THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
OMNI ENERGY SERVICES CORP.
Issue Date: May 17, 2005 Warrant No. A-1
THIS CERTIFIES that The Xxxxxx X. Xxxxxxx Family Trust Dated DECEMBER 19,
1994, or any subsequent holder hereof (the "Holder"), has the right to purchase
from OMNI ENERGY SERVICES CORP., a Louisiana corporation (the "Company"), up to
2,553,600 fully paid and nonassessable shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"), subject to adjustment as provided
herein, at a price per share equal to the Exercise Price (as defined below), at
any time beginning on the date hereof (the "the "Issue Date") and ending at 6:00
p.m., eastern time, on the date that is the fifth (5th) anniversary of the Issue
Date (the "Expiration Date").
1. Exercise.
(a) Right to Exercise. The Holder shall have the right to exercise this
Warrant at any time and from time to time during the period beginning on the
Issue Date and ending on the Expiration Date as to all or any part of the shares
of Common Stock covered hereby (the "Warrant Shares").
(b) Exercise Price. The "Exercise Price" for each Warrant Share purchased
by the Holder upon the exercise of this Warrant shall be equal to $1.95, subject
to adjustment for the events specified in Section 4 below; provided, however,
until this Warrant, the Securities Purchase Agreement between the Company and
Holder dated as of the date hereof (the "Securities Purchase Agreement") and the
transactions contemplated herein and therein are approved by the holders of a
majority of the outstanding shares of capital stock of the Company entitled to
vote, excluding the
holders of Series C Convertible Preferred Stock ("Shareholder Approval"), in no
event shall the Exercise Price be less than $1.95, other than as a result of
adjustments for the events specified in Section 4(a) below. Payment of the
Exercise Price may be made either (i) in cash or by certified or official bank
check payable to the order of the Company equal to the applicable aggregate
Exercise Price, (ii) by cashless exercise in accordance with Section (c) below,
or (iii) by a combination of any of the foregoing methods, for the number of
Common Shares specified in such Exercise Notice (as defined below) (as such
exercise number shall be adjusted to reflect any adjustment in the total number
of shares of Common Stock issuable to the Holder per the terms of this Warrant).
(c) Cashless Exercise. Notwithstanding any provisions herein to the
contrary, if the Company's Common Stock is publicly traded and the average
closing price (the "Market Price") of the Common Stock for the five (5) trading
days immediately preceding the Exercise Date (as defined below) is greater than
the then-current Exercise Price, in lieu of exercising this Warrant for cash,
the Holder may elect to receive shares equal to the value (as determined below)
of this Warrant (or the portion thereof being exercised) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Exercise Notice in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X= Y(A-B)/A
Where X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised;
A = the Market Price of one share of the Company's Common
Stock; and
B = Exercise Price.
(d) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the business day (which means any day other than a Saturday, a Sunday or a day
which commercial banks located in New York City are permitted by law to close)
on which the Holder wishes to effect such exercise (the "Exercise Date"), to the
Company an executed copy of the notice of exercise in the form attached hereto
as Exhibit A (the "Exercise Notice"), the original Warrant and the Exercise
Price, which shall not be required if the Exercise Notice indicates the Holder's
election to effect a cashless exercise. The Exercise Notice shall also state the
name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 4 below), the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and shall submit the disputed
calculations to a certified public accounting firm of national recognition
(other than the Company's independent accountants), reasonably acceptable to
Holder, within two (2) business days following the date on which the Exercise
Notice is delivered to the Company. The Company shall cause such
- 2 -
accountant to calculate the Exercise Price and/or the number of Warrant Shares
issuable hereunder and to notify the Company and the Holder of the results in
writing no later than three (3) business days following the day on which such
accountant received the disputed calculations (the "Dispute Procedure"). Such
accountant's calculation shall be deemed conclusive absent manifest error. The
fees of any such accountant shall be borne by the party whose calculations were
most at variance with those of such accountant.
(e) Limitations on Exercise. Notwithstanding anything to the contrary
contained herein, until Shareholder Approval is obtained, no holder of this
Warrant shall be entitled to exercise this Warrant, if after exercise such
holder will, with the shares of Common Stock issued on exercise and any other
shares of the Company's Common Stock then held by such holder, hold more than
19.99% of the outstanding Common Stock or voting power of the Company on the
date of such exercise.
(f) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(g) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to Section 1 above, the Company shall, (A) no later than the
close of business on the later to occur of (i) the third (3rd) business day
following the Exercise Date set forth in such Exercise Notice, and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, and (B) with respect to Warrant Shares that are the subject of a Dispute
Procedure, the close of business on the third (3rd) business day following the
determination made pursuant to Section 1(b) (each of the dates specified in (A)
or (B) being referred to as a "Delivery Date"), issue and deliver or caused to
be delivered to the Holder the number of Warrant Shares as shall be determined
as provided herein. The Company shall effect delivery of Warrant Shares to the
Holder by, as long as the Transfer Agent participates in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program ("FAST"), crediting
the account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the
- 3 -
Holder or its nominee physical certificates representing such Warrant Shares, no
later than the close of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to the
Holder the number of Warrant Shares specified in the applicable Exercise Notice
on or before the Delivery Date therefor (an "Exercise Default"), and such
default continues for seven (7) business days following delivery of a written
notice of such default by the Holder to the Company, the Company shall pay to
the Holder payments ("Exercise Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares which are
the subject of such Exercise Default multiplied by (iii) the lower of ten
percent (10%) and the maximum rate permitted by applicable law (the "Default
Interest Rate"), where "N" equals the number of days elapsed between the
original Delivery Date of such Warrant Shares and the date on which all of such
Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) business day of the
calendar month following the calendar month in which such amount has accrued.
(b) In the event that the Holder has not received certificates
representing the Warrant Shares by the seventh (7th) business day following an
Exercise Default, the Holder may notify the Company in writing of its election
to revoke the Exercise Notice that is the subject of such default, in which
case, effective as of the date of such revocation notice, such Exercise Notice
shall be deemed rescinded and of no further force or effect.
(c) Nothing herein shall limit the Holder's right to pursue actual damages
for the Company's failure to issue and deliver Warrant Shares on the applicable
Delivery Date (including, without limitation, damages relating to any purchase
of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Warrant Shares upon exercise, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
the Holder from the sale of the Warrant Shares issued by the Company pursuant to
such exercise), and the Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief); provided, however, that, in the
event, following an Exercise Default, the Company delivers to the Holder the
Warrant Shares that are required to be issued by the Company pursuant to such
exercise, the Holder shall use commercially reasonable efforts to sell such
shares promptly following such delivery.
4. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4. In the event that
any adjustment of the Exercise Price or the number of Warrant Shares as required
herein results in a fraction of a cent or fraction of a share, as applicable,
such Exercise Price or number of Warrant Shares shall be rounded up or down to
the nearest cent or share, as applicable.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization,
- 4 -
reclassification or otherwise) its shares of Common Stock into a greater number
of shares, then after the date of record for effecting such subdivision, the
Exercise Price in effect immediately prior to such subdivision will be
proportionately reduced. Any adjustment made pursuant to the foregoing sentence
that results in a decrease in the Exercise Price shall also effect a
proportional increase in the number of Warrant Shares into which this Warrant is
exercisable. If the Company, at any time after the initial issuance of this
Warrant, combines (by reverse stock split, recapitalization, reorganization,
reclassification or otherwise) its shares of Common Stock into a smaller number
of shares, then, after the date of record for effecting such combination, the
Exercise Price in effect immediately prior to such combination will be
proportionally increased. Any adjustment made pursuant to the foregoing sentence
that results in an increase in the Exercise Price shall also effect a
proportional decrease in the number of Warrant Shares into which this Warrant is
exercisable.
(b) Distributions. If the Company shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary) (a "Distribution"), the
Company shall deliver written notice of such Distribution (a "Distribution
Notice") to the Holder at least five (5) business days prior to the earlier to
occur of (i) the record date for determining stockholders entitled to such
Distribution (the "Record Date") and (ii) the date on which such Distribution is
made (the "Distribution Date"). The Holder shall be entitled to receive the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Record Date therefor of a number of shares of Common
Stock into which this Warrant is exercisable as of such Record Date (such number
of shares to be determined at the Exercise Price then in effect and without
giving effect to any limitations on such exercise contained in this Warrant or
the Subscription Agreement).
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the Issue
Date, the Company issues or sells, or in accordance with subparagraph (ii) of
this Section 4(c), is deemed to have issued or sold, any shares of Common Stock
for no consideration or for a consideration per share less than the Exercise
Price on the date of such issuance or sale (or deemed issuance or sale) (a
"Dilutive Issuance"), then effective immediately upon the Dilutive Issuance, the
Exercise Price shall be adjusted so as to equal an amount determined by
multiplying such Exercise Price by the following fraction:
N0 + N1
-------
N0 + N2
where:
N0 = the number of shares of Common Stock
outstanding immediately prior to the issuance,
sale or deemed issuance or sale of such
additional shares of Common Stock in such
Dilutive Issuance without taking into account
any shares of Common Stock issuable upon
conversion, exchange or exercise of any
securities or other instruments which are
- 5 -
convertible into or exercisable or
exchangeable for Common Stock ("Convertible
Securities") or options, warrants or other
rights to purchase or subscribe for Common
Stock or Convertible Securities ("Purchase
Rights");
N1 = the number of shares of Common Stock
which the aggregate consideration, if any,
received or receivable by the Company for the
total number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance (which, in
the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph
(ii) below) would purchase at the Exercise
Price in effect immediately prior to such
Dilutive Issuance; and
N2 = the number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant hereto
if such adjustment would result in an increase in the Exercise Price.
(ii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) of this Section
4(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If the Company issues or
sells any Purchase Rights, whether or not immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of
such Purchase Rights (and the price of any conversion of Convertible
Securities, if applicable) is less than the Exercise Price in effect on
the date of issuance or sale of such Purchase Rights, then the maximum
total number of shares of Common Stock issuable upon the exercise of all
such Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable) shall, as of the date of the
issuance or sale of such Purchase Rights, be deemed to have been issued
and sold by the Company for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights" shall be determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Purchase
Rights, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Purchase Rights,
plus, in the case of Convertible Securities issuable upon the exercise of
such Purchase Rights, the minimum aggregate amount of additional
consideration payable upon the conversion, exercise or exchange of all
such Convertible Securities (determined in accordance with the calculation
method set forth in subparagraph (ii)(D) below), by (y) the maximum total
number of shares of Common Stock issuable upon the exercise of all such
Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable). Except as provided in Section
4(c)(ii)(C) hereof, no further adjustment to the Exercise Price shall be
made upon the actual issuance of such Common Stock upon the exercise of
such Purchase Rights or upon the conversion, exercise or exchange of
Convertible Securities issuable upon exercise of such Purchase Rights.
- 6 -
(B) Issuance Of Convertible Securities. If the Company issues
or sells any Convertible Securities, whether or not immediately
convertible, exercisable or exchangeable, and the price per share for
which Common Stock is issuable upon such conversion, exercise or exchange
is less than the Exercise Price in effect on the date of issuance or sale
of such Convertible Securities, then the maximum total number of shares of
Common Stock issuable upon the conversion, exercise or exchange of all
such Convertible Securities shall, as of the date of the issuance or sale
of such Convertible Securities, be deemed to have been issued and sold by
the Company for such price per share. For the purposes of the immediately
preceding sentence, the "price per share for which Common Stock is
issuable upon such conversion, exercise or exchange" shall be determined
by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the conversion, exercise or exchange
of all such Convertible Securities (determined in accordance with the
calculation method set forth in subparagraph (ii)(D)), by (B) the maximum
total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities. Except as
provided in Section 4(c)(ii)(C) hereof, no further adjustment to the
Exercise Price shall be made upon the actual issuance of such Common Stock
upon conversion, exercise or exchange of such Convertible Securities.
(C) Change In Option Price Or Conversion Rate. If there is a
change at any time in (x) the purchase price or amount of additional
consideration payable to the Company upon the exercise of any Purchase
Rights; (y) the amount of additional consideration, if any, payable to the
Company upon the conversion, exercise or exchange of any Convertible
Securities the adjustment for which is not otherwise covered under Section
4(c)(ii)(B) above; or (z) the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for Common Stock, then in
any such case, the Exercise Price in effect at the time of such change
shall be readjusted to the Exercise Price which would have been in effect
at such time had such Purchase Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or changed conversion, exercise or exchange rate, as the
case may be, at the time initially issued or sold.
