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EXHIBIT 4.7
XXXXXXXXX ENERGY, INC.
Form of Warrant Agreement
[for warrants sold attached to debt securities]*
THIS WARRANT AGREEMENT is dated as of ________________, between
Xxxxxxxxx Energy, Inc., a Delaware corporation (hereinafter called "Xxxxxxxxx",
which term includes any successor corporation under the Indenture hereinafter
referred to), and _________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, Xxxxxxxxx has entered into an Indenture dated as of
_____________, (the "Indenture"), with ____________, as trustee (the "Trustee"),
providing for the issuance from time to time of its unsecured [senior]
[subordinated] debentures, notes or other evidences of indebtedness (the "Debt
Securities"), to be issued in one or more series, as provided in the Indenture;
and
WHEREAS, Xxxxxxxxx proposes to sell [title of Debt Securities being
offered] (the "Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or, individually a "Warrant") representing the
right to purchase [title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, Xxxxxxxxx desires the Warrant Agent to act on behalf of
Xxxxxxxxx in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance of Warrants and Execution and
Delivery of Warrant Certificates
Section 1.1. Issuance of Warrants. Warrants shall be initially issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after _________, ____ (the "Detachable Date")]
[and shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase a
Warrant Security in the principal amount of [$]_______. Warrant Certificates
shall be initially issued in units with the Offered Securities and each Warrant
Certificate included in such a unit shall evidence ___ Warrants for each [$]____
principal amount of Offered Securities included in such unit.
Section 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered* form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its
issuance 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 Xxxxxxxxx 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
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* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities.
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any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be signed on behalf of
Xxxxxxxxx by its Chief Executive Officer, its President, one of its Vice
Presidents, its Treasurer or one of its Assistant Treasurers under its corporate
seal and attested by its Secretary or one of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of Xxxxxxxxx may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by Xxxxxxxxx shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of Xxxxxxxxx who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of Xxxxxxxxx; and any Warrant
Certificate may be signed on behalf of Xxxxxxxxx by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of Xxxxxxxxx, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that
purpose. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. Xxxxxxxxx will or will cause the registrar of the Offered
Securities to make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date.]
Section 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
[$]______ of Warrant Securities (except as provided in Sections 2.3(c), 3.2 and
4.1) may be executed by Xxxxxxxxx and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of
Xxxxxxxxx, countersign Warrant Certificates evidencing Warrants representing the
right to purchase up to [$]______ aggregate principal amount of Warrant
Securities and shall deliver such Warrant Certificates to or upon the order of
Xxxxxxxxx. Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates or in connection with their transfer, as
hereinafter provided or as provided in Section 2.3(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.1. Warrant Price. [On _______, _____, the] [The Warrant]
exercise price of each Warrant is [$] ______. [During the period from _________,
____, through and including _________, ____, the exercise price of each Warrant
will be [$]___________], plus [accrued amortization of the original issue
discount] [accrued interest] from _________, ____. [On ___________, ____, the
exercise price of each Warrant will be [$]________. [if applicable -- insert
relevant amounts in applicable foreign currency, currency unit or composite
currency] During the period from _________, ____, through and
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including _________, ____, the exercise price of each Warrant will be
[$]___________, plus [accrued amortization of the original issue discount]
[accrued interest] from _________, ____.] [In each case, the original issue
discount will be amortized at a ___% annual rate, computed on an annual basis
using a 360-day year consisting of twelve 30-day months]. Such purchase price of
Warrant Securities is referred to in this Agreement as the "Warrant Price." [The
original issue discount for each $1,000 principal amount of Warrant Securities
is [$]_____.]
Section 2.2. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[_________, ____,] and at or before 5 p.m. New York time on __________________
(the "Expiration Date"). Each Warrant not exercised at or before 5 p.m. New York
time on the Expiration Date shall become void, and all rights of the holder of
the Warrant Certificate evidencing such Warrant under this Agreement shall
cease.
