EXHIBIT 4.13
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), NOR HAS IT BEEN APPROVED BY THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES REGULATORY AUTHORITY OF ANY STATE.
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH WARRANT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS.
WARRANT
to Purchase up to an Aggregate of ___________
Shares of Common Stock
XXXXXX PETROLEUM COMPANY
(_________shares at $0.01 per share)
VOID AFTER 3:00 p.m. (prevailing New York time)
ON MAY ______, 2007
This is to certify that, for value received, _______________________,
[ENTITY TYPE] (together with its permitted assigns, "HOLDER"), is entitled to
purchase, subject to the provisions of this Warrant, from XXXXXX PETROLEUM
COMPANY, a Delaware corporation (the "CORPORATION"), up to _____________ fully
paid and nonassessable shares (the "WARRANT SHARES") of common stock, par value
$0.01 per share (the "COMMON STOCK"), of the Corporation at a price of $0.01 per
share, as adjusted from time to time pursuant to the terms hereof (the "EXERCISE
PRICE") at any time or from time to time prior to 3:00 p.m., New York, New York
time on May ____, 2007, all subject to the terms, conditions, and adjustments
set forth in this Warrant.
1. Exercise of Warrant.
(a) Subject to the provisions hereof, this Warrant may be exercised in
whole or in part (in multiples of at least 1,000 shares) at any time or from
time to time on or after the date hereof for a period ending May ____, 2007.
This Warrant shall be exercised by presentation and surrender hereof to the
Corporation at the principal office of the Corporation, accompanied by (a) a
written notice of exercise and (b) payment to the Corporation, for the account
of the Corporation, of the Exercise Price for the number of shares of Common
Stock specified in such notice. The Exercise Price for the number of shares of
Common Stock specified in the notice shall be payable in immediately available
funds.
(b) Notwithstanding anything herein to the contrary, in lieu of payment
of the applicable Exercise Price, the Holder may elect to receive upon exercise
of this Warrant, the number of Warrant Shares reduced by a number of shares of
Common Stock having the aggregate Fair Market Value (as hereinafter defined) on
the date of exercise equal to the aggregate Exercise Price for the Warrant
Shares.
(c) Upon execution, this Warrant shall be fully vested and exercisable
for all Warrant Shares.
(d) As soon as practicable after such presentation and surrender, but
in no event later than five business days following such date, the Corporation
shall issue and deliver to the Holder the shares of Common Stock to which the
Holder is entitled hereunder. The certificates representing the shares purchased
pursuant to the exercise of this Warrant shall be legended substantially as
follows:
"The securities represented by this Certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act") or under any state securities laws, and
are "restricted securities" as that term is defined in Rule
144 under the Act. The securities may not be offered for
sale, sold or otherwise transferred without an effective
registration statement for such securities under the Act
and applicable state securities laws, or an opinion of
counsel satisfactory to the Corporation that registration
is not required under such Act and applicable state
securities laws."
(e) This Warrant may be exercised in part, provided that the shares of
the Corporation's Common Stock to be purchased upon any such partial exercise
must be for at least 1,000 shares or for any multiple thereof. If this Warrant
should be exercised in part, then the Corporation shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder to purchase the balance of the shares of Common Stock
purchasable hereunder. Upon receipt by the Corporation of this Warrant, in
proper form for exercise, the Holder shall be deemed to be the holder of record
of the shares of Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of the Corporation shall then be closed or that
certificates representing such shares of Common Stock shall not then be actually
delivered to the Holder. The Corporation shall pay any and all expenses,
documentary, stamp or similar issue or transfer taxes and other charges payable
in connection with the preparation, issuance and delivery of Warrant Shares
pursuant to this Paragraph 1 in the name of the Holder.
(f) No fractional shares of Common Stock shall be issued in connection
with the exercise of this Warrant, but the Corporation shall pay a cash
adjustment in respect of any fraction of a share which would otherwise be
issuable in an amount equal to such fraction multiplied by the Fair Market Value
on the date of exercise. "FAIR MARKET VALUE" at any date shall mean the highest
market price per share of Common Stock on such date, as determined by the
highest sale price, regular way, or, if there shall have been no sale on such
day, the average of the highest reported bid and lowest reported asked price, in
each case as officially reported on
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the principal securities exchange on which the Common Stock is listed or
admitted to trading, or if not listed or admitted to trading on any securities
exchange, the average of the highest reported bid and lowest reported asked
price as furnished by the National Quotation Bureau Incorporated; provided,
however, that if the Common Stock is not traded in such manner that the
quotations referred to herein are available, the Fair Market Value shall be
deemed to be the fair market value of such Common Stock as determined by the
Board of Directors of the Corporation in good faith.
2. Reservation of Shares: Preservation of Rights of Holder.(a) The
Corporation hereby agrees that at all times it will maintain and reserve, free
from preemptive rights, such number of authorized but unissued shares of Common
Stock so that this Warrant may be exercised without additional authorization of
Common Stock after giving effect to all other options, warrants, convertible
securities and other rights to acquire shares of Common Stock. The Corporation
further agrees that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
the Corporation.
(b) All shares of Common Stock delivered upon the exercise of the
Warrant shall be validly issued, fully paid and nonassessable.
(c) As soon as practicable (but no later than 30 days) after the date
hereof, the Corporation shall list the Common Stock issuable upon exercise of
the Warrant on any securities exchange upon which any securities of the
Corporation are then listed, if the listing of such securities is then permitted
under the rules of such exchange.
3. Exchange or Loss of Warrant. This Warrant is exchangeable, upon
presentation and surrender hereof at the principal office of the Corporation,
only in connection with a partial exercise hereof. The Corporation shall be
under no obligation to issue replacement warrants for the aggregate number of
shares covered hereby except as described herein. The term "WARRANT" as used
herein includes any Warrant or Warrants for which this Warrant may be exchanged.
