WARRANT AGENT AGREEMENT
Ocurest Laboratories, Inc., a Florida corporation (the "Company"), and
American Securities Transfer & Trust, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000-0000, a Colorado corporation (the "Warrant Agent"), agree
as follows:
1. PURPOSE. The Company proposes to publicly offer and issue certain
shares of the Company's Common Stock, $0.08 par value, (the "Common Stock") and
up to 2,300,000 Class A Common Stock Purchase Warrants (the "Public Warrants"),
each permitting the purchase of one share of Common Stock (a "Share" and
collectively, the "Shares"). All or a portion of the Public Warrants will be
sold as units (the "Units"). The Company further proposes to issue up to 200,000
Warrants (the "RAF Warrants") to RAF Financial Corporation ("RAF") or its
designees. Unless the context indicates otherwise, as used herein the word
"Warrants" will mean both the Public Warrants and the RAF Warrants. Each Public
Warrant may be purchased for $.50, with the proceeds from the sale of the Public
Warrants to be deposited in escrow with Tri-State Bank, pursuant to that certain
Escrow Agreement between the Company and Tri-State Bank, dated *_________*, 1996
(the "Escrow Agreement").
Notwithstanding anything to the contrary contained herein, the RAF
Warrants may not be sold, transferred, assigned, pledged, or hypothecated until
*________*, 1997 except to officers of RAF, except to the underwriters of the
Company's initial public offering pursuant to Registration No. 333-10323, and
except by will or operation of law. After such date, the RAF Warrants may be
sold, transferred, assigned, pledged, or hypothecated provided that any such
transaction is in accordance with the registration or exemption from
registration provisions of the Securities Act of 1933, as amended, and any
applicable state securities laws. If the RAF Warrants are exercised by
*________*, 1997, then any shares of Common Stock acquired as a result of any
such exercise may not be sold, transferred, assigned, pledged, or hypothecated
until *________*, 1997. Further, notwithstanding anything to the contrary
herein, the RAF Warrants are not redeemable.
2. WARRANT. Commencing on *________*, 1996 or earlier if so determined
by RAF (the "Separation Date"), each Public Warrant will entitle the registered
holder of such Warrant (the "Public Warrant Holder") to purchase from the
Company one Share at $4.80 per Share, with a credit of $.50 per Public Warrant
surrendered on exercise (the "Public Exercise Price"). Commencing on the date of
the issuance of the RAF Warrants, each RAF Warrant will entitle the registered
holder of such Warrant an ("RAF Warrant Holder") to purchase from the Company
one Share at $5.76 per Share (the "RAF Exercise Price"). Unless the context
indicates otherwise, as used herein the words "Warrant Holder" will mean both
the Public
and the RAF Warrant Holders. A Warrant Holder may exercise all or any number of
Warrants resulting in the purchase of a whole number of Shares.
3. EXERCISE PERIOD. Commencing on the Separation Date, the Warrants,
unless sooner redeemed, may be exercised at any time until 3:00 P.M., Denver
Colorado time on *________*, 1999. Unless the context indicates otherwise, as
used herein the words "Expiration Date" will mean the ending date of such
period. After 3:00 P.M., Denver Colorado time on the Expiration Date, any
unexercised Warrants will be void and all rights of Warrant Holders as such
shall cease.
4. DETACHABILITY. Notwithstanding anything herein to the contrary,
prior to the Separation Date the Warrants and Common Stock comprising the Units
will not be separable and detachable.
5. CERTIFICATES. The Warrant Certificates shall be in registered form
only and, except for changes to the RAF Warrants as provided for herein, shall
be substantially in the form set forth in Exhibit "A" attached to this
Agreement. Warrant Certificates shall be signed by, or shall bear the facsimile
signature of, the President or a Vice President of the Company and the Secretary
or an Assistant Secretary of the Company and shall bear a facsimile of the
Company's corporate seal. If any person, whose facsimile signature has been
placed upon any Warrant Certificate as the signature of an officer of the
Company, shall cease to be such officer before such Warrant Certificate shall be
countersigned, issued and delivered, such Warrant Certificate may be
countersigned, issued and delivered with the same effect as if such person had
not ceased to be such officer. Any Warrant Certificate may be signed by, or made
to bear the facsimile signature of, any person who at the actual date of the
preparation of such Warrant Certificate shall be a proper officer of the Company
to sign such Warrant Certificate even though such person was not such an officer
upon the date of the Agreement.