(D) Calculation Of Consideration Received. If any Common
Stock, Purchase Rights or Convertible Securities are issued or sold for
cash, the consideration received therefor will be the amount received by
the Company therefor, after deduction of all underwriting discounts or
allowances in connection with such issuance, grant or sale. In case any
Common Stock, Purchase Rights or Convertible Securities are issued or sold
for a consideration part or all of which shall be other than cash,
including in the case of a strategic or similar arrangement in which the
other entity will provide services to the Company, purchase services from
the Company or otherwise provide intangible consideration to the Company,
the amount of the consideration other than cash received by the Company
(including the net present value of the consideration expected by the
Company for the provided or purchased services) shall be the fair market
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the
Company will be the average of the last sale prices thereof on the
principal market for such securities during the period of ten Trading Days
immediately preceding the date of receipt. In case any Common Stock,
Purchase Rights or Convertible Securities are
- 7 -
issued in connection with any merger or consolidation in which the Company
is the surviving corporation, the amount of consideration therefor will be
deemed to be the fair market value of such portion of the net assets and
business of the non-surviving corporation as is attributable to such
Common Stock, Purchase Rights or Convertible Securities, as the case may
be. The independent members of the Company's Board of Directors shall
calculate reasonably and in good faith, using standard commercial
valuation methods appropriate for valuing such assets, the fair market
value of any consideration other than cash or securities; provided,
however, that if the Holder does not agree to such fair market value
calculation within three business days after receipt thereof from the
Company, then such fair market value shall be determined in good faith by
an investment banker or other appropriate expert of national reputation
selected by the Holder and reasonably acceptable to the Company, with the
costs of such appraisal to be borne by the Company.
(iii) Exceptions To Adjustment Of Exercise Price.
Notwithstanding the foregoing, no adjustment to the Exercise Price shall
be made pursuant to this Section 4(c) upon the issuance of any Excluded
Securities. For purposes hereof, "Excluded Securities" means (1)
securities purchased under the Securities Purchase Agreement; (2)
securities issued upon conversion or exercise of the Series C 9%
Convertible Preferred Stock or the Warrants (as defined in the Securities
Purchase Agreement); (3) shares of Common Stock issuable or issued to
employees, consultants or directors from time to time upon the exercise of
options, in such case granted or to be granted in the discretion of the
Board of Directors pursuant to one or more stock option plans or
restricted stock plans in effect as of the Issue Date; (4) shares of
Common Stock issued in connection with any stock split, stock dividend or
recapitalization of the Company; (5) securities issued upon conversion of
outstanding shares of Series B 8% Convertible Preferred Stock, provided
that the terms of such preferred stock have not been amended since the
date hereof; (6) securities issued upon conversion or exercise of
Debentures or Warrants issued under the Securities Purchase Agreement,
dated as of February 12, 2004, between the Company and the Investors named
therein and the Securities Purchase Agreement, dated as of April 15, 2004,
between the Company and the Investors named therein, each as amended,
modified and supplemented; (7) 361,800 shares (200,000 shares to Xxxxx X.
Xxxxxx and 161,800 shares to G. Xxxxx Xxxx) and 100,000 options (40,000
options to Xxxxx X. Xxxxxx and 60,000 options to G. Xxxxx Xxxx); and (8)
2,924,424 shares issuable upon exercise of currently outstanding warrants
and "investor options" listed on Schedule 1 hereto.
(iv) Notice Of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4(c) resulting in
a change in the Exercise Price by more than one percent (1%), or any change in
the number or type of stock, securities and/or other property issuable upon
exercise of this Warrant, the Company, at its expense, shall promptly compute
such adjustment or readjustment or change and prepare and furnish to the Holder
a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
- 8 -
(d) Major Transactions. In the event of a merger, consolidation, business
combination, tender offer, exchange of shares, recapitalization, reorganization,
redemption or other similar event, as a result of which shares of Common Stock
of the Company shall be changed into the same or a different number of shares of
the same or another class or classes of stock or securities or other assets of
the Company or another entity or the Company shall sell all or substantially all
of its assets (each of the foregoing being a "Major Transaction"), the Company
will give the Holder at least twenty (20) days written notice prior to the
closing of such Major Transaction in a manner that does not constitute
disclosure of material non-public information (unless otherwise previously
consented to in writing by the Holder), and: (i) the Holder shall be permitted
to exercise this Warrant in whole or in part at any time prior to the record
date for the receipt of such consideration and shall be entitled to receive, for
each share of Common Stock issuable to Holder for such exercise, the same per
share consideration payable to the other holders of Common Stock in connection
with such Major Transaction, and (ii) if and to the extent that the Holder
retains any portion of this Warrant following such record date, the Company will
cause the surviving or, in the event of a sale of assets, purchasing entity, as
a condition precedent to such Major Transaction, to assume the obligations of
the Company under this Warrant, with such adjustments to the Exercise Price and
the securities covered hereby as may be necessary in order to preserve the
economic benefits of this Warrant to the Holder.
(e) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issuable upon the exercise of this Warrant, but on exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of Common Stock.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, the Company shall, in lieu of issuing any such fractional share,
pay to the Holder an amount in cash equal to the product resulting from
multiplying such fraction by the market price as of the Exercise Date.
6. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose
of this Warrant, in whole or in part, as long as such sale or other disposition
is made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act. Upon such transfer or other
disposition, the Holder shall deliver this Warrant to the Company together with
a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the "Transfer Notice"), indicating the
person or persons to whom this Warrant shall be transferred and, if less than
all of this Warrant is transferred, the number of
- 9 -
Warrant Shares to be covered by the part of this Warrant to be transferred to
each such person. Within three (3) business days of receiving a Transfer Notice
and the original of this Warrant, the Company shall deliver to the each
transferee designated by the Holder a Warrant or Warrants of like tenor and
terms for the appropriate number of Warrant Shares and, if less than all this
Warrant is transferred, shall deliver to the Holder a Warrant for the remaining
number of Warrant Shares.
7. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the
Holder of this Warrant and nothing in this Warrant shall be construed to confer
upon any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
8. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. Notice or Demands.
Any notice, demand or request required or permitted to be given by
the Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a business day, in which case such delivery will be deemed to be made on the
next succeeding business day, (ii) on the next business day after timely
delivery to an overnight courier and (iii) on the business day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (not constituting notice) to:
Xxxxx Xxxxxxx & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to Holder:
At the address set forth below Holder's signature on the
Securities Purchase Agreement.
with a copy (not constituting notice) to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10. Attorney's Fees. In the event any litigation, arbitration, mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of Delaware.
12. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant, the Securities Purchase Agreement and the Registration
Rights Agreement, and the schedules and exhibits hereto and thereto, constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Warrant, the Securities Purchase Agreement and the Registration Rights Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
- 11 -
14. Headings.
The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
OMNI ENERGY SERVICES CORP.
By: /s/ G. Xxxxx Xxxx
-------------------------
G. Xxxxx Xxxx
Executive Vice President
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
OMNI ENERGY SERVICES CORP.
Issue Date: May 17, 2005 Warrant No. A-2
THIS CERTIFIES that Xxxxxx X. Xxxxxx, III Trust Dated january 2, 1995, or
any subsequent holder hereof (the "Holder"), has the right to purchase from OMNI
ENERGY SERVICES CORP., a Louisiana corporation (the "Company"), up to 268,800
fully paid and nonassessable shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), subject to adjustment as provided herein,
at a price per share equal to the Exercise Price (as defined below), at any time
beginning on the date hereof (the "the "Issue Date") and ending at 6:00 p.m.,
eastern time, on the date that is the fifth (5th) anniversary of the Issue Date
(the "Expiration Date").
1. Exercise.
(a) Right to Exercise. The Holder shall have the right to exercise this
Warrant at any time and from time to time during the period beginning on the
Issue Date and ending on the Expiration Date as to all or any part of the shares
of Common Stock covered hereby (the "Warrant Shares").
(b) Exercise Price. The "Exercise Price" for each Warrant Share purchased
by the Holder upon the exercise of this Warrant shall be equal to $1.95, subject
to adjustment for the events specified in Section 4 below; provided, however,
until this Warrant, the Securities Purchase Agreement between the Company and
Holder dated as of the date hereof (the "Securities Purchase Agreement") and the
transactions contemplated herein and therein are approved by the holders of a
majority of the outstanding shares of capital stock of the Company entitled to
vote, excluding the holders of Series C Convertible Preferred Stock
("Shareholder Approval"), in no event shall the
Exercise Price be less than $1.95, other than as a result of adjustments for the
events specified in Section 4(a) below. Payment of the Exercise Price may be
made either (i) in cash or by certified or official bank check payable to the
order of the Company equal to the applicable aggregate Exercise Price, (ii) by
cashless exercise in accordance with Section (c) below, or (iii) by a
combination of any of the foregoing methods, for the number of Common Shares
specified in such Exercise Notice (as defined below) (as such exercise number
shall be adjusted to reflect any adjustment in the total number of shares of
Common Stock issuable to the Holder per the terms of this Warrant).
(c) Cashless Exercise. Notwithstanding any provisions herein to the
contrary, if the Company's Common Stock is publicly traded and the average
closing price (the "Market Price") of the Common Stock for the five (5) trading
days immediately preceding the Exercise Date (as defined below) is greater than
the then-current Exercise Price, in lieu of exercising this Warrant for cash,
the Holder may elect to receive shares equal to the value (as determined below)
of this Warrant (or the portion thereof being exercised) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Exercise Notice in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X= Y(A-B)/A
Where X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised;
A = the Market Price of one share of the Company's Common
Stock; and
B = Exercise Price.
(d) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the business day (which means any day other than a Saturday, a Sunday or a day
which commercial banks located in New York City are permitted by law to close)
on which the Holder wishes to effect such exercise (the "Exercise Date"), to the
Company an executed copy of the notice of exercise in the form attached hereto
as Exhibit A (the "Exercise Notice"), the original Warrant and the Exercise
Price, which shall not be required if the Exercise Notice indicates the Holder's
election to effect a cashless exercise. The Exercise Notice shall also state the
name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 4 below), the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and shall submit the disputed
calculations to a certified public accounting firm of national recognition
(other than the Company's independent accountants), reasonably acceptable to
Holder, within two (2) business days following the date on which the Exercise
Notice is delivered to the Company. The Company shall cause such accountant to
calculate the Exercise Price and/or the number of Warrant Shares issuable
hereunder
- 2 -
and to notify the Company and the Holder of the results in writing no later than
three (3) business days following the day on which such accountant received the
disputed calculations (the "Dispute Procedure"). Such accountant's calculation
shall be deemed conclusive absent manifest error. The fees of any such
accountant shall be borne by the party whose calculations were most at variance
with those of such accountant.
(e) Limitations on Exercise. Notwithstanding anything to the contrary
contained herein, until Shareholder Approval is obtained, no holder of this
Warrant shall be entitled to exercise this Warrant, if after exercise such
holder will, with the shares of Common Stock issued on exercise and any other
shares of the Company's Common Stock then held by such holder, hold more than
19.99% of the outstanding Common Stock or voting power of the Company on the
date of such exercise.
(f) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(g) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to Section 1 above, the Company shall, (A) no later than the
close of business on the later to occur of (i) the third (3rd) business day
following the Exercise Date set forth in such Exercise Notice, and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, and (B) with respect to Warrant Shares that are the subject of a Dispute
Procedure, the close of business on the third (3rd) business day following the
determination made pursuant to Section 1(b) (each of the dates specified in (A)
or (B) being referred to as a "Delivery Date"), issue and deliver or caused to
be delivered to the Holder the number of Warrant Shares as shall be determined
as provided herein. The Company shall effect delivery of Warrant Shares to the
Holder by, as long as the Transfer Agent participates in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program ("FAST"), crediting
the account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder or
its nominee physical certificates representing such Warrant Shares, no later
than the close
- 3 -
of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to the
Holder the number of Warrant Shares specified in the applicable Exercise Notice
on or before the Delivery Date therefor (an "Exercise Default"), and such
default continues for seven (7) business days following delivery of a written
notice of such default by the Holder to the Company, the Company shall pay to
the Holder payments ("Exercise Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares which are
the subject of such Exercise Default multiplied by (iii) the lower of ten
percent (10%) and the maximum rate permitted by applicable law (the "Default
Interest Rate"), where "N" equals the number of days elapsed between the
original Delivery Date of such Warrant Shares and the date on which all of such
Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) business day of the
calendar month following the calendar month in which such amount has accrued.
