EXHIBIT VII
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES ACT OF ANY STATE (COLLECTIVELY, THE "ACTS"). NEITHER
THIS WARRANT NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT HERETO UNDER ALL OF THE APPLICABLE ACTS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATIONS ARE NOT
REQUIRED. THIS WARRANT IS SUBJECT TO OTHER LIMITATIONS ON TRANSFER.
WARRANT
to Purchase Common Stock of
FLOTEK INDUSTRIES, INC.
Expiring on December 31, 2004
THIS IS TO CERTIFY THAT, for value received, _______________, an
individual, or permitted assigns, is entitled to purchase from FLOTEK
INDUSTRIES, INC., an Alberta, Canada corporation (the "Company"), at the place
where the Warrant Office designated pursuant to Section 2.1 is located, shares
of duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock, no par value, of the Company (the "Common Stock"), and is entitled
also to exercise the other appurtenant rights, powers and privileges hereinafter
set forth.
The purchase price per share (as adjusted pursuant to the terms of this
Warrant, the "Exercise Price") for shares purchased under this Warrant shall be
the lesser of (i) (US)$.06 per share, or (ii) the XXXX Warrant Price. For
purposes of this Warrant, the term "XXXX Warrant Price" shall mean the lowest
price per Share at which XXXX, X.X., a Texas limited partnership ("XXXX"), by
which XXXX purchases or may purchase shares of Common Stock under that certain
warrant dated November 2, 1998 (as the same may be or have been amended,
modified, renewed, extended or rearranged after the date thereof). The shares of
Common Stock that may be purchased under this Warrant (subject to adjustment
pursuant to the terms of Article III of this Warrant) shall be_____ (Dollar
Amount) divided by the Exercise Price. This Warrant shall expire at 5:00 p.m.,
C.S.T., on December 31, 2004.
Certain Terms used in this Warrant are defined in Article IV.
Page 46 of 94 Pages
ARTICLE I
EXERCISE OF WARRANT
1.1 METHOD OF EXERCISE. This Warrant may be exercised as a whole or in
part from time to time. To exercise this Warrant, the holder hereof or permitted
assignees of all rights of the registered owner hereof shall deliver to the
Company, at the Warrant Office designated in Section 2.1, (a) a written notice
in the form of the Subscription Notice attached as an exhibit hereto, stating
therein the election of such holder or such permitted assignees of the holder to
exercise this Warrant in the manner provided in the Subscription Notice, (b)
payment in full of the Exercise Price (in the manner described below) for all
Warrant Xxxxxx purchased hereunder, and (c) this Warrant. Subject to compliance
with Section 3.1(a), this Warrant shall be deemed to be exercised on the date of
receipt by the Company of the Subscription Notice, accompanied by payment for
the Warrant Shares and surrender of this Warrant, as aforesaid, and such date is
referred to herein as the "Exercise Date." Upon such exercise (subject as
aforesaid), the Company shall issue and deliver to such holder a certificate for
the full number of the Warrant Shares purchasable by such holder hereunder,
against the receipt by the Company of the total Exercise Price payable hereunder
for all the Warrant Shares, in cash or by certified or cashier's check. The
Person in whose name the certificate(s) for Common Stock is to be issued shall
be deemed to have become a holder of record of such common stock on the Exercise
Date.
1.2 FRACTIONAL SHARES. Instead of any fractional shares of Common Stock
which would otherwise be issuable upon exercise of this Warrant, no shares will
be issued for less than one-half a share and the Company shall issue a
certificate for the next higher number of whole shares of Common Stock for any
fraction of a share which is one-half or greater.
ARTICLE II
WARRANT OFFICE; TRANSFER
2.1 WARRANT OFFICE. The Company shall maintain an office for certain
purposes specified herein (the "Warrant Office"), which office shall initially
be the Company's office at 0000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, and
may subsequently be such other office of the Company or of any transfer agent of
the Common Stock in the continental United States as to which written notice has
previously been given to the holder of this Warrant. The Company shall maintain,
at the Warrant Office, a register for the Warrant, in which the Company shall
record the name and address of the person in whose name this Warrant has been
issued, as well
Page 47 of 94 Pages
as the name and address of each permitted assignee of the rights of the
registered owner hereof.
2.2 OWNERSHIP OF WARRANT. The Company may deem and treat the Person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Article II.
