EXHIBIT 4.2
WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement") is made and dated as of , 1999, by
and between Southern Mineral Corporation, a Nevada corporation (the "Company"),
and American Stock Transfer and Trust Company, a New York corporation, with
offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Warrant Agent (the
"Warrant Agent").
RECITALS:
WHEREAS, the Company proposes to issue up to Common Stock Purchase
Warrants (which amount may be increased by an amount not to exceed Warrants to
accommodate the rounding up of fractional Warrants, if the Company so elects,
as hereinafter described (the "Warrants"), to purchase shares of newly issued
Common Stock, par value $.01 per share (the "Common Stock"), of the Company
(the Common Stock issuable on exercise of the Warrants are referred to herein
as the "Warrant Shares"). The Warrants will be issued to holders of the
Company's 6.875% Convertible Subordinated Debentures due 2007 (the "Convertible
Debentures") (the "Recipients") as partial consideration for the exchange of
such Convertible Debentures pursuant to the exchange offer described in the
Company's Registration Statement on Form S-4, as amended (Registration No. 333-
).
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrant Certificates (as defined below) and other matters as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the power and
authority granted to and conferred upon it in the Warrant Certificates (as
defined below) and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All terms and provisions with respect to such powers and authority contained in
the Warrant Certificate are subject to and governed by the terms and provisions
hereof.
Section 2. Warrant Certificates. The certificates evidencing the Warrants
(the "Warrant Certificates") to be delivered pursuant to this Agreement shall
be in registered form, shall be substantially in the form set forth in Exhibit
A attached hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval), and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange or
quotation system on which the Warrants may be listed or traded, or to conform
to usage.
Section 3. Execution of Warrant Certificates. Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board or President, or a
Vice President under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of any present or
future Chairman of the Board, President or Vice President, and may be imprinted
or otherwise reproduced on the Warrant Certificates and for that purpose the
Company may adopt and use the facsimile signature of any person who shall have
been Chairman of the Board, President or Vice President, notwithstanding the
fact that at the
time the Warrant Certificates shall be countersigned and delivered or disposed
of he or she shall have ceased to hold such office. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent, or disposed of by
the Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such an officer.
Warrant Certificates shall be dated the date of countersignature by the
Warrant Agent.
Section 4. Registration and Countersignature. The Warrant Agent, on behalf
of the Company, shall number and register the Warrant Certificates in a
register (the "Warrant Register") as they are issued by the Company. The
Warrant Register shall be kept at the office of the Warrant Agent designated
for such purpose and shall be in written form in the English language or in any
other form capable of being converted into such form within a reasonable time.
Subject to the limitations set forth in the immediately succeeding
paragraph, Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, a Vice President, the Treasurer or the Controller of the
Company, initially countersign, issue and deliver Warrants entitling the
holders thereof (each, a "Holder" or "Warrant Holder") to purchase the Warrant
Shares referred to above in the first recital hereof and shall countersign and
deliver Warrants as otherwise provided in this Agreement.
Up to Warrant Certificates (which amount may be increased by an amount
not to exceed Warrant Certificates to accommodate the rounding up of
fractional shares under the Plan) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Agreement or from time to time
thereafter, evidencing the right to receive a like number of Warrant Shares.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued upon registration of transfer or in exchange or substitution for one
or more previously countersigned Warrant Certificates, as hereinafter provided.
In case at any time the name of the Warrant Agent shall be changed
(including by operation of Section 15), and at such time any of the Warrant
Certificates shall be countersigned, but not delivered, the Warrant Agent may
adopt the countersignature under its prior name; and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Certificates either in its prior name or in its
changed name and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
The Company, the Warrant Agent and all other Persons (as hereinafter
defined) may deem and treat the registered Holder of the Warrant Certificates
as the absolute owner(s) thereof (notwithstanding any notation of ownership or
other writing thereon made by anyone), for all purposes, and neither the
Company, the Warrant Agent, nor any other Person shall be affected by any
notice to the contrary. As used in this Agreement, the term "Person" means any
individual, sole proprietorship, joint venture, partnership, corporation,
association, cooperative, trust, estate, governmental body, administrative
agency, regulatory authority or other entity of any nature.