6. COUNTERSIGNING. Warrant Certificates shall be manually countersigned
by the Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Agent hereby is authorized to countersign and deliver
to, or in accordance with the instructions of, any Warrant Holder any Warrant
Certificate which is properly issued.
7. REGISTRATION OF TRANSFER AND EXCHANGES. The Warrant Agent shall from
time to time register the transfer of any outstanding Warrant Certificate upon
records maintained by the Warrant Agent for such purpose upon surrender of such
Warrant Certificate to the Warrant Agent for transfer, accompanied by
appropriate instruments of transfer in form satisfactory to the Company and the
Warrant Agent and duly executed by the Warrant
2
Holder or a duly authorized attorney in fact. Upon any such registration of
transfer, a new Warrant Certificate shall be issued in the name of and to the
transferee and the surrendered Warrant Certificate shall be cancelled.
8. TRANSFER OF WARRANTS. The Warrant Agent shall not effect any
transfer of any outstanding Warrant Certificate unless such transfer is in
compliance with all applicable federal and state securities law requirements,
and all applicable requirements of NASDAQ, which compliance shall be to the sole
satisfaction of the Company and its counsel.
9. REDEMPTION OF WARRANTS.
(a) Commencing on the Separation Date, subject to the provisions of
this Agreement, the Warrants shall be redeemable by the Company (i) at any time
until 3:00 P.M., Denver, Colorado time on *_____*, 1998, at a price of $.55 per
Warrant, and (ii) at any time during the period commencing after 3:00 P.M.,
Denver, Colorado time, on *______*, 1998, and ending at 3:00 P.M., Denver,
Colorado time, on *_______*, 1999, at a price of $.75 per Warrant. The Warrants
shall be redeemable as provided in this Section 9 upon not less than thirty
days' prior written notice from the Company to the Warrant Holders, provided
that the Shares have traded above 140% of the then Public Exercise Price for at
least twenty consecutive trading days ending within ten days prior to the date
the notice of redemption is given by the Company. For purposes of determining
the daily trading price of the Shares, if the Shares are listed on a national
securities exchange, are admitted to unlisted trading privileges on a national
securities exchange, or are listed for trading on a trading system of the
National Association of Securities Dealers, Inc. such as the NASDAQ Small-Cap
Market or the NASDAQ National Market System, then the last reported sale price
of the Shares on such exchange or system each day shall be used or if the Shares
are not so listed on such exchange or system or admitted to unlisted trading
privileges, then the average of the last reported high bid prices reported by
the National Quotation Bureau, Inc. each day shall be used to determine such
daily trading price.
(b) Notwithstanding any other provision of this Agreement, from and
after the redemption date, all rights of the affected Warrant Holders (except
the right to receive the redemption price) shall terminate, but only if (i) on
or prior to the redemption date the Company shall have irrevocably deposited
with the Warrant Agent, as paying agent, a sufficient amount to pay on the
redemption date the redemption price for all Warrants called for redemption and
(ii) the notice of redemption shall have stated the name and address of the
Warrant Agent and the intention of the Company to deposit such amount with the
Warrant Agent on or before the redemption date.
(c) The Warrant Agent shall pay to the Warrant Holders of
3
record of redeemed Warrants all monies received by the Warrant Agent for the
redemption of Warrants to which the Warrant Holders of record of such redeemed
Warrants are entitled under the provisions of this Agreement.
(d) Any amounts deposited with Warrant Agent which are not required for
redemption of the Warrants may be withdrawn by the Company. Any amounts
deposited with the Warrant Agent which shall be unclaimed after six months after
the redemption date may be withdrawn by the Company, and thereafter the Warrant
Holders of the Warrants called for redemption for which such funds were
deposited shall look solely to the Company for payment. The Company shall be
entitled to the interest, if any, on funds deposited with the Warrant Agent, and
the Warrant Holders of redeemed Warrants shall have no right to any such
interest.
(e) If the Company fails to make a sufficient deposit with the Warrant
Agent as provided above or pay the redemption price to the Warrant Holders, the
Warrant Holder of any Warrants called for redemption may at the option of the
Warrant Holder (i) by notice to the Company declare the notice of redemption a
nullity, or (ii) maintain an action against the Company for the redemption
price. If the Warrant Holder brings such an action, the Company will pay
reasonable attorneys' fees of the Warrant Holder. If the Warrant Holder fails to
bring an action against the Company for the redemption price within ninety days
after the redemption date, the Warrant Holder shall be deemed to have elected to
declare the notice of redemption to be a nullity and such notice shall be
without any force or effect.
