EXHIBIT 4.3
THIS WARRANT HAS BEEN OFFERED AND SOLD OUTSIDE OF THE UNITED STATES IN A
TRANSACTION UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT. THIS WARRANT MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED IN THE UNITED STATES
OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S) UNLESS THE WARRANT
IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, OR SUCH
OFFERS, SALES AND TRANSFERS ARE MADE PURSUANT TO THE AVAILABLE EXEMPTIONS FROM
THE REGISTRATION REQUIREMENTS OF THOSE LAWS. IN ADDITION, A SECURITITES PURCHASE
AGREEMENT, DATED THE DATE HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE, CONTAINS CERTAIN ADDITIONAL
AGREEMENTS AMONG THE PARTIES, INCLUDING, WITHOUT LIMITATION, PROVISIONS WHICH
LIMIT THE EXERCISE RIGHTS OF THE HOLDER AND SPECIFY MANDATORY REDEMPTION
OBLIGATIONS OF THE COMPANY (THE "PURCHASE AGREEMENT").
AMERICAN INTERNATIONAL PETROLEUM CORPORATION
COMMON STOCK PURCHASE WARRANT
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Number of Shares:
Holder:
Purchase Price:
Expiration Date: October 15, 2002
For identification only. The governing terms of this Warrant
are set forth below.
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AMERICAN INTERNATIONAL PETROLEUM CORPORATION, a Nevada corporation (the
"Company"), hereby certifies that, for value received,
________________________________________ or assigns, is entitled, subject to the
terms set forth below, to purchase from the Company at any time or from time to
time after the date hereof and prior to the fifth anniversary hereof (the
"Exercise Period"), at the Purchase Price hereinafter set forth, 1,350,000
shares of the fully paid and nonassessable Common Stock of the Company. The
number and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of
this Warrant (the "Purchase Price") shall initially be $_______; provided,
however, that the Purchase Price shall be adjusted from time to time as provided
in Section 5, below.
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COMMON STOCK PURCHASE WARRANT - Page 1 (American International Petroleum
Corporation - No. 1)
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include American International
Petroleum Corporation and any corporation that shall succeed or assume the
obligations of the Company hereunder.
(b) The term "Common Stock" includes (a) the Company's common stock,
par value $.08 per share, (b) any other capital stock of any class or
classes (however designated) of the Company, authorized on or after such
date, the holders of which shall have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends
and liquidating dividends after the payment of dividends and distributions
on any shares entitled to preference, and the holders of which shall
ordinarily, in the absence of contingencies, be entitled to vote for the
election of a majority of directors of the Company (even though the right
so to vote has been suspended by the happening of such a contingency) and
(c) any other securities into which or for which any of the securities
described in (a) or (b) may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than
Common Stock) and other securities of the Company or any other person
(corporate or otherwise) that the holder of this Warrant at any time shall
be entitled to receive, or shall have received, on the exercise of this
Warrant, in lieu of or in addition to Common Stock, or that at any time
shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section 4 or
otherwise.
1. Exercise of Warrant.
1.1. Method of Exercise. This Warrant may be exercised in whole or
in part (but not as to a fractional share of Common Stock), at any time and from
time to time during the Exercise Period, by the holder hereof by surrender of
this Warrant, with the form of subscription at the end hereof duly executed by
such holder, to the Company at its principal office, accompanied by payment of
the Purchase Price multiplied by the number of shares of Common Stock for which
this Warrant is being exercised (the "Exercise Price"). Payment of the Exercise
Price shall be made by check or bank draft payable to the order of the Company
or by wire transfer to the account of the Company. If the amount of the payment
received by the Company is less than the Exercise Price, the holder will be
notified of the deficiency and shall make payment in that amount within five (5)
business days. In the event the payment exceeds the Exercise Price, the Company
will refund the excess to the holder within five (5) Business Days of receipt.
Upon exercise, the holder shall be entitled to receive, promptly after payment
in full, one or more certificates, issued in the holder's name or in such name
or names as the holder may
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COMMON STOCK PURCHASE WARRANT - Page 2
(American International Petroleum Corporation - No. 1)
direct, subject to the limitations on transfer contained herein, for the number
of shares of Common Stock so purchased. The shares so purchased shall be deemed
to be issued as of the close of business on the date on which this Warrant shall
have been exercised and the Purchaser Price therefor has been paid to the
Company (the "Exercise Date").