Section 5. Registration of Transfers and Exchanges. The Warrant Agent shall
from time to time register the transfer of any outstanding Warrant Certificates
in the Warrant Register, upon surrender thereof (together with the form of
assignment on the reverse side thereof duly filled in) to the Warrant Agent at
its office
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designated for such purpose accompanied (if so required by it or the Company)
by a written instrument or instruments of transfer (which shall be in a form
reasonably satisfactory to the Warrant Agent and the Company), duly executed by
the registered Holder or Holders thereof or by the duly appointed legal
representative thereof, or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate or Warrant Certificates (of
like tenor and representing in the aggregate a like number of Warrants) shall
be issued to the transferee(s) and the surrendered Warrant Certificate or
Warrant Certificates shall be canceled by the Warrant Agent. Canceled Warrant
Certificates shall thereafter be disposed of by such Warrant Agent in a manner
satisfactory to the Company.
Warrant Certificates may be exchanged at the option of the Holder thereof,
when surrendered to the Warrant Agent at its office designated for such
purpose, for another Warrant Certificate or other Warrant Certificates of like
tenor and representing in the aggregate a like number of Warrants. Warrant
Certificates surrendered for exchange shall be canceled by the Warrant Agent.
Such canceled Warrant Certificates shall thereafter be disposed of by such
Warrant Agent in a manner satisfactory to the Company.
The Warrant Agent is hereby authorized to countersign, in accordance with
the provisions of Section 4 and this Section 5, the new Warrant Certificates
required pursuant to the provisions of this Section 5, and the Company,
whenever requested by the Warrant Agent, will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purposes.
The Company may require payment of a sum sufficient to cover such reasonable
charges (including, without limitation, any tax or other governmental charge
that may be imposed and the fees and expenses of the Warrant Agent) as the
Company or the Warrant Agent may prescribe in connection with any exchange or
registration of transfer of Warrant Certificates.
Section 6. Terms of Warrants; Exercise of Warrants. Subject to the terms of
this Agreement, each Warrant Holder shall have the right, which may be
exercised commencing at any time until 5:00 p.m., New York City time, on the
third anniversary of the Issuance Date, to purchase from the Company the number
of fully paid and nonassessable Warrant Shares that the Holder may at the time
be entitled to receive (the "Exercise Quantity") on exercise of such Warrants
and payment of the Exercise Price (as defined below) then in effect for such
Warrant Shares. Each Warrant not exercised prior to 5:00 p.m., New York City
time, on the third anniversary of the Issuance Date, shall become void and all
rights thereunder and all rights in respect thereof under this Agreement and
the Warrant Certificates shall cease as of such time. If the date on which the
Warrants expire (i.e., the third anniversary of the Issuance Date) shall not be
a business day, the Warrants shall expire on the next succeeding business day.
A Warrant may be exercised upon surrender to the Company at the office of
the Warrant Agent designated for such purpose of the Warrant Certificate or
Certificates evidencing the Warrants to be exercised with the form of election
to purchase on the reverse thereof duly filled in and signed, which signature
shall be guaranteed in accordance with the Medallion Signature Guarantee
Program by a bank or trust company having an office or correspondence in the
United States, or a broker or dealer which is a member of a registered
securities exchange or the National Association of Securities Dealers, Inc.
(together, in the case of a Non-Surviving Combination (as defined below), with
such other documentation required to be delivered by holders of Common Stock
before such Holders are entitled to receive consideration in respect of their
shares), and upon payment to the Warrant Agent for the account of the Company
of the Exercise Price for the number of Warrant Shares in respect of which such
Warrants are then exercised. Payment of the aggregate Exercise Price shall be
made in cash or by certified or official bank check to the order of the
Company. The Company shall have the right to accept personal checks, in its
sole and absolute discretion at any time and from time to time; provided,
however, that payment of the Exercise Price for any Warrant Shares shall not be
deemed to have been made until such personal check has been collected and such
funds credited to the Company's account.
Subject to the provisions of Section 7 hereof, upon such delivery of
Warrants, delivery of required documents and payment of the Exercise Price, the
Company (or the surviving entity in the case of a Non-
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Surviving Combination) shall issue and cause to be delivered with all
reasonable dispatch to the Warrant Holder in such name or names as the Warrant
Holder may designate, a certificate or certificates for the number of full
Warrant Shares (or other cash or property to which the Warrant Holder is
entitled) issuable (or deliverable) upon the exercise of such Warrants together
with cash as provided in Section 13; provided, however, that after the first
public announcement that any consolidation, merger or lease or sale of assets
is proposed to be effected by the Company as described in subsection (e) of
Section 12 hereof, or a tender offer or an exchange offer for shares of Common
Stock of the Company shall be made, upon such surrender of Warrants, delivery
of required documents and payment of the Exercise Price as aforesaid, the
Company shall, as soon as possible, but in any event not later than ten
business days thereafter, issue and cause to be delivered the full number of
Warrant Shares issuable upon the exercise of such Warrants in the manner
described in this sentence together with cash as provided in Section 13. Such
certificate or certificates (or such other cash or property) shall be deemed to
have been issued (or delivered), and any person so designated to be named
therein shall be deemed to have become a Holder of record of such Warrant
Shares (or such other cash or property) as of the date of the surrender of such
Warrants, the delivery of required documents and payment of the Exercise Price.
