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Exhibit 4.1
WARRANT AGREEMENT
BETWEEN
XXXXXX OIL AND GAS COMPANY
AND
DATED AS OF JANUARY __, 1992
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WARRANT AGREEMENT dated as of January ___, 1992, between Xxxxxx Oil and Gas
Company, a Delaware corporation (the "Company") and ____________________
("____________________").
WHEREAS, ________________ has agreed pursuant to the Underwriting Agreement
(the "Underwriting Agreement") dated January ___, 1992 to act as a selling
broker ("Selling Broker") in connection with the Company's proposed public
offering of up to 3,000,000 shares of Common Stock (the "Shares").
WHEREAS, the Company proposes to issue to ________________ as partial
compensation for its agreement to act as a Selling Broker pursuant to the
Underwriting Agreement, common stock purchase warrants (the "Warrants") to
purchase up to _________________ shares (the "Warrant Shares") of the Company's
Common Stock par value $.01 per share (the "Common Stock"), each Warrant
entitling the holder (the "Holder") thereof to purchase one share of Common
Stock.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein and in the Underwriting Agreement set forth and for other good and
valuable consideration, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue and
deliver the Warrants to ___________________, or to bona fide officers or
partners thereof designated by _________________, on the Closing Date referred
to in the Underwriting Agreement in consideration for, and as part of the
compensation to ________ in connection with _______ acting as a Selling Broker
pursuant to the Underwriting Agreement. The number of Warrants to be issued and
delivered shall be equal to ____________. No cash consideration will be paid by
______________ for the Warrants. The text of each Warrant, of the purchase form
and of each assignment form to be printed on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. The Warrants shall be
executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman of the Board, President, Treasurer or Vice
President of the Company, under its corporate seal, affixed or in facsimile,
attested by the manual or facsimile signature of the Secretary or an Assistant
Secretary of the Company. A Warrant bearing the manual signature of individuals
who were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them shall have ceased to hold
such offices prior to the delivery of such Warrant or did not hold such offices
on the date of this Agreement.
Warrants shall be dated as of the date of execution thereof by the Company
either upon initial issuance or upon division, exchange, substitution or
transfer.
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The demand registration rights as set forth in Section 13 will expire no
later than five (5) years from the effective date of the offering of Shares.
2. REGISTRATION. The Warrants shall be numbered and shall be registered on
the books of the Company (the "Warrant Register") as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant on the
Warrant Register (the "Holder") as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith. The Warrants shall be registered
initially in the name of __________________ in such denominations as
____________________ may request in writing to the Company.
3. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Agreement, each Warrant certificate may be exchanged
at the option of the holder thereof for another certificate or certificates of
different denominations entitling the Holder thereof to purchase upon surrender
to the Company or its duly authorized agent a like aggregate number of Warrant
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Warrant certificate or
certificates shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate or certificates to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate or certificates, as the case may be,
as so requested. Any Warrant issued upon exchange, transfer or partial exercise
of the Warrants shall be the valid obligation of the Company, evidencing the
same generic rights and entitled to the same generic benefits under this
Agreement as the Warrants surrendered for such exchange, transfer or exercise.
4. RESTRICTIONS ON TRANSFER. Until January 4, 1993 (the "Restricted
Period"), the Warrants and the Warrant Shares may not be sold, transferred,
assigned or hypothecated except to __________________ or to individuals who are
bona fide officers or partners of __________________ or by operation of law. The
Warrants shall be transferable only on the Warrant Register upon delivery
thereof duly endorsed by the Holder or by his duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. In all cases of transfer by an attorney,
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the original power of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited with the Company. In case of transfer by
executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited with the Company in its discretion. Upon any registration of
transfer, the Company shall deliver a new Warrant or Warrants to the person
entitled thereto. Notwithstanding the foregoing and whether or not during the
Restricted Period, the Company shall have no obligation to cause Warrants to be
transferred on its books to any person, unless the Holder of such Warrants shall
furnish to the Company evidence of compliance with the Securities Act of 1933,
as amended (the "Act"), in accordance with the provisions of Section 11 of this
Agreement.
5. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the registered owner thereof to
purchase one share of Common Stock subject to adjustment in accordance
with Section 9 hereof at any time from 9:00 A.M., Los Angeles time, on
August 1, 1993 until 5:00 P.M., Los Angeles time, on January 3, 1997
(the "Expiration Date") at a purchase price of $__________ per share
(which such price shall not be less than 125% of the public offering
price of the Shares to be issued and sold by the Company pursuant to
the Agreement), subject to adjustment in accordance with Section 9
hereof (the "Warrant Price").