1.2. Regulation S Restrictions.
(a) Exercise of this Warrant and acceptance of shares of Common
Stock upon such exercise shall constitute a representation by the holder
(on which the Company shall have the right to rely in issuing the Common
Stock upon such exercise) that the holder is not a U.S. Person (as such
term is defined in Regulation S promulgated under the Securities Act of
1933, as amended ("Regulation S")) and an agreement by the holder not to
offer or sell such shares in the United States to a U.S. Person or for the
account or benefit of a U.S. Person during the period commencing on the
date on which it exercises the Warrant and ending on the day following any
applicable restrictive period under Regulation S. All certificates for the
shares of Common Stock issuable upon exercise of this Warrant shall bear a
legend stating as follows:
"The shares of Common Stock represented hereby have been issued
pursuant to Regulation S, promulgated under the United States
Securities Act of 1933, as amended (the "Act") and have not been
registered under the Act or any applicable state securities laws.
These shares may not be offered or sold within the United States or
to or for the account of a "U.S. Person" as that term is defined
Regulation S during the period commencing on the date of issuance
hereof and ending [complete as applicable restricted period].
(b) The Company covenants that upon the expiration of the applicable
restrictive period relating to the shares of Common Stock underlying this
Warrant, if any, it will use its best lawful efforts to issue or cause the
transfer agent of the Company to issue one or more certificates
representing such shares of Common Stock (or Other Securities) without any
restrictive legend such that such shares shall be freely tradable, subject
only to compliance with Federal and state securities laws. The Company
acknowledges that "best lawful efforts" as used herein shall, among other
things, require the Company obtain an opinion of counsel of the Company
reasonably satisfactory to the holder regarding certain Federal securities
law implications in connection with removing the restrictive legend on the
shares of Common Stock issuable upon exercise of this Warrant.
1.3. Company Acknowledgment. The Company will, at the time of the
exercise of this Warrant, upon the request of the holder hereof, acknowledge in
writing its continuing obligation to afford to such holder the registration
rights to which such holder shall continue to be entitled after such exercise in
accordance with the provisions of a Registration Rights Agreement dated the date
hereof. If the holder shall fail to make any such request, such failure
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COMMON STOCK PURCHASE WARRANT - Page 3
(American International Petroleum Corporation - No. 1)
shall not affect the continuing obligation of the Company to afford to such
holder any such rights.
1.4. Limitation on Exercise. Notwithstanding the rights of the
holder to exercise all or a portion of this Warrant as described herein, such
exercise rights shall be limited, solely to the extent set forth in the Purchase
Agreement as if such provisions were specifically set forth herein.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, and in any event within five (5)
business days thereafter, the Company at its expense (including the payment by
it of any applicable issue, stamp or transfer taxes) will cause to be issued in
the name of and delivered to the holder thereof, or, to the extent permissible
hereunder, to such other person as such holder may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled on such
exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
applicable Purchase Price, together with any other stock or other securities and
property (including cash, where applicable) to which such holder is entitled
upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Extraordinary Events. The Purchase Price to be paid by
the Holder upon exercise of this Warrant shall be adjusted in case at any time
or from time to time the Company should (i) subdivide the outstanding shares of
Common Stock into a greater number of shares, (ii) consolidate the outstanding
shares of Common Stock into a smaller number of shares, (iii) issue shares of
Common Stock or securities convertible into or exchangeable for shares of Common
Stock as a dividend to all or substantially all holders of shares of Common
Stock or (iv) issue by reclassification of shares of Common Stock, any shares of
capital stock of the Company, in each event pursuant to Article XI of the
Purchase Agreement as if such provisions were specifically set forth herein.
