EXHIBIT 10.4
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT UPON THE CONDITIONS SPECIFIED IN
THIS WARRANT, AND NO SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS SHALL HAVE
BEEN COMPLIED WITH.
No. 1007 Right to Purchase 250,000 Shares
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Xxxxx Energy Resources, Ltd., a
Texas limited partnership, or registered assigns, is entitled to purchase from
Future Petroleum Corporation, a Utah corporation (the "Company"), at any time
or from time to time during the period specified in Paragraph 2 hereof, Two
Hundred Fifty Thousand (250,000) fully paid and nonassessable shares of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), at an
exercise price per share of $0.43 (the "Exercise Price"). The term "Warrant
Shares", as used herein, refers to the shares of Common Stock purchasable
hereunder. The Warrant Shares and the Exercise Price are subject to
adjustment as provided in Paragraph 4 hereof.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
Subject to the provisions hereof, this Warrant may be exercised by the holder
hereof, in whole or in part by the surrender of this Warrant, together with a
completed Exercise Agreement in the form attached hereto, to the Company during
normal business hours on any business day at the Company's principal office in
Dallas, Texas (or such other office or agency of the Company as it may
designate by notice to the holder hereof), and upon payment to the Company
in cash or by certified or official bank check of the Exercise Price for the
Warrant Shares specified in said Exercise Agreement. The Warrant Shares so
purchased shall be deemed to be issued to the holder hereof or its designee
as the record owner of such shares as of the close of business on the date
on which this Warrant shall have been surrendered, the completed Exercise
Agreement delivered, and payment made for such shares as aforesaid.
Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in said Exercise Agreement, shall be delivered to
the holder hereof within a reasonable time, not exceeding seven business
days, after this Warrant shall have been so exercised. The certificates so
delivered shall be in such denominations as may be requested by the holder
hereof and shall be registered in the name of said holder or such other name
as shall be designated by said holder. If this Warrant shall have been
exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of said certificates, deliver
to said holder a new Warrant representing the number of shares with respect
to which this Warrant shall not then have been exercised.
The Company shall pay all taxes and other expenses and charges payable in
connection with the preparation, execution, and delivery of stock certificates
(and any new Warrants) pursuant to this Paragraph 1 except that, in case such
stock certificates shall be registered in a name or names other than the holder
of this Warrant, funds sufficient to pay all stock transfer taxes which shall
be payable in connection with the execution and delivery of such stock
certificates shall be paid by the holder hereof to the Company at the time of
the delivery of such stock certificates by the Company as mentioned above.
2. Period of Exercise. This Warrant is exercisable at any time or
from time to time after August 14, 1998, and before 5:00 p.m. local time on
August 14, 2003.
3. Certain Agreements of the Company. The Company hereby covenants
and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance,
be validly issued, fully paid, and nonassessable and free from all taxes,
liens, and charges with respect to the issue thereof.
(b) Reservation of Shares. During the period within which this
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise of this Warrant, a sufficient
number of shares of Common Stock to provide for the exercise of this Warrant.
(c) Certain Actions Prohibited. The Company will not, by amendment of
its charter or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant
and in the taking of all such action as may reasonably be requested by the
holder of this Warrant in order to protect the exercise privilege of the
holder of this Warrant against dilution or other impairment, consistent with
the tenor and purpose of this Warrant. Without limiting the generality of
the foregoing, (i) the Company will not increase the par value of the shares
of Common Stock receivable upon the exercise of this Warrant above the
Exercise Price then in effect, (ii) before taking any action which would
cause an adjustment reducing the Exercise Price below the then par value of
the shares of Common Stock so receivable, the Company will take all such
corporate action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable shares of Common
Stock at such adjusted Exercise Price upon the exercise of this Warrant.