(b) The Warrant Price and the number of shares issuable upon
exercise of Warrants are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 9 of this
Agreement. Subject to the provisions of this Agreement, each Holder
shall have the right, which may be exercised as expressed in such
Warrants, to purchase from the Company (and the Company shall issue and
sell to such Holder) the number of fully paid and nonassessable shares
of Common Stock specified in such Warrants, upon surrender to the
Company, or its duly authorized agent, of such Warrants, with the
purchase form on the reverse thereof duly filled in and signed, and
upon payment to the Company of the Warrant Price, as adjusted in
accordance with the provisions of Section 9 of this Agreement, for the
number of shares in respect of which such Warrants are then exercised.
Payment of such Warrant Price may be made only in cash, by certified or
official bank check.
Upon such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and (subject to receipt of
evidence of compliance with the Act in accordance with the provisions of Section
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this Agreement) in such name or names as the Holder may designate, a certificate
or certificates for the number of full shares of stock so purchased upon the
exercise of such Warrants, together with cash, as provided in Section 10 of this
Agreement, in respect of any fraction of a share of such stock otherwise
issuable upon such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such shares as of the date of the
surrender of such Warrants and payment of the Warrant price as aforesaid;
PROVIDED, HOWEVER, that if, at the time of surrender of the Warrant and payment
of such Warrant Price, the transfer books for the Common Stock or other class of
stock purchasable upon the exercise of the Warrants shall be closed, the
certificates for the shares in respect of which the warrants are then exercised
shall be issuable as of the date on which such books shall next be opened
whether before, on or after the Expiration Date and until such date the Company
shall be under no duty to deliver any certificate for such shares; PROVIDED,
FURTHER, however, that the transfer books shall not be closed at any one time
for a period longer than five days unless otherwise required by law. The rights
of purchase represented by the Warrants shall be exercisable, at the election of
the Holders thereof, either in full or from time to time in part and, in the
event that any Warrant is exercised in respect of less than all of the shares
purchasable on such exercise at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued.
5.1. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that if
any shares of Common Stock required to be reserved for purposes of exercise or
conversion of Warrants require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such shares may be issued upon exercise, the Company
will in good faith and as expeditiously as possible endeavor to cause such
shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be, PROVIDED, HOWEVER, that in no event
shall such shares of Common Stock be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
6. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if
any, attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants and any securities issued pursuant to Section 9 hereof; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or
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delivery of any Warrants or certificates for Warrant Shares and any securities
issued pursuant to Section 9 hereof in a name other than that of the Holder of
such Warrants.
7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company may in its discretion issue
and deliver in exchange and substitution for and upon cancellation of the
mutilated Warrant, or in lieu of and in substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest; but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of such Warrant and indemnity or
bond, if requested, also reasonably satisfactory to the Company. An applicant
for such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
8. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF WARRANTS.
There have been reserved out of the authorized and unissued shares of Common
Stock, a number of shares sufficient to provide for the exercise of the rights
of purchase represented by the Warrants, and the transfer agent for the Common
Stock ("Transfer Agent") and every subsequent transfer agent for any shares of
the Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid are hereby irrevocably authorized and directed at all times
until the Expiration Date to reserve such number of authorized and unissued
shares as shall be requisite for such purpose. The Company will keep a copy of
this Agreement on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Company will
supply the Transfer Agent and any such subsequent transfer agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be issuable as provided in Section
10 of this Agreement. The Company will furnish to the Transfer Agent and any
such subsequent transfer agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section 9.3
hereof. All Warrants surrendered in the exercise of the rights thereby evidenced
shall be cancelled, and such cancelled Warrants shall constitute sufficient
evidence of the number of shares of stock which have been issued upon the
exercise of such Warrants (subject to adjustment as herein provided). No shares
of stock shall be subject to reservation in respect of the Warrants subsequent
to the Expiration Date except to the extent necessary to comply with the terms
of this Agreement.
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9. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The number and
kind of securities purchasable upon the exercise of each Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as hereafter defined.
9.1. MECHANICAL ADJUSTMENTS. The number of Warrant Shares purchasable upon
the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto
shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of
the Company which he would have owned or have been entitled to receive
after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event
or any record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if
any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock, without any
charge to such holders, entitling them (for a period expiring within 60
days after the record date mentioned below) to subscribe for or
purchase shares of Common Stock at a price per share which is lower at
the record date mentioned below than the then current market price per
share of Common Stock (as determined in accordance with paragraph (e)
below), the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common
Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding
on the
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date of issuance of such rights, options or warrants plus the number
of shares which the aggregate offering price of the total number of
shares of common stock so offered would purchase at the current market
price per share of Common Stock at such record date. Such adjustment
shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants.