Section 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole
number of Warrants may be exercised by providing certain information
set forth on the reverse side of the Warrant Certificate and by paying
in full, [in lawful money of the United States of America] [if
applicable -- insert relevant amounts in applicable foreign currency,
currency unit or composite currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank
wire transfer], in immediately available funds, the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust
office [or at ________], provided that such exercise is subject to
receipt, within five business days of such [payment] [wire transfer] by
the Warrant Agent of the Warrant Certificate with the form of election
to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date on
which payment in full of the Warrant Price is received by the Warrant
Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised.
The Warrant Agent shall deposit all funds received by it in payment of
the Warrant Price in an account of Xxxxxxxxx maintained with it and
shall advise Xxxxxxxxx by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of
the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to Xxxxxxxxx in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise Xxxxxxxxx and the Trustee under the Indenture (if
such Trustee is not the Warrant Agent) of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if any,
of the Warrants remaining after such exercise, and (iv) such other
information as Xxxxxxxxx shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
Xxxxxxxxx shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled in fully registered form, registered in such
name or names as may be directed by such holder.** If fewer than all of
the Warrants evidenced by such Warrant Certificate are exercised,
Xxxxxxxxx shall execute, and an authorized officer of the Warrant Agent
shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
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** Subject to change in accordance with changes in tax laws and regulations.
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(d) Xxxxxxxxx shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities; and in
the event that any such transfer is involved, Xxxxxxxxx shall not be
required to issue or deliver any Warrant Security until such tax or
other charge shall have been paid or it has been established to
Xxxxxxxxx'x satisfaction that no such tax or other charge is due.
ARTICLE III
Other Provisions Relating to Rights of
Holders of Warrant Certificates
Section 3.1. No Rights as Warrant Securityholder Conferred by Warrants
or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
Section 3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to Xxxxxxxxx or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, Xxxxxxxxx shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing
a like number of Warrants. Upon the issuance of any new Warrant Certificate
under this Section, Xxxxxxxxx may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of
Xxxxxxxxx, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of mutilated, lost, stolen
or destroyed Warrant Certificates.
Section 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may in his own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against Xxxxxxxxx suitable to enforce or otherwise in
respect of, his right to exercise the Warrants evidenced by his Warrant
Certificate in the manner provided in his Warrant Certificate and in this
Agreement.
ARTICLE IV
Exchange and Transfer of Warrant Certificates
Section 4.1. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable - Upon] [If Offered
Securities with Warrants which are not immediately detachable -Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Securities to which the Warrant Certificate was
initially
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attached and only for the purpose of effecting or in conjunction with an
exchange or transfer of such Offered Securities. Prior to the Detachable Date,
each transfer of the Offered Securities [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or ________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at _______ __] books in which, subject
to such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ____________] for exchange or registration of transfer,
properly endorsed or accompanied by appropriate instruments of registration of
transfer and written instructions for transfer, all in form satisfactory to
Xxxxxxxxx and the Warrant Agent. No service charge shall be made for any
exchange [or registration of transfer] of Warrant Certificates but Xxxxxxxxx may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by Xxxxxxxxx, as so requested. The Warrant Agent shall not be required
to effect any exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or registration of transfer] of Warrant Certificates shall be
the valid obligations of Xxxxxxxxx, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange or registration of transfer.
Section 4.2. Treatment of Holders of Warrant Certificates. [If Warrants
which are not immediately detachable - Every holder of a Warrant Certificate, by
accepting the same, consents and agrees with Xxxxxxxxx, the Warrant Agent and
with every subsequent holder of such Warrant Certificate that until the transfer
of the Warrant Certificate is registered on the books of the Warrant Agent [or
the registrar of the Offered Securities prior to the Detachable Date], Xxxxxxxxx
and the Warrant Agent [or the registrar of the Offered Securities prior to the
Detachable Date] may treat the registered holder as the absolute owner thereof
for any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.]
Section 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to Xxxxxxxxx, be delivered
to the Warrant Agent and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to Xxxxxxxxx from time to time or otherwise dispose
of cancelled Warrant Certificates in a manner satisfactory to Xxxxxxxxx.