Subject to the provisions of this Agreement and the Warrant Certificates,
the Warrants shall be exercisable, at the election of the Holders thereof,
either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of
the Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued, and the Warrant Agent is hereby irrevocably
authorized to countersign and to deliver the required new Warrant Certificate
or Certificates pursuant to the provisions of this Section and of Sections 3
and 4 hereof, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates duly executed on behalf of
the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled by the Warrant Agent. Such canceled Warrant Certificates shall then be
disposed of by the Warrant Agent in a manner satisfactory to the Company. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all monies received by the
Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
The Warrant Agent shall keep copies of this Agreement and any amendments
hereto and notices given or received hereunder available for inspection by the
Holders during normal business hours at its principal office. The Company shall
supply the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may reasonably request.
The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the numbers of Warrants delivered to it in accordance
with the terms and conditions of this Agreement and the Warrant Certificates,
(ii) the instructions of each Holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Shares or other cash or
property to which such Holder is entitled upon such delivery, (iii) the
delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such delivery, and (iv) such other information as the
Company shall reasonably request.
Warrant Holders, as such, shall not be entitled (i) to receive any dividends
in respect of such Holder's Warrant Shares, or (ii) to vote, or to receive
notice of any meeting of the Company's stockholders, or otherwise exercise any
rights of, or to receive any notices delivered to, Holders of Common Stock
until such Holder surrenders certificates representing such Holder's Warrants
to the Warrant Agent, pays the Exercise Price and delivers all other required
documentation, all as set forth in this Agreement and the Warrant Certificates,
and the Warrant Shares in respect of such Warrant are issued to such Holder.
Section 7. Payment of Taxes and Governmental Charges. The Company will pay
all documentary stamp taxes attributable to the initial issuance of Warrant
Shares upon the exercise of Warrants; provided, however, that the Company shall
not be required to pay any tax or other governmental charge which may be
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payable in respect of any transfer or exchange of any Warrants or Warrant
Certificates, as the case may be, including, without limitation, any transfer
involved in the issuance of any Warrant Shares, and if any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant
Shares until such tax or other charge shall have been paid by the Holder, or it
has been established by the Holder to the Company's satisfaction that no such
tax or other charge is due.
Section 8. Mutilated or Missing Warrant Certificates. In case any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may, in its discretion, issue and the Warrant Agent may countersign, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing
an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and of an indemnity reasonably
satisfactory to the Company. The Holder requesting such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
(prior to the issuance of any Warrant Certificates in accordance with this
Section 8) such other reasonable charges (including, without limitation, any
tax or other governmental charge that may be imposed in relation thereto, and
the fees and expenses of the Warrant Agent in connection therewith) as the
Company or the Warrant Agent may prescribe.
Section 9. Reservation of Warrant Shares. The Company will at all times
reserve and keep available, free from preemptive rights, from the aggregate of
its authorized but unissued Common Stock, or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to issue Warrant
Shares upon exercise of Warrants, the maximum number of shares of Common Stock
which may then be deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common Stock (the
"Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any Warrants will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with the Transfer Agent and with every
subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the
Warrants. The Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent the stock certificates required to
honor the exercise of outstanding Warrants in accordance with the terms of this
Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any
cash which may be payable as provided in Section 13. The Company will furnish
such Transfer Agent a copy of all notices of adjustments and certificates
related thereto, transmitted to each Holder pursuant to Section 14 hereof.
Before taking any action which would cause an adjustment pursuant to Section
12 hereof to reduce the Exercise Price below the then par value (if any) of the
Warrant Shares, the Company will take any corporate action which may, in the
opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares at the Exercise Price as so adjusted, and
which shall not in any way adversely affect the interests of the Holders of
Warrants.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue and payment therefor, be fully paid,
nonassessable, free of preemptive rights and, subject to Section 7, free from
all taxes, liens, charges and security interests with respect to the issue
thereof.
Section 10. Obtaining Stock Market Listings.
(a) The Company will from time to time use its reasonable efforts to have
the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, listed or quoted on the Nasdaq National Market
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or the principal securities exchanges or other markets within the United States
of America, if any, on which other shares of Common Stock are then listed or
quoted, as the case may be.