(c) In case the Company shall distribute to all holders of its
shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated
earnings or earned surplus and dividends or distributions referred to
in paragraph (a) above or in the paragraph immediately following this
paragraph) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in
paragraph (b) above), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, of which
the numerator shall be the then current market price per share of
Common Stock (as determined in accordance with paragraph (e) below) on
the date of such distribution, and of which the denominator shall be
the then current market price per share of Common Stock, less the then
fair value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive) of the portion of
the assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to receive
such distribution.
In the event of distribution by the Company to all holders of
its shares of Common Stock of stock of a subsidiary or securities
convertible into or exercisable for such stock, then in lieu of an
adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant, the Holder of each Warrant, upon the exercise
thereof at any time after such distribution, shall be entitled to
receive from the Company, such subsidiary or both, as the Company shall
determine, the stock or other securities to which such Holder would
have been entitled if such Holder had exercised such Warrant
immediately prior thereto regardless of whether the Warrants are
exercisable at such time, all subject to further adjustment as provided
in this subsection 9.1; PROVIDED, HOWEVER, that no
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adjustment in respect of dividends or interest on such stock or other
securities shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(d) In case the Company shall sell and issue shares of Common
Stock (other than pursuant to rights, options, warrants, or convertible
securities initially issued before the date of this Agreement) or
rights, options, warrants or convertible securities containing the
right to subscribe for or purchase shares of Common Stock (excluding
shares, rights, options, warrants or convertible securities issued in
any of the transactions described in paragraphs (a), (b) or (c) above)
at a price per share of Common Stock (determined, in the case of such
rights, options, warrants or convertible securities, by dividing (w)
the total of the amount received or receivable by the Company
(determined as provided below) in consideration of the sale and
issuance of such rights, options, warrants or convertible securities,
by (x) the total number of shares of Common Stock covered by such
rights, options, warrants or convertible securities) lower than the
then current market price per share of Common Stock (as determined in
accordance with paragraph (e) below) in effect immediately prior to
such sale and issuance, then the number of shares thereafter
purchasable upon the exercise of the Warrants shall be determined by
multiplying the number of shares theretofore purchasable upon exercise
by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such shares,
rights, options, warrants or convertible securities plus the number of
additional shares of Common Stock sold or subject to issuance pursuant
to such rights, options, warrants or convertible securities, and of
which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such shares, rights, options,
warrants or convertible securities plus the number of shares of Common
Stock which the aggregate consideration received or receivable
(determined as provided below) for such sale or issuance would purchase
at such current market price per share. Such adjustment shall be made
successively whenever such an issuance is made. For the purposes of
such adjustments, the consideration received or receivable by the
Company for rights, options, warrants or convertible securities shall
be deemed to be the consideration received by the Company for such
right, options, warrants or convertible securities, plus the
consideration or premiums stated in such rights, options, warrants or
convertible securities to be paid for the shares of Common Stock
covered thereby. In case the Company shall sell and issue shares of
Common Stock, or rights, options, warrants or convertible securities
containing the right to subscribe for or purchase shares of Common
Stock, for a consideration consisting, in whole or in part, of property
other than cash or its equivalent, then in determining the
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"price per share of Common stock" and the "consideration received or
receivable by the Company" for purposes of the first sentence of this
paragraph (d), the Board of Directors shall determine, in its
discretion the fair value of said property, and such determination, if
made in good faith, shall be binding upon all Holders.
