WARRANT AGENCY AGREEMENT
THIS WARRANT AGENCY AGREEMENT (the "Agreement") is dated as of the
17th day of June, 2001, between Office Managers, Inc., a Nevada
corporation, (hereinafter called the "Company") and Interwest Transfer Co.,
Inc., (hereinafter called "Warrant Agent").
W I T N E S S E T H
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WHEREAS, the Company proposes to issue and sell in a registered public
offering (the "Offering") a minimum of 200,000 Units up to maximum of
600,000 Units, each Unit consisting of one share of common stock, one "A"
warrant and one "B" warrant. The "A" warrant shall be redeemable within
one year of the date of issuance to purchase one share of common stock at a
price of $.50 per share. The "B" warrant shall be redeemable within five
years of the date of issuance to purchase one share of common stock at a
price of $1.20 per share (the "Warrants"). The Warrants are subject to
certain limitations and restrictions as set forth in this agreement;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and exercise of the Warrants;
NOW THEREFORE, in consideration of the premises and mutual agreements
contained herein, it is agreed as follows:
SECTION 1. Appointment of Warrant Agent.
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The Company hereby appoints the Warrant Agent to act as agent for the
Company in connection and accordance with this Agreement, and the Warrant
Agent hereby accepts the appointment.
SECTION 2. Form of Warrant.
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The text of the Warrants and the form of election to purchase shares
to be printed on the reverse thereof shall be substantially as set forth
respectively in Exhibit A hereto. The number of shares issuable upon
exercise of the Warrants is subject to adjustment on the occurrence of
certain events, as described herein. The Warrants shall be executed on
behalf of the Company by a manual or facsimile signature of the present or
future president, chief executive officer or vice president of the Company,
under its corporate seal affixed or in facsimile, and attested to by the
secretary or an assistant secretary.
Warrants shall be dated as of the date they are issued (the "Effective
Date") or as of the date of any exchange by the warrant holder.
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SECTION 3. Countersignature and Registration.
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The Warrant Agent shall maintain books for the transfer and
registration of Warrants. Upon the initial issuance of the Warrants, the
Warrant Agent shall issue and register the Warrants in the names of the
respective holders thereof. The Warrants shall be countersigned manually
or by facsimile by the Warrant Agent (or by any successor to the Warrant
Agent then serving under this Agreement), and shall not be valid for any
purpose unless so countersigned. Warrants may be so countersigned,
however, by the Warrant Agent, notwithstanding that the person whose manual
or facsimile signature appears thereon as the proper officers of the
Company have ceased to be such officers at the time of such
countersignature and delivery.
SECTION 4. Transfers and Exchanges.
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The Warrant Agent shall not permit the transfer of any Warrant unless
authorized in writing by the Company. Warrants which have been canceled
shall be delivered upon request by the Warrant Agent to the Company.
Warrants may be exchanged at the option of the holder thereof, when
surrendered at the office of the Warrant Agent, for another Warrant or
Warrants of different denominations, of like tenor, and representing in the
aggregate the right to purchase a like number of shares of Common Stock.
SECTION 5. Exercise of Warrants.