2.3 TRANSFER OF WARRANTS. The Company agrees to maintain at the Warrant
Office books for the registration and transfer of this Warrant. The Company,
from time to time, shall register the transfer of this Warrant in such books
upon surrender of this Warrant at the Warrant Office properly endorsed or
accompanied by appropriate instruments of transfer and written instructions for
transfer satisfactory to the Company. Upon any such transfer, a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be cancelled
by the Company. The Company shall pay all taxes (other than securities transfer
taxes) and all other expenses and charges payable in connection with the
transfer of Warrants pursuant to this Section 2.3.
2.4 EXPENSES OF DELIVERY OF WARRANTS. The Company shall pay all
expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of Warrants and related
Warrant Shares hereunder.
ARTICLE III
ANTI-DILUTION PROVISIONS
3.1 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
Exercise Price shall be subject to adjustment from time to time as hereinafter
provided in this Article III. Upon each adjustment of the Exercise Price, except
pursuant to Section 3.1(a)(vi) and 3.1(a)(vii), the registered holder of the
Warrant shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares of the Common Stock
(calculated to the nearest whole share pursuant to Section 1.2) obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares of the Common Stock purchasable pursuant hereto immediately
prior to such adjustment and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(a) EXERCISE PRICE ADJUSTMENTS. The Exercise Price shall be
subject to adjustment from time to time as follows:
Page 48 of 94 Pages
(i) ISSUANCE OF COMMON STOCK. If, at any time, the
Company shall issue any Common Stock other than Excluded Stock (as
hereinafter defined) without consideration or for a consideration per
share less than the Exercise Price applicable immediately prior to such
issuance, the Exercise Price in effect immediately prior to each such
issuance shall immediately (except as provided below) be reduced to the
price determined by dividing (A) an amount equal to the sum of (x) the
number of shares of Common Stock outstanding immediately prior to such
issuance multiplied by the Exercise Price in effect immediately prior
to such issuance and (y) the consideration, if any, received by the
Company upon such issuance, by (B) the total number of shares of Common
Stock outstanding immediately after such issuance.
For the purposes of any adjustment of the Exercise Price pursuant to
this clause (i) of this Section 3.1(a), the following provisions shall be
applicable:
(A) CASH. In the case of the issuance of Common Stock for
cash, the amount of the consideration received by the Company shall be
deemed to be the amount of the cash proceeds received by the Company
for such Common Stock before deducting therefrom any reasonable
discounts, commissions, taxes or other expenses allowed, paid or
incurred by the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.
(B) CONSIDERATION OTHER THAN CASH. In the case of the issuance
of Common Stock (otherwise than upon the conversion of shares of
capital stock or other securities of the Company) for a consideration
in whole or in part other than cash, including securities acquired in
exchange therefor (other than securities by their terms so
exchangeable), the consideration other than securities by their terms
so exchangeable), the consideration other than cash shall be deemed to
be the fair value thereof as determined by the Board of Directors in
good faith, irrespective of any accounting treatment; provided,
however, that such fair value as determined by the Board of Directors
shall not exceed the aggregate fair market value of the shares of
Common Stock being issued as of the date the Board of Directors
authorizes the issuance of such shares.
