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Exhibit 4.5
WARRANT AGREEMENT
BETWEEN
XXXXXX OIL AND GAS COMPANY
AND
XXXXXX X. X. XXXXX
DATED AS OF JULY 13, 1992
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WARRANT AGREEMENT dated as of July 13, 1992, between Xxxxxx Oil and Gas
Company, a Delaware corporation (the "Company") and Xxxxxx X.X. Xxxxx
("Consultant").
WHEREAS, Consultant has agreed pursuant to the Consulting Agreement (the
"Agreement") dated July 12, 1992 to act as a financial and public relations
consultant.
WHEREAS, the Company proposes to issue to Consultant as compensation for
its agreement to act as a Consultant pursuant to the Agreement, common stock
purchase warrants (the "Warrants") to purchase up to 2,500 shares (the
"Warrant Shares") of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), each Warrant entitling the holder thereof to purchase one
share of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein and in the Agreement set forth and for other good and
valuable consideration, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue and
deliver the Warrants to Consultant in consideration for, and as part of the
compensation to Consultant in connection with Consultant acting as a Consultant
pursuant to the Agreement. The number of Warrants to be issued and delivered
shall be 2,500. No cash consideration will be paid by Consultant for the
Warrants. The text of each Warrant, of the purchase form and of each assignment
form to be printed on the reverse thereof shall be substantially as set forth
in Exhibit A attached hereto. The Warrants shall be executed on behalf of the
Company by the manual or facsimile signature of the present or any future
Chairman of the Board, President, Treasurer or Vice President of the Company,
under its corporate seal, affixed or in facsimile, attested by the manual or
facsimile signature of the present or future Secretary or an Assistant
Secretary of the Company. A Warrant bearing the manual or facsimile signature
of individuals who were at any time the proper officers of the Company shall
bind the Company notwithstanding that such individuals or any of them shall
have ceased to hold such offices prior to the delivery of such Warrant or did
not hold such offices on the date of this Agreement.
Warrants shall be dated as of the date of execution thereof by the Company
either upon initial issuance or upon division, exchange, substitution or
transfer.
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2. REGISTRATION. The Warrants shall be numbered and shall be registered on
the books of the Company (the "Warrant Register") as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant on the
Warrant Register (the "Holder") as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith. The Warrants shall be registered
initially in the name of Consultant in such denominations as Consultant may
request in writing to the Company.
3. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Agreement, each Warrant certificate may be exchanged
at the option of the Holder thereof for another certificate or certificates of
different denominations entitling the Holder thereof to purchase upon surrender
to the Company or its duly authorized agent a like aggregate number of Warrant
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Warrant certificate or
certificates shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate or certificates to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate or certificates, as the case may be,
as so requested. Any Warrant issued upon exchange, transfer or partial exercise
of the Warrants shall be the valid obligation of the Company, evidencing the
same generic rights and entitled to the same generic benefits under this
Agreement as the Warrants surrendered for such exchange, transfer or exercise.
4. RESTRICTIONS ON TRANSFER. The Warrants shall be transferable only on the
Warrant Register upon delivery to the Company of the Warrant certificate or
certificates duly endorsed by the Holder or by his duly authorized attorney or
representative, or accompanied by proper evidence of succession, assignment or
authority to transfer. In all cases of transfer by an attorney, the original
power of attorney, duly approved, or an official copy thereof, duly certified,
shall be deposited with the Company. In case of transfer by executors,
administrators, guardians or other legal representatives, duly authenticated
evidence of their authority shall be produced, and may be required to be
deposited
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with the Company in its discretion. Upon any registration of transfer, the
Company shall deliver a new Warrant or Warrants to the person entitled thereto.
Notwithstanding the foregoing the Company shall have no obligation to cause
Warrants to be transferred on its books to any person, unless the Holder of
such Warrants shall furnish to the Company evidence of compliance with the
Securities Act of 1933, as amended (the "Act"), in accordance with the
provisions of Section 11 of this Agreement.
5. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the Holder thereof to purchase one
share of Common Stock subject to adjustment in accordance with Section
9 hereof at any time from 9:00 A.M., Los Angeles time, on July 13,
1992 until 5:00 P.M., Los Angeles time, on July 13, 1997 (the
"Expiration Date") at a purchase price of $7.30 per share (the
"Warrant Price").