(b) In the event that the Holder has not received certificates
representing the Warrant Shares by the seventh (7th) business day following an
Exercise Default, the Holder may notify the Company in writing of its election
to revoke the Exercise Notice that is the subject of such default, in which
case, effective as of the date of such revocation notice, such Exercise Notice
shall be deemed rescinded and of no further force or effect.
(c) Nothing herein shall limit the Holder's right to pursue actual damages
for the Company's failure to issue and deliver Warrant Shares on the applicable
Delivery Date (including, without limitation, damages relating to any purchase
of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Warrant Shares upon exercise, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
the Holder from the sale of the Warrant Shares issued by the Company pursuant to
such exercise), and the Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief); provided, however, that, in the
event, following an Exercise Default, the Company delivers to the Holder the
Warrant Shares that are required to be issued by the Company pursuant to such
exercise, the Holder shall use commercially reasonable efforts to sell such
shares promptly following such delivery.
4. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4. In the event that
any adjustment of the Exercise Price or the number of Warrant Shares as required
herein results in a fraction of a cent or fraction of a share, as applicable,
such Exercise Price or number of Warrant Shares shall be rounded up or down to
the nearest cent or share, as applicable.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then after
- 4 -
the date of record for effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced. Any
adjustment made pursuant to the foregoing sentence that results in a decrease in
the Exercise Price shall also effect a proportional increase in the number of
Warrant Shares into which this Warrant is exercisable. If the Company, at any
time after the initial issuance of this Warrant, combines (by reverse stock
split, recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a smaller number of shares, then, after the date of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionally increased. Any adjustment made
pursuant to the foregoing sentence that results in an increase in the Exercise
Price shall also effect a proportional decrease in the number of Warrant Shares
into which this Warrant is exercisable.
(b) Distributions. If the Company shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary) (a "Distribution"), the
Company shall deliver written notice of such Distribution (a "Distribution
Notice") to the Holder at least five (5) business days prior to the earlier to
occur of (i) the record date for determining stockholders entitled to such
Distribution (the "Record Date") and (ii) the date on which such Distribution is
made (the "Distribution Date"). The Holder shall be entitled to receive the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Record Date therefor of a number of shares of Common
Stock into which this Warrant is exercisable as of such Record Date (such number
of shares to be determined at the Exercise Price then in effect and without
giving effect to any limitations on such exercise contained in this Warrant or
the Subscription Agreement).
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the
Issue Date, the Company issues or sells, or in accordance with subparagraph (ii)
of this Section 4(c), is deemed to have issued or sold, any shares of Common
Stock for no consideration or for a consideration per share less than the
Exercise Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Dilutive Issuance"), then effective immediately upon the Dilutive Issuance,
the Exercise Price shall be adjusted so as to equal an amount determined by
multiplying such Exercise Price by the following fraction:
N0 + N1
-------
N0 + N2
where:
N0 = the number of shares of Common Stock
outstanding immediately prior to the issuance,
sale or deemed issuance or sale of such
additional shares of Common Stock in such
Dilutive Issuance without taking into account
any shares of Common Stock issuable upon
conversion, exchange or exercise of any
securities or other instruments which are
convertible into or exercisable or
exchangeable for Common Stock
- 5 -
("Convertible Securities") or options,
warrants or other rights to purchase or
subscribe for Common Stock or Convertible
Securities ("Purchase Rights");
N1 = the number of shares of Common Stock
which the aggregate consideration, if any,
received or receivable by the Company for the
total number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance (which, in
the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph
(ii) below) would purchase at the Exercise
Price in effect immediately prior to such
Dilutive Issuance; and
N2 = the number of such additional shares of
Common Stock so issued, sold or deemed
issued or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant hereto
if such adjustment would result in an increase in the Exercise Price.
(ii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) of this Section
4(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If the Company issues or
sells any Purchase Rights, whether or not immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of
such Purchase Rights (and the price of any conversion of Convertible
Securities, if applicable) is less than the Exercise Price in effect on
the date of issuance or sale of such Purchase Rights, then the maximum
total number of shares of Common Stock issuable upon the exercise of all
such Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable) shall, as of the date of the
issuance or sale of such Purchase Rights, be deemed to have been issued
and sold by the Company for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights" shall be determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Purchase
Rights, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Purchase Rights,
plus, in the case of Convertible Securities issuable upon the exercise of
such Purchase Rights, the minimum aggregate amount of additional
consideration payable upon the conversion, exercise or exchange of all
such Convertible Securities (determined in accordance with the calculation
method set forth in subparagraph (ii)(D) below), by (y) the maximum total
number of shares of Common Stock issuable upon the exercise of all such
Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable). Except as provided in Section
4(c)(ii)(C) hereof, no further adjustment to the Exercise Price shall be
made upon the actual issuance of such Common Stock upon the exercise of
such Purchase Rights or upon the conversion, exercise or exchange of
Convertible Securities issuable upon exercise of such Purchase Rights.
(B) Issuance Of Convertible Securities. If the Company issues
or sells
- 7 -
any Convertible Securities, whether or not immediately convertible,
exercisable or exchangeable, and the price per share for which Common
Stock is issuable upon such conversion, exercise or exchange is less than
the Exercise Price in effect on the date of issuance or sale of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the conversion, exercise or exchange of all such
Convertible Securities shall, as of the date of the issuance or sale of
such Convertible Securities, be deemed to have been issued and sold by the
Company for such price per share. For the purposes of the immediately
preceding sentence, the "price per share for which Common Stock is
issuable upon such conversion, exercise or exchange" shall be determined
by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the conversion, exercise or exchange
of all such Convertible Securities (determined in accordance with the
calculation method set forth in subparagraph (ii)(D)), by (B) the maximum
total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities. Except as
provided in Section 4(c)(ii)(C) hereof, no further adjustment to the
Exercise Price shall be made upon the actual issuance of such Common Stock
upon conversion, exercise or exchange of such Convertible Securities.
(C) Change In Option Price Or Conversion Rate. If there is a change
at any time in (x) the purchase price or amount of additional
consideration payable to the Company upon the exercise of any Purchase
Rights; (y) the amount of additional consideration, if any, payable to the
Company upon the conversion, exercise or exchange of any Convertible
Securities the adjustment for which is not otherwise covered under Section
4(c)(ii)(B) above; or (z) the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for Common Stock, then in
any such case, the Exercise Price in effect at the time of such change
shall be readjusted to the Exercise Price which would have been in effect
at such time had such Purchase Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or changed conversion, exercise or exchange rate, as the
case may be, at the time initially issued or sold.
(D) Calculation Of Consideration Received. If any Common Stock,
Purchase Rights or Convertible Securities are issued or sold for cash, the
consideration received therefor will be the amount received by the Company
therefor, after deduction of all underwriting discounts or allowances in
connection with such issuance, grant or sale. In case any Common Stock,
Purchase Rights or Convertible Securities are issued or sold for a
consideration part or all of which shall be other than cash, including in
the case of a strategic or similar arrangement in which the other entity
will provide services to the Company, purchase services from the Company
or otherwise provide intangible consideration to the Company, the amount
of the consideration other than cash received by the Company (including
the net present value of the consideration expected by the Company for the
provided or purchased services) shall be the fair market value of such
consideration, except where such consideration consists of securities, in
which case the amount of consideration received by the Company will be the
average of the last sale prices thereof on the principal market for such
securities during the period of ten Trading Days immediately preceding the
date of receipt. In case any Common Stock, Purchase Rights or Convertible
Securities are issued in connection with any merger or consolidation in
which the Company is the
- 8 -
surviving corporation, the amount of consideration therefor will be deemed
to be the fair market value of such portion of the net assets and business
of the non-surviving corporation as is attributable to such Common Stock,
Purchase Rights or Convertible Securities, as the case may be. The
independent members of the Company's Board of Directors shall calculate
reasonably and in good faith, using standard commercial valuation methods
appropriate for valuing such assets, the fair market value of any
consideration other than cash or securities; provided, however, that if
the Holder does not agree to such fair market value calculation within
three business days after receipt thereof from the Company, then such fair
market value shall be determined in good faith by an investment banker or
other appropriate expert of national reputation selected by the Holder and
reasonably acceptable to the Company, with the costs of such appraisal to
be borne by the Company.
(iii) Exceptions To Adjustment Of Exercise Price. Notwithstanding
the foregoing, no adjustment to the Exercise Price shall be made pursuant to
this Section 4(c) upon the issuance of any Excluded Securities. For purposes
hereof, "Excluded Securities" means (1) securities purchased under the
Securities Purchase Agreement; (2) securities issued upon conversion or exercise
of the Series C 9% Convertible Preferred Stock or the Warrants (as defined in
the Securities Purchase Agreement); (3) shares of Common Stock issuable or
issued to employees, consultants or directors from time to time upon the
exercise of options, in such case granted or to be granted in the discretion of
the Board of Directors pursuant to one or more stock option plans or restricted
stock plans in effect as of the Issue Date; (4) shares of Common Stock issued in
connection with any stock split, stock dividend or recapitalization of the
Company; (5) securities issued upon conversion of outstanding shares of Series B
8% Convertible Preferred Stock, provided that the terms of such preferred stock
have not been amended since the date hereof; (6) securities issued upon
conversion or exercise of Debentures or Warrants issued under the Securities
Purchase Agreement, dated as of February 12, 2004, between the Company and the
Investors named therein and the Securities Purchase Agreement, dated as of April
15, 2004, between the Company and the Investors named therein, each as amended,
modified and supplemented; (7) 361,800 shares (200,000 shares to Xxxxx X. Xxxxxx
and 161,800 shares to G. Xxxxx Xxxx) and 100,000 options (40,000 options to
Xxxxx X. Xxxxxx and 60,000 options to G. Xxxxx Xxxx); and (8) 2,924,424 shares
issuable upon exercise of currently outstanding warrants and "investor options"
listed on Schedule 1 hereto.
(iv) Notice Of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4(c) resulting in
a change in the Exercise Price by more than one percent (1%), or any change in
the number or type of stock, securities and/or other property issuable upon
exercise of this Warrant, the Company, at its expense, shall promptly compute
such adjustment or readjustment or change and prepare and furnish to the Holder
a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
(d) Major Transactions. In the event of a merger, consolidation, business
combination,
- 8 -
tender offer, exchange of shares, recapitalization, reorganization, redemption
or other similar event, as a result of which shares of Common Stock of the
Company shall be changed into the same or a different number of shares of the
same or another class or classes of stock or securities or other assets of the
Company or another entity or the Company shall sell all or substantially all of
its assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least twenty (20) days written notice prior to the closing of
such Major Transaction in a manner that does not constitute disclosure of
material non-public information (unless otherwise previously consented to in
writing by the Holder), and: (i) the Holder shall be permitted to exercise this
Warrant in whole or in part at any time prior to the record date for the receipt
of such consideration and shall be entitled to receive, for each share of Common
Stock issuable to Holder for such exercise, the same per share consideration
payable to the other holders of Common Stock in connection with such Major
Transaction, and (ii) if and to the extent that the Holder retains any portion
of this Warrant following such record date, the Company will cause the surviving
or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company
under this Warrant, with such adjustments to the Exercise Price and the
securities covered hereby as may be necessary in order to preserve the economic
benefits of this Warrant to the Holder.
(e) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issuable upon the exercise of this Warrant, but on exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of Common Stock.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, the Company shall, in lieu of issuing any such fractional share,
pay to the Holder an amount in cash equal to the product resulting from
multiplying such fraction by the market price as of the Exercise Date.
6. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose
of this Warrant, in whole or in part, as long as such sale or other disposition
is made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act. Upon such transfer or other
disposition, the Holder shall deliver this Warrant to the Company together with
a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the "Transfer Notice"), indicating the
person or persons to whom this Warrant shall be transferred and, if less than
all of this Warrant is transferred, the number of Warrant Shares to be covered
by the part of this Warrant to be transferred to each such person.
- 9 -
Within three (3) business days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
7. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the
Holder of this Warrant and nothing in this Warrant shall be construed to confer
upon any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
8. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. Notice or Demands.
Any notice, demand or request required or permitted to be given by
the Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a business day, in which case such delivery will be deemed to be made on the
next succeeding business day, (ii) on the next business day after timely
delivery to an overnight courier and (iii) on the business day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (not constituting notice) to:
Xxxxx Xxxxxxx & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to Holder:
At the address set forth below Holder's signature on the
Securities Purchase Agreement.
with a copy (not constituting notice) to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10. Attorney's Fees. In the event any litigation, arbitration, mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of Delaware.
12. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant, the Securities Purchase Agreement and the Registration
Rights Agreement, and the schedules and exhibits hereto and thereto, constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Warrant, the Securities Purchase Agreement and the Registration Rights Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
- 11 -
14. Headings.
The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
- 12 -
IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
OMNI ENERGY SERVICES CORP.
By: /s/ G. Xxxxx Xxxx
-----------------
G. Xxxxx Xxxx
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
OMNI ENERGY SERVICES CORP.
Issue Date: May 17, 2005 Warrant No. A-3
THIS CERTIFIES that Xxxxx Xxxxx, or any subsequent holder hereof (the
"Holder"), has the right to purchase from OMNI ENERGY SERVICES CORP., a
Louisiana corporation (the "Company"), up to 201,600 fully paid and
nonassessable shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"), subject to adjustment as provided herein, at a price per
share equal to the Exercise Price (as defined below), at any time beginning on
the date hereof (the "the "Issue Date") and ending at 6:00 p.m., eastern time,
on the date that is the fifth (5th) anniversary of the Issue Date (the
"Expiration Date").
1. Exercise.
(a) Right to Exercise. The Holder shall have the right to exercise this
Warrant at any time and from time to time during the period beginning on the
Issue Date and ending on the Expiration Date as to all or any part of the shares
of Common Stock covered hereby (the "Warrant Shares").
(b) Exercise Price. The "Exercise Price" for each Warrant Share purchased
by the Holder upon the exercise of this Warrant shall be equal to $1.95, subject
to adjustment for the events specified in Section 4 below; provided, however,
until this Warrant, the Securities Purchase Agreement between the Company and
Holder dated as of the date hereof (the "Securities Purchase Agreement") and the
transactions contemplated herein and therein are approved by the holders of a
majority of the outstanding shares of capital stock of the Company entitled to
vote, excluding the holders of Series C Convertible Preferred Stock
("Shareholder Approval"), in no event shall the
Exercise Price be less than $1.95, other than as a result of adjustments for the
events specified in Section 4(a) below. Payment of the Exercise Price may be
made either (i) in cash or by certified or official bank check payable to the
order of the Company equal to the applicable aggregate Exercise Price, (ii) by
cashless exercise in accordance with Section (c) below, or (iii) by a
combination of any of the foregoing methods, for the number of Common Shares
specified in such Exercise Notice (as defined below) (as such exercise number
shall be adjusted to reflect any adjustment in the total number of shares of
Common Stock issuable to the Holder per the terms of this Warrant).
(c) Cashless Exercise. Notwithstanding any provisions herein to the
contrary, if the Company's Common Stock is publicly traded and the average
closing price (the "Market Price") of the Common Stock for the five (5) trading
days immediately preceding the Exercise Date (as defined below) is greater than
the then-current Exercise Price, in lieu of exercising this Warrant for cash,
the Holder may elect to receive shares equal to the value (as determined below)
of this Warrant (or the portion thereof being exercised) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Exercise Notice in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X= Y(A-B)/A
Where X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised;
A = the Market Price of one share of the Company's Common
Stock; and
B = Exercise Price.
(d) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the business day (which means any day other than a Saturday, a Sunday or a day
which commercial banks located in New York City are permitted by law to close)
on which the Holder wishes to effect such exercise (the "Exercise Date"), to the
Company an executed copy of the notice of exercise in the form attached hereto
as Exhibit A (the "Exercise Notice"), the original Warrant and the Exercise
Price, which shall not be required if the Exercise Notice indicates the Holder's
election to effect a cashless exercise. The Exercise Notice shall also state the
name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 4 below), the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and shall submit the disputed
calculations to a certified public accounting firm of national recognition
(other than the Company's independent accountants), reasonably acceptable to
Holder, within two (2) business days following the date on which the Exercise
Notice is delivered to the Company. The Company shall cause such accountant to
calculate the Exercise Price and/or the number of Warrant Shares issuable
hereunder
- 2 -
and to notify the Company and the Holder of the results in writing no later than
three (3) business days following the day on which such accountant received the
disputed calculations (the "Dispute Procedure"). Such accountant's calculation
shall be deemed conclusive absent manifest error. The fees of any such
accountant shall be borne by the party whose calculations were most at variance
with those of such accountant.
(e) Limitations on Exercise. Notwithstanding anything to the contrary
contained herein, until Shareholder Approval is obtained, no holder of this
Warrant shall be entitled to exercise this Warrant, if after exercise such
holder will, with the shares of Common Stock issued on exercise and any other
shares of the Company's Common Stock then held by such holder, hold more than
19.99% of the outstanding Common Stock or voting power of the Company on the
date of such exercise.
(f) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(g) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to Section 1 above, the Company shall, (A) no later than the
close of business on the later to occur of (i) the third (3rd) business day
following the Exercise Date set forth in such Exercise Notice, and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, and (B) with respect to Warrant Shares that are the subject of a Dispute
Procedure, the close of business on the third (3rd) business day following the
determination made pursuant to Section 1(b) (each of the dates specified in (A)
or (B) being referred to as a "Delivery Date"), issue and deliver or caused to
be delivered to the Holder the number of Warrant Shares as shall be determined
as provided herein. The Company shall effect delivery of Warrant Shares to the
Holder by, as long as the Transfer Agent participates in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program ("FAST"), crediting
the account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder or
its nominee physical certificates representing such Warrant Shares, no later
than the close
- 3 -
of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to the
Holder the number of Warrant Shares specified in the applicable Exercise Notice
on or before the Delivery Date therefor (an "Exercise Default"), and such
default continues for seven (7) business days following delivery of a written
notice of such default by the Holder to the Company, the Company shall pay to
the Holder payments ("Exercise Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares which are
the subject of such Exercise Default multiplied by (iii) the lower of ten
percent (10%) and the maximum rate permitted by applicable law (the "Default
Interest Rate"), where "N" equals the number of days elapsed between the
original Delivery Date of such Warrant Shares and the date on which all of such
Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) business day of the
calendar month following the calendar month in which such amount has accrued.
(b) In the event that the Holder has not received certificates
representing the Warrant Shares by the seventh (7th) business day following an
Exercise Default, the Holder may notify the Company in writing of its election
to revoke the Exercise Notice that is the subject of such default, in which
case, effective as of the date of such revocation notice, such Exercise Notice
shall be deemed rescinded and of no further force or effect.
(c) Nothing herein shall limit the Holder's right to pursue actual damages
for the Company's failure to issue and deliver Warrant Shares on the applicable
Delivery Date (including, without limitation, damages relating to any purchase
of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Warrant Shares upon exercise, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
the Holder from the sale of the Warrant Shares issued by the Company pursuant to
such exercise), and the Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief); provided, however, that, in the
event, following an Exercise Default, the Company delivers to the Holder the
Warrant Shares that are required to be issued by the Company pursuant to such
exercise, the Holder shall use commercially reasonable efforts to sell such
shares promptly following such delivery.
4. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4. In the event that
any adjustment of the Exercise Price or the number of Warrant Shares as required
herein results in a fraction of a cent or fraction of a share, as applicable,
such Exercise Price or number of Warrant Shares shall be rounded up or down to
the nearest cent or share, as applicable.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then after
- 4 -
the date of record for effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced. Any
adjustment made pursuant to the foregoing sentence that results in a decrease in
the Exercise Price shall also effect a proportional increase in the number of
Warrant Shares into which this Warrant is exercisable. If the Company, at any
time after the initial issuance of this Warrant, combines (by reverse stock
split, recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a smaller number of shares, then, after the date of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionally increased. Any adjustment made
pursuant to the foregoing sentence that results in an increase in the Exercise
Price shall also effect a proportional decrease in the number of Warrant Shares
into which this Warrant is exercisable.
(b) Distributions. If the Company shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary) (a "Distribution"), the
Company shall deliver written notice of such Distribution (a "Distribution
Notice") to the Holder at least five (5) business days prior to the earlier to
occur of (i) the record date for determining stockholders entitled to such
Distribution (the "Record Date") and (ii) the date on which such Distribution is
made (the "Distribution Date"). The Holder shall be entitled to receive the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Record Date therefor of a number of shares of Common
Stock into which this Warrant is exercisable as of such Record Date (such number
of shares to be determined at the Exercise Price then in effect and without
giving effect to any limitations on such exercise contained in this Warrant or
the Subscription Agreement).
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the
Issue Date, the Company issues or sells, or in accordance with subparagraph (ii)
of this Section 4(c), is deemed to have issued or sold, any shares of Common
Stock for no consideration or for a consideration per share less than the
Exercise Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Dilutive Issuance"), then effective immediately upon the Dilutive Issuance,
the Exercise Price shall be adjusted so as to equal an amount determined by
multiplying such Exercise Price by the following fraction:
N0 + N1
-------
N0 + N2
where:
N0 = the number of shares of Common Stock
outstanding immediately prior to the issuance,
sale or deemed issuance or sale of such
additional shares of Common Stock in such
Dilutive Issuance without taking into account
any shares of Common Stock issuable upon
conversion, exchange or exercise of any
securities or other instruments which are
convertible into or exercisable or
exchangeable for Common Stock
- 5 -
("Convertible Securities") or options,
warrants or other rights to purchase or
subscribe for Common Stock or Convertible
Securities ("Purchase Rights");
N1 = the number of shares of Common Stock
which the aggregate consideration, if any,
received or receivable by the Company for the
total number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance (which, in
the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph
(ii) below) would purchase at the Exercise
Price in effect immediately prior to such
Dilutive Issuance; and
N2 = the number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant hereto
if such adjustment would result in an increase in the Exercise Price.
(ii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) of this Section
4(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If the Company issues or
sells any Purchase Rights, whether or not immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of
such Purchase Rights (and the price of any conversion of Convertible
Securities, if applicable) is less than the Exercise Price in effect on
the date of issuance or sale of such Purchase Rights, then the maximum
total number of shares of Common Stock issuable upon the exercise of all
such Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable) shall, as of the date of the
issuance or sale of such Purchase Rights, be deemed to have been issued
and sold by the Company for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights" shall be determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Purchase
Rights, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Purchase Rights,
plus, in the case of Convertible Securities issuable upon the exercise of
such Purchase Rights, the minimum aggregate amount of additional
consideration payable upon the conversion, exercise or exchange of all
such Convertible Securities (determined in accordance with the calculation
method set forth in subparagraph (ii)(D) below), by (y) the maximum total
number of shares of Common Stock issuable upon the exercise of all such
Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable). Except as provided in Section
4(c)(ii)(C) hereof, no further adjustment to the Exercise Price shall be
made upon the actual issuance of such Common Stock upon the exercise of
such Purchase Rights or upon the conversion, exercise or exchange of
Convertible Securities issuable upon exercise of such Purchase Rights.
(B) Issuance Of Convertible Securities. If the Company issues
or sells
- 6 -
any Convertible Securities, whether or not immediately convertible,
exercisable or exchangeable, and the price per share for which Common
Stock is issuable upon such conversion, exercise or exchange is less than
the Exercise Price in effect on the date of issuance or sale of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the conversion, exercise or exchange of all such
Convertible Securities shall, as of the date of the issuance or sale of
such Convertible Securities, be deemed to have been issued and sold by the
Company for such price per share. For the purposes of the immediately
preceding sentence, the "price per share for which Common Stock is
issuable upon such conversion, exercise or exchange" shall be determined
by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the conversion, exercise or exchange
of all such Convertible Securities (determined in accordance with the
calculation method set forth in subparagraph (ii)(D)), by (B) the maximum
total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities. Except as
provided in Section 4(c)(ii)(C) hereof, no further adjustment to the
Exercise Price shall be made upon the actual issuance of such Common Stock
upon conversion, exercise or exchange of such Convertible Securities.