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Subject to the provisions of this Agreement, each registered holder of
Warrants shall have the right to purchase from the Company, and the Company
shall issue and sell to such registered holder, the number of fully paid
and nonassessable shares of Common Stock of the Company specified in the
Warrants, upon surrender to the Company at the office of the Warrant Agent
of such Warrants, with the form of election to purchase the Warrants filled
out and signed, and upon payment to the Company of the Warrant Price, as
specified herein. Any Warrant may be exercised in whole or in part. In
the event of exercise in part, the Warrant Agent shall issue and deliver to
the Warrant Holder another Warrant of like tenor representing the
unexercised number of shares. Payment for the shares upon exercise of
Warrants shall be in cash or by certified check to the order of the
Company. "A" warrants may be exercised for a period of one year and "B"
warrants may be exercised for period of five years from the dat of
issuance. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of any Warrant. Subject to Section 5, hereof,
upon surrender of Warrants and payment of the Warrant Price, the Company
shall issue and cause to be delivered with all reasonable dispatch to, or
upon the written order of the registered holder of Warrants exercised, and
in such name or names as the holder shall designate, a certificate or
certificates representing the shares so purchased, together with cash, as
provided in Section 11, hereof, in respect of any fraction of a share of
Common Stock otherwise issuable upon surrender. Such certificate or
certificates shall be deemed to have been issued, and any person so
designated to be named therein shall be deemed to have become a holder of
record of such shares as of the date of surrender of the Warrants, and the
payment of the Warrant Price; provided, however, that if, at the date of
surrender of such Warrants and the payment of such Warrant Price, the
transfer books for the Common Stock or other class of stock purchasable
upon the exercise of such Warrants shall be closed, the certificates for
the shares in respect of which such Warrants are then exercised shall be
issuable as of the date of which such books shall be opened, whether
before, on or after 5:00 p.m., Utah time, on the respective dates of
expiration of the Warrants, and until such date, the Company shall have no
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obligation or duty to deliver any certificate for such shares; provided,
further, however, that the transfer books, unless otherwise required by law
or applicable rule of any national securities exchange, or bylaw of the
Company, shall not be closed at any one time for a period in excess of 20
days. The Company, whenever requested by the Warrant Agent, will supply
the Warrant Agent with Warrants duly executed on behalf of the Company for
such purpose. The Company shall pay all taxes and other governmental
charges (other than income tax) that may be imposed in respect of the issue
or delivery of the shares issued upon the exercise of any Warrants. The
Company shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of the any
certificate for shares in any name other than that of the Warrant Holder
surrendered in connection with the purchase of such shares, and in such
case neither the Company nor the Warrant Agent shall be required to issue
or deliver any stock certificate until such tax or other charge has been
paid or it has been established to the Company's satisfaction that no tax
or charge is due.
SECTION 6. Redemption.
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The Company shall have the right to redeem the Warrants at any time
prior to their conversion upon not fewer than sixty days written notice to
the Warrant holder. The Company may call either the Warrants in whole or
in part, or may call varying parts of each class at any one time. If a
call is made in part with respect to any class, the Warrants called shall
be determined by lot. The redemption price for the Warrants shall be $.001
for each Warrant. The "A" Warrants may only be redeemed by the Company at
any time after the Common Stock of the Company publicly trades at a bid
price above $.50 for a period of ten consecutive trading days. The "B"
Warrants may only be redeemed by the Company at any time after the Common
Stock of the Company publicly trades at a bid price above $1.20 for a
period of ten consecutive trading days. The Company shall request the
Warrant Agent to provide written notice to the registered holders of the
Warrants selected for redemption, giving the dates as of which such
Warrants shall be deemed. The Warrants called for redemption shall not be
exercisable after the redemption date. Payment of the Warrant price shall
be made by check payable to the registered holder, thereof, on the books of
the Warrant Agent. All notices of redemption shall be effected in
accordance with the provisions on notice described in Section 12 hereof.
SECTION 7. Replacement of Warrant.
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Upon receipt of evidence reasonably satisfactory to the Company of the
ownership of and the loss, theft, destruction or mutilation of a Warrant
and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement in an amount reasonably satisfactory to the Company, or
(in the
case of mutilation) upon surrender and cancellation of the mutilated
Warrant, the Company will execute and the Transfer Agent will countersign
and deliver, in lieu thereof, a new Warrant of like tenor.
SECTION 8. Reservation of Common Stock.
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The Company has reserved and shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely
for the purpose of issuance upon the exercise of this Warrant, such number
of shares of Common Stock as shall be issuable upon the exercise hereof.
The Company covenants and agrees that, upon exercise of this Warrant and
payment of the purchase price therefor, all shares of Common Stock issuable
upon such exercise shall be duly and validly issued, fully paid and
nonassessable. The Company will keep a copy of this Agreement on file with
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the Transfer Agent for the Common Stock and with every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The
Warrant Agent is hereby irrevocably authorized to requisition from time to
time such Transfer Agent for stock certificates required to honor
outstanding Warrants. The Company will supply such Transfer Agent with
duly executed stock certificates for such purpose and will itself provide
or otherwise make available any cash which may be required to be paid if
the Company elects not to issue fractional shares under Section 11 hereof.