(e) For the purpose of any computation under paragraphs (b),
(c) and (d) of this Section, the current market price per share of
Common Stock at any date shall be the average of the daily closing
prices for 30 consecutive trading days commencing 45 trading days
before the date of such computation. The closing price for each day
shall be the last such reported sales price regular way or, in case no
such reported sale takes place on such day, the average of the closing
bid and asked prices regular way for such day, in each case on the
principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if not listed or admitted
to trading, the average of the closing bid and asked prices of the
Common Stock in the over-the-counter market as reported by NASDAQ or
any comparable system. In the absence of one or more such quotations,
the Board of Directors of the Company shall determine the current
market price, in good faith, on the basis of such quotations as it
considers appropriate. Notwithstanding the foregoing, for the purpose
of any calculation under paragraph (d) above (A) with respect to any
issuance of options under the Company's employee compensation stock
option plans as in effect or as adopted by the Board of Directors of
the Company on the date hereof, the term "current market price" in such
instances shall mean the fair market price on the date of the issuance
of any such option determined in accordance with the Company's employee
compensation stock option plans as in effect or as adopted by the Board
of Directors of the Company on the date hereof; and (B) with respect to
any issuances of Common Stock (or rights, options, warrants or
convertible securities containing the right to subscribe for or
purchase shares of Common Stock) in connection with bona fide corporate
transactions (other than issuances in such transactions for cash or
similar consideration), the term "fair market price" shall mean the
fair market price per share as determined in arm's-length negotiations
by the Company and such other parties (other than affiliates or
subsidiaries of the Company) to such transactions as reflected in the
definitive documentation with respect thereto, unless such
determination is not reasonably related to the closing market price on
the date of such determination.
(f) In any case in which this Section 9.1 shall require that
any adjustment in the number of Warrant Shares be made effective as of
immediately after a record date for a specified event, the Company may
elect to defer until the
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occurrence of the event the issuing to the Holder of any Warrant
exercised after that record date the shares of Common Stock and other
capital stock of the Company, if any, issuable upon the exercise over
and above the shares of Common Stock and other capital stock of the
Company, if any, issuable upon the exercise of any Warrant prior to
such adjustment; PROVIDED, HOWEVER, that the Company shall deliver to
the holder a due xxxx or other appropriate instrument evidencing the
holder's right to receive such additional shares upon the occurrence
of the event requiring such adjustment.
(g) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of
Warrant Shares purchasable upon the exercise of each Warrant; PROVIDED,
HOWEVER, that any adjustments which by reason of this paragraph (g) are
not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations shall be made to the
nearest one-thousandth of a share.
(h) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted, as herein provided, the Warrant
Price payable upon the exercise of each Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by
a fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of such Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Warrant Shares purchasable immediately thereafter.
(i) No adjustment in the number of Warrant Shares purchasable
upon the exercise of each Warrant need be made under paragraphs (b),
(c) and (d) if the Company issues or distributes to each Holder of
Warrants the rights, options, warrants, or convertible or exchangeable
securities, or evidences of indebtedness or assets referred to in those
paragraphs which each Holder of Warrants would have been entitled to
receive had the Warrants been exercised prior to the happening of such
event or the record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. No adjustment need
be made for a change in the par value of the Warrant Shares.
(j) For the purpose of this Section 9.1, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value
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to no par value, or from no par value to par value. In the event that
at any time, as a result of an adjustment made pursuant to paragraph
(a) above, the Holders shall become entitled to purchase any
securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Warrant Price of such shares shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Warrant Shares contained in paragraphs (a) through (i), inclusive,
above, and the provisions of Section 5 and subsections 9.2 through
9.5, inclusive, with respect to the Warrant Shares, shall apply on
like terms to any such other securities.
(k) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights and (B) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised; PROVIDED,
FURTHER, that no such readjustment shall have the effect of increasing
the Warrant Price or decreasing the number of shares of Common Stock
purchasable upon the exercise of each Warrant by an amount in excess of
the amount of the adjustment initially made with respect to the
issuance, sale or grant of such rights, options, warrants or conversion
or exchange rights.
9.2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option,
at any time during the term of the Warrants, reduce the then current Warrant
Price to any amount determined appropriate by the Board of Directors of the
Company.
9.3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants
selected by
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the Board of Directors of the Company (who may be the regular accountants
employed by the Company) setting forth the number of Warrant Shares purchasable
upon the exercise of each Warrant and the Warrant Price of such Warrant Shares
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and setting forth the computation by which such adjustment was
made. Such certificate, absent manifest error, shall be conclusive evidence of
the correctness of such adjustment.
9.4. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 9.1, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
9.5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In
case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
with each Holder an agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, transfer or
lease had such Warrant been exercised immediately prior to such action
regardless of whether the Warrants are exercisable at the time of such action;
PROVIDED, HOWEVER, that no adjustment in respect of dividends, interest or other
income on or from such shares or other securities and property shall be made
during the term of a Warrant or upon the exercise of a Warrant. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The provisions of
this Section 9.5 shall similarly apply to successive consolidations, mergers,
sales, transfers or leases.