(C) Change In Option Price Or Conversion Rate. If there is a
change at any time in (x) the purchase price or amount of additional
consideration payable to the Company upon the exercise of any Purchase
Rights; (y) the amount of additional consideration, if any, payable to the
Company upon the conversion, exercise or exchange of any Convertible
Securities the adjustment for which is not otherwise covered under Section
4(c)(ii)(B) above; or (z) the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for Common Stock, then in
any such case, the Exercise Price in effect at the time of such change
shall be readjusted to the Exercise Price which would have been in effect
at such time had such Purchase Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or changed conversion, exercise or exchange rate, as the
case may be, at the time initially issued or sold.
(D) Calculation Of Consideration Received. If any Common
Stock, Purchase Rights or Convertible Securities are issued or sold for
cash, the consideration received therefor will be the amount received by
the Company therefor, after deduction of all underwriting discounts or
allowances in connection with such issuance, grant or sale. In case any
Common Stock, Purchase Rights or Convertible Securities are issued or sold
for a consideration part or all of which shall be other than cash,
including in the case of a strategic or similar arrangement in which the
other entity will provide services to the Company, purchase services from
the Company or otherwise provide intangible consideration to the Company,
the amount of the consideration other than cash received by the Company
(including the net present value of the consideration expected by the
Company for the provided or purchased services) shall be the fair market
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the
Company will be the average of the last sale prices thereof on the
principal market for such securities during the period of ten Trading Days
immediately preceding the date of receipt. In case any Common Stock,
Purchase Rights or Convertible Securities are issued in connection with
any merger or consolidation in which the Company is the
- 7 -
surviving corporation, the amount of consideration therefor will be deemed
to be the fair market value of such portion of the net assets and business
of the non-surviving corporation as is attributable to such Common Stock,
Purchase Rights or Convertible Securities, as the case may be. The
independent members of the Company's Board of Directors shall calculate
reasonably and in good faith, using standard commercial valuation methods
appropriate for valuing such assets, the fair market value of any
consideration other than cash or securities; provided, however, that if
the Holder does not agree to such fair market value calculation within
three business days after receipt thereof from the Company, then such fair
market value shall be determined in good faith by an investment banker or
other appropriate expert of national reputation selected by the Holder and
reasonably acceptable to the Company, with the costs of such appraisal to
be borne by the Company.
(iii) Exceptions To Adjustment Of Exercise Price.
Notwithstanding the foregoing, no adjustment to the Exercise Price shall
be made pursuant to this Section 4(c) upon the issuance of any Excluded
Securities. For purposes hereof, "Excluded Securities" means (1)
securities purchased under the Securities Purchase Agreement; (2)
securities issued upon conversion or exercise of the Series C 9%
Convertible Preferred Stock or the Warrants (as defined in the Securities
Purchase Agreement); (3) shares of Common Stock issuable or issued to
employees, consultants or directors from time to time upon the exercise of
options, in such case granted or to be granted in the discretion of the
Board of Directors pursuant to one or more stock option plans or
restricted stock plans in effect as of the Issue Date; (4) shares of
Common Stock issued in connection with any stock split, stock dividend or
recapitalization of the Company; (5) securities issued upon conversion of
outstanding shares of Series B 8% Convertible Preferred Stock, provided
that the terms of such preferred stock have not been amended since the
date hereof; (6) securities issued upon conversion or exercise of
Debentures or Warrants issued under the Securities Purchase Agreement,
dated as of February 12, 2004, between the Company and the Investors named
therein and the Securities Purchase Agreement, dated as of April 15, 2004,
between the Company and the Investors named therein, each as amended,
modified and supplemented; (7) 361,800 shares (200,000 shares to Xxxxx X.
Xxxxxx and 161,800 shares to G. Xxxxx Xxxx) and 100,000 options (40,000
options to Xxxxx X. Xxxxxx and 60,000 options to G. Xxxxx Xxxx); and (8)
2,924,424 shares issuable upon exercise of currently outstanding warrants
and "investor options" listed on Schedule 1 hereto.
(iv) Notice Of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4(c) resulting in
a change in the Exercise Price by more than one percent (1%), or any change in
the number or type of stock, securities and/or other property issuable upon
exercise of this Warrant, the Company, at its expense, shall promptly compute
such adjustment or readjustment or change and prepare and furnish to the Holder
a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
(d) Major Transactions. In the event of a merger, consolidation, business
combination,
- 8 -
tender offer, exchange of shares, recapitalization, reorganization, redemption
or other similar event, as a result of which shares of Common Stock of the
Company shall be changed into the same or a different number of shares of the
same or another class or classes of stock or securities or other assets of the
Company or another entity or the Company shall sell all or substantially all of
its assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least twenty (20) days written notice prior to the closing of
such Major Transaction in a manner that does not constitute disclosure of
material non-public information (unless otherwise previously consented to in
writing by the Holder), and: (i) the Holder shall be permitted to exercise this
Warrant in whole or in part at any time prior to the record date for the receipt
of such consideration and shall be entitled to receive, for each share of Common
Stock issuable to Holder for such exercise, the same per share consideration
payable to the other holders of Common Stock in connection with such Major
Transaction, and (ii) if and to the extent that the Holder retains any portion
of this Warrant following such record date, the Company will cause the surviving
or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company
under this Warrant, with such adjustments to the Exercise Price and the
securities covered hereby as may be necessary in order to preserve the economic
benefits of this Warrant to the Holder.
(e) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issuable upon the exercise of this Warrant, but on exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of Common Stock.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, the Company shall, in lieu of issuing any such fractional share,
pay to the Holder an amount in cash equal to the product resulting from
multiplying such fraction by the market price as of the Exercise Date.
6. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose
of this Warrant, in whole or in part, as long as such sale or other disposition
is made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act. Upon such transfer or other
disposition, the Holder shall deliver this Warrant to the Company together with
a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the "Transfer Notice"), indicating the
person or persons to whom this Warrant shall be transferred and, if less than
all of this Warrant is transferred, the number of Warrant Shares to be covered
by the part of this Warrant to be transferred to each such person.
- 9 -
Within three (3) business days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
7. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the
Holder of this Warrant and nothing in this Warrant shall be construed to confer
upon any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
8. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. Notice or Demands.
Any notice, demand or request required or permitted to be given by
the Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a business day, in which case such delivery will be deemed to be made on the
next succeeding business day, (ii) on the next business day after timely
delivery to an overnight courier and (iii) on the business day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (not constituting notice) to:
Xxxxx Xxxxxxx & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
- 10 -
If to Holder:
At the address set forth below Holder's signature on the
Securities Purchase Agreement.
with a copy (not constituting notice) to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10. Attorney's Fees. In the event any litigation, arbitration, mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of Delaware.
12. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant, the Securities Purchase Agreement and the Registration
Rights Agreement, and the schedules and exhibits hereto and thereto, constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Warrant, the Securities Purchase Agreement and the Registration Rights Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
- 11 -
14. Headings.
The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
- 12 -
IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
OMNI ENERGY SERVICES CORP.
By: /s/ G. Xxxxx Xxxx
------------------------
G. Xxxxx Xxxx
Executive Vice President
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
OMNI ENERGY SERVICES CORP.
Issue Date: May 17, 2005 Warrant No. A-4
THIS CERTIFIES that XXXXX X. XXXXXX, or any subsequent holder hereof (the
"Holder"), has the right to purchase from OMNI ENERGY SERVICES CORP., a
Louisiana corporation (the "Company"), up to 168,000 fully paid and
nonassessable shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"), subject to adjustment as provided herein, at a price per
share equal to the Exercise Price (as defined below), at any time beginning on
the date hereof (the "the "Issue Date") and ending at 6:00 p.m., eastern time,
on the date that is the fifth (5th) anniversary of the Issue Date (the
"Expiration Date").
1. Exercise.
(a) Right to Exercise. The Holder shall have the right to exercise this
Warrant at any time and from time to time during the period beginning on the
Issue Date and ending on the Expiration Date as to all or any part of the shares
of Common Stock covered hereby (the "Warrant Shares").
(b) Exercise Price. The "Exercise Price" for each Warrant Share purchased
by the Holder upon the exercise of this Warrant shall be equal to $1.95, subject
to adjustment for the events specified in Section 4 below; provided, however,
until this Warrant, the Securities Purchase Agreement between the Company and
Holder dated as of the date hereof (the "Securities Purchase Agreement") and the
transactions contemplated herein and therein are approved by the holders of a
majority of the outstanding shares of capital stock of the Company entitled to
vote, excluding the holders of Series C Convertible Preferred Stock
("Shareholder Approval"), in no event shall the
Exercise Price be less than $1.95, other than as a result of adjustments for the
events specified in Section 4(a) below. Payment of the Exercise Price may be
made either (i) in cash or by certified or official bank check payable to the
order of the Company equal to the applicable aggregate Exercise Price, (ii) by
cashless exercise in accordance with Section (c) below, or (iii) by a
combination of any of the foregoing methods, for the number of Common Shares
specified in such Exercise Notice (as defined below) (as such exercise number
shall be adjusted to reflect any adjustment in the total number of shares of
Common Stock issuable to the Holder per the terms of this Warrant).
(c) Cashless Exercise. Notwithstanding any provisions herein to the
contrary, if the Company's Common Stock is publicly traded and the average
closing price (the "Market Price") of the Common Stock for the five (5) trading
days immediately preceding the Exercise Date (as defined below) is greater than
the then-current Exercise Price, in lieu of exercising this Warrant for cash,
the Holder may elect to receive shares equal to the value (as determined below)
of this Warrant (or the portion thereof being exercised) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Exercise Notice in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X= Y(A-B)/A
Where X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised;
A = the Market Price of one share of the Company's Common
Stock; and
B = Exercise Price.
(d) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the business day (which means any day other than a Saturday, a Sunday or a day
which commercial banks located in New York City are permitted by law to close)
on which the Holder wishes to effect such exercise (the "Exercise Date"), to the
Company an executed copy of the notice of exercise in the form attached hereto
as Exhibit A (the "Exercise Notice"), the original Warrant and the Exercise
Price, which shall not be required if the Exercise Notice indicates the Holder's
election to effect a cashless exercise. The Exercise Notice shall also state the
name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 4 below), the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and shall submit the disputed
calculations to a certified public accounting firm of national recognition
(other than the Company's independent accountants), reasonably acceptable to
Holder, within two (2) business days following the date on which the Exercise
Notice is delivered to the Company. The Company shall cause such accountant to
calculate the Exercise Price and/or the number of Warrant Shares issuable
hereunder
- 2 -
and to notify the Company and the Holder of the results in writing no later than
three (3) business days following the day on which such accountant received the
disputed calculations (the "Dispute Procedure"). Such accountant's calculation
shall be deemed conclusive absent manifest error. The fees of any such
accountant shall be borne by the party whose calculations were most at variance
with those of such accountant.
(e) Limitations on Exercise. Notwithstanding anything to the contrary
contained herein, until Shareholder Approval is obtained, no holder of this
Warrant shall be entitled to exercise this Warrant, if after exercise such
holder will, with the shares of Common Stock issued on exercise and any other
shares of the Company's Common Stock then held by such holder, hold more than
19.99% of the outstanding Common Stock or voting power of the Company on the
date of such exercise.