(b) The Warrant Price and the number of shares issuable upon
exercise of Warrants are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 9 of this
Agreement. Subject to the provisions of this Agreement, each Holder
shall have the right, which may be exercised as expressed in such
Warrants, to purchase from the Company (and the Company shall issue and
sell to such Holder) the number of fully paid and nonassessable shares
of Common Stock specified in such Warrants, upon surrender to the
Company, or its duly authorized agent, of such Warrants, with the
purchase form on the reverse thereof duly filled in and signed, and
upon payment to the Company of the Warrant Price, as adjusted in
accordance with the provisions of Section 9 of this Agreement, for the
number of shares in respect of which such Warrants are then exercised.
Payment of such Warrant Price may be made only in cash, by certified or
official bank check.
Upon such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and (subject to receipt of
evidence of compliance with the Act in accordance with the provisions of Section
11 of this Agreement) in such name or names as the Holder may designate, a
certificate or certificates for the number of full shares of Common Stock so
purchased upon the exercise of such Warrants, together with cash, as provided
in Section 10 of this Agreement, in respect of any fraction of a share of such
stock otherwise issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated to be named
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therein shall be deemed to have become a holder of record of such shares as of
the date of the surrender of such Warrants and payment of the Warrant Price as
aforesaid; PROVIDED, HOWEVER, that if, at the time of surrender of the Warrant
and payment of such Warrant Price, the transfer books for the Common Stock or
other class of stock purchasable upon the exercise of the Warrants shall be
closed, the certificates for the shares in respect of which the Warrants are
then exercised shall be issuable as of the date on which such books shall next
be opened whether before, on or after the Expiration Date and until such date
the Company shall be under no duty to deliver any certificate for such shares;
PROVIDED, FURTHER, however, that the transfer books shall not be closed at any
one time for a period longer than five days unless otherwise required by law.
The rights of purchase represented by 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 any Warrant is exercised in respect of less than all of
the shares purchasable on such exercise at any time prior to the Expiration
Date, a new certificate evidencing the remaining Warrant or Warrants will be
issued.
5.1. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that
if any shares of Common Stock required to be reserved for purposes of exercise
or conversion of Warrants require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such shares may be issued upon exercise, the Company
will in good faith and as expeditiously as possible endeavor to cause such
shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be, PROVIDED, HOWEVER, that in no event
shall such shares of Common Stock be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
6. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes,
if any, attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants and any securities issued pursuant to Section 9 hereof; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any Warrants or certificates for Warrant Shares and any securities issued
pursuant to Section 9 hereof in a name other than that of the Holder of such
Warrants.
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7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company may in its discretion issue
and deliver in exchange and substitution for and upon cancellation of the
mutilated Warrant, or in lieu of and in substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest; but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of such Warrant and indemnity or
bond, if requested, also reasonably satisfactory to the Company. An applicant
for such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
8. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF
WARRANTS. There have been reserved out of the authorized and unissued shares of
Common Stock, a number of shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the transfer agent for the
Common Stock ("Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be requisite 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 Company will
supply the Transfer Agent and any such subsequent transfer agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be issuable as provided in Section
10 of this Agreement. The Company will furnish to the Transfer Agent and any
such subsequent transfer agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section 9.3
hereof. All Warrants surrendered in the exercise of the rights thereby evidenced
shall be cancelled, and such cancelled Warrants shall constitute sufficient
evidence of the number of shares of stock which have been issued upon the
exercise of such Warrants (subject to adjustment as herein provided). No shares
of stock shall be subject to reservation in respect of the Warrants subsequent
to the Expiration Date except to the extent necessary to comply with the terms
of this Agreement.
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9. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The number
and kind of securities purchasable upon the exercise of each Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as hereafter defined.
9.1. MECHANICAL ADJUSTMENTS. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto
shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of
the Company which he would have owned or have been entitled to receive
after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event
or any record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if
any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock, without any
charge to such holders, entitling them (for a period expiring within 60
days after the record date mentioned below) to subscribe for or
purchase shares of Common Stock at a price per share which is lower at
the record date mentioned below than the then current market price per
share of Common Stock (as determined in accordance with paragraph (e)
below), the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus
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the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance
of such rights, options or warrants plus the number of shares which
the aggregate offering price of the total number of shares of common
stock so offered would purchase at the current market price per share
of Common Stock at such record date. Such adjustment shall be made
whenever such rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
(c) In case the Company shall distribute to all holders of its
shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated
earnings or earned surplus and dividends or distributions referred to
in paragraph (a) above or in the paragraph immediately following this
paragraph) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in
paragraph (b) above), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, of which
the numerator shall be the then current market price per share of
Common Stock (as determined in accordance with paragraph (e) below) on
the date of such distribution, and of which the denominator shall be
the then current market price per share of Common Stock, less the then
fair value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive) of the portion of
the assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to receive
such distribution.