ARTICLE V
Concerning the Warrant Agent
Section 5.1. Warrant Agent. Xxxxxxxxx hereby appoints __________, as
Warrant Agent of Xxxxxxxxx in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
__________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of Xxxxxxxxx as Xxxxxxxxx may hereafter grant to or
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confer upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
Section 5.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which Xxxxxxxxx agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. Xxxxxxxxx agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with Xxxxxxxxx for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. Xxxxxxxxx
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim of such liability.
(b) Agent for Xxxxxxxxx. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of Xxxxxxxxx and does not assume any
obligation or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have
if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with Xxxxxxxxx and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
Warrant Securities or other obligations of Xxxxxxxxx as freely as if it
were not the Warrant Agent hereunder. Nothing in this Warrant Agreement
shall be deemed to prevent the Warrant Agent from acting as trustee for
any series of Debt Securities under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by Xxxxxxxxx.
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(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by Xxxxxxxxx of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
Xxxxxxxxx pursuant to this Agreement or for the application by
Xxxxxxxxx of the proceeds of the Warrant Certificates. The Warrant
Agent shall have no duty or responsibility in case of any default by
Xxxxxxxxx in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of
any written demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except as provided in
Section 6.2, to make any demand upon Xxxxxxxxx.
Section 5.3. Resignation and Appointment of Successor.
(a) Xxxxxxxxx agrees, for the benefit of the holders of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to Xxxxxxxxx of such intention on its part,
specifying the date on which its desired resignation shall become
effective; provided that such date shall not be less than three months
after the date on which such notice is given unless Xxxxxxxxx otherwise
agrees. 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
Xxxxxxxxx and specifying such removal and the date when it shall become
effective. Such resignation or removal shall take effect upon the
appointment by Xxxxxxxxx, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under
the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of Xxxxxxxxx under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(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 shall file a petition seeking
relief under the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State
bankruptcy law or similar law or make an assignment for the benefit of
its creditors or consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be
entered for relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under any
other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken 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 Xxxxxxxxx by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the
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successor Warrant Agent of such appointment, the Warrant Agent shall
cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to Xxxxxxxxx an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
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) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business of
the Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any
of the parties hereto.
ARTICLE VI
Miscellaneous
Section 6.1. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
Xxxxxxxxx and the Warrant Agent may deem necessary or desirable; provided, that
such action shall not materially and adversely affect the interests of the
holders of the Warrant Certificates and, provided further, that Xxxxxxxxx and
the Warrant Agent may amend this Agreement in any manner prior to the issuance
of any Warrants hereunder. With the consent of the holders of not less than a
majority in number of the then outstanding unexercised Warrants affected,
Xxxxxxxxx and the Warrant Agent may modify or amend any other term of this
Agreement; provided, however, that no such modification or amendment may be made
without the consent of the holders affected thereby if such proposed amendment
would (i) shorten the period of time during which the Warrants may be exercised;
(ii) otherwise materially and adversely affect the exercise rights of the
holders of the Warrants; or (iii) reduce the number of outstanding Warrants.
Section 6.2. Notices and Demands to Xxxxxxxxx and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to Xxxxxxxxx by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
Xxxxxxxxx.
Section 6.3. Addresses. Any communication from Xxxxxxxxx to the Warrant
Agent with respect to this Agreement shall be addressed to ____________________,
and any communication from the Warrant Agent to Xxxxxxxxx with respect to this
Agreement shall be addressed to Xxxxxxxxx Energy, Inc., 0000 Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxx 00000, Attention: _______________ (or such other address as shall
be specified in writing by the Warrant Agent or by Xxxxxxxxx).
Section 6.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be
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governed by and construed in accordance with, the laws of the State of [New
York], without giving effect to the conflict of laws principles thereof.
Section 6.5. Delivery of Prospectus. Xxxxxxxxx will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
Section 6.6. Obtaining of Governmental Approvals. Xxxxxxxxx will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer, and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
Section 6.7. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than Xxxxxxxxx, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or claim under or
by reason of this Agreement.
Section 6.8. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 6.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 6.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificates for
inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereunto, and
the same to be attested, all as of the day and year first above written.
XXXXXXXXX ENERGY, INC.
