WARRANT AGREEMENT
FOR CLASS C WARRANTS
________________________________________
CONTOUR MEDICAL, INC.
AND
AMERICAN SECURITIES TRANSFER, INC.
Warrant Agent
November 15, 1994
________________________________________
THIS AGREEMENT (the "Agreement") is dated as of November 15, 1994, between
CONTOUR MEDICAL, INC., a Nevada corporation (the "Company"), and AMERICAN
SECURITIES TRANSFER, INC., a Colorado corporation (the "Warrant Agent").
WHEREAS, the Company is offering up to 115 units (the "Units"), each Unit
consisting of 10,000 shares of Series A Convertible Preferred Stock of the
Company and 5,000 Class C Common Stock Purchase Warrants (the "Class C
Warrants") in a private offering; and
WHEREAS, in connection with the private offering, the Company anticipates
its issuance of up to 575,000 Class C Warrants to purchase an aggregate of up
to 575,000 shares of Common Stock (the "Warrant Shares"); and
WHEREAS, the Company desires to provide for issuance of warrant
certificates (the "Warrant Certificates") representing up to 575,000 Class C
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 Class C Warrants,
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, it is agreed that:
1. WARRANTS/WARRANT CERTIFICATES. Each Class C 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. A copy of the form of Warrant Certificate is attached
hereto as Exhibit A.
Subject to the provisions of Sections 3, 5, 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 Class C Warrants, to evidence the unexercised
Class C Warrants held by the exercising Registered holder, and (iii) Warrant
Certificates issued after the initial issuance date, upon any transfer or
exchange of Warrant Certificates or replacements of lost or mutilated Warrant
Certificates.
2. FORM AND EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be substantially in the form attached 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 letters "WC"
appearing on each Warrant Certificate.
The Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates shall
cease to be an officer of the Company before the date of issuance of the
Warrant Certificates or before countersignature and delivery by the Warrant
Agent, such Warrant Certificates may be countersigned, issued and delivered by
the Warrant Agent with the same force and effect as though the person who
signed such Warrant Certificates had not ceased to be an officer of the
Company.
3. EXERCISE. Subject to the provisions of Sections 4, 7 and 8, the
Class C Warrants may be exercised at a price (the "Exercise Price") of $4.50
in whole or in part at any time during the period (the "Exercise Period") com-
mencing six months after the final closing of the private offering, and
terminating three years thereafter (the "Expiration Date"), unless extended by
a majority vote of the Company's Board of Directors at its discretion. The
Company shall promptly notify the Warrant Agent of any extension of the
Exercise Period of the Class C Warrants. The Exercise Price will be reduced
to $1.00 per share if, within one year of the final closing of the private
offering, the Company has not been able to list its Common Stock on The Nasdaq
Stock Market, the American Stock Exchange or another equivalent exchange
and/or has not filed a registration statement with the Securities and Exchange
Commission relating to the shares of Common Stock issuable upon the exercise
of the Class C Warrants.
A Class C Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date (the "Exercise Date") of the
surrender for exercise of the Warrant Certificate. The exercise form shall be
executed by the Registered Holder thereof or his attorney duly authorized in
writing and will be delivered together with payment to the Warrant Agent at
American Securities Transfer, Inc., 938 Quail Street, Suite 101, Lakewood,
Colorado 80215 (the "Corporate Office"), in cash or by official bank or
certified check, of an amount equal to the aggregate applicable 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
Class C Warrant and 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 Class C Warrant but cash will
be paid in lieu of any fractional share. 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
applicable 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 Class C 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 Exercise Price to be promptly made to the order of the Company.
Upon the exercise of any Class C 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 exer-
cised Warrants to be issued.
Expenses incurred by American Securities Transfer, Inc. while acting in
the capacity as Warrant Agent will be paid by the Company. These expenses,
including delivery of exercised share certificates to the shareholder, will be
deducted from the exercise fee submitted prior to distribution of funds to the
Company.