In the event of distribution by the Company to all holders of
its shares of Common Stock of stock of a subsidiary or securities
convertible into or exercisable for such stock, then in lieu of an
adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant, the Holder of each Warrant, upon the exercise
thereof at any time after such distribution, shall be entitled to
receive from the Company,
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such subsidiary or both, as the Company shall determine, the stock or
other securities to which such Holder would have been entitled if such
Holder had exercised such Warrant immediately prior thereto regardless
of whether the Warrants are exercisable at such time, all subject to
further adjustment as provided in this subsection 9.1; PROVIDED,
HOWEVER, that no adjustment in respect of dividends or interest on
such stock or other securities shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(d) For the purpose of any computation under paragraphs (b)
and (c) of this Section, the current market price per share of
Common Stock at any date shall be the average of the daily closing
prices of the Company's Common Stock, as reported by the American
Stock Exchange, for 30 consecutive trading days commencing 45 trading
days before the date of such computation. The closing price for each
day shall be the last such reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in each case on
the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if not listed or
admitted to trading, the average of the closing bid and asked prices
of the Common Stock in the over-the-counter market as reported by
NASDAQ or any comparable system. In the absence of one or more such
quotations, the Board of Directors of the Company shall determine the
current market price, in good faith, on the basis of such quotations
as it considers appropriate.
(e) In any case in which this Section 9.1 shall require that
any adjustment in the number of Warrant Shares be made effective as of
immediately after a record date for a specified event, the Company may
elect to defer until the occurrence of the event the issuing to the
Holder of any Warrant exercised after that record date the shares of
Common Stock and other securities of the Company, if any, issuable
upon the exercise of any Warrant over and above the shares of Common
Stock and other securities of the Company, if any, issuable upon the
exercise of any Warrant prior to such adjustment; PROVIDED, HOWEVER,
that the Company shall deliver to the holder a due xxxx or other
appropriate instrument evidencing the holder's right to receive such
additional shares or securities upon the occurrence of the
event requiring such adjustment.
(f) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent
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(1%) in the number of Warrant Shares purchasable upon the exercise of
each Warrant; PROVIDED, HOWEVER, that any adjustments which by reason
of this paragraph (f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations shall be made to the nearest one-thousandth of a share.
(g) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted, as herein provided, the Warrant
Price payable upon the exercise of each Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by
a fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of such Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Warrant Shares purchasable immediately thereafter.
(h) No adjustment in the number of Warrant Shares purchasable
upon the exercise of each Warrant need be made under paragraphs (b)
and (c) if the Company issues or distributes to each Holder of
Warrants the rights, options, warrants, or convertible or exchangeable
securities, or evidences of indebtedness or assets referred to in those
paragraphs which each Holder of Warrants would have been entitled to
receive had the Warrants been exercised prior to the happening of such
event or the record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. No adjustment need
be made for a change in the par value of the Warrant Shares.
(i) For the purpose of this Section 9.1, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an adjustment made
pursuant to paragraph (a) above, the Holders shall become entitled to
purchase any securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Warrant Price of such shares shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Warrant Shares contained in paragraphs (a) through (h), inclusive,
above, and the provisions of Section 5
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and Sections 9.2 through 9.5, inclusive, with respect to the
Warrant Shares, shall apply on like terms to any such other
securities.
(j) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights and (B) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised; PROVIDED,
HOWEVER, that no such readjustment shall have the effect of increasing
the Warrant Price or decreasing the number of Warrant Shares by an
amount in excess of the amount of the adjustment initially made with
respect to the issuance, sale or grant of such rights, options,
warrants or conversion or exchange rights.
9.2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its option,
at any time during the term of the Warrants, reduce the then current Warrant
Price to any amount determined appropriate by the Board of Directors of the
Company.
9.3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants
selected by the Board of Directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price of such
Warrant Shares after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which such
adjustment was made. Such certificate, absent manifest error, shall be
conclusive evidence of the correctness of such adjustment.