10. SURRENDER OF WARRANTS. To the extent that any Public Warrant is not
exercised or redeemed before the Expiration Date, the Company shall pay to each
Public Warrant Holder, having unexercised or unredeemed Warrants (a) $.50 per
unexercised or unredeemed Public Warrant held by such Public Warrant Holder (the
"Escrow Proceeds") plus (b) accrued interest on the Escrow Proceeds.
11. EXERCISE OF WARRANTS.
(a) Any one Warrant or any multiple of one Warrant evidenced
by any Warrant Certificate may be exercised upon any single occasion on or after
the Separation Date and on or before the Expiration Date. A Warrant shall be
exercised by the Warrant Holder by surrendering to the Warrant Agent the Warrant
Certificate evidencing such Warrant with the exercise form on the reverse of
such Warrant Certificate duly completed and executed and delivering to the
Warrant Agent the Exercise Price for each Share to be purchased, payable as
follows: for the Public Warrants (i) $4.30, by good check or bank draft payable
to the order of the Company, plus (ii) $.50 previously paid by the Warrant
Holder, which shall be disbursed to the Company from escrow, pursuant to
4
the terms of the Escrow Agreement; or for the RAF Warrants, $5.76 by good check
or bank draft payable to the order of the Company.
(b) Upon receipt of a Warrant Certificate with the exercise
form thereon duly executed together with payment in full of the Exercise Price
for the Shares for which Warrants are to be exercised, the Warrant Agent shall
requisition from any transfer agent for the Shares, and upon receipt shall make
delivery of, Shares representing the total number of whole Shares for which
Warrants have been so surrendered and for which the Exercise Price has been so
paid. Any person to whom such Shares are issued of record shall be deemed to
have become a holder of record of such Shares as of the date of the surrender of
such Warrant Certificate and payment of the Exercise Price, whichever shall last
occur, provided that if the books of the Company with respect to the Shares
shall be closed for issuance of Shares, the person to whom such Shares are
issued of record shall be deemed to have become a record holder of such Shares
as of the date on which such books shall next be so open (whether before, on or
after the Expiration Date) but at the Exercise Price.
(c) If less than all the Warrants evidenced by a Warrant
Certificate are exercised upon a single occasion, a new Warrant Certificate for
the balance of the Warrants not so exercised shall be issued and delivered to,
or in accordance with, transfer instructions properly given by the Warrant
Holder until the Expiration Date.
(d) All Warrant Certificates surrendered upon exercise of the
Warrants shall be cancelled.
(e) Upon the exercise of any Warrant, the Warrant Agent shall
promptly deposit the payment into an escrow account established by mutual
agreement of the Company and the Warrant Agent at a federally insured commercial
bank. All funds deposited in the escrow account will be disbursed on a weekly
basis to the Company once they have been determined by the Warrant Agent to be
collected funds. Once the funds are determined to be collected, the Warrant
Agent shall cause the share certificate(s) representing the exercised warrants
to be issued.
(f) Reasonable 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 certificates representing the Shares issued upon
exercise of the Warrants, will be deducted from the Exercise Price received by
the Warrant Agent prior to distribution of funds to the Company. A detailed
accounting statement relating to the number of Warrants exercised, names of
registered Warrant Holders and the net amount of exercised funds remitted will
be given to the Company with the payment of each exercise amount.
5
(g) At the time of exercise of the Warrant(s), any transfer
fee shall be paid by the Company.
12. TAXES. The Company will pay all taxes attributable to the initial
issuance of Shares upon exercise of Warrants. The Company shall not, however, be
required to pay any taxes which may be payable in respect to any transfer
involved in any issuance of Warrant Certificates or in the issuance of any
certificate in a name other than that of the Warrant Holder upon the exercise of
any Warrant.
13. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
Certificate is mutilated, lost, stolen or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant Certificate,
include the surrender thereof), and upon receipt of evidence satisfactory to the
Company and the Warrant Agent of such mutilation, loss, theft or destruction,
issue a substitute Warrant Certificate of like denomination or tenor as the
Warrant Certificate so mutilated, lost, stolen or destroyed. Applicants for
substitute Warrant Certificates shall comply with such other reasonable
regulations and pay any reasonable charges as the Company or the Warrant Agent
may prescribe.