(ii) OPTIONS AND CONVERTIBLE SECURITIES, ETC. In case, at any time, the
Company shall issue any (a) options, warrants or other rights to purchase or
acquire Common Stock other than Excluded Stock (whether or not at the time
exercisable), (b) securities by their terms convertible into or exchangeable for
Common Stock (whether or not at the time so convertible or exercisable) or (c)
options, warrants or rights to purchase such convertible or exchangeable
securities (whether or not at the time exercisable), the Exercise Price in
effect immediately prior to each such issuance shall immediately (except as
provided below) be reduced to the lower of the prices
Page 49 of 94 Pages
determined in accordance with subparagraph (A) and (B) of Section 3.1(a)(i) and
the following:
(A) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other rights to
purchase or acquire Common Stock shall be deemed to have been issued at
the time such options, warrants or rights were issued and for a
consideration equal to the consideration (determined in the manner
provided in subparagraph (A) and (B) above), if any, received by the
Company upon the issuance of such options, warrants or rights plus the
minimum purchase price provided in such options, warrants or rights for
the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible
or exchangeable securities, or upon the exercise of options, warrants
or other rights to purchase or acquire such convertible or exchangeable
securities and the subsequent conversion or exchange thereof, shall be
deemed to have been issued at the time such securities were issued or
such options, warrants or rights were issued and for a consideration
equal to the consideration, if any, received by the Company for any
such securities and related options, warrants or rights (excluding any
cash received on account of accrued interest or accrued dividends),
plus the additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities and the
exercise of any related options, warrants or rights (the consideration
in each case to be determined in the manner provided in subparagraph
(A) and (B) above);
(C) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or rights or
conversion or of exchange for such convertible or exchangeable
securities or any change in the consideration to be received by the
Company upon such exercise, conversion or exchange, including, but not
limited to, a change resulting from the antidilution provisions
thereof, the Exercise Price as then in effect shall forthwith be
readjusted to such Exercise Price as would have been obtained had an
adjustment been made upon the issuance of such options, warrants or
rights not exercised prior to such change, or securities not converted
or exchanged prior to such change, on the basis of such change;
(D) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert or
exchange such convertible or exchangeable securities, if the Exercise
Price shall have been adjusted upon the issuance thereof, the Exercise
Price shall forthwith be readjusted to such Exercise Price as would
been obtained had an adjustment been made upon the issuance of such
options, warrants, rights or securities on the basis of the
Page 50 of 94 Pages
issuance of only the number of shares of Common Stock actually issued
upon the exercise of such options, warrants or rights, or upon the
conversion or exchange of such securities; and
(E) if the Exercise Price shall have been adjusted upon the
issuance of any such options, warrants, rights or convertible or
exchangeable securities, no further adjustment of the Exercise Price
shall be made for the actual issuance of Common Stock upon the
exercise, conversion or exchange thereof;
provided, however, that no increase in the initial Exercise Price shall
be made pursuant to this Section 3.1(a)(ii) (except as necessary to
reverse a decrease in the Exercise Price under the circumstances
described in subparagraph (ii)(D)).
(iii) EXCLUDED STOCK. "Excluded Stock" shall mean shares of
Common Stock issued or reversed for issuance by the Company (A) upon
exercise of any options or warrants issued to officers, directors,
consultants, or employees of the Company pursuant to a stock option
incentive plan approved by the Board of Directors of the Company
(provided that the aggregate number of shares of Common Stock which may
be issued under any employee stock option incentive plans shall not
exceed 5,000,000 shares of Common Stock of the Company (as adjusted for
any stock dividends, subdivision, or split ups)); (B) upon exercise of
this Warrant; (C) pursuant to a stock dividend, subdivision or split-up
covered by Section 3.1(a)(iv), or (D) in connection with a firm
underwritten public offering of Common Stock by the Company.
(iv) STOCK DIVIDENDS. If the number of outstanding shares of
Common Stock is increased at any time after the date of this Warrant by
a stock dividend payable in shares of Common Stock or by a subdivision
or split-up of shares of Common Stock, then immediately after the
record date fixed for the determination of holders of Common Stock
entitled to receive such stock dividend or the effective date of such
subdivision or split-up, as the case may be, the Exercise Price shall
be appropriately adjusted so that the adjusted Exercise Price shall
bear the same relation to the Exercise Price in effect immediately
prior to such adjustment as the total number of shares of Common Stock
outstanding immediately prior to such action shall bear to the total
number of shares of Common Stock outstanding immediately after such
action.
(v) COMBINATION OF STOCK. If the number of outstanding shares
of Common Stock is decreased at any time after the date of issuance of
this Warrant by a combination of such shares, then, immediately after
the effective date of such combination, the Exercise Price shall be
appropriately adjusted so that the adjusted Exercise Price shall bear
the same relation to the Exercise Price in effect immediately prior to
such adjustment as the total number of
Page 51 of 94 Pages
outstanding shares of Common Stock immediately prior to such action
shall bear to the total number of outstanding shares of Common Stock
immediately after such action.