(b) The Company will from time to time use its reasonable efforts to have
the Warrants listed or quoted on the Nasdaq National Market or the principal
securities exchanges or other markets within the United States of America, if
any, on which shares of Common Stock are then listed or quoted, as the case may
be.
Section 11. Exercise Price and Exercise Quantity.
(a) The "Exercise Price" per Warrant Share shall be $1.50, as adjusted from
time to time in accordance with this Warrant Agreement.
(b) The term "Exercise Quantity" shall mean one Warrant Share per Warrant,
as adjusted from time to time in accordance with this Warrant Agreement.
Section 12. Adjustment of Exercise Price and Exercise Quantity. The Exercise
Price and Exercise Quantity are subject to adjustment from time to time upon
the occurrence of the events enumerated in this Section 12.
(a) Adjustments for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in the
form of shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares; or
(4) issues by reclassification of its Common Stock any other shares of
its capital stock;
then the Exercise Price in effect immediately prior to such action shall be
proportionately adjusted (in conjunction with the adjustment proceed for in
Section 12(g) hereof) so that the Holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company that the Holder would have owned immediately following such action if
such Warrant had been exercised immediately prior to such action.
An adjustment made pursuant to this Section 12(a) shall become effective on
the effective date of an event referred to in clauses (1)--(4) above,
retroactive to the record date (if any) for such event.
If after an adjustment pursuant to this Section 12(a), a Holder of a Warrant
upon exercise of the Warrant may receive shares of two or more classes of
capital stock of the Company, the Company's Board of Directors shall determine
the allocation of the adjusted Exercise Price between the classes of capital
stock. After such allocation, the exercise privilege and the Exercise Price of
each class of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Section.
Any adjustment pursuant to this Section 12(a) shall be made successively
whenever any event listed above shall occur.
(b) Occurrence of Transactions.
For the purpose of any adjustment made pursuant to this Section 12, any
specified event shall be deemed to have occurred at the close of business on
the date of its occurrence.
(c) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment,
together with any adjustments not previously made and carried forward as
provided in the next sentence, would require an increase or
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decrease of at least 1% in the Exercise Price. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Section shall be made to the nearest cent, or to
the nearest 1/100th of a share, as the case may be.
(d) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 14 hereof.
(e) Reorganization of Company.
If the Company effects a Non-Surviving Combination, upon consummation of
such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the Holder of a
Warrant would have owned immediately after the Non-Surviving Combination if the
Holder had exercised the Warrant immediately before the effective date of the
transaction. Concurrently with the consummation of such transaction, the Person
formed by or surviving any such consolidation, merger or other business
combination if other than the Company, or the Person to which such sale or
conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section. The successor Person shall provide the Escrow Agent for mailing to
Warrant Holders a notice describing the supplemental Warrant Agreement.
For purposes of this Warrant Agreement, "Non-Surviving Combination" means
any merger, consolidation or other business combination by the Company with one
or more other Persons in which any such other Person is the survivor, or a
sale, transfer, lease or other conveyance of all or substantially all of the
assets of the Company to one or more such other Persons (in one transaction or
in two or more related transactions), and with respect to which cash and/or
non-cash consideration is to be distributed to holders of Common Stock;
provided that if any such merger, consolidation, sale, transfer, lease or other
conveyance of assets or other business combination in which the holders of
Common Stock receive cash or non-cash consideration in exchange for Common
Stock is structured so that the Company is the surviving entity, such
transaction shall nevertheless be deemed a Non- Surviving Combination.
If the issuer of securities deliverable upon exercise of Warrants under the
supplemental Warrant Agreement is an affiliate of the formed, surviving,
transferee or lessee Person, that issuer shall join in the supplemental Warrant
Agreement.
(f) Warrant Agent's Disclaimer.
The Warrant Agent shall have no duty to determine when an adjustment under
this Section 12 should be made, how such adjustment should be made or the
amount of such adjustment. The Warrant Agent has no duty to determine whether
any provisions of a supplemental Warrant Agreement under subsection (e) of this
Section 12 are correct. The Warrant Agent shall make no representation as to
the validity or value of any securities or assets issued upon exercise of
Warrants. The Warrant Agent shall not be responsible for the Company's failure
to comply with this Section.
(g) Adjustment in Exercise Quantity.
Upon each adjustment of the Exercise Price pursuant to this Section 12, each
Warrant outstanding prior to the making of the adjustment in the Exercise Price
shall thereafter evidence the right to receive upon payment of the adjusted
Exercise Price that number of shares of Common Stock (calculated to the nearest
hundredth) obtained from the following formula:
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N' = N x E
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number of Warrant Shares previously issuable upon exercise of a
Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(h) Form of Warrants.