Upon receipt by the Corporation of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Corporation will
execute and deliver a new Warrant of like tenor and date.
4. Restricted Transferability and Registration Rights. This Warrant and
Common Stock issuable upon exercise of this Warrant are subject to the
restrictions on transfer, and the Holder is entitled to the registration rights,
set forth in the Registration Rights Agreement of even date herewith.
5. Adjustment. The number of shares of Common Stock purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time as provided in this Paragraph 5.
(a) Adjustments shall be made upon the occurrence of the following
events.
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i. If, during the term of this Warrant, the Corporation shall
pay or make a dividend or other distribution on any class of capital stock of
the Corporation in Common Stock, then the number of shares of Common Stock
purchasable upon exercise of this Warrant shall be increased by multiplying such
number of shares by a fraction, of which the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the day
immediately preceding the date of such distribution and the numerator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such increase to become effective
immediately after the opening of business on the date following such
distribution.
ii. If, during the term of this Warrant, the outstanding
shares of Common Stock shall be, pursuant to a recapitalization or other change
in capital structure, subdivided into a greater number of shares of Common
Stock, then the number of shares of Common Stock purchasable upon exercise of
this Warrant at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased and,
conversely, if outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, then the number of shares of Common
Stock purchasable upon exercise of this Warrant at the opening of business on
the day following the day upon which such combination becomes effective shall be
proportionately decreased, such increase or decrease, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
iii. The reclassification of Common Stock into securities
(other than Common Stock) and/or cash and/or other consideration shall be deemed
to involve a subdivision or combination, as the case may be, of the number of
shares of Common Stock outstanding immediately prior to such reclassification
into the number or amount of securities and/or cash and/or other consideration
outstanding immediately thereafter and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, within the meaning of clause (ii) above.
iv. The Corporation may in its sole discretion make such
increases in the number of shares of Common Stock purchasable upon exercise of
this Warrant, in addition to those required by this Subparagraph (a), as shall
be determined by its Board of Directors to be advisable in order to avoid
taxation so far as practicable of any dividend of stock or stock rights or any
event treated as such for federal income tax purposes to the recipients.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise of this Warrant is adjusted as herein provided, the Exercise Price
shall be adjusted by multiplying it by a fraction, of which the numerator is
equal to the number of shares of Common Stock purchasable prior to the
adjustment and the denominator is equal to the number of shares of Common Stock
purchasable after the adjustment. Notwithstanding the foregoing, the Exercise
Price per share of Common Stock may not be reduced below the par value of a
share of Common Stock.
(c) If any consolidation or merger of the Corporation with another
entity, or the sale of all or substantially all of its assets to another entity,
shall be effected in such a way that
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holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
consolidation, merger or sale, lawful and adequate provisions shall be made
whereby the Holder shall thereafter have the right to purchase and receive upon
the basis and upon the terms and conditions specified in this Warrant and in
lieu of the shares of the Common Stock of the Corporation immediately
theretofore purchasable and receivable upon the exercise of the rights set forth
herein, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights set forth herein had
such consolidation, merger or sale not taken place, and in any such case,
appropriate provisions shall be made with respect to the rights and interests of
the Holder to the end that the provisions hereof (including without limitation
provisions for adjustments of the exercise price and of the number of shares
purchasable and receivable upon the exercise of the Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof.
(d) In the event of (i) any taking by the Corporation of a record of
the holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend or other distribution,
or any right to subscribe for, purchase or otherwise acquire any shares of stock
of any class or any other securities or assets, or to receive any other right,
(ii) any reorganization of the Corporation, or any reclassification or
recapitalization of the capital stock of the Corporation, or any transfer of all
or substantially all of the assets of the Corporation to, or consolidation or
merger of the Corporation with any other person or (iii) any voluntary or
involuntary dissolution or liquidation of the Corporation, then and in each such
event the Corporation will mail or cause to be mailed to the Holder a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, the amount and character of such dividend,
distribution or right, the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up is to take place, and the time, if any,
as of which the holders of record of Common Stock shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up. Such notice shall
be mailed at least 20 days prior to the proposed record date therein specified.
For the purpose of this Paragraph 5, the term "Common Stock" shall
include any shares of the Corporation of any class or series which has no
preference or priority in the payment of dividends or in the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation and which is not subject to redemption by the Corporation.
6. Notice. Whenever the number of shares of Common Stock for which this
Warrant is exercisable is adjusted as provided in Paragraph 5 hereof, the
Corporation shall promptly compute such adjustment and mail to the Holder a
certificate, signed by the chief financial officer of the Corporation, setting
forth the number of shares of Common Stock for which this Warrant is exercisable
and the exercise price as a result of such adjustment, a brief statement of the
facts requiring such adjustment, the computation thereof and when such
adjustment will become effective.
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7. Rights of the Holder. Prior to the exercise of this Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
in the Corporation.
8. Termination. This Warrant and the rights conferred hereby shall
terminate at the aforementioned time on May ____, 2007, or, if earlier, upon the
dissolution and winding up of the Corporation.
9. Governing Law. This Warrant shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware without regard to conflict of
laws principles.
10. Remedies. The Corporation stipulates that the remedies at law of
the Holder in the event of any default or threatened default by the Corporation
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate and that such terms may be specifically enforced by
a decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or thereof or
otherwise.
DATED:June ____, 2002
ATTEST: XXXXXX PETROLEUM COMPANY
By: By:
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Xxxxxx X. Xxxxxxxx, Secretary Name: Xxxx X. Xxxxxxxxx
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Title: Senior Vice President and CFO
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