(d) Registration. If the issuance of any Warrant Shares required to
be reserved for purposes of exercise of this Warrant requires registration with
or approval of any governmental authority under any federal or state law (other
than any registration under the Securities Act of 1933, as amended, or under
applicable state securities or blue sky laws) or listing on any national
securities exchange, before such shares may be issued upon exercise of this
Warrant, the Company will, at its expense, use its best efforts to cause such
shares to be duly registered or approved, or listed on the relevant national
securities exchange, as the case may be, at such time, so that such shares may
be issued in accordance with the terms hereof.
4. Antidilution Provisions. The Exercise Price shall be subject to
adjustment from time to time as provided in this Paragraph 4. Upon each
adjustment of the Exercise Price, the holder of this Warrant shall thereafter
be entitled to purchase, at the Exercise Price resulting from such
adjustment, the largest number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number
of Warrant Shares purchasable hereunder immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting from such
adjustment. For purposes of this Paragraph 4, the term "Capital Stock", as
used herein,includes the Common Stock and any additional class of stock of
the Company having no preference as to dividends or distributions on
liquidation which may be authorized in the future, provided that the shares
purchasable pursuant to this Warrant shall include only shares of Common
Stock, or shares resulting from any subdivision or combination of the Common
Stock, or in the case of any reorganization, reclassification, consolidation,
merger, or sale of the character referred to in Paragraph 4(g) hereof, the
stock or other securities or property provided for in said Paragraph, but
excludes any Common Stock and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation (x)
that may be authorized in the future pursuant to currently existing and
outstanding written agreements as listed in Schedule 4 attached hereto or
(y) that may be issued pursuant to the exercise of any
currently existing or future options to purchase Common Stock (or any such
additional class of stock) granted by the Company to its employees.
(a) Issuance of Capital Stock. If and whenever the Company shall
issue or sell any shares of Capital Stock without consideration or for a
consideration per share less than the Exercise Price in effect immediately
prior to the time of such issue or sale, then, forthwith upon such issue or
sale, the Exercise Price shall be reduced to a price (calculated to the
nearest cent) determined by dividing (x) an amount equal to the sum of (aa)
the total number of shares of Capital Stock outstanding immediately prior to
such issue or sale multiplied by the then existing Exercise Price, and (bb)
the consideration, if any, received by the Company upon such issue or sale,
by (y) the total number of shares of Capital Stock outstanding immediately
after such issue or sale.
(b) Treatment of Options and Convertible Securities; Computation of
Consideration. For purposes of Paragraph 4(a) hereof the following provisions
shall also be applicable:
(i) In case the Company shall grant any rights to subscribe for
or purchase, or any options for the purchase of, Capital Stock or
securities convertible into or exchangeable for Capital Stock (such rights
and options being herein called "Options" and such convertible or
exchangeable securities being herein called "Convertible Securities"),
whether or not such Options or the rights to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per
share for which Capital Stock is issuable upon the exercise of such
Options or upon the conversion or exchange of such Convertible Securities
(as determined in accordance with the following sentence) shall be less
than the Exercise Price in effect immediately prior to the time of the
granting of such Options, then the total maximum number of shares of
Capital Stock issuable upon the exercise of such Options or upon the
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall (as of the
date of granting of such Options) be deemed to be outstanding and to have
been issued and sold for such price per share. The price per share for
which the Capital Stock is issuable, as provided in the preceding
sentence, shall be determined by dividing (x) the total amount, if any,
received or receivable by the Company as consideration for the granting of
such Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of such Options,
plus, in the case of any such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange of such
Convertible Securities, by (y) the total maximum number of shares of
Capital Stock issuable upon the exercise of such Options or upon the
conversion or exchange of all such Convertible Securities issuable upon
the exercise of such Options. Except as provided in Paragraph 4(b)(vi)
hereof, no further adjustments of the Exercise Price shall be made upon
the actual issue of such Capital Stock or of such Convertible Securities
upon the exercise of such Options or upon the actual issue of such Capital
Stock upon the conversion or exchange of such Convertible Securities.