Irrespective of any adjustments in the Exercise Price, or the number or kind
of shares purchasable upon the exercise of the Warrants, Warrants theretofore
or thereafter issued may continue to express the same price and number and kind
of shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
Section 13. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section
13, be issuable on the exercise of any Warrants (or specified portion thereof),
the Company shall either (i) pay an amount in cash equal to the Closing Price
(as defined below) on the day immediately preceding the date the Warrant is
presented for exercise, multiplied by such fraction or (ii) round up to the
nearest whole Warrant Share, if the Company so elects. "Closing Price" shall
equal (i) the last reported sales price of the Common Stock on the principal
national securities exchange on which such Common Stock is listed or admitted
to trading or, if no such reported sale takes place on such date, the average
of the closing bid and asked prices thereon, as reported in The Wall Street
Journal, or (ii) if such Common Stock shall not be listed or admitted to
trading on a national securities exchange, the last reported sales price on the
Nasdaq National Market or, if no such reported sale takes place on any such
date, the average of the closing bid and asked prices thereon, as reported in
The Wall Street Journal, or (iii) if such Common Stock shall not be quoted on
the Nasdaq National Market nor listed or admitted to trading on a national
securities exchange, then the average of the closing bid and asked prices, as
reported by The Wall Street Journal for the over-the-counter market in which
such Common Stock is traded. In the absence of one or more such quotations, the
Board of Directors of the Company shall determine the Closing Price on the
basis of such quotations or other facts as it in its good faith judgment
considers appropriate.
Section 14. Notices to Warrant Holders.
(a) Upon any adjustment of the Exercise Price pursuant to Section 12, the
Company shall promptly thereafter (i) cause to be filed with the Warrant Agent
a certificate of the Company's President, or any Vice President, and by the
Chief Financial Officer (or his functional equivalent, however titled), setting
forth the Exercise Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which such calculations are
based and setting forth the number of Warrant Shares (or portion thereof)
issuable after such adjustment in the Exercise Price, upon exercise of a
Warrant and payment of the adjusted Exercise Price, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered Holders of the Warrant
Certificates at his address appearing on the Warrant register written notice of
such adjustments by first-class mail, postage prepaid. Where appropriate, such
notice may be given in advance and included as a part of the notice required to
be mailed under the other provisions of this Section 14.
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(b) In the event that at any time prior to the expiration of the Warrants:
(i) the Company shall authorize the issuance to all holders of shares
of Common Stock of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of any other subscription rights or warrants; or
(ii) the Company shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other
than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends payable in shares of Common Stock
or distributions referred to in subsection (a) of Section 12 hereof); or
(iii) the Board of Directors shall have approved of any consolidation
or merger to which the Company is a party and for which approval of any
shareholders of the Company is required, or any sale, lease, transfer or
other conveyance of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock
issuable upon exercise of the Warrants (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or a tender offer or exchange
offer for shares of Common Stock; or
(iv) the Board of Directors or shareholders of the Company shall have
approved of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company proposes to take any action (other than actions of the
character described in Section 12(a)) which would require an adjustment of
the Exercise Price pursuant to Section 12;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered Holders of the Warrant Certificates at
such Holder's address appearing on the Warrant register, at least 15 days prior
to the applicable record date, or promptly in the case of events for which
there is no record date, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of share of Common Stock
to be entitled to receive any such rights, options, warrants or distribution
are to be determined, or (ii) the initial expiration date set forth in any
tender offer or exchange offer for shares of Common Stock, or (iii) the date on
which any such consolidation, merger, sale, lease, transfer or other
conveyance, reclassification, change, dissolution, liquidation or winding up is
expected to become effective or consummated, and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled to
exchange such shares for securities or other property, if any, deliverable upon
such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up.
(c) The failure to give the notice required by this Section 14 or any defect
therein shall not affect the legality or validity of the transaction to which
it relates.
Section 15. Merger, Consolidation or Change of Name of Warrant Agent. Any
Person into which the Warrant Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which
the Warrant Agent shall be a party, or any Person succeeding to the corporate
trust or shareholder services business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided
that such Person would be eligible for appointment as a successor warrant agent
under the provisions of Section 17. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in
case at that time any of the Warrant Certificates shall have been countersigned
but not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to
the Warrant Agent may countersign such Warrant Certificates either in the name
of the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full
force and effect provided in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates
9
shall not have been countersigned, the Warrant Agent may countersign such
Warrant Certificates either in its prior name or in its changed name, and in
all such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
Section 16. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the Holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The Warrant Agent acts hereunder as agent and in a ministerial capacity
for the Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not, by issuing and delivering Warrant
Certificates, or by any other act hereunder, be deemed to make any
representations as to the validity or value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any securities or other
property delivered upon exercise of any Warrant or whether any stock issued
upon exercise of any Warrant is fully paid and non-assessable.