A detailed accounting statement relating to the number of shares
exercised and the net amount of exercised funds remitted will be given to the
Company with the payment of each exercise amount. This will serve as an
interim accounting for the Company's use during the Exercise Period. A
complete accounting will be made by the Warrant Agent to the Company
concerning all persons exercising Class C 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 Class C
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 Class C
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 Class C 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 Class C 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 Class C 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 registra-
tion 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 of the issuance
of the Class C Warrants, or the issuance, transfer or delivery of any Warrant
Shares on exercise of the Class C 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 Class C 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 Class C
Warrants and of each successor transfer agent.
5. REGISTRATION OF TRANSFER. The Warrant Certificates may be
transferred in whole or in part. Warrant Certificates to be exchanged shall
be surrendered to the Warrant Agent at its Corporate Office. The Company
shall execute and the Warrant Agent shall countersign, issue and deliver in
exchange therefor the Warrant Certificate or Certificates which the holder
making the transfer shall be entitled to receive.
The Warrant Agent shall keep transfer books at its Corporate Office which
shall register Warrant Certificates and the transfer thereof. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and
deliver to the transferee or transferees a new Warrant Certificate or
Certificates representing an equal aggregate number of Class C Warrants. All
Warrant Certificates presented for registration of transfer or exercise shall
be duly endorsed or be accompanied by a written instrument or instruments or
transfer in form satisfactory to the Company and the Warrant Agent. At the
time of exercise, the transfer fee shall be paid by the Holder. 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.
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 Class C
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 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.
7. CALL OPTION. During the period during which the Class C Warrants may
be exercised, in the event that (1) there is a current registration statement
in effect covering the Warrant Shares; (2) the Company's Common Stock is
traded on NASDAQ, the American Stock Exchange or some other equivalent
exchange; and (3) the closing bid price of the Company's Common Stock exceeds
$7.00 for 20 of 30 consecutive trading days ending not more than five days
prior to the mailing of the notice of redemption, the Company shall have the
right and option, upon 45 days' written notice to each Registered Holder, to
call, redeem and acquire all of the Class C Warrants remaining outstanding and
unexercised at the date fixed for such redemption in such notice (the "Redemp-
tion Date"), which Redemption Date shall be 45 days after the date of such
notice, for an amount equal to $.05 per Warrant; provided, however, that the
Registered Holders shall in any event have the right during the 45-day period
immediately following the date of such notice to exercise the Class C Warrants
being called for redemption in accordance with the provisions of Section 3
hereof. In the event any such Class C Warrants are exercised during such 45-
day period, this call option shall be deemed not to have been exercised by the
Company as to the Class C Warrants so exercised by the holders thereof. Said
notice of redemption shall require each Registered Holder to surrender to the
Company, on the Redemption Date, at the offices of the Warrant Agent (or its
successor), his certificate or certificates representing the Class C Warrants
to be redeemed. Notwithstanding the fact that any Warrants called for redemp-
tion have not been surrendered for redemption and cancellation on the
Redemption Date, after the Redemption Date, such Class C Warrants shall be
deemed to be expired and all rights of the holders of such unsurrendered Class
C Warrants shall cease and terminate, other than the right to receive the
redemption price of $.05 per Warrant for such Warrants, without interest,
provided, however, that such right to receive the redemption price of $.05 per
Warrant for such Warrants shall itself expire six months from the Redemption
Date. The Company shall notify the Warrant Agent verbally, with confirmation
in writing, of the call of the Class C 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 such
Warrants.
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 upon the exercise of each Class C Warrant shall be
the number receivable upon exercise thereof prior to such adjustment
multiplied by a fraction, the numerator of which shall be the original
Exercise Price as defined in Section 3 above and the denominator of which
shall be such adjusted Exercise Price. The Exercise Price of the Class C
Warrants shall be subject to adjustment as set forth below:
(a)(i) In case the Company shall hereafter (A) pay a dividend or
make a distribution on its Common Stock in shares of its capital stock
(whether shares of Common Stock or of capital stock of any other class), (B)
subdivide its outstanding shares of Common Stock, (C) combine its outstanding
shares of Common Stock into a smaller number of shares, or (D) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Company, the Exercise Price in effect immediately prior to such action
shall be adjusted so that the Registered Holder of any Class C Warrant
thereafter exercised shall be entitled to receive the number of shares of
capital stock of the Company which he would have owned immediately following
such action had such Warrant been exercised immediately prior thereto. An
adjustment made pursuant to this subsection shall become effective immediately
after the record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If, as a result of an adjustment made pursuant to this
subsection, the Registered Holder of any Class C Warrant thereafter exercised
shall become entitled to receive shares of two or more classes of capital
stock of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the Warrant Agent)
shall determine the allocation of the adjusted Exercise Price between or among
shares of such classes of capital stock.