(ii) In case the Company shall issue or sell Convertible
Securities, whether or not the rights to convert or exchange such
Convertible Securities are immediately exercisable, and the price per
share for which Capital Stock is issuable upon the conversion or exchange
of such Convertible Securities (as determined in accordance with the
following sentence) shall be less than the Exercise Price in effect
immediately prior to the time of the issue or sale of such Convertible
Securities, then the total maximum number of shares of Capital Stock
issuable upon the conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale of such Convertible
Securities) be deemed to be outstanding and to have been issued and sold
for such price per share, provided that (a) except as provided in
Paragraph 4(b)(vi) hereof, no further adjustments of the Exercise Price
shall be made upon the actual issue of such Capital Stock upon the
conversion or exchange of such Convertible Securities, and (b) if any such
issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustments of the Exercise Price have been or are to be
made pursuant to other provisions of this Paragraph 4(b), no further
adjustment of the Exercise Price shall be made by reason of such issue or
sale. The price per share for which the Capital Stock is issuable, as
provided in the preceding sentence, shall be determined by dividing (x)
the total amount received or receivable by the Company as consideration
for the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (y) the total maximum
number of shares of Capital Stock issuable upon the conversion or exchange
of all such Convertible Securities.
(iii) In case at any time the Company shall pay a dividend
or make any other distribution upon the Capital Stock payable in Capital
Stock, Options or Convertible Securities, any Capital Stock, Options or
Convertible Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued without
consideration.
(iv) In case at any time any Capital Stock, Convertible
Securities, or Options shall be issued or sold for cash, the consideration
received therefor shall be deemed to be the amount received by the Company
therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any Capital Stock, Convertible Securities,
or Options shall be issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the Company
therefor shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Company, except
where such consideration consists of securities, in which case the amount
of consideration received by the Company shall be the market price thereof
(determined as provided in Paragraph 4(e) hereof) as of the date of
receipt, but in each such case without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid or allowed by
the Company in connection therewith. In computing the market price of a
note or other obligation that is not listed or admitted to trading on any
securities exchange or quoted in the National Association of Securities
Dealers, Inc. Automated Quotation System or reported by the National
Quotation Bureau, Inc. or a similar reporting organization, the total
consideration to be received by the Company thereunder (including
interest) shall be discounted to present value at the prime rate of
interest of NationsBank of Texas, N.A. in effect at the time the note or
obligation is deemed to have been issued. In case any Capital Stock,
Convertible Securities, or Options shall be issued in connection with any
merger of another corporation into the Company, the amount of
consideration therefor shall be deemed to be the fair value as determined
in good faith by the Board of Directors of the Company of such portion of
the assets of such merged corporation as the Board shall determine to be
attributable to such Capital Stock, Convertible Securities, or Options.
(v) In case at any time the Company shall take a record of
the holders of Capital Stock for the purpose of entitling them (a) to
receive a dividend or other distribution payable in Capital Stock, Options
or Convertible Securities, or (b) to subscribe for or purchase Capital
Stock, Options or Convertible Securities, then such record date shall be
deemed to be the date of the issue or sale of such Capital Stock, Options
or Convertible Securities.
(vi) If the purchase price provided for in any Option
referred to in Paragraph 4(b)(i) hereof, or the price at which any
Convertible Securities referred to in Paragraph 4(b)(i) or (ii) hereof are
convertible into or exchangeable for Capital Stock, shall change at any
time (whether by reason of provisions designed to protect against dilution
or otherwise), the Exercise Price then in effect hereunder shall forthwith
be increased or decreased to such Exercise Price as would have obtained
had the adjustments made upon the issuance of such Options or Convertible
Securities been made upon the basis of (a) the issuance of the number of
shares of Capital Stock theretofore actually delivered upon the exercise
of such Options or upon the conversion or exchange of such Convertible
Securities, and the total consideration received therefor, and (b) the
number of shares of Capital Stock to be issued for the consideration, if
any, received by the Company therefor and to be received on the basis of
such changed price.
(vii) If any adjustment has been made in the Exercise Price
because of the issuance of Options or Convertible Securities and if any of
such Options or rights to convert or exchange such Convertible Securities
expire or otherwise terminate, then the Exercise Price shall be readjusted
to eliminate the adjustments previously made in connection with the
Options or rights to convert or exchange Convertible Securities which have
expired or terminated.