Any Warrant certificates surrendered in the exercise of the rights thereby
evidenced shall be canceled by the Warrant Agent and shall thereafter be
delivered to the Company, and such canceled Warrants shall constitute
sufficient evidence of the number of shares of Common Stock which have been
issued upon the exercise of such Warrants. Promptly after the date of
expiration of the Warrants, the Warrant Agent shall certify to the Company
the total aggregate amount of Warrants then outstanding.
SECTION 9. Warrant Price.
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a. "A" Warrant
The "A" Warrant price at which Common Stock shall be purchasable shall
be $.50 per share at any time during the period commencing from the date of
issuance until one year thereafter.
b. "B" Warrant
The "B" Warrant price at which Common Stock shall be purchasable shall
be $1.20 per share at any time during the period commencing from the date
of issuance until five years thereafter.
SECTION 10. Protection Against Dilution.
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a. Adjustment for Subdivisions, Combinations of Dividends.
In case the Company shall at any time, or from time to time, after the
Effective Date subdivide or combine the outstanding shares of Common Stock
or declare a dividend payable in Common Stock, the exercise price of the
Warrants in effect immediately prior to the subdivision, combination or
record date for such dividend payable in Common Stock shall forthwith be
proportionately increased, in the case of combination, or decreased, in the
case of subdivision or dividend payable in Common Stock, and each share of
Common Stock purchasable upon exercise of each Warrant shall be change to
the number determined by dividing the then current exercise price by the
exercise price as adjusted after the subdivision, combination or dividend
payable in Common Stock.
b. Adjustment for Certain Dividends and Distributions.
In the event the Company at any time, or from time to time, after the
Effective Date makes or fixes a record date for the determination of
holders of Common Stock entitled to receive a dividend or other
distribution payable in securities of the Company other than shares of
Common Stock, then and in each such event provisions shall be made so that
each Warrant Holder (the "Holder") shall receive upon exercise of the
Warrant, in addition to the number of shares of Common Stock receivable
thereupon, the amount of securities of the Company which the Holder would
have received had its Warrant been exercised into Common Stock on the date
of such event and had it thereafter, during the period from the date of
such event to and including the date of exercise, retained such securities
receivable by it as aforesaid during such period, subject to all other
adjustments called for during such period under this Section 10 with
respect to the rights of the Holder of the Warrant.
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c. Adjustment for Reclassification, Exchange and Substitution.
If the Common Stock issuable upon the exercise of the Warrants is
changed into the same or a different number of shares of any class or
classes of stock, whether by recapitalization, reclassification or
otherwise (other than a subdivision or combination of shares or stock
dividend or a reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Section 10), then and in any such event the
Holder shall have the right thereafter, upon exercise of the Warrant, to
receive the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change, in
an amount equal to the amount that the Holder would have been entitled to
have the Holder exercised the Warrant immediately prior to such
recapitalization, reclassification or the change, but only to the extent
the Warrant is actually exercised, all subject to further adjustment as
provided herein.
d. Reorganization, Mergers, Consolidations of Sales of Assets.
If at any time, or from time to time, there is a capital
reorganization of the Common Stock (other than a recapitalization,
subdivision, combination, reclassification or exchange of the Common Stock
provided for elsewhere in this Section 10) or merger or consolidation of
the Company with or into another corporation, or the sale of all or
substantially all of the Company's properties and assets to any other
person then, as a part of such reorganization, merger, consolidation or
sale, provision shall be made so that the Holder of each Warrant shall
thereafter be entitled to receive, upon exercise of each Warrant (and only
to the extent such Warrant is exercised), the number of shares of stock or
other securities or property of the Company, or of the successor
corporation resulting from such merger or consolidation or sale, to which a
Holder of Common Stock, or other securities, deliverable upon the exercise
of the Warrant would otherwise have been entitled on such capital
reorganization, merger, consolidation, or sale.
SECTION 11. Fractional Interest.
