WARRANT AGREEMENT
-------------------------
RACOM SYSTEMS, INC.
AND
AMERICAN SECURITIES TRANSFER, INC.
Warrant Agent
-------------------------
THIS WARRANT AGREEMENT (the "Agreement") is dated as ________________,
1997, between RACOM SYSTEMS, INC., a Delaware corporation (the "Company"), and
American Securities Transfer, Inc., Denver, Colorado (the "Warrant Agent").
WHEREAS, the Company proposes to distribute to the public in a public
offering (the "Public Offering") up to 1,500,000 Common Stock Purchase Warrants
("Warrants"), each Warrant entitling the holder to purchase one share of the
Company's $.01 par value common stock at $_____ per share until twenty-four
months from the effective date of the Public Offering; and
WHEREAS, in connection with the proposed public distribution, the Company
anticipates the issuance of up to 1,500,000 shares of Common Stock underlying
the Warrants (the "Warrant Shares"); and
WHEREAS, the Company desires to provide for issuance of warrant
certificates (the "Warrant Certificates") representing up to 1,500,000 Warrants
and the procedure for exercise of the Warrants, and
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 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 and attested to by the Company's
Secretary or Assistant Secretary and delivered to the Warrant Agent upon
execution of this Agreement. Such Warrant Certificates shall be distributed to
the Warrant purchasers in the Company's public distribution.
Subject to the provisions of Sections 3, 6, and 7, 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
replacement 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 designation "W - ____"
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 any
event, if 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 5 and 8, the
Warrants, when evidenced by a Warrant Certificate, may be exercised at a price
(the "Exercise Price") of $_____ per share of Common Stock in whole or in part
at any time during the period (the "Exercise Period") commencing the date (the
"Initial Exercise Date") of the Company's Prospectus and terminating twenty-four
(24) months from the effective date of the Public Offering (the "Expiration
Date"). 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 or his attorney duly authorized in writing and will be
delivered together with payment to the Warrant Agent at its corporate offices
(the "Corporate Office"), 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 5
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 payment 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 therefore 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.
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Within thirty days after the Exercise Date and, in any event, prior to the
pertinent Expiration Date, pursuant to a Stock Transfer Agreement between the
Company and 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.
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.
Expenses incurred by the 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.
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 determinations of holders of Common Stock
entitled to such dividend or other right.
4. REDEMPTION. If the Company's Common Stock has traded at a minimum
price of $_____ per share on NASDAQ for twenty (20) consecutive trading days
commencing six (6) months from the effective date of the Public Offering, the
Warrants may be redeemed by the Company at any time upon 30 days' written notice
to the Registered Holders of the Warrants for $.01 per Warrant.
5. 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.
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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 covering the issuance
of the Warrant Shares during the period the Warrants are exercisable. 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. No Warrant Shares shall be issued unless and until any such
registration requirements have been satisfied or such approval has been
obtained.
The Registered Holder shall pay all documentary, stamp or similar taxes and
other governmental 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.
6. REGISTRATION AND TRANSFER. The Warrant Certificates may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant
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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 transferred in a 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 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.
7. 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 Certificates, 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 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.
8. ADJUSTMENT OF EXERCISE PRICE AND SHARES. After each adjustment of the
Exercise Price(s) pursuant to this Section 8, the number of shares of Common
Stock purchasable on the exercise of such Warrants shall be the number derived
by dividing such adjusted pertinent Exercise Price(s) into the original
pertinent Exercise Price(s). The pertinent Exercise Price(s) 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
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subdivide the number of outstanding shares of Common Stock into a greater
number of shares, then, in either of such events, the Exercise Price(s) 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(s) 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, and thereafter dissolves, liquidates or winds up its affairs, then
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 Warrantholders may elect to exercise all or any Warrants held, in order 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 Warrants shall terminate on a date fixed by the
Company, such date to be not earlier than 5:00 p.m., Mountain Time, on the 30th
day next succeeding the date on which notice of such termination of the right to
exercise Warrants has been given by mail to the holders thereof at such
addresses as may appear on the books of the Company.
(c) Notwithstanding the provisions of this Section 8, no adjustment
on the Exercise Price(s) shall be made whereby such price is adjusted in an
amount less than $1.00 or until the aggregate of such adjustments shall equal or
exceed $1.00.
(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 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
15 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 shares of Common Stock 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
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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.
(e) No adjustment of the Exercise Price(s) 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, 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 any merger or acquisition is
undertaken by the Company).
(f) This Warrant Agreement shall be incorporated by reference on the
Warrant Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price(s) 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 nonassessable shares of
such Common Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price(s) required to be made pursuant
to this Section 8, the Company within 30 days thereafter shall (i) 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 (ii) 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 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
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Exercise Price(s) 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 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 5.
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. Any
new warrant agent, whether appointed by the Company or by such court, shall be a
bank or trust company having a capital and surplus, as shown by its last
published
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report to its shareholders, of not less than $1,000,000, and having its
principal offices in the State of Colorado.
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
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 Sections 9 and 10, no change in the number
or nature of the Warrant Shares purchasable on exercise of a Warrant, increase
of 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.
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12. NOTICES. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed sufficient if made in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by tested telex, telegram or
cable to the principal office of the addressee, and if to the Registered Holder
of a 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 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 hereto 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 to 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 will constitute a waiver
of any other right or remedy. 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 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 and 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RACOM SYSTEMS, INC.
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
AMERICAN SECURITIES TRANSFER, INC.
By:
-------------------------------
Authorized Officer
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