(viii) The number of shares of Capital Stock outstanding at
any given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Capital Stock.
(c) Subdivisions and Combinations. In case at any time the Company
shall subdivide the outstanding shares of Capital Stock into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the outstanding
shares of Capital Stock shall be combined into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased. An adjustment made pursuant to this Paragraph 4(c)
shall become effective immediately after the effective date of such
subdivision or combination.
(d) Extraordinary Dividends and Distributions. In case at any time
the Company shall pay a dividend or make a distribution to all holders of
Capital Stock, as such, of shares of its stock, evidences of its indebtedness,
assets, or rights, options, or warrants to subscribe for or purchase such
shares, evidences of indebtedness, or assets, other than (i) a dividend or
distribution payable in Capital Stock, Options, or Convertible Securities or
(ii) a dividend or distribution payable in cash out of earnings or earned
surplus, then in each such case the Exercise Price shall be adjusted so that
the same shall equal the price determined by multiplying the Exercise Price in
effect immediately prior to the record date mentioned below by a fraction, the
numerator of which shall be the total number of shares of Capital Stock
outstanding on such record date multiplied by the market price per share of
Capital Stock (determined as provided in Paragraph 4(e) hereof) on such record
date, less the fair market value (as determined in good faith by the Board of
Directors of the Company) as of such record date of such shares of stock,
evidences of indebtedness, assets, or rights, options, or warrants so paid or
distributed, and the denominator of which shall be the total number of shares
of Capital Stock outstanding on such record date multiplied by the market
price per share of Capital Stock (determined as provided in Paragraph 4(e)
hereof) on such record date. Such adjustment shall be made whenever such
dividend is paid or such distribution is made and shall become effective
immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution.
(e) Computation of Market Price. For the purpose of any computation
under Paragraph 4(b) or (d) hereof, the market price of the security in
question on any day shall be deemed to be the average of the last reported
sale prices for the security for the 20 consecutive Trading Days (as defined
below) commencing 30 Trading Days before the day in question. The last
reported sale price for each day shall be (i) the last reported sale price of
the security on the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation System, or any similar system of automated
dissemination of quotations of securities prices then in common use, if so
quoted, or (ii) if not quoted as described in clause (i) above, the mean
between the high bid and low asked quotations for the security as reported by
the National Quotation Bureau, Inc. if at least two securities dealers have
inserted both bid and asked quotations for such security on at least 10 of
such 20 consecutive Trading Days, or (iii) if the security is listed or
admitted for trading on any national securities exchange, the last sale
price, or the closing bid price if no sale occurred, of such class of
security on the principal securities exchange on which such class of
security is listed or admitted to trading. If the security is quoted on a
national securities or central market system, in lieu of a market or
quotation system described above, the last reported sale price shall be
determined in the manner set forth in clause (ii) of the preceding sentence if
bid and asked quotations are reported but actual transactions are not, and in
the manner set forth in clause (iii) of the preceding sentence if actual
transactions are reported. If none of the conditions set forth above is met,
the last reported sale price of the security on any day or the average of such
last reported sale prices for any period shall be the fair market value of such
security as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company. The term "Trading Days", as used herein, means (i) if
the security is quoted on the National Market of the National Association of
Security Dealers, Inc. Automated Quotation System, or any similar system of
automated dissemination of quotations of securities prices, days on which
trades may be made on such system or (ii) if the security is listed or
admitted for trading on any national securities exchange, days on which such
national securities exchange is open for business.
(f) Record Date Adjustments. In any case in which this Paragraph 4
requires that a downward adjustment of the Exercise Price shall become
effective immediately after a record date for an event, the Company may
defer, until the occurrence of such event, issuing to the holder of this
Warrant exercised after such record date and before the occurrence of such
event the additional Warrant Shares issuable upon such exercise by reason of
the adjustment required by such event over and above the Warrant Shares
issuable upon such exercise before giving effect to such adjustment.