(vi) REORGANIZATIONS, ETC. In case of any capital
reorganization of the Company, or of any reclassification of the Common
Stock, or in case of the consolidation of the Company with or the
merger of the Company with or into any other Person or of the sale,
lease or other transfer of all or substantially all of the assets of
the Company to any other Person, this Warrant shall, after such capital
reorganization, reclassification, consolidation, merger, sale, lease or
other transfer, be exercisable for the number of shares of stock or
other securities or property to which the Common Stock issuable (at the
time of such capital reorganization, reclassification, consolidation,
merger, sale, lease or other transfer) upon exercise of this Warrant
would have been entitled to receive upon such capital reorganization,
reclassification, consolidation, merger, sale, lease or other transfer
if such exercise had taken place; and in any such case, if necessary,
the provisions set forth herein with respect to the rights and
interests thereafter of the holder of this Warrant shall be
appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or property
thereafter deliverable on the exercise of this Warrant. In case of any
distribution by the Company of any security (including rights or
warrants to subscribe for any such securities but excluding Common
Stock and any securities referred to in Section 3.1(a)(ii) of the
Company, evidence of its indebtedness, cash or other assets to all of
the holders of its Common Stock, then in each such case the Exercise
Price in effect thereafter shall be determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction the
numerator of which shall be the total number of outstanding shares of
Common Stock multiplied by the Current Market Price on the record date
mentioned below, less the fair market value (as determined in good
faith by the Board of Directors) of the securities, evidences of its
indebtedness, cash or other assets distributed by the Company and the
denominator of which shall be the total number of outstanding shares of
Common Stock multiplied by the Current Market Price; such adjustment
shall become effective as of the record date for the determination of
stockholders entitled to receive such distribution. The subdivision or
combination of shares of Common Stock issuable upon exercise of this
Warrant at any time outstanding into a greater or lesser number of
shares of Common Stock (whether with or without par value) shall not be
deemed to be a reclassification of the Common Stock of the Company for
the purposes of this clause (vi).
(vii) ROUNDING OF CALCULATIONS; MINIMUM ADJUSTMENT. All
calculations under this Section 3.1(a) and under Section 3.1(b) shall
be made to the nearest cent or to the nearest whole share (as provided
in Section 1.2), as the case may
Page 52 of 94 Pages
be. Any provision of this Section 3.1 to the contrary notwithstanding,
no adjustment in the Exercise Price shall be made if the amount of such
adjustment would be less than one percent, but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together
with such amount and any other amount or amounts so carried forward,
shall aggregate one percent or more.
(viii) TIMING OF ISSUANCE OF ADDITIONAL COMMON STOCK UPON
CERTAIN ADJUSTMENTS. In any case in which the provisions of this
Section 3.1(a) shall require that an adjustment shall become effective
immediately after a record date for an event, the Company may defer
until the occurrence of such event issuing to the holder of this
Warrant after such record date and before the occurrence of such event
issuing to the holder of this Warrant after such record date and before
the occurrence of such event the additional shares of Common Stock or
other property issuable or deliverable upon exercise by reason of the
adjustment required by such event over and above the shares of Common
Stock or other property issuable or deliverable upon such exercise
before giving effect to such adjustment; provided, however, that the
Company upon request shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such
additional shares or other property, and such cash, upon the occurrence
of the event requiring such adjustment.
(b) STATEMENT REGARDING ADJUSTMENTS. Whenever the Exercise
Price shall be adjusted as provided in Section 3.1(a), and upon each change in
the number of shares of the Common Stock issuable upon exercise of this Warrant,
the Company shall forthwith file, at the office of any transfer agent for this
Warrant and at the principal office of the Company, a statement showing in
detail the facts requiring such adjustment and the Exercise Price and new
adjustment, and the Company shall also cause a copy of such statement to be
given to the holder of this Warrant. Each such statement shall be signed by the
Company's chief financial or accounting officer. Where appropriate, such copy
may be given in advance and may be included as part of a notice required to be
mailed under the provisions of Section 3.1(c).
(c) NOTICE TO HOLDERS. In the event the Company shall propose
to take any action of the type described in Section 3.1(a)(i) or (ii) (but only
if the action of the type described in such clauses or (v) of Section 3.1(a),
the Company shall give notice to the holder of this Warrant, in the manner set
forth in Section 6.6, which notice shall specify the record date, if any, with
respect to any such action and the approximate date on which such action is to
take place. Such notice shall also set forth such facts with respect thereto as
shall be reasonably necessary to 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 number, kind or class of shares or other securities or property
Page 53 of 94 Pages
which shall be deliverable upon exercise of this Warrant. In the case of any
action which would require the fixing of a record date, such notice shall be
given at least 10 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(d) TREASURY STOCK. For the purposes of this Section 3.1, the
sale or other disposition of any Common Stock of the Company theretofore held in
its treasury shall be deemed to be an issuance thereof.