(b) The Warrant Agent shall not (i) be liable for any recital or statement
of fact contained herein or for any action taken, suffered or omitted by it in
reliance on any Warrant Certificate or other document or instrument believed by
it in good faith to be genuine and to have been signed or presented by the
proper party or parties; (ii) be responsible for any failure on the part of the
Company to comply with any of its covenants and obligations contained in this
Agreement or in any Warrant Certificate; (iii) be liable for any act or
omission in connection with this Agreement except for its own negligence or
willful misconduct; or (iv) be liable for any act or omission made in reliance
upon verbal instructions of an authorized representative of the Company,
including its legal counsel.
(c) The Warrant Agent shall be liable hereunder only for its own negligence
or willful misconduct or any actions taken in bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable attorneys' fees, for
anything done or omitted by the Warrant Agent in the execution of this
Agreement, except as a result of the Warrant Agent's negligence, willful
misconduct or bad faith.
(d) The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
(e) Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by the
Chairman of the Board of Directors, President or any Vice President (unless
other evidence in respect thereof is herein specifically prescribed). The
Warrant Agent shall not be liable for any action taken, suffered or omitted by
it in accordance with such notice, statement, instruction, request, direction,
order or demand.
(f) The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse it for its reasonable expenses
hereunder; the Company further agrees to indemnify the Warrant Agent and save
it harmless against any and all losses, expenses and liabilities arising as a
result of the Warrant Agent's actions or omissions hereunder, except as a
result of the Warrant Agent's negligence or willful misconduct.
(g) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered Holders of Warrant shall furnish
the Warrant Agent with reasonable security and indemnity for any costs and
expenses which may be incurred. All rights of action under this Agreement, or
under any of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrants or the production thereof at any trial or
other proceeding relative thereto, and any such action, suit or proceeding
relative thereto, and any such action, suit or proceeding instituted by the
Warrant Agent shall be brought in its name as Warrant Agent, and
10
any recovery of judgment shall before the ratable benefit of the registered
Holders of the Warrants, as their respective rights or interests may appear.
(h) The Warrant Agent and any stockholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company, or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company, or for any other legal entity.
Section 17. Change of Warrant Agent.
(a) The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a
result of the Warrant Agent's own negligence or willful misconduct) after
giving 60 days' prior written notice of the Company. At least fifteen (15) days
prior to the date such resignation is to become effective, the Warrant Agent
shall cause a copy of such notice of resignation to be mailed to the registered
Holder of each Warrant Certificate at the Company's expense. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Upon such resignation or removal, the
Company shall appoint in writing a new warrant agent. Any removal shall not
take effect until the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent.
(b) Any new warrant agent, whether appointed by the Company or by a court,
shall be a bank or trust company having a capital and surplus, as shown by its
last published report to stockholders, of not less than $10,000,000, or a stock
transfer company doing business in the Northeastern United States. After
acceptance in writing of such appointment by the new warrant agent is received
by the Company, such new warrant agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named herein
as the warrant agent, without any further assurance, conveyance, act or deed,
but if for any reason it shall be necessary or expedient to execute and deliver
any further assurance, conveyance, act or deed, the same shall be done at the
expense of the Company and shall be legally and validly executed and delivered
by the resigning Warrant Agent. The Warrant Agent shall promptly transfer the
books and records relating to the Warrants to such successor warrant agent. Not
later than the effective date of any such appointment the Company shall file
notice hereof with the resigning Warrant Agent and shall forthwith cause a copy
of such notice to be mailed to the registered Holder of each Warrant
Certificate.
(c) In case at any time the Warrant Agent shall resign, or shall be removed,
or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Warrant Agent or of its property
shall be appointed, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent and, upon acceptance by the latter of such appointment,
the Warrant Agent so succeeded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without further act, deed or conveyance, shall become vested with all
the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor as
Warrant Agent hereunder.
(e) If the Company shall fail to make any appointment as provided in this
Section 17 within a period of 30 days, then the registered Holder of any
Warrant Certificate may apply to any court of competent jurisdiction for
11
the appointment of a successor to the Warrant Agent. Pending appointment of a
successor Warrant Agent, either by the Company or by such a court, the duties
of the Warrant Agent shall be carried out by the Company.