(g) Reorganization, Reclassification, Consolidation, Merger, or Sale.
If any capital reorganization of the Company, or any reclassification of the
Capital Stock, or any consolidation or merger of the Company with or into
another corporation or entity, or any sale of all or substantially all the
assets of the Company to another corporation or entity, shall be effected in
such a way that the holders of Common Stock (or any other securities of the
Company then issuable upon the exercise of this Warrant) shall be entitled to
receive stock or other securities or property (including cash) with respect to
or in exchange for Common Stock (or such other securities), then, as a
condition of such reorganization, reclassification, consolidation, merger, or
sale, lawful and adequate provision shall be made whereby the holder of this
Warrant shall thereafter have the right to purchase and receive upon the
basis and upon the terms and conditions specified in this Warrant, and in
lieu of the shares of Common Stock (or such other securities) immediately
theretofore purchasable and receivable upon the exercise hereof, such stock
or other securities or property (including cash) as may be issuable or
payable with respect to or in exchange
for a number of outstanding shares of Common Stock (or such other securities)
equal to the number of shares of Common Stock (or such other securities)
immediately theretofore purchasable and receivable upon the exercise of this
Warrant, had such reorganization, reclassification, consolidation, merger, or
sale not taken place. In any such case appropriate provision shall be made
with respect to the rights and interests of the holder of this Warrant to
the end that the provisions hereof (including, without limitation, the
provisions for adjustments of the Exercise Price and of the number of
Warrant Shares purchasable upon exercise hereof) shall thereafter be
applicable, as nearly as reasonably may be, in relation to the stock or other
securities or property thereafter deliverable upon the exercise hereof
(including an immediate adjustment of the Exercise Price if by reason of or
in connection with such consolidation, merger, or sale any securities are
issued or event occurs which would, under the terms hereof, require an
adjustment of the Exercise Price). In the event of a consolidation or merger
of the Company with or into another corporation or entity as a result of
which a greater or lesser number of shares of common stock of the surviving
corporation or entity are issuable to holders of Capital Stock in respect of
the number of shares of Capital Stock outstanding immediately prior to such
consolidation or merger, then the Exercise Price in
effect immediately prior to such consolidation or merger shall be adjusted in
the same manner as though there were a subdivision or combination of the
outstanding shares of Capital Stock. The Company shall not effect any such
consolidation, merger, or sale unless prior to or simultaneously
with the consummation thereof the successor corporation or entity (if other
than the Company) resulting from such consolidation or merger or the
corporation or entity purchasing such assets and any other corporation or
entity the shares of stock or other securities or property of which are
receivable thereupon by the holder of this Warrant shall expressly assume,
by written instrument executed and delivered (and satisfactory in form) to
the holder of this Warrant, (i) the obligation to deliver to such holder
such stock or other securities or property as, in accordance with the
foregoing provisions, such holder may be entitled to purchase and (ii) all
other obligations of the Company hereunder.
(h) No Fractional Shares. No fractional shares of Common Stock are to
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the current market value of a share
of Common Stock, which current market value shall be the last reported sale
price (determined as provided in Paragraph 4(e) hereof) on the Trading Day
immediately preceding the date of the exercise.
(i) Notice of Adjustment. Upon the occurrence of any event which
requires any adjustment of the Exercise Price, then and in each such case the
Company shall give notice thereof to the holder of this Warrant, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(j) Other Notices. In case at any time:
(i) the Company shall declare any dividend upon the Capital Stock
payable in shares of stock of any class or make any other distribution
(other than dividends or distributions payable in cash out of earnings or
earned surplus) to the holders of the Capital Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Capital Stock any additional shares of stock of any class
or other rights;
(iii) there shall be any capital reorganization of the Company,
or reclassification of the Capital Stock, or consolidation or merger of
the Company with or into, or sale of all or substantially all its assets
to, another corporation or entity; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding-up of the Company;
then, in each such case, the Company shall give to the holder of this Warrant
(a) notice of the date on which the books of the Company shall close or a
record shall be taken for determining the holders of Capital Stock entitled
to receive any such dividend, distribution, or subscription rights or for
determining the holders of Capital Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, notice of the date (or, if not then known, a
reasonable approximation thereof by the Company) when the same shall take
place. Such notice shall also specify the date on which the holders of
Capital Stock shall be entitled to receive such dividend, distribution, or
subscription rights or to exchange their Capital Stock for stock or other
securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice shall be given at
least 20 days prior to the record date or the date on which the Company's books
are closed in respect thereto. Failure to give any such notice or any defect
therein shall not affect the validity of the proceeding referred to in clauses
(i), (ii), (iii), and (iv) above.
