SERIES A WARRANTS
WARRANT AGREEMENT
MINIMALLY INVASIVE SURGERY CORPORATION
AND
AMERICAN REGISTRAR & TRANSFER CO.
Warrant Agent
THIS WARRANT AGREEMENT (the "Agreement") is dated effective as of
_______________, 19__, between Minimally Invasive Surgery Corporation, a
Delaware Corporation (the "Company"), and American Registrar & Transfer Co.,
Salt Lake City, Utah (the "Warrant Agent").
WHEREAS, the Company proposes to issue Series A Common Stock Purchase
Warrants (the "Warrants"), each of which will entitle the holder thereof to
purchase one share of Common Stock in the future at such time as the conditions
set forth in the Warrant Certificate are fulfilled.
WHEREAS, in conjunction with the potential exercise of the Warrants, the
Company anticipates the issuance of up to 1,800,000 shares of its Common Stock
(the "Warrant Shares");
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer and exchange of Warrant Certificates and
exercise of the Warrants.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, it is agreed that:
1. Warrants/Warrant Certificates. Each Warrant will, in the future during
the period specified in the Warrant Certificate, upon fulfillment of the
conditions and subject to the terms set forth therein, entitle the holder (the
"Registered Holder" or, in the aggregate, the "Registered Holders") in whose
name the Warrant Certificate shall be registered on the books maintained by the
Warrant Agent to purchase one share of Common Stock on exercise thereof, subject
to modification and adjustment as provided in Section 8. Warrant Certificates
representing the right to purchase Warrant Shares shall be executed by the
Company's President and attested to by the Company's Secretary or Assistant
Secretary, or shall bear facsimile signatures of such officers, and shall be
delivered to the Warrant Agent upon execution of this Agreement for distribution
to the Company's shareholders pursuant to written instructions from the Company
to the Warrant Agent.
Subject to the provisions of Sections 3, 5, 6 and 8, the Warrant Agent
shall deliver Warrant Certificates in required whole number denominations to
Registered Holders in connection with any transfer or exchange permitted under
this Agreement. Except as provided in Section 6 hereof, no Warrant Certificates
shall be issued except (i) Warrant Certificates initially issued hereunder, (ii)
Warrant Certificates issued on or after the initial issuance date, upon the
exercise of any Warrants, to evidence the unexercised Warrants held by the
exercising Registered holder, and (iii) Warrant Certificates issued after the
initial issuance date, upon any permitted 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 an exhibit. 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
"Series A Warrant", 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
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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 $3.00 per share, in whole or in part, commencing on
the date of issuance (the "Initial Exercise Date") and terminating on June 30,
2000, unless extended by the Company's Board of Directors (the "Exercise
Period"). A Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date (the "Exercise Date") of the surrender for
exercise of the Warrant Certificate. The exercise form shall be executed by the
Registered Holder thereof or his attorney duly authorized in writing and
delivered to the Warrant Agent, in person at 00 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxx Xxxx, Xxxx 00000,(xxx "Corporate Office") or by mail to X.X. Xxx 0000, Xxxx
Xxxx Xxxx, Xxxx 00000, or to such other place as designated by the Company,
together with payment 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
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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.
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. Exercise or Transfer. The Warrant Certificates may be exercised or
transferred in whole or in part only if permitted by the Company in accordance
with the terms and conditions of this agreement and the Warrant Certificates. In
any permitted exercise or 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 exercise or 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
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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. If at any time, the closing bid price of the Company's
common stock equals or exceeds 200% of the exercise price (including any
adjustment or reduction of such exercise price pursuant to Section 8 or 9
hereof) of the Warrants, for 20 consecutive trading days, the Company shall have
the right and option with respect to 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 all 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,
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:
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(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.
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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
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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.
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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 Utah. 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.
MINIMALLY INVASIVE SURGERY CORPORATION
By _____________________________
Authorized Officer
THE WARRANT AGENT:
AMERICAN REGISTRAR & TRANSFER CO.
By ___________________________
Authorized Officer
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