WARRANT AGREEMENT
POWER MARKETING, INC.
AND
INTERWEST TRANSFER CO., INC.
WARRANT AGENT
THIS WARRANT AGREEMENT (the "Agreement") is dated effective as of
__________, 2000, between Power Marketing, Inc., a Delaware 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 __________,
2000 (the record date), 1,250,000 Common Stock Purchase Warrants (the
"Warrants");
WHEREAS, in conjunction with the potential exercise of the Warrants, the
Company anticipates the issuance of up to 1,250,000 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 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 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 $1.00 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 Delaware.
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.
POWER MARKETING, INC.
By
Authorized Officer
THE WARRANT AGENT:
INTERWEST TRANSFER CO., INC.
By
Authorized Officer
WARRAGR1.wpd