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9.4. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 9.1, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
9.5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC. In
case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
with each Holder an agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, transfer or
lease had such Warrant been exercised immediately prior to such action
regardless of whether the Warrants are exercisable at the time of such action;
PROVIDED, HOWEVER, that no adjustment in respect of dividends, interest or other
income on or from such shares or other securities and property shall be made
during the term of a Warrant or upon the exercise of a Warrant. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The provisions of
this Section 9.5 shall similarly apply to successive consolidations, mergers,
sales, transfers or leases.
9.6. STATEMENT ON WARRANTS. Irrespective of any adjustments in the Warrant
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.
10. 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 10 be issuable on
the exercise of any Warrant (or specified portion
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thereof), the Company shall pay an amount in cash equal to the closing price for
one share of the Common Stock, as determined in accordance with paragraph (d) of
Section 9.1, on the trading day immediately preceding the date the Warrant is
presented for exercise, multiplied by such fraction.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933. Consultant represents
and warrants to the Company that Consultant will not dispose of any such
Warrants or Warrant Shares except pursuant to (i) an effective registration
statement, or (ii) an applicable exemption from registration under the
Securities Act of 1933 (the "Act"). In connection with any sale by Consultant
pursuant to clause (ii) of the preceding sentence, Consultant shall furnish to
the Company an opinion of counsel reasonably satisfactory to the Company to the
effect that such exemption from registration is available in connection with
such sale.
12. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each Holder shall be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK OR OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT, OR (II) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933. ANY SALE PURSUANT TO CLAUSE (II) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE."
The Warrant Shares or other securities issued upon exercise of the Warrants
shall, unless issued pursuant to an effective Registration Statement, be subject
to a stop-transfer order and the certificate or certificates evidencing any such
Warrant Shares or securities shall bear the following legend by which the Holder
thereof shall be bound:
"THE SHARES OR OTHER SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE
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REGISTRATION STATEMENT, OR (II) AN APPLICABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY SALE PURSUANT TO
CLAUSE (II) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION
IS AVAILABLE IN CONNECTION WITH SUCH SALE."
13. RULE 144. With a view to making available to Holders the benefits of
certain rules of the Securities and Exchange Commission (the "Commission") that
may permit the sale of Registrable Securities to the public without
registration, the Company hereby covenants and agrees to use its best efforts to
file in a timely manner all reports and other documents required to be filed by
it under the Act and the Securities Exchange Act of 1934 and the rules and
regulations adopted by the Commission thereunder necessary to permit sales under
Rule 144 under the Act, and the Company will take such further action to the
extent required from time to time to enable Holders to sell Warrant Shares
(whether or not any such securities have been the subject of a demand or
piggy-back request under Section 13 hereof) without registration under the
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of a Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
14. NO RIGHTS AS STOCKHOLDERS; NOTICE TO HOLDERS. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
Holders or their transferees the right to vote or to receive dividends or to
consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities
convertible into or exchangeable for shares of
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Common Stock or any right to subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer
or lease or all or substantially all of its property, assets, and
business as an entirety) shall be proposed,
then in any one or more of said events the Company shall (a) give notice in
writing of such event to the Holders as provided in Section 15 hereof and (b) if
there are more than 100 Holders, cause notice of such event to be published once
in The Wall Street Journal (national edition), such giving of notice and
publication to be completed at least 15 days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
publish, mail or receive such notice or any defect therein or in the publication
or mailing thereof shall not affect the validity of any action taken in
connection with such dividend, distribution or subscription rights, or such
proposed dissolution, liquidation or winding up.
15. NOTICES. Any notice pursuant to this Agreement to be given or made by
the Holder of any Warrant or Warrant Shares to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
Xxxxxx Oil and Gas Company
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Notices or demands authorized by this Agreement to be given or made to or on the
Holder of any Warrant or Warrant Shares shall be sufficiently given or made
(except as otherwise provided in this Agreement) if sent by registered mail,
return receipt requested, postage prepaid, addressed to such Holder at the
address of such Holder as shown on the Warrant Register or the Common Stock
Register, as the case may be.
