EXHIBIT 10.4
WARRANT INTERPRETATION AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of April 10, 2001,
by and between DELTA PETROLEUM CORPORATION, a Colorado corporation (the
"Company") and XXXXXX PRIVATE EQUITY, LLC (hereinafter referred to as the
"Holder" or "Xxxxxx").
RECITALS:
WHEREAS, the Company issued a warrant (the "Commitment Warrant") to
purchase common stock of the Company, on or about May 31, 2000, a copy of
which is attached as Exhibit A hereto.
WHEREAS, the Company and the Holder desire to enter into this Agreement.
TERMS:
NOW, THEREFORE, in consideration for the parties' agreement to proceed
with the transactions contemplated by the Amended and Restated Investment
Agreement between the parties of even date herewith and in consideration of
the mutual promises, representations, warranties, covenants and conditions set
forth in Agreement and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Certain Defined Terms. Unless otherwise noted herein, capitalized
terms shall have the meanings ascribed to the in the Commitment Warrant.
2. Additional Remedy.
The parties agree to the following:
"In addition to any other remedies the Company may have under the
Commitment Warrant or under the Investment Agreement and related
documents, the unexercised portion of the Commitment Warrant
shall become null and void, and shall be returned to the Company,
if both (i) Xxxxxx Investments, LLC fails to pay any Put Share
Amounts (as defined in the Investment Agreement) pursuant to a Put
by the Company within one (1) calendar month of the date that the
Company has notified Xxxxxx in writing that such amounts have
become past due and payable, and (ii) the Company is not then in
default of any provision in the Investment Agreement, or the
agreements referenced in the Investment Agreement, including but
not limited to the Registration Rights Agreement, the Warrant
Antidilution Agreement and this Warrant."
3. Restrictions on Exercise.
The parties agree to the following restrictions upon the exercise of
the Commitment Warrant:
"No Exercise of the Commitment Warrant may exceed a number of
shares equal to 15% of the aggregate trading volume of the
Company's Common Stock, on the primary exchange or market upon
which the Common Stock is then listed for trading, during the
twenty (20) trading days (the "Volume Determination Period")
immediately preceding the date of such Exercise (excluding any
trading days which were a part of the Volume Determination Period
for a previous Exercise by the Holder). Nothing in this
subsection(e) shall prevent the Holder from Exercising the
Commitment Warrant as often as the Holder desires, subject to the
indicated limitations on the amount of each Exercise. The
restrictions in this subsection are referred to as the
"Restrictions on Exercise." The Restrictions on Exercise shall
not apply (i) with respect to any Exercise of the Commitment
Warrant where the average closing price of the Company's common
stock for the five (5) trading days immediately preceding the date
of Exercise is greater than or equal to $8.00 and shall not apply
(ii) in the event that the Company is bought out or is the subject
of a merger or similar transaction with another entity where the
other entity is the surviving entity."
"Notwithstanding anything to the contrary herein, the applicable
portion of the Commitment Warrant shall not be exercisable during
any time that, and only to the extent that, the number of shares
of Common Stock to be issued to Holder upon such exercise, when
added to the number of shares of Common Stock, if any, that the
Holder otherwise beneficially owns at the time of such exercise,
would equal or exceed 4.99% of the number of shares of Common
Stock then outstanding, as determined in accordance with Section
13(d) of the Exchange Act (the "4.99% Limitation"). The 4.99%
Limitation shall be conclusively satisfied if the applicable
Exercise Notice includes a signed representation by the Holder
that the issuance of the shares in such Exercise Notice will not
violate the 4.99% Limitation, and the Company shall not be
entitled to require additional documentation of such
satisfaction."
[INTENTIONALLY LEFT BLANK].
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4. No Further Modification. Except as otherwise set forth in this
Agreement, all of the terms and provisions of the Commitment Warrant shall
remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 10th day of April, 2001.
COMPANY: HOLDER:
DELTA PETROLEUM CORPORATION XXXXXX PRIVATE EQUITY, LLC
Signed: /s/ Xxxxxx X. Xxxxxx, Xx. Signed: /s/ Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xx., Xxxx X. Xxxxxx, Manager
Chairman
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