14. RESERVATION OF SHARES. For the purpose of enabling the Company to
satisfy its obligation to issue Shares upon exercise of Warrants, the Company
will at all times reserve and keep available free from preemptive rights, out of
the aggregate of its authorized but unissued Shares, the full number of Shares
which may be issued upon the exercise of Warrants. The Company covenants that
all shares which may be issued upon exercise of Warrants will upon issue be
fully paid and nonassessable by the Company and free from all taxes, liens,
charges and security interests with respect to the issue thereof.
15. GOVERNMENTAL RESTRICTIONS. If any Shares issuable upon the exercise
of Warrants require registration with or approval by any governmental authority,
the Company will, to the extent set forth in the Company's Prospectus and in
Section 1 of the Underwriting Agreement entered into in connection with the
above described public offering, endeavor to secure such registration or
approval; provided that in no event shall such Shares be issued, and the Company
shall have the authority to suspend the exercise of all Warrants, until such
registration or approval shall have been obtained; but all Warrants, the
exercise of which are requested during any such suspension, shall be exercisable
at the Exercise Price. If any such period of suspension continues past the
Expiration Date, all Warrants, the exercise of which have been requested on or
prior to the Expiration Date, shall be exercisable upon the removal of such
suspension until the close of the business day immediately following the
expiration of such
6
suspension.
16. ADJUSTMENT PROVISIONS.
(a) Adjustment of the Exercise Price. If the Company
subdivides its outstanding Shares into a greater number of Shares, the Exercise
Price in effect immediately prior to such subdivision shall be proportionately
reduced. Conversely, if the Company combines its outstanding Shares into a
lesser number of Shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased. In case of a subdivision or
combination, the adjustment of the Exercise Price shall be made as of the event.
A distribution of shares of Common Stock, including a distribution of
Convertible Securities, to stockholders of the Company on a pro rata basis shall
be considered as a subdivision of outstanding Shares for the purposes of this
subsection, except that the adjustment will be made as of the record date of
such distribution and any such distribution of Convertible Securities shall be
deemed to be a distribution of the Shares underlying such Convertible
Securities.
(b) No Adjustment for Small Amounts. Anything in this Section
to the contrary notwithstanding, the Company shall not be required to give
effect to any adjustment in the Exercise Price unless and until the net effect
of one or more adjustments, determined as above provided, shall have required a
change of the Exercise Price by at least one cent, but when the cumulative net
effect of more than one adjustment so determined shall be to change the actual
Exercise Price by at least one cent, such change in the Exercise Price shall
thereupon be given effect.
(c) Number of Shares Adjusted Upon Any Adjustment of the
Exercise Price. Upon the date of any adjustment in the Exercise Price, the
Warrant Holders shall thereafter (until another such adjustment shall have
occurred) be entitled to purchase, at the new Exercise Price, the number of
shares, calculated to the nearest full share, obtained by multiplying the number
of shares of Common Stock initially issuable upon exercise of this Warrant by
the Exercise Price specified in the first paragraph hereof and dividing the
product so obtained by the new Exercise Price.
(d) Definitions.
(1) Whenever reference is made in this Section 16
to the distribution of shares of Common Stock, the term "Common Stock" shall
mean the Common Stock of the Company authorized as of the date hereof and any
other class of stock ranking on a parity with such Common Stock. However,
shares issuable upon exercise of Warrants shall include the class designated
as Common Stock of the Company as of the date hereof.
7
(2) Whenever reference is made in this Section 16
to the distribution of Convertible Securities, the term "Convertible
Securities" shall mean options or warrants or rights for the purchase of Common
Stock of the Company or for the purchase of any stock or other securities
convertible into or exchangeable for Common Stock of the Company.