4. No Impairment. The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of stock receivable on the
exercise of this Warrant above the amount payable therefor on such exercise, (b)
will take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
stock on the exercise of this Warrant, and (c) will not transfer all or
substantially all of its properties and assets to any other person (corporate or
otherwise), or consolidate with or merge into any other person or permit any
such person to consolidate with or merge into the Company
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COMMON STOCK PURCHASE WARRANT - Page 4
(American International Petroleum Corporation - No. 1)
(if the Company is not the surviving person), unless such other person shall
expressly assume in writing and will be bound by all the terms of this Warrant.
5. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable on the exercise of this Warrant, the Company at its expense will
promptly cause independent certified public accountants of national standing
selected by the Company to compute such adjustment or readjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or receivable by the Company for any additional shares of
Common Stock (or Other Securities) issued or sold or deemed to have been issued
or sold, (b) the number of shares of Common Stock (or Other Securities)
outstanding or deemed to be outstanding, and (c) the Purchase Price and the
number of shares of Common Stock to be received upon exercise of this Warrant,
in effect immediately prior to such issue or sale and as adjusted and readjusted
as provided in this Warrant. The Company will forthwith mail a copy of each such
certificate to the holder of this Warrant, and will, on the written request at
any time of the holder of this Warrant, furnish to such holder a like
certificate setting forth the Purchase Price at the time in effect and showing
how it was calculated.
6. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of
any class or securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of
the Company to or consolidation or merger of the Company with or
into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
holder of this Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, and
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
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COMMON STOCK PURCHASE WARRANT - Page 5
(American International Petroleum Corporation - No. 1)
transfer, consolidation, merger, dissolution, liquidation or winding-up. Such
notice shall be mailed at least 20 days prior to the date specified in such
notice on which any action is to be taken.
7. Reservation of Stock, etc. Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of this Warrant, all shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
8. Exchange of Warrant. On surrender for exchange of this Warrant,
properly endorsed and in compliance with the restrictions on transfer set forth
in the legend on the face of this Warrant, to the Company, the Company at its
expense will issue and deliver to or on the order of the holder thereof a new
Warrant of like tenor, in the name of such holder or as such holder (on payment
by such holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face of the Warrant so surrendered.
9. Replacement of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
11. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) title to this Warrant may be transferred by endorsement
(by the holder hereof executing the form of assignment at the end
hereof) and delivery in the same manner as in the case of a
negotiable instrument transferable by endorsement and delivery.
(b) Any person in possession of this Warrant properly endorsed
is authorized to represent himself as absolute owner hereof and is
empowered to transfer absolute title hereto by endorsement and
delivery hereof to a bona fide purchaser hereof for value; each
prior taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of each such bona fide purchaser,
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COMMON STOCK PURCHASE WARRANT - Page 6
(American International Petroleum Corporation - No. 1)
and each such bona fide purchaser shall acquire absolute title
hereto and to all rights represented hereby;
(c) until this Warrant is transferred on the books of the
Company, the Company may treat the registered holder hereof as the
absolute owner hereof for all purposes, notwithstanding any notice
to the contrary; and
(d) notwithstanding the foregoing, this Warrant may not be
sold, transferred or assigned except pursuant to an effective
registration statement under the Securities Act of 1933, as amended
or, pursuant to an applicable exemption therefrom or in accordance
with Regulation S promulgated under such Act.
12. Registration Rights. The Company is obligated to register the shares
of Common Stock issuable upon exercise of this Warrant in accordance with the
terms of a Registration Rights Statement dated the date hereof.
13. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to the
Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
14. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be construed and enforced in accordance with and
governed by the internal laws of the State of Delaware. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an instrument
under seal. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
[Signature Page Follows]
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COMMON STOCK PURCHASE WARRANT - Page 7
(American International Petroleum Corporation - No. 1)
DATED as of October 15, 1997.
AMERICAN INTERNATIONAL
PETROLEUM CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
[Corporate Seal]
Attest:
By:___________________________
Secretary
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COMMON STOCK PURCHASE WARRANT - Page 8
(American International Petroleum Corporation - No. 1)
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DATED as of October __, 1997.
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AMERICAN INTERNATIONAL
PETROLEUM CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
[Corporate Seal]
Attest:
By:_________________________
Secretary
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COMMON STOCK PURCHASE WARRANT - Page 8
(American International Petroleum Corporation - No. 1)
