
surplus, as shown by its last published report to its
shareholders, of not less than $1,000,000.
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 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. 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.
10. 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 respect,
except with the consent in writing of the Registered Holders of
Warrant Certificates representing not less than 51% of the
Warrants outstanding. Additionally, except as provided in
Section 7, no change in the number or nature of the Warrant
Shares purchasable on exercise of a Warrant, the Exercise Price
therefor, or 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.
11. Notices. All notices, demands, elections, opinions or
request (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, postage prepaid, or by tested telex, telegram or cable
to, in the case of the Company:
Delta-Omega Technologies, Inc.
Attn: Xxxxx X. Xxxxx III, President
000 Xxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
and in the case of the Warrant Agent:
if by delivery, to:
American Securities Transfer, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
if by United States mail, to:
American Securities Transfer, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
and if the Registered Holder of a Warrant Certificate, at the
address of such holder as set forth on the books maintained by
the Warrant Agent.
12. 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 Registered
Holders from time to time of Warrant Certificates. Nothing in
this Agreement is intended or shall be construed to confer upon
any other person any right, remedy or claim, or to impose on any
other person any duty, liability or obligation.
13. 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.
14. 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 adversely affect
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.
15. 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 occur, shall not be deemed to
be a consent to any other action or occurrence.
16. General Provisions. This Agreement shall be construed
and enforced in accordance with, and governed by, the laws of the
State of Colorado. Except as otherwise expressly stated herein,
time is of the essence in performing hereunder. This Agreement
embodies the entire agreement and understanding between the
parties, and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement may not
be modified or amended, or any term or provisions hereof waived
or discharged, except in writing signed by the party against whom
such amendment, modification, waiver or 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 written above.
THE COMPANY:
DELTA-OMEGA TECHNOLOGIES, INC.
(CORPORATE SEAL) By: /s/ Xxxxx X. Xxxxx III
Xxxxx X. Xxxxx III
Its: President
ATTEST:
THE WARRANT AGENT:
AMERICAN SECURITIES TRANSFER, INC.
By: /s/ American Securities Transfer, Inc.