(f) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(g) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to Section 1 above, the Company shall, (A) no later than the
close of business on the later to occur of (i) the third (3rd) business day
following the Exercise Date set forth in such Exercise Notice, and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, and (B) with respect to Warrant Shares that are the subject of a Dispute
Procedure, the close of business on the third (3rd) business day following the
determination made pursuant to Section 1(b) (each of the dates specified in (A)
or (B) being referred to as a "Delivery Date"), issue and deliver or caused to
be delivered to the Holder the number of Warrant Shares as shall be determined
as provided herein. The Company shall effect delivery of Warrant Shares to the
Holder by, as long as the Transfer Agent participates in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program ("FAST"), crediting
the account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder or
its nominee physical certificates representing such Warrant Shares, no later
than the close
- 3 -
of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to the
Holder the number of Warrant Shares specified in the applicable Exercise Notice
on or before the Delivery Date therefor (an "Exercise Default"), and such
default continues for seven (7) business days following delivery of a written
notice of such default by the Holder to the Company, the Company shall pay to
the Holder payments ("Exercise Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares which are
the subject of such Exercise Default multiplied by (iii) the lower of ten
percent (10%) and the maximum rate permitted by applicable law (the "Default
Interest Rate"), where "N" equals the number of days elapsed between the
original Delivery Date of such Warrant Shares and the date on which all of such
Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) business day of the
calendar month following the calendar month in which such amount has accrued.
(b) In the event that the Holder has not received certificates
representing the Warrant Shares by the seventh (7th) business day following an
Exercise Default, the Holder may notify the Company in writing of its election
to revoke the Exercise Notice that is the subject of such default, in which
case, effective as of the date of such revocation notice, such Exercise Notice
shall be deemed rescinded and of no further force or effect.
(c) Nothing herein shall limit the Holder's right to pursue actual damages
for the Company's failure to issue and deliver Warrant Shares on the applicable
Delivery Date (including, without limitation, damages relating to any purchase
of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Warrant Shares upon exercise, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
the Holder from the sale of the Warrant Shares issued by the Company pursuant to
such exercise), and the Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief); provided, however, that, in the
event, following an Exercise Default, the Company delivers to the Holder the
Warrant Shares that are required to be issued by the Company pursuant to such
exercise, the Holder shall use commercially reasonable efforts to sell such
shares promptly following such delivery.
4. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4. In the event that
any adjustment of the Exercise Price or the number of Warrant Shares as required
herein results in a fraction of a cent or fraction of a share, as applicable,
such Exercise Price or number of Warrant Shares shall be rounded up or down to
the nearest cent or share, as applicable.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then after
- 4 -
the date of record for effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced. Any
adjustment made pursuant to the foregoing sentence that results in a decrease in
the Exercise Price shall also effect a proportional increase in the number of
Warrant Shares into which this Warrant is exercisable. If the Company, at any
time after the initial issuance of this Warrant, combines (by reverse stock
split, recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a smaller number of shares, then, after the date of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionally increased. Any adjustment made
pursuant to the foregoing sentence that results in an increase in the Exercise
Price shall also effect a proportional decrease in the number of Warrant Shares
into which this Warrant is exercisable.
(b) Distributions. If the Company shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary) (a "Distribution"), the
Company shall deliver written notice of such Distribution (a "Distribution
Notice") to the Holder at least five (5) business days prior to the earlier to
occur of (i) the record date for determining stockholders entitled to such
Distribution (the "Record Date") and (ii) the date on which such Distribution is
made (the "Distribution Date"). The Holder shall be entitled to receive the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Record Date therefor of a number of shares of Common
Stock into which this Warrant is exercisable as of such Record Date (such number
of shares to be determined at the Exercise Price then in effect and without
giving effect to any limitations on such exercise contained in this Warrant or
the Subscription Agreement).
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the
Issue Date, the Company issues or sells, or in accordance with subparagraph (ii)
of this Section 4(c), is deemed to have issued or sold, any shares of Common
Stock for no consideration or for a consideration per share less than the
Exercise Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Dilutive Issuance"), then effective immediately upon the Dilutive Issuance,
the Exercise Price shall be adjusted so as to equal an amount determined by
multiplying such Exercise Price by the following fraction:
N0 + N1
-------
N0 + N2
where:
N0 = the number of shares of Common Stock
outstanding immediately prior to the issuance,
sale or deemed issuance or sale of such
additional shares of Common Stock in such
Dilutive Issuance without taking into account
any shares of Common Stock issuable upon
conversion, exchange or exercise of any
securities or other instruments which are
convertible into or exercisable or
exchangeable for Common Stock
- 5 -
("Convertible Securities") or options,
warrants or other rights to purchase or
subscribe for Common Stock or Convertible
Securities ("Purchase Rights");
N1 = the number of shares of Common Stock
which the aggregate consideration, if any,
received or receivable by the Company for the
total number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance (which, in
the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph
(ii) below) would purchase at the Exercise
Price in effect immediately prior to such
Dilutive Issuance; and
N2 = the number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant hereto
if such adjustment would result in an increase in the Exercise Price.
(ii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) of this Section
4(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If the Company issues or
sells any Purchase Rights, whether or not immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of
such Purchase Rights (and the price of any conversion of Convertible
Securities, if applicable) is less than the Exercise Price in effect on
the date of issuance or sale of such Purchase Rights, then the maximum
total number of shares of Common Stock issuable upon the exercise of all
such Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable) shall, as of the date of the
issuance or sale of such Purchase Rights, be deemed to have been issued
and sold by the Company for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights" shall be determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Purchase
Rights, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Purchase Rights,
plus, in the case of Convertible Securities issuable upon the exercise of
such Purchase Rights, the minimum aggregate amount of additional
consideration payable upon the conversion, exercise or exchange of all
such Convertible Securities (determined in accordance with the calculation
method set forth in subparagraph (ii)(D) below), by (y) the maximum total
number of shares of Common Stock issuable upon the exercise of all such
Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable). Except as provided in Section
4(c)(ii)(C) hereof, no further adjustment to the Exercise Price shall be
made upon the actual issuance of such Common Stock upon the exercise of
such Purchase Rights or upon the conversion, exercise or exchange of
Convertible Securities issuable upon exercise of such Purchase Rights.
(B) Issuance Of Convertible Securities. If the Company issues
or sells
- 6 -
any Convertible Securities, whether or not immediately convertible,
exercisable or exchangeable, and the price per share for which Common
Stock is issuable upon such conversion, exercise or exchange is less than
the Exercise Price in effect on the date of issuance or sale of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the conversion, exercise or exchange of all such
Convertible Securities shall, as of the date of the issuance or sale of
such Convertible Securities, be deemed to have been issued and sold by the
Company for such price per share. For the purposes of the immediately
preceding sentence, the "price per share for which Common Stock is
issuable upon such conversion, exercise or exchange" shall be determined
by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the conversion, exercise or exchange
of all such Convertible Securities (determined in accordance with the
calculation method set forth in subparagraph (ii)(D)), by (B) the maximum
total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities. Except as
provided in Section 4(c)(ii)(C) hereof, no further adjustment to the
Exercise Price shall be made upon the actual issuance of such Common Stock
upon conversion, exercise or exchange of such Convertible Securities.
(C) Change In Option Price Or Conversion Rate. If there is a
change at any time in (x) the purchase price or amount of additional
consideration payable to the Company upon the exercise of any Purchase
Rights; (y) the amount of additional consideration, if any, payable to the
Company upon the conversion, exercise or exchange of any Convertible
Securities the adjustment for which is not otherwise covered under Section
4(c)(ii)(B) above; or (z) the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for Common Stock, then in
any such case, the Exercise Price in effect at the time of such change
shall be readjusted to the Exercise Price which would have been in effect
at such time had such Purchase Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or changed conversion, exercise or exchange rate, as the
case may be, at the time initially issued or sold.
(D) Calculation Of Consideration Received. If any Common
Stock, Purchase Rights or Convertible Securities are issued or sold for
cash, the consideration received therefor will be the amount received by
the Company therefor, after deduction of all underwriting discounts or
allowances in connection with such issuance, grant or sale. In case any
Common Stock, Purchase Rights or Convertible Securities are issued or sold
for a consideration part or all of which shall be other than cash,
including in the case of a strategic or similar arrangement in which the
other entity will provide services to the Company, purchase services from
the Company or otherwise provide intangible consideration to the Company,
the amount of the consideration other than cash received by the Company
(including the net present value of the consideration expected by the
Company for the provided or purchased services) shall be the fair market
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the
Company will be the average of the last sale prices thereof on the
principal market for such securities during the period of ten Trading Days
immediately preceding the date of receipt. In case any Common Stock,
Purchase Rights or Convertible Securities are issued in connection with
any merger or consolidation in which the Company is the
- 7 -
surviving corporation, the amount of consideration therefor will be deemed
to be the fair market value of such portion of the net assets and business
of the non-surviving corporation as is attributable to such Common Stock,
Purchase Rights or Convertible Securities, as the case may be. The
independent members of the Company's Board of Directors shall calculate
reasonably and in good faith, using standard commercial valuation methods
appropriate for valuing such assets, the fair market value of any
consideration other than cash or securities; provided, however, that if
the Holder does not agree to such fair market value calculation within
three business days after receipt thereof from the Company, then such fair
market value shall be determined in good faith by an investment banker or
other appropriate expert of national reputation selected by the Holder and
reasonably acceptable to the Company, with the costs of such appraisal to
be borne by the Company.
(iii) Exceptions To Adjustment Of Exercise Price.
Notwithstanding the foregoing, no adjustment to the Exercise Price shall
be made pursuant to this Section 4(c) upon the issuance of any Excluded
Securities. For purposes hereof, "Excluded Securities" means (1)
securities purchased under the Securities Purchase Agreement; (2)
securities issued upon conversion or exercise of the Series C 9%
Convertible Preferred Stock or the Warrants (as defined in the Securities
Purchase Agreement); (3) shares of Common Stock issuable or issued to
employees, consultants or directors from time to time upon the exercise of
options, in such case granted or to be granted in the discretion of the
Board of Directors pursuant to one or more stock option plans or
restricted stock plans in effect as of the Issue Date; (4) shares of
Common Stock issued in connection with any stock split, stock dividend or
recapitalization of the Company; (5) securities issued upon conversion of
outstanding shares of Series B 8% Convertible Preferred Stock, provided
that the terms of such preferred stock have not been amended since the
date hereof; (6) securities issued upon conversion or exercise of
Debentures or Warrants issued under the Securities Purchase Agreement,
dated as of February 12, 2004, between the Company and the Investors named
therein and the Securities Purchase Agreement, dated as of April 15, 2004,
between the Company and the Investors named therein, each as amended,
modified and supplemented; (7) 361,800 shares (200,000 shares to Xxxxx X.
Xxxxxx and 161,800 shares to G. Xxxxx Xxxx) and 100,000 options (40,000
options to Xxxxx X. Xxxxxx and 60,000 options to G. Xxxxx Xxxx); and (8)
2,924,424 shares issuable upon exercise of currently outstanding warrants
and "investor options" listed on Schedule 1 hereto.
(iv) Notice Of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4(c) resulting in
a change in the Exercise Price by more than one percent (1%), or any change in
the number or type of stock, securities and/or other property issuable upon
exercise of this Warrant, the Company, at its expense, shall promptly compute
such adjustment or readjustment or change and prepare and furnish to the Holder
a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
(d) Major Transactions. In the event of a merger, consolidation, business
combination,
- 8 -
tender offer, exchange of shares, recapitalization, reorganization, redemption
or other similar event, as a result of which shares of Common Stock of the
Company shall be changed into the same or a different number of shares of the
same or another class or classes of stock or securities or other assets of the
Company or another entity or the Company shall sell all or substantially all of
its assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least twenty (20) days written notice prior to the closing of
such Major Transaction in a manner that does not constitute disclosure of
material non-public information (unless otherwise previously consented to in
writing by the Holder), and: (i) the Holder shall be permitted to exercise this
Warrant in whole or in part at any time prior to the record date for the receipt
of such consideration and shall be entitled to receive, for each share of Common
Stock issuable to Holder for such exercise, the same per share consideration
payable to the other holders of Common Stock in connection with such Major
Transaction, and (ii) if and to the extent that the Holder retains any portion
of this Warrant following such record date, the Company will cause the surviving
or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company
under this Warrant, with such adjustments to the Exercise Price and the
securities covered hereby as may be necessary in order to preserve the economic
benefits of this Warrant to the Holder.
(e) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. Fractional Interests.
No fractional shares or scrip representing fractional shares shall
be issuable upon the exercise of this Warrant, but on exercise of this Warrant,
the Holder hereof may purchase only a whole number of shares of Common Stock.
If, on exercise of this Warrant, the Holder hereof would be entitled to a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, the Company shall, in lieu of issuing any such fractional share,
pay to the Holder an amount in cash equal to the product resulting from
multiplying such fraction by the market price as of the Exercise Date.
6. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose
of this Warrant, in whole or in part, as long as such sale or other disposition
is made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act. Upon such transfer or other
disposition, the Holder shall deliver this Warrant to the Company together with
a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the "Transfer Notice"), indicating the
person or persons to whom this Warrant shall be transferred and, if less than
all of this Warrant is transferred, the number of Warrant Shares to be covered
by the part of this Warrant to be transferred to each such person.
- 9 -
Within three (3) business days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
7. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the
Holder of this Warrant and nothing in this Warrant shall be construed to confer
upon any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
8. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. Notice or Demands.
Any notice, demand or request required or permitted to be given by
the Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a business day, in which case such delivery will be deemed to be made on the
next succeeding business day, (ii) on the next business day after timely
delivery to an overnight courier and (iii) on the business day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (not constituting notice) to:
Xxxxx Xxxxxxx & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
- 10 -
If to Holder:
At the address set forth below Holder's signature on the
Securities Purchase Agreement.
with a copy (not constituting notice) to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10. Attorney's Fees. In the event any litigation, arbitration, mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of Delaware.
12. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant, the Securities Purchase Agreement and the Registration
Rights Agreement, and the schedules and exhibits hereto and thereto, constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Warrant, the Securities Purchase Agreement and the Registration Rights Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
- 11 -
14. Headings.
The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
- 12 -
IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
OMNI ENERGY SERVICES CORP.
By: /s/ G. Xxxxx Xxxx
-------------------------
G. Xxxxx Xxxx
Executive Vice President
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
WARRANT TO PURCHASE COMMON STOCK
OF
OMNI ENERGY SERVICES CORP.
Issue Date: May 17, 2005 Warrant No. A-5
THIS CERTIFIES that G. XXXXX XXXX, or any subsequent holder hereof (the
"Holder"), has the right to purchase from OMNI ENERGY SERVICES CORP., a
Louisiana corporation (the "Company"), up to 168,000 fully paid and
nonassessable shares of the Company's common stock, par value $0.01 per share
(the "Common Stock"), subject to adjustment as provided herein, at a price per
share equal to the Exercise Price (as defined below), at any time beginning on
the date hereof (the "the "Issue Date") and ending at 6:00 p.m., eastern time,
on the date that is the fifth (5th) anniversary of the Issue Date (the
"Expiration Date").
1. Exercise.
(a) Right to Exercise. The Holder shall have the right to exercise this
Warrant at any time and from time to time during the period beginning on the
Issue Date and ending on the Expiration Date as to all or any part of the shares
of Common Stock covered hereby (the "Warrant Shares").
(b) Exercise Price. The "Exercise Price" for each Warrant Share purchased
by the Holder upon the exercise of this Warrant shall be equal to $1.95, subject
to adjustment for the events specified in Section 4 below; provided, however,
until this Warrant, the Securities Purchase Agreement between the Company and
Holder dated as of the date hereof (the "Securities Purchase Agreement") and the
transactions contemplated herein and therein are approved by the holders of a
majority of the outstanding shares of capital stock of the Company entitled to
vote, excluding the holders of Series C Convertible Preferred Stock
("Shareholder Approval"), in no event shall the
Exercise Price be less than $1.95, other than as a result of adjustments for the
events specified in Section 4(a) below. Payment of the Exercise Price may be
made either (i) in cash or by certified or official bank check payable to the
order of the Company equal to the applicable aggregate Exercise Price, (ii) by
cashless exercise in accordance with Section (c) below, or (iii) by a
combination of any of the foregoing methods, for the number of Common Shares
specified in such Exercise Notice (as defined below) (as such exercise number
shall be adjusted to reflect any adjustment in the total number of shares of
Common Stock issuable to the Holder per the terms of this Warrant).
(c) Cashless Exercise. Notwithstanding any provisions herein to the
contrary, if the Company's Common Stock is publicly traded and the average
closing price (the "Market Price") of the Common Stock for the five (5) trading
days immediately preceding the Exercise Date (as defined below) is greater than
the then-current Exercise Price, in lieu of exercising this Warrant for cash,
the Holder may elect to receive shares equal to the value (as determined below)
of this Warrant (or the portion thereof being exercised) by surrender of this
Warrant at the principal office of the Company together with the properly
endorsed Exercise Notice in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X= Y(A-B)/A
Where X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which this Warrant
is being exercised;
A = the Market Price of one share of the Company's Common Stock; and
B = Exercise Price.
(d) Exercise Notice. In order to exercise this Warrant, the Holder shall
send by facsimile transmission, at any time prior to 6:00 p.m., eastern time, on
the business day (which means any day other than a Saturday, a Sunday or a day
which commercial banks located in New York City are permitted by law to close)
on which the Holder wishes to effect such exercise (the "Exercise Date"), to the
Company an executed copy of the notice of exercise in the form attached hereto
as Exhibit A (the "Exercise Notice"), the original Warrant and the Exercise
Price, which shall not be required if the Exercise Notice indicates the Holder's
election to effect a cashless exercise. The Exercise Notice shall also state the
name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 4 below), the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and shall submit the disputed
calculations to a certified public accounting firm of national recognition
(other than the Company's independent accountants), reasonably acceptable to
Holder, within two (2) business days following the date on which the Exercise
Notice is delivered to the Company. The Company shall cause such accountant to
calculate the Exercise Price and/or the number of Warrant Shares issuable
hereunder
- 2 -
and to notify the Company and the Holder of the results in writing no later
than three (3) business days following the day on which such accountant received
the disputed calculations (the "Dispute Procedure"). Such accountant's
calculation shall be deemed conclusive absent manifest error. The fees of any
such accountant shall be borne by the party whose calculations were most at
variance with those of such accountant.
(e) Limitations on Exercise. Notwithstanding anything to the contrary
contained herein, until Shareholder Approval is obtained, no holder of this
Warrant shall be entitled to exercise this Warrant, if after exercise such
holder will, with the shares of Common Stock issued on exercise and any other
shares of the Company's Common Stock then held by such holder, hold more than
19.99% of the outstanding Common Stock or voting power of the Company on the
date of such exercise.
(f) Holder of Record. The Holder shall, for all purposes, be deemed to
have become the holder of record of the Warrant Shares specified in an Exercise
Notice on the Exercise Date specified therein, irrespective of the date of
delivery of such Warrant Shares. Except as specifically provided herein, nothing
in this Warrant shall be construed as conferring upon the Holder hereof any
rights as a stockholder of the Company prior to the Exercise Date.
(g) Cancellation of Warrant. This Warrant shall be canceled upon its
exercise and, if this Warrant is exercised in part, the Company shall, at the
time that it delivers Warrant Shares to the Holder pursuant to such exercise as
provided herein, issue a new warrant, and deliver to the Holder a certificate
representing such new warrant, with terms identical in all respects to this
Warrant (except that such new warrant shall be exercisable into the number of
shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an Exercise
Notice pursuant to Section 1 above, the Company shall, (A) no later than the
close of business on the later to occur of (i) the third (3rd) business day
following the Exercise Date set forth in such Exercise Notice, and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, and (B) with respect to Warrant Shares that are the subject of a Dispute
Procedure, the close of business on the third (3rd) business day following the
determination made pursuant to Section 1(b) (each of the dates specified in (A)
or (B) being referred to as a "Delivery Date"), issue and deliver or caused to
be delivered to the Holder the number of Warrant Shares as shall be determined
as provided herein. The Company shall effect delivery of Warrant Shares to the
Holder by, as long as the Transfer Agent participates in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program ("FAST"), crediting
the account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder or
its nominee physical certificates representing such Warrant Shares, no later
than the close
- 3 -
of business on such Delivery Date.
3. Failure to Deliver Warrant Shares.
(a) In the event that the Company fails for any reason to deliver to the
Holder the number of Warrant Shares specified in the applicable Exercise Notice
on or before the Delivery Date therefor (an "Exercise Default"), and such
default continues for seven (7) business days following delivery of a written
notice of such default by the Holder to the Company, the Company shall pay to
the Holder payments ("Exercise Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Exercise Price of the Warrant Shares which are
the subject of such Exercise Default multiplied by (iii) the lower of ten
percent (10%) and the maximum rate permitted by applicable law (the "Default
Interest Rate"), where "N" equals the number of days elapsed between the
original Delivery Date of such Warrant Shares and the date on which all of such
Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) business day of the
calendar month following the calendar month in which such amount has accrued.
(b) In the event that the Holder has not received certificates
representing the Warrant Shares by the seventh (7th) business day following an
Exercise Default, the Holder may notify the Company in writing of its election
to revoke the Exercise Notice that is the subject of such default, in which
case, effective as of the date of such revocation notice, such Exercise Notice
shall be deemed rescinded and of no further force or effect.
(c) Nothing herein shall limit the Holder's right to pursue actual damages
for the Company's failure to issue and deliver Warrant Shares on the applicable
Delivery Date (including, without limitation, damages relating to any purchase
of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Warrant Shares upon exercise, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
the Holder from the sale of the Warrant Shares issued by the Company pursuant to
such exercise), and the Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief); provided, however, that, in the
event, following an Exercise Default, the Company delivers to the Holder the
Warrant Shares that are required to be issued by the Company pursuant to such
exercise, the Holder shall use commercially reasonable efforts to sell such
shares promptly following such delivery.
4. Anti-Dilution Adjustments; Distributions; Other Events. The Exercise
Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4. In the event that
any adjustment of the Exercise Price or the number of Warrant Shares as required
herein results in a fraction of a cent or fraction of a share, as applicable,
such Exercise Price or number of Warrant Shares shall be rounded up or down to
the nearest cent or share, as applicable.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time after the Issue Date, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then after
- 4 -
the date of record for effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced. Any
adjustment made pursuant to the foregoing sentence that results in a decrease in
the Exercise Price shall also effect a proportional increase in the number of
Warrant Shares into which this Warrant is exercisable. If the Company, at any
time after the initial issuance of this Warrant, combines (by reverse stock
split, recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a smaller number of shares, then, after the date of
record for effecting such combination, the Exercise Price in effect immediately
prior to such combination will be proportionally increased. Any adjustment made
pursuant to the foregoing sentence that results in an increase in the Exercise
Price shall also effect a proportional decrease in the number of Warrant Shares
into which this Warrant is exercisable.
(b) Distributions. If the Company shall declare or make any distribution
of its assets (or rights to acquire its assets) to holders of Common Stock as a
partial liquidating dividend or otherwise (including any dividend or
distribution to the Company's stockholders in cash or shares (or rights to
acquire shares) of capital stock of a subsidiary) (a "Distribution"), the
Company shall deliver written notice of such Distribution (a "Distribution
Notice") to the Holder at least five (5) business days prior to the earlier to
occur of (i) the record date for determining stockholders entitled to such
Distribution (the "Record Date") and (ii) the date on which such Distribution is
made (the "Distribution Date"). The Holder shall be entitled to receive the same
amount and type of assets being distributed in such Distribution as though the
Holder were a holder on the Record Date therefor of a number of shares of Common
Stock into which this Warrant is exercisable as of such Record Date (such number
of shares to be determined at the Exercise Price then in effect and without
giving effect to any limitations on such exercise contained in this Warrant or
the Subscription Agreement).
(c) Dilutive Issuances.
(i) Adjustment Upon Dilutive Issuance. If, at any time after the
Issue Date, the Company issues or sells, or in accordance with subparagraph (ii)
of this Section 4(c), is deemed to have issued or sold, any shares of Common
Stock for no consideration or for a consideration per share less than the
Exercise Price on the date of such issuance or sale (or deemed issuance or sale)
(a "Dilutive Issuance"), then effective immediately upon the Dilutive Issuance,
the Exercise Price shall be adjusted so as to equal an amount determined by
multiplying such Exercise Price by the following fraction:
N0 + N1
-------
N0 + N2
where:
N0 = the number of shares of Common Stock
outstanding immediately prior to the issuance,
sale or deemed issuance or sale of such
additional shares of Common Stock in such
Dilutive Issuance without taking into account
any shares of Common Stock issuable upon
conversion, exchange or exercise of any
securities or other instruments which are
convertible into or exercisable or
exchangeable for Common Stock
- 5 -
("Convertible Securities") or options,
warrants or other rights to purchase or
subscribe for Common Stock or Convertible
Securities ("Purchase Rights");
N1 = the number of shares of Common Stock
which the aggregate consideration, if any,
received or receivable by the Company for the
total number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance (which, in
the case of a deemed issuance or sale, shall
be calculated in accordance with subparagraph
(ii) below) would purchase at the Exercise
Price in effect immediately prior to such
Dilutive Issuance; and
N2 = the number of such additional shares of
Common Stock so issued, sold or deemed issued
or sold in such Dilutive Issuance.