Section 18. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by the
registered Holder of any Warrant Certificate to or on the Company shall be
sufficiently given or made if sent by first class or registered mail, postage
prepaid or by private courier or overnight delivery service, addressed (until
another address is filed in writing by the Company with the Warrant Agent), as
follows:
Southern Mineral Corporation
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
In case the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by the
registered Holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given or made if sent by first-class or registered mail, postage
prepaid, or by private courier or overnight delivery service, addressed (until
another address is filed in writing by the Warrant Agent with the Company) to
the Warrant Agent as follows:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice pursuant to this Agreement to be given by the Company or the
Warrant Agent to the Warrant Holders shall be sufficiently given when and if
deposited in the mail, first-class or registered mail, postage prepaid or sent
by private courier or overnight delivery service, addressed to the Warrant
Holder at its address as it appears on the Warrant Register. The Company hereby
irrevocably authorizes the Warrant Agent, in the name and at the expense of the
Company, upon the written request of the Company, to mail any such notice to
the Holders upon receipt thereof from the Company. Any notice which is mailed
in the manner herein provided shall be presumed to have been duly given and
received when mailed, whether or not the Holder receives the notice. Neither
the failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
any other Holder.
Section 19. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval
of any Holders of Warrant Certificates in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein and which shall not in any way
adversely affect the interests of the Holders of Warrants, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not in any way adversely affect the interests of the Holders of Warrants. Any
other supplement or amendment to this Agreement may be made by an instrument in
writing signed by the Company and the Holders of a majority of the Warrants
outstanding hereunder; provided, that no such amendment shall, without the
written consent of all Holders of Warrants outstanding hereunder, amend this
Section 19.
Section 20. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
12
Section 21. Termination. This Agreement shall terminate at 5:00 p.m., New
York City time, on the thirtieth business day after the third anniversary of
the Issuance Date. Notwithstanding the foregoing, this Agreement will terminate
on any earlier date if all Warrants covered hereby have been exercised. The
provisions of Section 16 shall survive any termination hereof.
Section 22. Return of Unclaimed Cash or Property. Notwithstanding any
provision of this Agreement to the contrary, cash or other property (including,
without limitation, Warrant Shares) deposited with or paid to the Warrant Agent
for distribution or issuance to Warrant Holders, but remaining unclaimed by the
Warrant Holders for two years after the date upon which such Holders became
entitled to receive such cash or other property, as the case may be, shall be
repaid to the Company by the Warrant Agent on demand and all liability of the
Warrant Agent shall thereupon cease with respect to such cash or property; and
any Warrant Holder shall thereafter look only to the Company for any payment or
distribution which such Holder may be entitled to collect.
Section 23. Governing Law. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF SAID STATE.
Section 24. Benefits of this Agreement. This Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered
Holders of the Warrant Certificates. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered Holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement.
Section 25. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
[SEAL] SOUTHERN MINERAL CORPORATION
Attest:
------------------------------- By:
-----------------------------------
Title:
---------------------------------
[SEAL] AMERICAN STOCK TRANSFER AND
TRUST COMPANY
Attest:
------------------------------- By:
Secretary -----------------------------------
Title:
---------------------------------
13
EXHIBIT A
[Form of Warrant Certificate]
WARRANTS TO ACQUIRE COMMON STOCK,
PAR VALUE $.01 PER SHARE, OF SOUTHERN MINERAL CORPORATION
EXERCISABLE AFTER THROUGH
WARRANT CERTIFICATE NO.
This Warrant Certificate entitles that , or registered assigns, is the
registered holder of Warrants expiring at 5:00 P.M., New York City time,
on or, if such date is not a business day, the next succeeding business
day (the "Warrants") to purchase Common Stock, par value $.01 per share (the
"Common Stock"), of Southern Mineral Corporation, a Nevada corporation (the
"Company"). The Common Stock issuable upon exercise of Warrants is hereinafter
referred to as the "Warrant Shares." Subject to the immediately succeeding
paragraph, each Warrant entitles the holder upon exercise to purchase from the
Company on or before 5:00 P.M., New York City time, on or, if such date is
not a business day, the next succeeding business day, one fully paid and
nonassessable share of Common Stock per Warrant (a "Warrant Share" and,
collectively, the "Warrant Shares") (the "Exercise Quantity") at an initial
exercise price equal to $1.50 per Warrant Share (the "Exercise Price"). Such
purchase shall be payable in lawful money of the United States of America in
cash or by certified or official bank check to the order of the Company at the
office or agency of the Warrant Agent, but only subject to the conditions set
forth herein and in the Warrant Agreement (the "Warrant Agreement") referred to
on the reverse side hereof. The Exercise Price and Exercise Quantity are
subject to adjustment upon the occurrence of certain events set forth in the
Warrant Agreement. Terms used herein but not otherwise defined shall have the
meanings set forth in the Warrant Agreement.
