Exhibit 3.3
Dated 1997
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(1) ALLIANCE RESOURCES PLC
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(2) SOCIETY NATIONAL BANK
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WARRANT AGREEMENT
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ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000-0000
Fax: 0000-000-0000
ASC/X00000000
WARRANT AGREEMENT
THIS AGREEMENT dated as of . ., 1997 between Alliance Resources PLC, a company
incorporated under the laws of England and Wales (the "COMPANY") and Society
National Bank, a national banking association organised and existing under the
laws of the United States (the "WARRANT AGENT").
RECITALS
(A) The Company has determined by a resolution of its Board of Directors
(being duly empowered and authorised by the Memorandum and Articles of
Association of the Company) to issue up to 1,112,378 warrants (the
"Warrants") entitling the holder thereof, on specified subscription
dates, to subscribe for ordinary shares of 40p each in the capital of
the Company ("Common Shares", and such shares being the "Warrant
Shares") and has determined to constitute the same in the manner
hereinafter appearing.
(B) The Warrants have been created in connection with the merger of a
subsidiary of the Company and LaTex Resources Inc pursuant to an
Agreement and Plan of Merger dated 12th August 1996 (the "Merger
Agreement").
(C) The particulars subject to which the Warrants are created are set out in
this Agreement.
(D) The Company desires to provide for the issuance of warrant certificates
(the "WARRANT CERTIFICATES") representing the Warrants, upon completion
of the Merger Agreement.
(E) The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer and exchange of Warrant Certificates
and exercise of the Warrants.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Warrant Certificates and the Warrants and the respective rights and
obligations thereunder of the Company, the registered holders of the Warrant
Certificates and the Warrant Agent, the parties hereto agree as follows:-
1. DEFINITIONS
As used herein:-
1.1 "COMMON SHARES" means shares of the Company of any class, whether
now or hereafter authorised, which have the right to participate
in the distribution of earnings and assets of the Company without
limit as to amount or percentage, which as of the date hereof
consist of the Company's Ordinary shares of 40p each;
"CORPORATE OFFICE" means the place of business of the Warrant
Agent located in Dallas, Texas, or its successor (for the mailing
address of the Warrant Agent, see clause 14 hereof);
"EFFECTIVE DATE" means the date on which the Merger Agreement is
completed;
"EXERCISE PERIOD" means the period commencing on the Effective
Date and ending on the Expiration Date;
"EXERCISE PRICE" means a purchase price of . per Common Share
(the "WARRANT EXERCISE PRICE");
"EXPIRATION DATE" means 5.00 p.m. Central Standard or Daylight
Time on 19 November 1997;
"REGISTERED HOLDER" means the person in whose name any Warrant
Certificate shall be registered on the books maintained by the
Warrant Agent pursuant to this agreement;
"SUBSIDIARY" means any corporation of which shares having
ordinary voting power to elect a majority of the board of
directors of such corporation (regardless of whether the shares
of any other class or classes of such corporation shall have or
may have voting power by reason of the happening of any
contingency) are at the time directly or indirectly owned by the
Company or one or more subsidiaries of the Company;
"TRANSFER AGENT" means the Company's transfer agent, Society
National Bank, or its successor;
"WARRANT" or "WARRANTS" means and includes up to 1,112,378
Warrants, each to purchase 1 Common Share;
"WARRANT SHARES" means and includes up to 1,112,378 Common Shares
and any additional Common Shares or other property which may
hereafter be issuable or deliverable on exercise of the Warrants
pursuant to clause 9 of this agreement.
2. 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 hereafter in this
agreement, and the Warrant Agent hereby accepts such appointment and
agrees to perform the duties and obligations required of it, as such
duties and obligations are set forth herein.
3. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES
3.1 Each Warrant shall initially entitle the Registered Holder of the
Warrant Certificate representing such Warrant to subscribe one Common
Share on exercise thereof, subject to modification and adjustment as
hereinafter provided in clause 9. Warrant Certificates representing up
to an aggregate of 1,112,378 Warrants of the Company shall be executed
by the proper officers of the Company and delivered to the Transfer
Agent following the execution of this Agreement. The
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Warrant Certificates will be issued and delivered by the Warrant Agent
on written order of the Company signed by its duly authorised officers.
The Warrant Agent shall deliver Warrant Certificates in required whole
number denominations to the persons entitled thereto in connection with
any transfer or exchange permitted under this agreement.