Notwithstanding the foregoing, no adjustment shall be made pursuant hereto
if such adjustment would result in an increase in the Exercise Price.
(ii) Effect On Exercise Price Of Certain Events. For purposes of
determining the adjusted Exercise Price under subparagraph (i) of this Section
4(c), the following will be applicable:
(A) Issuance Of Purchase Rights. If the Company issues or
sells any Purchase Rights, whether or not immediately exercisable, and the
price per share for which Common Stock is issuable upon the exercise of
such Purchase Rights (and the price of any conversion of Convertible
Securities, if applicable) is less than the Exercise Price in effect on
the date of issuance or sale of such Purchase Rights, then the maximum
total number of shares of Common Stock issuable upon the exercise of all
such Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable) shall, as of the date of the
issuance or sale of such Purchase Rights, be deemed to have been issued
and sold by the Company for such price per share. For purposes of the
preceding sentence, the "price per share for which Common Stock is
issuable upon the exercise of such Purchase Rights" shall be determined by
dividing (x) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Purchase
Rights, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the exercise of all such Purchase Rights,
plus, in the case of Convertible Securities issuable upon the exercise of
such Purchase Rights, the minimum aggregate amount of additional
consideration payable upon the conversion, exercise or exchange of all
such Convertible Securities (determined in accordance with the calculation
method set forth in subparagraph (ii)(D) below), by (y) the maximum total
number of shares of Common Stock issuable upon the exercise of all such
Purchase Rights (assuming full conversion, exercise or exchange of
Convertible Securities, if applicable). Except as provided in Section
4(c)(ii)(C) hereof, no further adjustment to the Exercise Price shall be
made upon the actual issuance of such Common Stock upon the exercise of
such Purchase Rights or upon the conversion, exercise or exchange of
Convertible Securities issuable upon exercise of such Purchase Rights.
(B) Issuance Of Convertible Securities. If the Company issues
or sells
- 6 -
any Convertible Securities, whether or not immediately convertible,
exercisable or exchangeable, and the price per share for which Common
Stock is issuable upon such conversion, exercise or exchange is less than
the Exercise Price in effect on the date of issuance or sale of such
Convertible Securities, then the maximum total number of shares of Common
Stock issuable upon the conversion, exercise or exchange of all such
Convertible Securities shall, as of the date of the issuance or sale of
such Convertible Securities, be deemed to have been issued and sold by the
Company for such price per share. For the purposes of the immediately
preceding sentence, the "price per share for which Common Stock is
issuable upon such conversion, exercise or exchange" shall be determined
by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the issuance or sale of all such Convertible
Securities, plus the minimum aggregate amount of additional consideration,
if any, payable to the Company upon the conversion, exercise or exchange
of all such Convertible Securities (determined in accordance with the
calculation method set forth in subparagraph (ii)(D)), by (B) the maximum
total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities. Except as
provided in Section 4(c)(ii)(C) hereof, no further adjustment to the
Exercise Price shall be made upon the actual issuance of such Common Stock
upon conversion, exercise or exchange of such Convertible Securities.
(C) Change In Option Price Or Conversion Rate. If there is a
change at any time in (x) the purchase price or amount of additional
consideration payable to the Company upon the exercise of any Purchase
Rights; (y) the amount of additional consideration, if any, payable to the
Company upon the conversion, exercise or exchange of any Convertible
Securities the adjustment for which is not otherwise covered under Section
4(c)(ii)(B) above; or (z) the rate at which any Convertible Securities are
convertible into or exercisable or exchangeable for Common Stock, then in
any such case, the Exercise Price in effect at the time of such change
shall be readjusted to the Exercise Price which would have been in effect
at such time had such Purchase Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or changed conversion, exercise or exchange rate, as the
case may be, at the time initially issued or sold.
(D) Calculation Of Consideration Received. If any Common
Stock, Purchase Rights or Convertible Securities are issued or sold for
cash, the consideration received therefor will be the amount received by
the Company therefor, after deduction of all underwriting discounts or
allowances in connection with such issuance, grant or sale. In case any
Common Stock, Purchase Rights or Convertible Securities are issued or sold
for a consideration part or all of which shall be other than cash,
including in the case of a strategic or similar arrangement in which the
other entity will provide services to the Company, purchase services from
the Company or otherwise provide intangible consideration to the Company,
the amount of the consideration other than cash received by the Company
(including the net present value of the consideration expected by the
Company for the provided or purchased services) shall be the fair market
value of such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by the
Company will be the average of the last sale prices thereof on the
principal market for such securities during the period of ten Trading Days
immediately preceding the date of receipt. In case any Common Stock,
Purchase Rights or Convertible Securities are issued in connection with
any merger or consolidation in which the Company is the
- 7 -
surviving corporation, the amount of consideration therefor will be deemed
to be the fair market value of such portion of the net assets and business
of the non-surviving corporation as is attributable to such Common Stock,
Purchase Rights or Convertible Securities, as the case may be. The
independent members of the Company's Board of Directors shall calculate
reasonably and in good faith, using standard commercial valuation methods
appropriate for valuing such assets, the fair market value of any
consideration other than cash or securities; provided, however, that if
the Holder does not agree to such fair market value calculation within
three business days after receipt thereof from the Company, then such fair
market value shall be determined in good faith by an investment banker or
other appropriate expert of national reputation selected by the Holder and
reasonably acceptable to the Company, with the costs of such appraisal to
be borne by the Company.
(iii) Exceptions To Adjustment Of Exercise Price.
Notwithstanding the foregoing, no adjustment to the Exercise Price shall
be made pursuant to this Section 4(c) upon the issuance of any Excluded
Securities. For purposes hereof, "Excluded Securities" means (1)
securities purchased under the Securities Purchase Agreement; (2)
securities issued upon conversion or exercise of the Series C 9%
Convertible Preferred Stock or the Warrants (as defined in the Securities
Purchase Agreement); (3) shares of Common Stock issuable or issued to
employees, consultants or directors from time to time upon the exercise of
options, in such case granted or to be granted in the discretion of the
Board of Directors pursuant to one or more stock option plans or
restricted stock plans in effect as of the Issue Date; (4) shares of
Common Stock issued in connection with any stock split, stock dividend or
recapitalization of the Company; (5) securities issued upon conversion of
outstanding shares of Series B 8% Convertible Preferred Stock, provided
that the terms of such preferred stock have not been amended since the
date hereof; (6) securities issued upon conversion or exercise of
Debentures or Warrants issued under the Securities Purchase Agreement,
dated as of February 12, 2004, between the Company and the Investors named
therein and the Securities Purchase Agreement, dated as of April 15, 2004,
between the Company and the Investors named therein, each as amended,
modified and supplemented; (7) 361,800 shares (200,000 shares to Xxxxx X.
Xxxxxx and 161,800 shares to G. Xxxxx Xxxx) and 100,000 options (40,000
options to Xxxxx X. Xxxxxx and 60,000 options to G. Xxxxx Xxxx); and (8)
2,924,424 shares issuable upon exercise of currently outstanding warrants
and "investor options" listed on Schedule 1 hereto.
(iv) Notice Of Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4(c) resulting in
a change in the Exercise Price by more than one percent (1%), or any change in
the number or type of stock, securities and/or other property issuable upon
exercise of this Warrant, the Company, at its expense, shall promptly compute
such adjustment or readjustment or change and prepare and furnish to the Holder
a certificate setting forth such adjustment or readjustment or change and
showing in detail the facts upon which such adjustment or readjustment or change
is based. The Company shall, upon the written request at any time of the Holder,
furnish to the Holder a like certificate setting forth (i) such adjustment or
readjustment or change, (ii) the Exercise Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, of other securities
or property which at the time would be received upon exercise of this Warrant.
(d) Major Transactions. In the event of a merger, consolidation, business
combination,
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tender offer, exchange of shares, recapitalization, reorganization, redemption
or other similar event, as a result of which shares of Common Stock of the
Company shall be changed into the same or a different number of shares of the
same or another class or classes of stock or securities or other assets of the
Company or another entity or the Company shall sell all or substantially all of
its assets (each of the foregoing being a "Major Transaction"), the Company will
give the Holder at least twenty (20) days written notice prior to the closing of
such Major Transaction in a manner that does not constitute disclosure of
material non-public information (unless otherwise previously consented to in
writing by the Holder), and: (i) the Holder shall be permitted to exercise this
Warrant in whole or in part at any time prior to the record date for the receipt
of such consideration and shall be entitled to receive, for each share of Common
Stock issuable to Holder for such exercise, the same per share consideration
payable to the other holders of Common Stock in connection with such Major
Transaction, and (ii) if and to the extent that the Holder retains any portion
of this Warrant following such record date, the Company will cause the surviving
or, in the event of a sale of assets, purchasing entity, as a condition
precedent to such Major Transaction, to assume the obligations of the Company
under this Warrant, with such adjustments to the Exercise Price and the
securities covered hereby as may be necessary in order to preserve the economic
benefits of this Warrant to the Holder.
(e) Adjustments; Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. Fractional Interests.
No fractional shares or scrip representing fractional shares shall be
issuable upon the exercise of this Warrant, but on exercise of this Warrant, the
Holder hereof may purchase only a whole number of shares of Common Stock. If, on
exercise of this Warrant, the Holder hereof would be entitled to a fractional
share of Common Stock or a right to acquire a fractional share of Common Stock,
the Company shall, in lieu of issuing any such fractional share, pay to the
Holder an amount in cash equal to the product resulting from multiplying such
fraction by the market price as of the Exercise Date.
6. Transfer of this Warrant.
The Holder may sell, transfer, assign, pledge or otherwise dispose
of this Warrant, in whole or in part, as long as such sale or other disposition
is made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act. Upon such transfer or other
disposition, the Holder shall deliver this Warrant to the Company together with
a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the "Transfer Notice"), indicating the
person or persons to whom this Warrant shall be transferred and, if less than
all of this Warrant is transferred, the number of Warrant Shares to be covered
by the part of this Warrant to be transferred to each such person.
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Within three (3) business days of receiving a Transfer Notice and the original
of this Warrant, the Company shall deliver to the each transferee designated by
the Holder a Warrant or Warrants of like tenor and terms for the appropriate
number of Warrant Shares and, if less than all this Warrant is transferred,
shall deliver to the Holder a Warrant for the remaining number of Warrant
Shares.
7. Benefits of this Warrant.
This Warrant shall be for the sole and exclusive benefit of the
Holder of this Warrant and nothing in this Warrant shall be construed to confer
upon any person other than the Holder of this Warrant any legal or equitable
right, remedy or claim hereunder.
8. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. Notice or Demands.
Any notice, demand or request required or permitted to be given by
the Company or the Holder pursuant to the terms of this Warrant shall be in
writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a business day, in which case such delivery will be deemed to be made on the
next succeeding business day, (ii) on the next business day after timely
delivery to an overnight courier and (iii) on the business day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (not constituting notice) to:
Xxxxx Xxxxxxx & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to Holder:
At the address set forth below Holder's signature on the
Securities Purchase Agreement.
with a copy (not constituting notice) to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10. Attorney's Fees. In the event any litigation, arbitration, mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
11. Applicable Law.
This Warrant is issued under and shall for all purposes be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of Delaware.
12. Amendments.
No amendment, modification or other change to, or waiver of any
provision of, this Warrant may be made unless such amendment, modification or
change is set forth in writing and is signed by the Company and the Holder.
13. Entire Agreement.
This Warrant, the Securities Purchase Agreement and the Registration
Rights Agreement, and the schedules and exhibits hereto and thereto, constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Warrant, the Securities Purchase Agreement and the Registration Rights Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
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14. Headings.
The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
OMNI ENERGY SERVICES CORP.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
President