3.2 COSTS. The Company shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of shares of
Common Stock of the Company upon exercise of this Warrant; provided, however,
that the Company shall not be required to pay any taxes which may be payable in
respect of any transfer involved in the issuance or delivery of any certificate
for such shares in a name other than that of the holder of this Warrant in
respect of which such shares are being issued.
3.3 RESERVATION OF SHARES. The Company shall reserve at all times so
long as this Warrant remains outstanding, free from preemptive rights, out of
its treasury or its authorized but unissued shares of Common Stock, or both,
solely for the purpose of effecting the exercise of this Warrant, sufficient
shares of Common Stock to provide for the exercise hereof.
3.4 VALID ISSUANCE. All shares of Common Stock which may be issued upon
exercise of this Warrant will upon issuance by the Company be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof attributable to any act or omission by the
Company, and the Company shall take no action which will cause a contrary result
(including without limitation, any action which would cause the Exercise Price
to be less than the par value, if any, of the Common Stock).
ARTICLE IV
TERMS DEFINED
4.1 As used in this Warrant, unless the context otherwise requires, the
following terms have the respective meanings set forth below or in the Section
indicated:
(a) BOARD OF DIRECTORS -- the Board of Directors of the
Company.
Page 54 of 94 Pages
(b) COMMON STOCK -- the Company's authorized Common Stock, no par value
per share.
(c) COMPANY -- Flotek Industries, Inc., an Alberta, Canada and any
other corporation assuming or required to assume the obligations undertaken in
connection with this Warrant.
(d) CURRENT MARKET PRICE -- of shares of Common Stock shall mean, per
share:
(i) if the Common Stock is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended), the
closing price for a share of Common Stock on the last trading day immediately
preceding the date of the event for which such determination is made;
(ii) if the Common Stock is listed on NASDAQ, the average of
the last reported bid and asked prices for the last trading date immediately
preceding the date of the event for which such determination is made; and
(iii) if the Common Stock is not listed on a national
securities exchange or NASDAQ, the fair market value as determined by the Board
of Directors of the Company in good faith.
(e) EXCLUDED STOCK -- Section 3.1(a)(iii).
(f) OUTSTANDING -- when used with reference to Common Stock at any
date, all issued shares of Common Stock (including, but without duplication,
shares deemed issued pursuant to Article III) at such date, except shares then
held in the treasury of the Company.
(g) NASDAQ -- The National Association of Securities Dealers, Inc.
Automated Quotation System.
(h) NET INCOME AFTER TAXES -- the consolidated net income of the
Company determined in accordance with generally accepted accounting principles.
(i) PERSON -- any individual, corporation, partnership, trust,
organization, association or other entity or individual.
(j) SECURITIES ACT -- the Securities Act of 1933 and the rules and
regulations thereunder, all as the same shall be in effect at the time.
(k) WARRANT -- this Warrant and any successor or replacement Warrant
delivered in accordance with the provision of this Warrant.
Page 55 of 94 Pages
(l) WARRANT OFFICE -- Section 2.1.
(m) WARRANT SHARES -- shall mean the shares of Common Stock purchased
or purchasable by the registered holder of this Warrant or the permitted
assignees of such holder upon exercise thereof pursuant to Article I hereof.
ARTICLE V
COVENANT OF THE COMPANY
The Company covenants and agrees that this Warrant shall be binding
upon any corporation succeeding to the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets.
ARTICLE VI
MISCELLANEOUS
6.1 ENTIRE AGREEMENT. This Warrant contains the entire agreement
between the holder hereof and the Company with respect to the shares which he
can purchase upon exercise hereof and the related transactions and supersedes
all prior arrangements or understanding with respect thereto.
6.2 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Texas.
6.3 WAIVER AND AMENDMENT. Any term or provision of this Warrant may be
waived at any time by the party which is entitled to the benefits thereof and
any term or provision of this Warrant may be amended or supplemented at any time
by agreement of the holder hereof and the Company, except that any waiver of any
term or condition, or any amendment or supplementation, of this Warrant must be
in writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Warrant shall not in any way effect, limit or waive a party's
rights hereunder at any time to enforce strict compliance thereafter with every
term or condition of this Warrant.