(k) Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company, the other provisions
of this Paragraph 4 are not strictly applicable or if strictly applicable
would not fairly protect the exercise rights of the holder of this Warrant
in accordance with the essential intent and principles of such provisions,
then the Board of Directors of the Company shall appoint the Company's
regular independent auditors or another firm of independent public
accountants of recognized national standing who are satisfactory to the
holder of this Warrant which shall give their opinion upon the adjustment,
if any, on a basis consistent with such essential intent and principles,
necessary to preserve, without dilution, the rights of the holder of this
Warrant. Upon receipt of such opinion, the Board of Directors of the Company
shall forthwith make the adjustments described therein; provided that no such
adjustment shall have the effect of increasing the Exercise Price as
otherwise determined pursuant to this Paragraph 4. The Company may make
such reductions in the Exercise Price or increase in the number
of shares of Common Stock purchasable hereunder as it deems advisable,
including any reductions or increases, as the case may be, necessary to
ensure that any event treated for federal income tax purposes as a
distribution of stock rights not be taxable to recipients.
5. Issue Tax. The issuance of certificates for Warrant Shares upon
the exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax in respect thereof, provided that
the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of this Warrant.
6. Availability of Information. The Company will cooperate with the
holder of this Warrant and each holder of any Warrant Shares in supplying such
information as may be necessary for such holder to complete and file any
information reporting forms presently or hereafter required by the Securities
and Exchange Commission as a condition to the availability of an exemption from
the Securities Act of 1933, as amended, for the sale of this Warrant or any
Warrant Shares. The Company will deliver to the holder of this Warrant,
promptly upon their becoming available, copies of all financial statements,
reports, notices, and proxy statements sent or made available generally by the
Company to its shareholders, and copies of all regular and periodic reports and
all registration statements and prospectuses filed by the Company with any
securities exchange or with the Securities and Exchange Commission.
7. No Rights or Liabilities as a Shareholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
8. Transfer, Exchange, and Replacement of Warrant.
(a) Warrant Transferable. The transfer of this Warrant and all rights
hereunder, in whole or in part, is registrable at the office or agency of the
Company referred to in Paragraph 8(e) hereof by the holder hereof in person or
by his duly authorized attorney, upon surrender of this Warrant properly
endorsed. Each taker and holder of this Warrant, by taking or holding the
same, consents and agrees that this Warrant, when endorsed in blank, shall
be deemed negotiable, and that the holder hereof, when this Warrant shall
have been so endorsed, may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner and holder hereof for any
purpose and as the person entitled to exercise the rights represented by
this Warrant and to the registration of transfer hereof on the books of the
Company; but until due presentment for registration of transfer on such books
the Company may treat the registered holder hereof as the owner and holder
hereof for all purposes, and the Company shall not be affected by any notice
to the contrary.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by (and at the expense of) the holder
hereof at the office or agency of the Company referred to in Paragraph 8(e)
hereof, for new Warrants of like tenor representing in the aggregate the right
to purchase the number of shares of Common Stock which may be purchased
hereunder, each of such new Warrants to represent the right to purchase such
number of shares as shall be designated by said holder hereof at the time of
such surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and
amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at the expense of
the holder hereof, will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as
provided in this Paragraph 8, this Warrant shall be promptly canceled by the
Company. The Company shall pay all taxes (other than securities transfer
taxes) in connection with the preparation, execution, and delivery of
Warrants pursuant to this Paragraph 8.