17. NOTICE TO WARRANT HOLDERS. Upon any adjustment as described in
Section 16 hereof, the Company, within twenty days thereafter shall (a) cause to
be filed with the Warrant Agent a certificate signed by a Company officer
setting forth the details of such adjustment, the method of calculation and the
facts upon which such calculation is based shall be conclusive evidence of the
correctness of the matters set forth therein, and (b) cause written notice of
such adjustments to be given to each Warrant Holder as of the record date
applicable to such adjustment. In case of any reclassification or change of
outstanding shares of Common Stock issuable upon exercise of the Warrants (other
than a change in par value or from par value to no par value or from no par
value to par value or as a result of a subdivision or combination), or in case
of any consolidation or merger of the Company with or into another corporation
(other than a merger with a subsidiary of the Company in which merger the
Company is the continuing corporation and which does not result in any
reclassification or change of the then outstanding shares of Common Stock or
other capital stock issuable upon exercise of the Warrants other than a change
in par value or from par value to no par value or from no par value to par
value) or in the case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, then, as
a condition of such reclassification, change, consolidation, merger, sale or
conveyance, the Company, or such successor or purchasing corporation, as the
case may be, shall make lawful and adequate provision whereby each holder of a
Warrant then outstanding shall have the right thereafter to receive on exercise
of such Warrant the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
sale or conveyance by a holder of the number of shares of Common Stock issuable
upon exercise of such Warrant immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance and the Company or its
successors shall forthwith file at the corporate office of the Warrant Agent a
statement setting forth such provisions signed by (1) its Chairman of the Board
of Directors or Vice Chairman of such Board or President or a Vice President and
(2) by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary evidencing such provisions. Such provisions shall include provision
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 16 hereof. The above provisions of this
Section 17 shall similarly apply to successive reclassifications and changes of
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances. Without limiting the obligation of the Company
8
hereunder to provide such notice to each Warrant Holder, failure of the Company
to give notice shall not invalidate corporate action taken by the Company.
18. NO FRACTIONAL WARRANTS OR SHARES. The Company shall not be required
to issue fractions of Warrants upon the reissue of Warrants, any adjustments as
described in Section 16 hereof or otherwise; but the Company in lieu of issuing
any such fractional interest, shall round up or down to the nearest full
Warrant. If the total Warrants surrendered for exercise would otherwise result
in the issuance of a fractional share, in lieu thereof, the aggregate number of
shares issuable will be rounded up or down to the nearest full share.
19. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall have
any rights of a stockholder of the Company, either at law or in equity, and the
rights of the Warrant Holders, as such, are limited as expressly provided in
this Agreement or in the Warrant Certificates. The Company and the Warrant Agent
may treat the registered Warrant Holder in respect of any Warrant Certificates
as the absolute owner thereof for all purposes notwithstanding any notice to the
contrary.
20. WARRANT AGENT. The Company hereby appoints the Warrant Agent to act
as the agent of the Company and the Warrant Agent hereby accepts such
appointment upon the following terms and conditions by all of which the Company
and every Warrant Holder, by acceptance of his Warrants, shall be bound:
(a) Statements contained in this Agreement and in the Warrant
Certificates shall be taken as statements of the Company. The Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or for action taken or to be taken by the Warrant
Agent.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the Company's covenants contained in this
Agreement or in the Warrant Certificate. The Warrant Agent may consult at any
time with counsel satisfactory to it (who may be counsel for the Company) and
the Warrant Agent shall incur no liability or responsibility to the Company or
to any Warrant Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel, provided the Warrant Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Warrant Holder for any action taken in
reliance upon any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed,
9
sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent as provided in this
Agreement, to reimburse the Warrant Agent for all out-of-pocket expenses, taxes
and governmental charges and all other charges of any kind in nature incurred by
the Warrant Agent in the execution of this Agreement and to indemnify the
Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and counsel fees, for this Agreement except as a result of the
Warrant Agent's negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any action likely to
involve significant expense unless the Company or one or more Warrant Holders
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred in connection with such action, suit or
legal proceeding, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper, whether with
or without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the Warrant Holders as their respective rights or interest may appear.
(g) The Warrant Agent and any stockholder, director, officer
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant
Agent from acting in any other legal capacity for the Company or for any other
legal entity.
21. SUCCESSOR WARRANT AGENT. Any corporation into which the Warrant
Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to the corporation
trust business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act of a
party or the parties hereto. In any such event or if the name of the Warrant
Agent is changed, the Warrant Agent or such successor may adopt the
countersignature of the original Warrant Agent and may countersign such Warrant
10
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent.
22. CHANGE OF WARRANT AGENT. The Warrant Agent may resign or be
discharged by the Company from its duties under this Agreement by the Warrant
Agent or the Company, as the case may be, giving notice in writing to the other,
and by giving a date when such resignation or discharge shall take effect, which
notice shall be sent at least thirty days prior to the date so specified. If the
Warrant Age be discharged or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of thirty days after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Warrant Holder or after discharging the
Warrant Agent, then any Warrant Holder may apply to the District Court for the
City and County of Denver, Colorado for the appointment of a successor to the
Warrant Agent. Pending appointment of a successor to the Warrant Agent, either
by the Company or by such Court, the duties of the Warrant Agent shall be
carried out by the Company. Any successor Warrant Agent, whether appointed by
the Company or by such Court, shall be a bank or a trust company, in good
standing, organized under the laws of the of the United States of America or any
State therein and having at the time of its appointment as Warrant Agent, a
combined capital and surplus of at least four million dollars. After any such
appointment, the successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Warrant Agent without further act or deed and the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the time
held by it hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for effecting the delivery or transfer. Failure to give
any notice provided for in this section, however, shall not affect the legality
or validity of the resignation or removal of the Warrant Agent or the
appointment of the successor Warrant Agent, as the case may be.