6.4 ILLEGALITY. In the event that any one or more of the provisions
contained in this Warrant shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this Warrant shall not, at the election of the party for whom the
benefits of the provision exists, be in any way impaired.
Page 56 of 94 Pages
6.5 COPY OF WARRANT. A copy of this Warrant shall be filed among the
records of the Company.
6.6 NOTICE. Any notice or other document required or permitted to be
given or delivered to the holder hereof shall be delivered at, or sent by
certified or registered mail to such holder at, the last address shown on the
books of the Company maintained at the Warrant Office for the registration of
this Warrant or at any more recent address of which the holder hereof shall have
notified the Company in writing. Any notice or other document required or
permitted to be given or delivered to the Company, other than such notice or
documents required to be delivered to the Warrant Office, shall be delivered at,
or sent by certified or registered mail to, the office of the Company at 0000
Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, or such other address within the
continental United States of America as shall have been furnished by the Company
to the holders of this Warrant.
6.7 LIMITATION OF LIABILITY; NOT STOCKHOLDERS. No provision of this
Warrant shall be construed as conferring upon the holder hereof the right to
vote, consent, receive dividends or receive notices other than as herein
expressly provided in respect of meetings of stockholders for the election of
directors of the Company or any other matter whatsoever as a stockholder of the
Company. No provision hereof, in the absence of affirmative action by the holder
hereof to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
such holder for the purchase price of any shares of Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
6.8 EXCHANGE, LOSS, DESTRUCTION, ETC. OF WARRANT. Upon receipt of
evidence satisfactory to the Company of the loss, theft, mutilation or
destruction of this Warrant, and in the case of any such loss, theft or
destruction upon delivery of a bond of indemnity in such form and amount as
shall be reasonably satisfactory to the Company, or in the event of such
mutilation upon surrender and cancellation of this Warrant, the Company will
make and deliver a new Warrant of like tenor, in lieu of such lost, stolen,
destroyed or mutilated Warrant; provided, however, that the original recipient
of this Warrant shall not be required to provide any such bond of indemnity and
may in lieu thereof provide his agreement of indemnity. Any Warrant issued under
the provisions of this Section 6.8 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an
original contractual obligation on the part of the Company. This Warrant shall
be promptly cancelled by the Company upon the surrender hereof in connection
with any exchange or replacement. The Company shall pay all taxes (other than
securities transfer taxes) and all other expenses and charges payable in
connection with the preparation, execution and delivery of Warrants pursuant to
this Section 6.8.
Page 57 of 94 Pages
6.9 HEADINGS. The Article and Section and other headings herein are for
convenience only and are not a part of this Warrant and shall not affect the
interpretation thereof.
Page 58 of 94 Pages
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name.
COMPANY:
FLOTEK INDUSTRIES, INC.
Dated: By:
--------------------- ------------------------------------
Xxxxx Xxxxx, President
Page 59 of 94 Pages
Countersigned:
PACIFIC CORPORATION TRUST COMPANY
By: Dated:
------------------------------------- ------------------------
Authorized Signatory
Page 60 of 94 Pages
SUBSCRIPTION NOTICE
The undersigned, the holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented by said Warrant for, and to purchase
thereunder __________________ shares of the Common Stock covered by said Warrant
and herewith makes payment in full therefor pursuant to Section 1.1 of such
Warrant, and request (a) that certificates for such shares (and any securities
or other property issuable upon such exercise) be issued in the name of, and
delivered to, _____________________________________________________________ and
(b) if such shares shall not include all of the shares issuable as provided in
said Warrant, that a new Warrant of like tenor and date for the balance of the
shares issuable thereunder be delivered to the undersigned.
------------------------------------
Dated:
--------------------, ---
ASSIGNMENT
For value received, ______________________________________ hereby
sells, assigns and transfers unto ______________________________________________
the within Warrant, together with all right, title and interest therein and does
hereby irrevocably constitute and appoint ___________________________________
attorney, to transfer said Warrant on the books of the Company, with full power
of substitution.
------------------------------------
Dated:
--------------------, ---
Page 61 of 94 Pages