9.6. STATEMENT ON WARRANTS. Irrespective of any adjustments in the Warrant
Price or the number or kind of shares purchasable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
10. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at
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the same time by the same Holder, the number of full Warrant Shares which shall
be issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Warrants so
presented. If any fraction of a Warrant Share would, except for the provisions
of this Section 10 be issuable on the exercise of any Warrant (or specified
portion thereof), the Company shall pay an amount in cash equal to the closing
price for one share of the Common Stock, as determined in accordance with
paragraph (e) of Subsection 9.1, on the trading day immediately preceding the
date the Warrant is presented for exercise, multiplied by such fraction.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933. ______________________
represents and warrants to the Company that ________________________ will not
dispose of any such Warrants or Warrant Shares except pursuant to (i) an
effective registration statement, or (ii) an applicable exemption from
registration under the Securities Act of 1933 (the "Act"). In connection with
any sale by ____________________ pursuant to clause (ii) of the preceding
______________________ sentence, shall furnish to the Company an opinion of
counsel reasonably satisfactory to the Company to the effect that such exemption
from registration is available in connection with such sale.
12. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each Holder shall be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK OR OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT, OR (II) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933. ANY SALE PURSUANT TO CLAUSE (II) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE."
The Warrant Shares or other securities issued upon exercise of the Warrants
shall, unless issued pursuant to an effective Registration Statement, be subject
to a stop-transfer order and the certificate or certificates evidencing any such
Warrant Shares or securities shall bear the following legend by which the Holder
thereof shall be bound:
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15
"THE SHARES OR OTHER SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE
REGISTRATION STATEMENT, OR (II) AN APPLICABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY SALE PURSUANT TO
CLAUSE (II) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION
IS AVAILABLE IN CONNECTION WITH SUCH SALE."
13. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION RIGHTS. The Company covenants and agrees with
____________________ and any subsequent Holders of the Warrants and/or
Warrant Shares that within thirty (30) days after receipt of a written
request from ______________________, or from Holders of such percentage in
interest (not less than 25%) of the Warrants and/or Warrant Shares as
___________ shall designate in writing, that _____________________________,
or such designee or designees desire and intend to transfer all or a
portion of such securities (and any securities received by the Holders of
the Warrants pursuant to Section 9 hereof) under such circumstances that a
public offering within the meaning of Act would be involved, the Company
shall file a registration statement (and use its best efforts to cause such
registration statement to become effective under the Act) with respect to
the offering and sale or other disposition of such securities (including
any securities received by the Holders of the Warrants pursuant to Section
9 hereof) (all such securities, the "Offered Securities"). The Company
shall continuously maintain the effectiveness of such registration
statement for the lesser of (i) 180 days after the effective date of the
registration statement or (ii) the consummation of the distribution by the
Holders of the Offered Securities covered by such registration statement
(the "Termination Date"); provided, however, that if at the Termination
Date the Offered Securities are covered by a registration statement which
also covers other securities and which is required to remain in effect
beyond the Termination Date, the Company shall maintain in effect such
registration statement as it relates to the Offered Securities for so long
as such registration statement (or any subsequent registration statement)
remains or is required to remain in effect for any of such other
securities. The Company shall not include any securities other than the
Offered Securities in any such registration statement pursuant to any
"piggyback" or similar registration rights granted by the Company after the
date hereof without the consent of a majority in interest of the Holders of
the Offered Securities. The Company shall not be required to comply with
more than one request for registration
14
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pursuant to this Section 13(a) or to cause any such registration statement
to become effective prior to January 4, 1993 or to comply with a request
for registration pursuant to this paragraph (a) made after January 3, 1997,
PROVIDED, HOWEVER, that if a request is properly and timely made on or
prior to January 3, 1997 pursuant to this Section 13(a), the Company shall
be required to comply with such request even though the registration
statement does not or cannot become effective until after January 3, 1997
or the effectiveness of such registration statement is otherwise required
under this Section 13(a) to be maintained beyond January 3, 1997. All
expenses of such registration shall be borne by the Company, except that
underwriting commissions and expenses attributable to the Warrants and/or
Warrant Shares will be borne by such Holders requesting that such
securities be offered.