23. NOTICES. Any notice or demand authorized by this Agreement to be
given or made by the Warrant Agent or by any Warrant Holder to or on the Company
shall be sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Ocurest Laboratories, Inc.
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Any notice or demand authorized by this Agreement to be given
or made by any Warrant Holder or by the Company to or on the Warrant Agent shall
be sufficiently given or made if sent by
11
mail, first class, certified or registered, postage prepaid, addressed (until
another address is filed in writing by the Warrant Agent with the Company), as
follows:
American Securities Transfer & Trust, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Any distribution, notice or demand required or authorized by
this Agreement to be given or made by the Company or the Warrant Agent to or on
the Warrant Holders shall be sufficiently given or made if sent by mail, first
class, certified or registered, postage prepaid, addressed to the Warrant
Holders at their last known addresses as they shall appear on the registration
books for the Warrant Certificates maintained by the Warrant Agent.
24. SUPPLEMENTS AND AMENDMENTS.
(a) The Company and the Warrant Agent may from time to time supplement or
amend this Agreement without the approval of any Warrant Holder in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company may deem necessary or desirable and which shall not adversely affect
the interests of the Warrant Holders, including, but not limited to, any
extension of the Expiration Date for such period or periods as the Board of
Directors of the Company may determine, and any conditional or unconditional
reduction in the Exercise Price.
(b) With the consent of the Warrant Holders of at least two-thirds of all
then outstanding Warrants, given as set forth in this subsection (b) of this
Section 24, the Warrant Agent and the Company may make any other amendment in
this Agreement provided that no such change may shorten the time of exercise of
any Warrant or increase the Exercise Price of any Warrant without the consent of
all Warrant Holders. Consent of the Warrant Holders under this subsection (b)
shall be evidenced by either (i) a consent in writing to the amendment, which
consent need not set forth the specific form of amendment but shall be
sufficient if it consents to the general substance thereof and which shall be
executed by the Warrant Holders and notarized or acknowledged (any consent so
given in respect of a particular Warrant shall be binding upon any subsequent
owner thereof) or (ii) by the affirmative vote of the requisite Warrant Holders
at a meeting of Warrant Holders called by the Company or the Warrant Agent and
held at such time and place as may be specified in a written notice of the
meeting to be mailed to each Warrant Holder not less than ten days nor more than
sixty days prior to the date set for the meeting. The Company or the Warrant
Agent may establish a record date for the determination of Warrant
12
Holders entitled to vote at any meeting of Warrant Holders, which record date
shall be not more than sixty days prior to the date of mailing notice thereof.
The Company and the Warrant Agent may make reasonable regulations for the
conduct of such meeting and for the appointment of a chairman and a secretary
thereof and of inspectors of votes. Proxies may be used at any such meeting in
the same manner as is provided in the Company's bylaws with respect to proxies
for meetings of its stockholders.
25. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
26. TERMINATION. This Agreement shall terminate thirty days after the
earlier of the last Expiration Date to occur or such earlier date upon which all
Warrants have been exercised; provided, however, that if exercise of the
Warrants is suspended pursuant to Section 15 hereof and such suspension
continues past the Expiration Date, this Agreement shall terminate at the close
of business on the business day immediately following expiration of such
suspension. The provisions of Section 20 hereof shall survive such termination.
27. GOVERNING LAW. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Florida and for all purposes shall be construed in accordance with the laws of
said State.
28. BENEFIT OF AGREEMENT. Nothing in this Agreement shall be construed
to give any person or corporation other than the Company, the Warrant Agent and
the Warrant Holders any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the Warrant Holders.
29. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all
13
purposes be deemed to be an original and all such counterparts shall together
constitute but one and the same instrument. This Agreement may be executed by
facsimile with original signature regular mail or overnight courier.
Date: ______________, 1996
OCUREST LABORATORIES, INC.,
a Florida corporation
By:_____________________________________
Xxxxxx X. Xxxxxx, Xx.
AMERICAN SECURITIES TRANSFER & TRUST, INC.,
a Colorado corporation
By:_____________________________________
14