(ii) In any case in which this Section 8(a) shall require that
an adjustment to the Exercise Price be made immediately following a record
date, the Company may elect to defer (but only until five business days
following the filing by the Company with the Warrant Agent of the certificate
of independent public accountants described in subsection (i) of Section 8(d))
issuing to the holder of any Class C Warrants exercised after such record date
the shares of Common Stock and other capital stock of the Company issuable
upon such exercise over and above the shares of Common Stock and other capital
stock of the Company issuable upon such exercise on the basis of the Exercise
Price prior to adjustment.
(iii) No adjustment in the Exercise Price shall be required to
be made unless such adjustment would require an increase or decrease of at
least $.05; provided, however, that any adjustments which by reason of this
subsection are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 8
shall be made to the nearest cent or to the nearest one tenth of a share, as
the case may be, but in no event shall the Company be obligated to issue
fractional shares upon the exercise of any Class C Warrant.
(b) In case of any reclassification or change of outstanding shares
of Common Stock issuable upon exercise of the Class C Warrants (other than a
change in par value or from par value to no par value or from no par value to
par value or as a result of a subdivision or combination), or in case of any
consolidation or merger of the Company with or into another corporation (other
than a merger with a Subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification or change of the
then outstanding shares of Common Stock or other capital stock issuable upon
exercise of the Class C Warrants other than a change in par value or from par
value to no par value or from no par value to par value) or in the case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, then, as a condition of such
reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be,
shall make lawful and adequate provision whereby the Registered Holder of each
Class C Warrant then outstanding shall have the right thereafter to receive on
exercise of such Warrant the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock issuable upon exercise of such Warrant immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance and
the Company or its successors shall forthwith file at the Corporate Office of
the Warrant Agent a statement setting forth such provisions signed by (1) its
Chairman of the Board or Vice Chairman of the Board or President or a Vice
President and (2) by its Treasurer or an Assistant Treasurer or its Secretary
or an Assistant Secretary evidencing such provisions. Such provisions shall
include provision for adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in Section 8(a). The above
provisions of this Section 8(b) shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
(c) Before taking any action which could cause an adjustment
reducing either Exercise Price below the then par value of the shares of
Common Stock issuable upon exercise of any Class C 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.
(d)(i) 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 of a firm of
independent accountants setting forth the Exercise Price after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (B) cause to be mailed to
each of the Registered Holders of the Class C Warrants written notice of such
adjustment. Where appropriate, such notice may not be given in advance and
included as a part of the notice required to be mailed under the provisions of
subsection 8(d)(ii).
(ii) In case at any time:
(A) The Company shall declare any dividend upon its
Common Stock payable otherwise than in cash or in Common Stock of the Company;
or
(B) The Company shall offer for subscription to the
holders of its Common Stock any additional shares of stock of any class or any
other securities convertible into shares of stock or any rights to subscribe
thereto; or
(C) There shall be any capital reorganization or
reclassification of the capital stock of the Company, or a sale of all or
substantially all of the shares of the assets of the Company, or a
consolidation or merger of the Company with another corporation (other than a
merger with a Subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification or change of the
then outstanding shares of Common Stock or other capital stock issuable upon
exercise of the Warrants other than a change in par value or from par value to
no par value or from no par value to par value); or
(D) There shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall cause to be mailed
to each of the Registered Holders of the Class C Warrants, at the earliest
practicable time (and, in any event, not less than 20 days before any record
date or other date set for definitive action), written notice of the date on
which the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or such reorganization,
reclassification, sale, consolidation, merger, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also set
forth such facts as shall indicate the effect of such action (to the extent
such effect may be known at the date of such notice) on the Exercise Price and
the kind and amount of the shares of stock and other securities and property
deliverable upon exercise of the Class C Warrants. Such notice shall also
specify the date as of which the holders of the Common Stock of record shall
participate in said dividend, distribution or subscription rights or shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, sale, consolidation,
merger, dissolution, liquidation or winding up, as the case may be (on which
date, in the event of voluntary or involuntary dissolution, liquidation or
winding up of the Company, the right to exercise the Class C Warrants shall
terminate).