(b) PIGGY-BACK REGISTRATION RIGHTS. The Company covenants and agrees
with _________________ and any subsequent holders of the Warrants and/or
Warrant Shares that, in the event the Company proposes to file a
registration statement under the Act prior to January 4, 1999 with respect
to any class of security (other than in connection with an exchange offer
or a registration statement on Form S-4 or S-8 or other similar
registration statements not available to register securities so requested
to be included) which the Company believes will be or become effective at
any time on or after January 4, 1993, the Company shall in each case give
written notice of such proposed filing to (i) the holders of the Warrant
Shares and (ii) if on or before the Expiration Date, the holders of the
Warrants, in each case at least 30 days before the earlier of the
anticipated or the actual effective date of the registration statement and
at least ten days before the initial filing of such registration statement
and such notice shall offer to such Holders the opportunity to include in
such registration statement such number of Warrant Shares and/or Warrants
(and any securities received by the Holders of the Warrants pursuant to
Section 9 hereof) (all such securities, the "Piggy-back Securities", and
together with the Offered Securities, the "Registrable Securities") as they
may request. Holders desiring inclusion of Piggy-back Securities in such
registration statement shall so inform the Company by written notice, given
within 10 days of the giving of such notice by the Company in accordance
with the provisions of Section 15 hereof. The Company shall permit, or
shall cause the managing underwriter of a proposed offering to permit, the
Holders of Piggy-back Securities requested to be included in the
registration to include such securities in the proposed offering on the
same terms and conditions as applicable to securities of the Company, if
any, included therein for the account of any person other than the Company
and the Holders of Warrants and/or Warrant Shares. Notwithstanding the
foregoing, if any such managing
15
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underwriter shall advise the Company in writing that, in its opinion, the
distribution of securities by holders thereof, including all or a portion
of the Piggy-back Securities, requested to be included in the registration
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by the
Company for its own account, then the Holders of such Warrants and/or
Warrant Shares shall delay their offering and sale of Piggy-back Securities
(or the portions thereof so designated by such managing underwriter) for
such period, not to exceed 120 days, as the managing underwriter shall
request, provided that if any other securities are included in such
registration statement for the account of any person other than the Company
and the Holders of Warrants and/or Warrant Shares, then such securities,
including the Warrants and/or Warrant Shares, so included shall be
apportioned among holders who wish to be included therein pro rata
according to amounts so requested to be included by each such person
provided, further, that if the holder of the Company's securities that have
been granted registration rights by the Company pursuant to a Registration
Rights Agreement dated as of May 31, 1991 (the "Partners Agreement") among
the Company, Shallow Waters Limited Partnership, West Cote Partners Limited
Partnership, Palace Exploration Company and Pelham, Inc. (together, the
"Partners") enforce, in the circumstances described in Section 2(b)
thereof, the right granted thereunder in Section 2(b) thereof to cause all
securities of the Company owned by other persons to be reduced before
securities of the Partners are reduced, then the Company shall (unless
objected to by the Partners and prohibited by the Partners Agreement)
reduce the number of securities it is seeking registration of in such
amount equal to the number the Holders of the Piggy-back Securities would
have been required to reduce but for the provisions of this proviso and
register such amount of Piggy-back Securities. No such delay shall in any
event impair any right granted hereunder to make subsequent requests for
inclusion pursuant to the terms of this Section 13(b). The Company shall
continuously maintain in effect any registration statement on Form S-3 with
respect to which the Piggy-back Securities have been requested to be
included (and so included) for a period of not less than (i) 180 days after
the effectiveness of such registration statement or (ii) the consummation
of the distribution by the Holders of the Piggy-back Securities
("Piggy-back Termination Date"); PROVIDED, HOWEVER, that if at the
Piggy-back Termination Date the Piggy-back Securities are covered by a
registration statement which is, or is required to remain, in effect beyond
the Piggy-back Termination Date, the Company shall maintain in effect the
registration statement as it relates to the Piggy-back Securities for so
long as such registration statement remains or is required to remain in
effect for any of such other
16
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securities. All expenses of such registration shall be borne by the
Company, except that underwriting commissions and expenses attributable to
the Warrants and/or Warrant Shares and fees and disbursements of counsel
(if any) to the Holders requesting that such Warrants and/or Warrant Shares
be offered will be borne by such Holders.
(c) OTHER MATTERS. In connection with the registration of Registerable
Securities in accordance with Paragraph (a) or (b) above, the Company
agrees to:
i) Use its best efforts to register or qualify the
Registrable Securities for offer or sale under state
securities or Blue Sky laws of such jurisdictions in which the
Holders of such Warrants and/or Warrant Shares shall
designate; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction
where it is not now so subject, and use its best efforts to do
any and all other acts and things which may be necessary or
advisable to enable the holders to consummate the sale,
transfer or other disposition of such securities in any
jurisdiction;
ii) Enter into indemnity and contribution agreements,
each in customary form, with each underwriter, if any, and
each Holder of Registrable Securities included in such
registration statement; and, if requested, enter into an
underwriting agreement containing customary representations,
warranties, covenants, allocation of expenses, and customary
closing conditions including, but not limited to, opinions of
counsel and accountants cold comfort letters, with any
underwriter who participates in the offering of Registrable
Securities;
iii) Pay all expenses in connection with the
registration of the Warrants and/or Warrant Shares under the
Act and compliance with the provisions of clause (i) above,
except to the extent otherwise provided in Sections 13(a) and
13(b); and
iv) List the Warrant Shares on each securities
exchange in which the Common Stockis listed.