No Warrant may be exercised before 9:00 A.M., New York City time, on
or, if such date is not a business day, the next succeeding business day, or
after 5:00 P.M., New York City time, on or, if such date is not a business
day, the next succeeding business day, and to the extent not exercised by such
time, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
1-1
WITNESS the facsimile seal of the Company and the facsimile signatures of
its duly authorized officers.
Dated:
------------------------------ SOUTHERN MINERAL CORPORATION
ATTEST:
------------------------------ By:
---------------------------------
Name: Name:
Secretary President
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By:
------------------------------
Authorized Signature
2-2
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of up to Warrants (which amount may be increased by an
amount not to exceed Warrants to accommodate the rounding up of fractional
Warrants under the Plan) expiring at 5:00 P.M., New York City time, on or,
if such date is not a business day, the next succeeding business day, entitling
the holder on exercise to purchase shares of Common Stock, par value $.01 per
share of the Company (the "Common Stock"), and are issued or to be issued
pursuant to a Warrant Agreement dated as of , 1999 (the "Warrant
Agreement"), duly executed and delivered by the Company to American Stock
Transfer and Trust Company, a New York corporation, as warrant agent (the
"Warrant Agent"), which Warrant Agreement is hereby incorporated by reference
in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the
holder hereof upon written request to the Company or the Warrant Agent.
Warrants may be exercised at any time on and after 9:00 A.M., New York City
time, on the date hereof or, if such date is not a business day, the next
succeeding business day, and on or before 5:00 P.M., New York City time, on
or, if such date is not a business day, the next succeeding business day.
The holder of Warrants evidenced by this Warrant Certificate may exercise them
by surrendering this Warrant Certificate, with the form of election to purchase
set forth hereon properly completed and executed, together with payment of the
Exercise Price in cash or by certified or official bank check to the order of
the Company and the other required documentation. In the event that upon any
exercise of Warrants evidenced hereby the number of Warrants exercised shall be
less than the total number of Warrants evidenced hereby, there shall be issued
to the holder hereof or his or her assignee a new Warrant Certificate
evidencing the number of Warrants not exercised. No adjustment shall be made
for any cash dividends on any Common Stock issuable upon exercise of this
Warrant.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will
either pay the cash value thereof determined as provided in the Warrant
Agreement or round up to the nearest whole share if it so elects.
Warrant Certificates, when surrendered at the office of the Warrant Agent by
the registered holder thereof in person or by legal representative or attorney
duly authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, for another Warrant Certificate
or Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement. The Company may require payment of a sum sufficient to cover such
reasonable charges (including, without limitation, any tax or other
governmental charge that may be imposed and the fees and expenses of the
Warrant Agent) as the Company or the Warrant Agent may prescribe in connection
with any exchange or registration of transfer of Warrant Certificates.
3-3
Form of Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented
by this Warrant Certificate, to receive shares of Common Stock and
herewith tenders payment for such shares to the order of in the amount of
$ in cash or by certified or official bank check in accordance with the
terms hereof. The undersigned requests that a certificate for such shares be
registered in the name of , whose address is and that such shares be
delivered to whose address is . If said number of shares is less than
all of the shares of Common Stock purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
such shares be registered in the name of , whose address is , and that
such Warrant Certificate be delivered to , whose address is .
Signature:
------------------------------
Note: The above signature must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and must be guaranteed in accordance with
the Medallion Signature Guarantee Program by a bank or trust company having an
office or correspondence in the United States, or a broker or dealer which is a
member of a registered securities exchange or the National Association of
Securities Dealers, Inc.
Signature Guaranteed By:
-------------------------------------
4-4
Form of Assignment
(To Be Executed Upon Assignment of the Warrant)
For value received, hereby sells, assigns and transfers unto the
Warrants represented by this Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
attorney, to transfer this Warrant Certificate on the books of the
Company, with full power of substitution.
Dated:
-------------------------------
Signature:
-----------------------------
Note: The above signature must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever and must be guaranteed in accordance with
the Medallion Signature Guarantee Program by a bank or trust company having an
office or correspondence in the United States, or a broker or dealer which is a
member of a registered securities exchange or the National Association of
Securities Dealers, Inc.
Signature Guaranteed By:
-------------------------------------
5--5