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16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
17. SUPPLEMENTS AND AMENDMENTS. The Company and the Holders may from time
to time supplement or amend this Agreement 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, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Holder may deem necessary or desirable and which shall not be inconsistent with
the provisions of the Warrants and which shall not adversely affect the
interests of the Holders. Any amendment to this Agreement may be effected with
the consent of Holders of at least 66 2/3% of the Warrants (for this purpose
Warrant Shares shall be deemed to be Warrants in the proportion that Warrant
Shares are then issuable upon the exercise of Warrants); provided that, any
amendment which shall have the effect of materially adversely affecting the
interests of any Holder shall not be effective with respect to such Holder if
such Holder shall not have consented thereto.
18. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
19. MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Agreement
remains in effect, the Company will not merge or consolidate with or into, or
sell, transfer or lease all or substantially all of its property to, any other
corporation unless the successor or purchasing corporation, as the case may be
(if not the Company), shall expressly assume, by supplemental agreement executed
and delivered to the Holders, the due and punctual performance and observance of
each and every covenant and condition of this Agreement to be performed and
observed by the Company.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders of the Warrants and Warrant Shares.
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21. CAPTIONS. The captions of the sections and subsections of this
Agreement have been inserted for convenience and shall have no substantive
effect.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day, month and year first above written.
XXXXXX OIL AND GAS COMPANY
By:
-----------------------------------
Xxxxx X. Xxxxx,
Vice President - Finance
(CORPORATE SEAL)
Attest:
-------------------------
Xxxx X. Xxxxxxx
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WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK OR
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY
SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. 2,500 Warrant
VOID AFTER 5:00 P.M. LOS ANGELES
TIME ON JULY 13, 1997
XXXXXX OIL AND GAS COMPANY
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received Xxxxxx X. X. Xxxxx, the registered
holder hereof or registered assigns (the "Holder"), is the owner of the number
of Warrants set forth above, each of which entitles the owner thereof to
purchase at any time from 9:00 A.M., Los Angeles time, on July 13, 1992, until
5:00 P.M., Los Angeles time, on July 13, 1997, one fully paid and
nonassessable share of the Common Stock (subject to adjustment), par value $0.01
per share (the "Common Stock"), of Xxxxxx Oil and Gas Company, a Delaware
corporation (the "Company"), at the purchase price of $7.30 per share, subject
to adjustment (the "Warrant Price"). Payment of the Warrant Price may be made in
cash, by certified or official bank check.
This Warrant Certificate is subject to, and entitled to the benefits of,
all of the terms, provisions and conditions of an agreement dated July 13, 1992
(the "Warrant Agreement") between the Company and Xxxxxx X. X. Xxxxx which
Warrant Agreement is hereby incorporated herein by reference and made a part
hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Company and the Holders of the Warrant Certificates.
Copies of the Warrant Agreement are on file at the principal office of the
Company.
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The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant Certificate as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby, or
to the transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the Holder to purchase a like aggregate number of
shares of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled such Holder to purchase. If this
Warrant Certificate shall be exercised in part, the Holder shall be entitled to
receive upon surrender hereof, another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Holder
hereof to any of the rights of a stockholder of the Company.
IN WITNESS WHEREOF, Xxxxxx Oil and Gas Company has caused the signature
(or facsimile signature) of its Vice President and Secretary be printed hereon
and its corporate seal (or facsimile) to be printed hereon.
XXXXXX OIL AND GAS COMPANY
By:
--------------------------------
Xxxxx X. Xxxxx,
Vice President-Finance
Attest:
-------------------------
Xxxx X. Xxxxxxx
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PURCHASE FORM
(To be executed upon exercise of Warrant). To Xxxxxx Oil and Gas Company:
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
shares of Common Stock, as provided for therein, and tenders herewith payment of
the purchase price in full in the form of cash or a certified or official bank
check in the amount of $___________.
Please issue a certificate or certificates for such shares of Common Stock
in the name of, and pay any cash for any fractional share to:
Name
---------------------------------
(Please Print Name, Address
and Social Security No.)
Signature
------------------------------
NOTE: The above signature
should correspond exactly
with the name on the face
of this Warrant Certificate
or with the name of
assignee appearing in the
assignment form below.
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
Dated: , 19 Signature
---------------- -- -------------------------------
----------------------------------------
Please Print Name
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ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate.)
For value received, ___________________________ hereby sells, assigns and
transfers unto _________________________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint ________________, attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated: , 19
--------------- --
-------------------------------------------------
NOTE: The above signature should correspond
exactly with the name on the face of this Warrant
Certificate.
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