In connection with the registration of Registrable Securities
in accordance with Paragraph (b) above, the Holders agree to enter into
an underwriting agreement containing customary representations,
warranties, covenants, allocation of expenses (not otherwise
inconsistent with this Agreement),
17
19
and customary closing conditions, with any underwriter who
participates in the offering of Registrable Securities.
(d) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees (i) not to effect any public sale or distribution of any
securities similar to the Registrable Securities or any securities
convertible into or exchangeable or exercisable for such securities (or
any option or other right for such securities), except for any
securities that may be issued to the Holders of the Warrants pursuant
to Section 9 hereof, during the 15-day period prior to, and during the
60-day period beginning on the effective date of any registration
statement under which the Registrable Securities are registered in
accordance with Section 13(a) (other than as part of such
registration); (ii) that any agreement entered into after the date of
this Agreement pursuant to which the Company issues or agrees to issue
any securities which have registration rights shall contain (x) a
provision under which the holders of such securities agree not to
effect any public sale or distribution of any securities similar to the
Registrable Securities (or any securities convertible into or
exchangeable or exercisable for any such similar securities) during the
periods described in clause (i) of this Section 13(d), in each case
including a sale pursuant to Rule 144 under the Act (or any similar
provision then in effect) and (y) a provision that effects, upon notice
given pursuant to Section 13(a), hereof the lapse of any demand
registration rights with respect to any securities of the Company until
the expiration of 180 days after the date of the completion of any
distribution contemplated by Section 13(a) hereof; and (iii) the
Company will not after the date hereof enter into any agreement or
contract wherein the holders of securities of the Company are granted
any "piggy-back" registration rights with respect to any registration
effected pursuant to Section 13(a) hereof.
(e) RULE 144. With a view to making available to Holders the
benefits of certain rules of the Securities and Exchange Commission
(the "Commission") that may permit the sale of Registrable Securities
to the public without registration, the Company hereby covenants and
agrees to use its best efforts to file in a timely manner all reports
and other documents required to be filed by it under the Act and the
Securities Exchange Act of 1934 and the rules and regulations adopted
by the Commission thereunder necessary to permit sales under Rule 144
under the Act, and the Company will take such further action to the
extent required from time to time to enable Holders to sell Registrable
Securities (whether or not any such securities have been the subject of
a demand or piggy-back request under Section 13 hereof) without
registration under the Act within the limitation of the exemptions
provided by (a) Rule 144 under the Act, as such
18
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Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of a
Holder, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
14. NO RIGHTS AS STOCKHOLDERS; NOTICE TO HOLDERS. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
Holders or their transferees the right to vote or to receive dividends or to
consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities
convertible into or exchangeable for shares of Common Stock or any
right to subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer
or lease or all or substantially all of its property, assets, and
business as an entirety) shall be proposed,
then in any one or more of said events the Company shall (a) give notice in
writing of such event to the Holders as provided in Section 15 hereof and (b) if
there are more than 100 Holders, cause notice of such event to be published once
in The Wall Street Journal (national edition), such giving of notice and
publication to be completed at least 15 days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
publish, mail or receive such notice or any defect therein or in the publication
or mailing thereof shall not affect the validity of any action taken in
connection with such dividend, distribution or subscription rights, or such
proposed dissolution, liquidation or winding up.