Attest:
By
---------------------------------
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[NAME OF WARRANT AGENT],
as Warrant Agent
Attest:
By
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EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend of Warrants which are not immediately detachable: Prior to
___________, this Warrant Certificate cannot be transferred or exchanged unless
attached to a [Title of Offered Securities].] Exercisable Only if Countersigned
by the Warrant Agent as Provided Herein
XXXXXXXXX ENERGY, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on ___________
[No.] Warrants
This certifies that ________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after 5 p.m. New York time on , [date], and] on
or before 5 p.m. New York time on [date] [$] _____________ principal amount of
[Title of Warrant Securities] (the "Warrant Securities"), of Xxxxxxxxx Energy,
Inc. ("Xxxxxxxxx") issued and to be issued under the Indenture (as hereinafter
defined), on the following basis: [on [date] the exercise price of each Warrant
is [$] ; during the period from , [date] through and including [date], the
exercise price of each Warrant will be [$] , plus [accrued amortization of the
original issue discount] [accrued interest] from [date]; on [date] the exercise
price of each Warrant will be [$] ; during the period from [date] through and
including [date] , the exercise price of each Warrant will be [$] , plus
[accrued amortization of the original issue discount] [accrued interest] from
[date]; [in each case, the original issue discount will be amortized at __%
annual rate, computed on an annual basis using a 360-day year consisting of
twelve 30-day months] (the "Warrant Price"). [The original issue discount for
each $1,000 principal amount [if applicable, insert relevant amount of foreign
currency, currency units or composite currency] of Warrant Securities is
$____________.] The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, [in lawful money of the United States of America] [if applicable, express
Warrant exercise price in applicable foreign currency, currency unit or
composite currency] [in cash or by certified check or official bank check or by
bank wire transfer, in each case] [by bank wire transfer], in immediately
available funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successors as warrant agent (the
"Warrant Agent"), [or ________________] currently at the address specified on
the reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of $______________ and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ___________, ____, (the "Warrant Agreement")
between Xxxxxxxxx and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
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provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ______________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of ___________, ____, (the "Indenture")
between Xxxxxxxxx and ________________, as trustee, and will be subject to the
terms and provisions contained in the Indenture. Copies of the Indenture and the
form of Warrant Securities are on file at the corporate trust office of the
trustee [and at ________________].
[If Offered Securities with Warrants which are not immediately
detachable - Prior to , 199__, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Securities. After such date, this [If Offered Securities with
Warrants which are immediately detachable - Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or _____] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable - After]
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of Warrant Securities, including, without limitation, the
right to receive payments of principal of, premium, if any, or interest, if any,
on the Warrant Securities or to enforce any of the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of
----------------------- XXXXXXXXX ENERGY, INC.
By
-----------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
Attest:
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Countersigned
-------------------------------------
As Warrant Agent
By
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[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certified check or official bank check or by bank wire transfer] [by bank
wire transfer], in immediately available funds, the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent] Corporate Trust Department
[insert address of Warrant Agent], Attn: [or ], which [payment] [wire transfer]
must specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below and
present this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise Warrants
evidenced by this Warrant Certificate, to purchase [$]_____________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of
Xxxxxxxxx Energy, Inc. and represents that he has tendered payment for such
Warrant Securities [in cash or by certified check or official bank check or by
bank wire transfer, in each case] [by bank wire transfer], in immediately
available funds, to the order of Xxxxxxxxx Energy, Inc., c/o [insert name and
address of Warrant Agent], in the amount of [$]_____________ in accordance with
the terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form and in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below. If the number of Warrants exercised is less than
all of the Warrants evidenced hereby, the undersigned requests that a new
Warrant Certificate representing he remaining Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated Name
------------------ -------------------------------
(Please Print)
---------------------------------------
Address
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Social Security Number of Holder
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Signature
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at
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By mail at
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[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants--complete as
appropriate.]
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Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For value received _______________________ hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address, including zip code of assignee, and Social
Security Number or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
Dated
------------------------ --------------------------------
Signature
(Signature must conform in all
respect to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee of a
commercial bank, trust company,
or member broker of the New
York, American, Midwest or
Pacific Stock Exchange.)
Signature Guaranteed:
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