(e) Register. The Company shall maintain, at its principal office in
Dallas, Texas (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the person in whose
name this Warrant has been issued, as well as the name and address of each
transferee and each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. Anything in this
Warrant to the contrary notwithstanding, if, at the time of the surrender of
this Warrant in connection with any exercise, transfer, or exchange of this
Warrant, this Warrant shall not be registered under the Securities Act of 1933,
as amended, and under applicable state securities or blue sky laws, the Company
may require, as a condition of allowing such exercise, transfer, or exchange,
that (i) the holder or transferee of this Warrant, as the case may be, furnish
to the Company a written opinion of counsel, which opinion and counsel are
acceptable to the Company, to the effect that such exercise, transfer, or
exchange may be made without registration under said Act and under applicable
state securities or blue sky laws and (ii) the holder or transferee execute and
deliver to the Company an investment letter in form and substance acceptable to
the Company. The first holder of this Warrant, by taking and holding the same,
represents to the Company that such holder is acquiring this Warrant for
investment and not with a view to the distribution thereof.
9. Notices. All notices, requests, and other communications required
or permitted to be given or delivered hereunder to the holder of this
Warrant or to the holder of shares acquired upon exercise of this Warrant
shall be in writing, and shall be personally delivered, or shall be sent by
certified or registered mail, postage prepaid and addressed, to such holder
at the address shown for such holder on the books of the Company, or at
such other address as shall have been furnished to the Company by notice
from such holder. All notices, requests, and other communications required
or permitted to be given or delivered hereunder to the Company shall be in
writing, and shall be personally delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed, to the office of the Company
at 0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, Attention:
President, or at such other address as shall have been furnished to the
holder of this Warrant or to the holder of shares acquired upon exercise of
this Warrant by notice from the Company. Any such notice, request, or other
communication may be sent by telegram or telex, but shall in such case be
subsequently confirmed by a writing personally delivered or sent by
certified or registered mail as provided above. All notices, requests, and
other communications shall be deemed to have been given either at
the time of the delivery thereof to (or the receipt by, in the case of a
telegram or telex) the person entitled to receive such notice at the address of
such person for purposes of this Paragraph 9, or, if mailed, at the completion
of the third full day following the time of such mailing thereof to such
address, as the case may be.
10. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT WITH
RESPECT TO THE VALIDITY OF THIS WARRANT AND THE RIGHTS AND DUTIES OF THE
COMPANY WITH RESPECT TO REGISTRATION OF TRANSFER WHICH SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF UTAH.
11. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may not be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by the party (or any predecessor in interest thereof) against
which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for purposes of reference only, and
shall
not affect the meaning or construction of any of the provisions hereof.
(c) Successors and Assigns. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of
all or substantially all the Company's assets.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal, attested by its duly
authorized officer, on this 14th day of August, 1998.
FUTURE PETROLEUM CORPORATION
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
FORM OF EXERCISE AGREEMENT
Dated: __________, 19___.
To:
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase ___________ shares of Common Stock covered
by such Warrant, and makes payment herewith in full therefor at the price
per share provided by such Warrant in cash or by certified or official bank
check in the amount of $____________. Please issue a certificate or
certificates for such shares of Common Stock in the name of and pay any cash
for any fractional share to:
Name:
Signature:
Title of Signing Officer or Agent (if any):
Note: The above signature should correspond exactly with the name on
the face of the within Warrant or with the name of the assignee
appearing in the assignment form.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all
the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No. of Shares
, and hereby irrevocably constitutes and appoints
as agent and attorney-in-fact to transfer said Warrant on the books
of the within-named corporation, with full power of substitution in the
premises.
Dated: , 19 .
In the presence of
Name:
Signature:
Title of Signing Officer or Agent (if
any):
Address:
Note: The above signature should correspond
exactly with the name on the face of the
within Warrant.