19
21
15. NOTICES. Any notice pursuant to this Agreement to be given or made by
the Holder of any Warrant or Warrant Shares to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
Xxxxxx Oil and Gas Company
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Notices or demands authorized by this Agreement to be given or made to or on the
Holder of any Warrant or Warrant Shares shall be sufficiently given or made
(except as otherwise provided in this Agreement) if sent by registered mail,
return receipt requested, postage prepaid, addressed to such Holder at the
address of such Holder as shown on the Warrant Register or the Common Stock
Register, as the case may be.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
17. SUPPLEMENTS AND AMENDMENTS. The Company and the Holders may from time
to time supplement or amend this Agreement in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Holder may deem necessary or desirable and which shall not be inconsistent with
the provisions of the Warrants and which shall not adversely affect the
interests of the Holders. Any amendment to this Agreement may be effected with
the consent of Holders of at least 66 2/3% of the Warrants (for this purpose
Warrant Shares shall be deemed to be Warrants in the proportion that Warrant
Shares are then issuable upon the exercise of Warrants); provided that, any
amendment which shall have the effect of materially adversely affecting the
interests of any Holder shall not be effective with respect to such Holder if
such Holder shall not have consented thereto.
18. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
19. MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Agreement
remains in effect, the Company will not merge or
20
22
consolidate with or into, or sell, transfer or lease all or substantially all of
its property to, any other corporation unless the successor or purchasing
corporation, as the case may be (if not the Company), shall expressly assume, by
supplemental agreement executed and delivered to the Holders, the due and
punctual performance and observance of each and every covenant and condition of
this Agreement to be performed and observed by the Company.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders of the Warrants and Warrant Shares.
21. CAPTIONS. The captions of the sections and subsections of this
Agreement have been inserted for convenience and shall have no substantive
effect.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day, month and year first above written.
XXXXXX OIL AND GAS COMPANY
By:
----------------------------
Xxxxx X. Xxxxx,
Vice President - Finance
(CORPORATE SEAL)
Attest:
-----------------------------------
Secretary
21
23
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK OR
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY
SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. U-1 Warrant
VOID AFTER 5:00 P.M. LOS ANGELES
TIME ON JANUARY 3, 1997
XXXXXX OIL AND GAS COMPANY
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ______________, the registered
holder hereof or registered assigns (the "Holder"), is the owner of the number
of Warrants set forth above, each of which entitles the owner thereof to
purchase at any time from 9:00 A.M., Los Angeles time, on August 1, 1993, until
5:00 P.M., Los Angeles time, on January 3, 1997, one fully paid and
nonassessable share of the Common Stock (subject to adjustment), par value $0.01
per share (the "Common Stock"), of Xxxxxx Oil and Gas Company, a Delaware
corporation (the "Company"), at the purchase price of $_____ per share, subject
to adjustment (the "Warrant Price"). Payment of the Warrant Price may be made in
cash, by certified or official bank check.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement dated January
_____, 1992 (the "Warrant Agreement") between the Company and
______________________________ which Warrant Agreement is hereby incorporated
herein by reference and made a part hereof and to which Warrant Agreement
reference is hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Company and the
holders of the Warrant Certificates. The Warrants shall not be sold,
transferred, assigned, hypothecated or otherwise disposed of prior to the close
of business on January 3, 1993
A-1
24
except to the extent set forth in the Warrant Agreement. Copies of the Warrant
Agreement are on file at the principal office of the Company.
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant Certificate as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby, or
to the transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number of
shares of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled such holder to purchase. If this
Warrant Certificate shall be exercised in part, the Holder shall be entitled to
receive upon surrender hereof, another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Holder
hereof to any of the rights of a stockholder of the Company.
IN WITNESS WHEREOF, Xxxxxx Oil and Gas Company has caused the signature
(or facsimile signature) of its [Insert Title of Officer] to be printed hereon
and its corporate seal (or facsimile) to be printed hereon.
XXXXXX OIL AND GAS COMPANY
By:
-----------------------------
Xxxxx X. Xxxxx, Vice
President-Finance
Attest:
-----------------------------
Secretary
X-0
00
XXXXXXXX FORM
(To be executed upon exercise of Warrant). To Xxxxxx Oil and Gas Company.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
shares of Common Stock, as provided for therein, and tenders herewith payment of
the purchase price in full in the form of cash or a certified or official bank
check in the amount of $___________.
Please issue a certificate or certificates for such shares of Common Stock
in the name of, and pay any cash for any fractional share to:
Name
-----------------------------------
(Please Print Name, Address
and Social Security No.)
Signature
--------------------------------
NOTE: The above signature
should correspond exactly
with the name on the face
of this Warrant Certificate
or with the name of
assignee appearing in the
assignment form below.
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
Dated: , 19
---------------- --
A-3
26
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate.)
For value received, ___________________________ hereby sells, assigns
and transfers unto _________________________________ the within Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ________________, attorney, to
transfer said Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated: , 19
--------------- --
--------------------------------------------
NOTE: The above signature should correspond
exactly with the name on the face of this Warrant
Certificate.
A-4