(e) Without limiting the obligation of the Company to provide
notice to the Registered Holders of the Class C Warrants of corporate actions
hereunder, is agreed that failure of the Company to give notice shall not
invalidate such corporate action of the Company.
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 Class C Warrants in effect at any time either for the life of such
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 Class C
Warrants represented thereby or of the Common Stock or other property
delivered on exercise of any Class C 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 adjust-
ments.
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 Class C 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 accord-
ance 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 as per the fee schedule attached hereto as Exhibit B. The Company
further agrees to indemnify the Warrant Agent against any and all losses,
expenses and liabilities, including judgments, costs and counsel fees, for any
action taken or omitted by the Warrant Agent in the execution of its duties
and powers hereunder, excepting losses, expenses and liabilities arising as a
result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may terminate the
Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of
the Warrant Agent's own negligence or willful misconduct), on 30 days' prior
written notice to the other party. At least 15 days prior to the date such
resignation is to become effective, the Warrant Agent shall cause a copy of
such notice of resignation to be mailed to the Registered Holder of each
Warrant Certificate. On such resignation or termination the Company shall
appoint a new warrant agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in writing
of the resignation by the Warrant Agent, then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent.
After acceptance in writing of an appointment of a new warrant agent is
received by the Company, such new warrant agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed. The
Company shall file a notice of appointment of a new warrant agent with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Holder of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new warrant agent may
be converted or merged, or any corporation resulting from any consolidation to
which the Warrant Agent or any new warrant agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent
under the provisions of the preceding paragraph. Any such successor Warrant
Agent shall promptly cause notice of its succession as Warrant Agent to be
mailed to the Company and to the Registered Holder of each Warrant
Certificate. No further action shall be required for establishment and autho-
rization 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 Section 8, no change in the
number or nature of the Warrant Shares purchasable on exercise of a Class C
Warrant, increase in the purchase price therefor, or the acceleration of the
Expiration Date of a Class C Warrant shall be made without the consent in
writing of the Registered Holder of the Warrant Certificate representing such
Class C 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, fax,
telegram or cable to, in the case of the Company:
Contour Medical, Inc.
3340-D Scherer Drive
St. Petersburg, Florida 33716
with a copy to:
Jon D. Sawyer
Jon D. Sawyer, P.C.
1401 Seventeenth Street, Suite 460
Denver, Colorado 80202
and in the case of the Warrant Agent:
American Securities Transfer, Inc.
1825 Lawrence Street, Suite 444
Denver, Colorado 80202-1817
and if to the Registered Holder of a Purchase Warrant Certificate, at the
address of such holder as set forth on the books maintained by the Warrant
Agent.
13. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Company, the Warrant Agent and their respective
successors and assigns, and the holders from time to time of Purchase Warrant
Certificates. Nothing in this Agreement is intended or shall be construed to
confer upon any other person any right, remedy or claim or to impose on any
other person any duty, liability or obligation.
14. FURTHER INSTRUMENTS. The parties shall execute and deliver any and
all such other instruments and shall take any and all other actions as may be
reasonably necessary to carry out the intention of this Agreement.
15. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable, or inoperative
for any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise remain
in full force and effect and be enforced in accordance with its terms, and the
effect of such holding, declaration or pronouncement shall be limited to the
territory or jurisdiction in which made.
16. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a
subsequent breach of this Agreement. The consent of any party where required
hereunder to act or occurrence shall not be deemed to be a consent to any
other action or occurrence.
17. GENERAL PROVISIONS. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of 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 dis-
charged 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.
CONTOUR MEDICAL, INC.
ATTEST:
/s/ Phillip M. Rees By /s/ Gerald J. Flanagan
Phillip M. Rees, Secretary Gerald J. Flanagan, President
THE WARRANT AGENT:
AMERICAN SECURITIES TRANSFER, INC.
ATTEST:
/s/ Bruce E. Hall By /s/ Gregory D. Tubbs
Bruce E. Hall, Secretary Gregory D. Tubbs, Vice President