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The Company shall not be required to issue fractions of Common Stock
on the exercise of Warrants. If any fraction of a common share would,
except for the provisions of this Section, be issuable on the exercise of
any Warrant (or specified portions thereof), the Company shall purchase
such fraction for an amount in cash equal to the current market value of
such fraction based upon the current market price of the common share
determined in the manner set forth below. For purposes of this Section,
the current market price on each day shall be the last reported sales
price, regular way, in either case on any national securities exchange on
which the Common Stock are listed or admitted to trading, or, if the Common
Stock are not listed or admitted to trading on any such exchange, the
average of the bid and asked prices on such day as reported on NASDAQ, or
if such shares are not then listed on NASDAQ, as furnished by National
Quotation Bureau Incorporated or any similar organization selected from
time to time by the Company for the purpose. All calculations under this
Section shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
SECTION 12. Notices of Warrant Holders.
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Nothing contained in this Warrant shall be construed as conferring
upon any Warrant Holder hereto the right to vote or to consent or to
receive notice as a shareholder in respect of any meetings of shareholders
for the election of directors or any other matter or as having any rights
whatsoever as a shareholder of the Company. If, however, at any time prior
to the expiration of the Warrant and prior to its exercise, any of the
following events shall occur:
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a. The Company shall fix a record date of the Holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution; or
b. The Company shall offer to the Holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option (except for options to be granted to Company's employees pursuant to
a stock option plan approved by the Company's Board of Directors), right or
warrant, to subscribe therefor; or
c. The Company shall call any of the Warrants for redemption; or
d. A merger, consolidation, dissolution, liquidation or winding up
of the Company or a sale of all or substantially all of its property,
assets and business as an entirety shall be proposed;
The Company shall give written notice of such event to the Warrant
Holder at least thirty (30) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
shareholders entitled to received such dividend, distribution, convertible
or exchangeable securities or subscription rights, entitled to vote on such
proposed dissolution, liquidation, winding up or sale, or in the case where
Warrants have been called for redemption, the Company shall give written
notice of such event to the Warrant Holder at least sixty (60) days prior
to the date fixed as a record date. Such notice shall specify such record
date, the date of closing the transfer books, or the redemption date, as
the case may be. Failure to give such notice or any defect therein shall
not affect the validity of any action taken in connection with the
declaration or payment of any such dividends of the issuance of any
convertible or exchangeable securities, or subscription rights, options or
warrants or any proposed dissolution, liquidation, winding up, sale or
redemption.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by U.S. mail, postage prepaid:
a. If to any Warrant Holder, to the address of such Holder as shown
on the books of the Company; or
b. If to the Company, to the address of the Company on the records
of the Warrant Agent.
The Company shall cause copies of all financial statements and
reports, proxy statements and other documents it shall send to its
shareholders to be sent by U.S. mail, postage prepaid, on the date of
mailing to such shareholder, to each registered Warrant Holder at his
address appearing on the Warrant register as of the record date for the
determination of the shareholders entitled to such documents.
SECTION 13. Disposition of Proceeds on Exercise of Warrants.
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a. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently deposit in a special account
in a bank designated by the Company for the benefit of the Company all
moneys received by the Warrant Agent for the purchase of common Stock
through the exercise of such Warrants.
b. The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours.
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SECTION 14. Merger or Consolidation or Change of Name of Warrant Agent.
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Any corporation or company which may succeed to the business of the
Warrant Agent by any merger or consolidation or otherwise to which the
Warrant Agent shall be a party, or any corporation or Company succeeding to
the corporate 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 on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant
Agent under the provisions of Section 1 of this Agreement. In case at the
time any of the Warrants shall not have been countersigned, any successor
to the Warrant Agent may countersign such Warrants either in the name of
the predecessor Warrant Agent or in the name of the successor Warrant
Agent; and in all such cases such Warrant shall have the full force
provided in the Warrant and in this Agreement.
SECTION 15. Duties of Warrant Agent.
------------------------
The Warrant Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and the Warrant Holders, by their acceptance thereof, shall be
bound:
a. The statements of fact and recitals contained herein and in the
Warrants shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except
such as described in the Warrant Agent or action taken or to be taken by
it. The Warrant Agent assumes no responsibility with respect to the
distribution of the Warrants except as herein expressly provided.
b. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or
in the Warrants to be complied with by the Company.
c. 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
holder of any Warrant 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. The Company shall be responsible for any
reasonable attorney's fees incurred by such action.
d. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, 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 in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
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 judgements, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this
Agreement except as a result of the Warrant Agent's gross negligence,
willful misconduct, or bad faith.
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f. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Warrants shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, 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 Warrants or the production thereof any trial
or other proceeding relating 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 judgement shall be for the ratable
benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
g. The Warrant Agent and any shareholder, director, officer, partner
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 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 capacity for the
Company or for any other legal entity.
h. The Warrant Agent shall act hereunder solely as agent and not in
a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own gross negligence, willful misconduct or bad faith.
i. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys, agents or employees, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct, provided reasonable care had been exercised in the selection
and continued employment thereof.
j. Any request, direction, election, order or demand of the Company
shall be sufficiently evidenced by an instrument signed in the name of the
Company by its President or a Vice President or its Secretary or an
Assistant Secretary or its Treasurer or an Assistant Treasurer (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Warrant
Agent by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company.
k. In the event any dispute arises between the Company, Warrant
Holder and/or the Warrant Agent, the Warrant Agent shall have the right, in
its sole discretion, to file an action in interpleader in the state courts
of Utah at the expense of the Company.
SECTION 16. Change of Warrant Agent.
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The Warrant Agent may resign and be discharged from its duties under
this Agreement by giving to the Company notice in writing, and to the
holders of the Warrants notice by mailing such notice to holders at the
addresses appearing on the Warrant register, of such resignation,
specifying a date when such resignation shall take effect. The Warrant
Agent may be removed by like notice to the Warrant Agent from the Company
and by like mailing of notice to the holders of the Warrants. If the
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Warrant Agent shall resign or be removed 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 30 days after the removal or after it has been notified in writing of
the resignation or incapacity by the resigning or incapacitated Warrant
Agent, the registered holder of any Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant
Agent. After appointment, the successor warrant agent shall be vested with
the same powers, right, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor warrant
agent all canceled Warrants, records and property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Failure to file or mail any notice
provided for in this Section, however, or any defect therein, 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.
SECTION 17. Indemnity of Transfer Agent.
----------------------------
Forthwith upon the appointment of any Transfer Agent for the Common
Stock or of any subsequent transfer agent for Common Stock or other shares
of the Company's capital stock issuable upon the exercise of the rights of
purchase represented by the Warrants, the Company will file with the
Warrant Agent a statement setting forth the name and address of such
Transfer Agent.
SECTION 18. Supplements and Amendments.
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The Company and the Warrant Agent may, from time to time, supplement
or amend this Agreement without the approval of any holders of Warrants in
order to cure any ambiguity or to correct or supplement any provisions
contained herein which may be defective or inconsistent with any other
provisions in regard to matters or questions arising thereunder which the
Company and the Warrant Agent may deem necessary or desirable and which
shall not be inconsistent with the provisions of the Warrants and which
shall not adversely affect the interests of the holders of Warrants.
SECTION 19. Successors.
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All the covenants, agreements, representations and warranties
contained in this Agreement shall bind the parties hereto and their
respective heirs, executors, administrators, distributes, successors and
assigns.
SECTION 20. Change; Waiver.
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Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
SECTION 21. Headings.
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The section headings in this Agreement are inserted for the purpose of
convenience only and shall have no substantive effect.
SECTION 22. Law Governing.
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This Agreement shall for all purposes be construed and enforced in
accordance with, and governed by, the internal laws of the State of Utah,
without giving effect to principles of conflict of laws.
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The parties hereto have caused this Agreement to be signed as of the
date first above written..
OFFICE MANAGERS, INC. INTERWEST TRANSFER CO., INC.
By: /S/ Xxxx X. Xxxxxx By: /S/ Xxxx Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxx Xxxxxx
Title: President Title: President
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