3.2 Except as provided in clause 9 hereof, the Warrant Shares shall be
issued only on or after the Exercise Date (hereinafter defined) on
exercise of the Warrants or on transfer or exchange of the Warrant
Shares.
4. FORM AND EXECUTION OF WARRANT CERTIFICATES
4.1 The Warrant Certificates shall be substantially in the form attached as
exhibit "A" and may have such letters, numbers or other marks of
identification and such legends, summaries or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this agreement. The
Warrant Certificates shall be dated as of the date of issuance, whether
on initial issuance, transfer, exchange or in lieu of mutilated, lost,
stolen or destroyed Warrant Certificates.
4.2 Warrant Certificates shall be executed on behalf of the Company by its
duly authorised officers in accordance with its Articles of Association,
by manual signatures or by facsimile signatures printed thereon, and
shall have imprinted thereon a facsimile of the Company's seal. Warrant
Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates
shall cease to be an officer of the Company before the date of issuance
of the Warrant Certificates or before countersignature and delivery by
the Warrant Agent, such Warrant Certificates may be countersigned,
issued and delivered by the Warrant Agent with the same force and effect
as though the person who signed such Warrant Certificates had not ceased
to be an officer of the Company.
5. EXERCISE OF WARRANTS
5.1 The Warrants shall be exercisable during the Exercise Period, beginning
on the Effective Date and continuing until the Expiration Date. A
Warrant shall be deemed to have been exercised immediately prior to the
close of business on the date of the surrender for exercise (the
"EXERCISE DATE") of the Warrant Certificate. The exercise form shall be
executed by the Registered Holder thereof or his attorney duly
authorised in writing and shall be delivered together with payment to
the Warrant Agent, in cash or by official bank or certified cheque, of
an amount in lawful money of the United Kingdom. Such payment shall be
in an amount equal to the Exercise Price per Warrant as hereinabove
defined.
5.2 The person entitled to receive the number of Warrant Shares deliverable
on such exercise shall be treated for all purposes as the holder of such
Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests
in Warrant Shares issuable on exercise of a Warrant. If more than one
Warrant shall be exercised at one time by the same Registered Holder,
the number of full shares which shall be
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issuable on exercise thereof shall be computed on the basis of the
aggregate number of full shares issuable on such exercise.
5.3 As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be
issued and delivered to the person or persons entitled to receive the
same, a certificate or certificates for the number of Warrant Shares
deliverable on such exercise. No adjustment shall be made in respect of
cash dividends on Warrant Shares deliverable on exercise of any Warrant.
The Warrant Agent shall promptly notify the Company in writing of any
exercise of any Warrant and of the number of Warrant Shares delivered
and shall cause payment of an amount in cash equal to the Exercise Price
to be made promptly to the order of the Company. The parties
contemplate such payments will be made by the Warrant Agent to the
Company on a weekly basis and will consist of collected funds only. The
Warrant Agent shall hold any proceeds collected and not yet paid to the
Company in a federally-insured escrow account at a commercial bank
selected by agreement of the Company and the Warrant Agent, at all times
relevant hereto. Following a determination by the Warrant Agent that
collected funds have been received, the Warrant Agent shall cause share
certificates to be issued representing the number of Warrants exercised
by the holder.
5.4 Expenses incurred by the Warrant Agent hereunder, including
administrative costs, costs of maintaining records and other expenses,
shall be paid by the Company according to the standard fees imposed by
the Warrant Agent for such services.
5.5 A detailed accounting statement setting forth the number of Warrants
exercised, the net amount of exercised funds and all expenses incurred
by the Warrant Agent shall be transmitted to the Company on payment of
each exercise amount. Such accounting statement shall serve as an
interim accounting for the Company during the Exercise Period. The
Warrant Agent shall render to the Company a complete accounting setting
forth the number of Warrants exercised, the identity of persons
exercising such Warrants, the number of shares issued, the amounts to be
distributed to the Company and all other expenses incurred by the
Warrant Agent, at the completion of the Exercise Period. COPIES OF ALL
OF THE ABOVE SHALL BE TRANSMITTED PROMPTLY TO CHELSEA STREET SECURITIES,
INC., 000 XXXX XXX XXXXXXX XXXXXXXXX, XXXXX 0000, XXXXXX, XXXXX 00000.
6. RESERVATION OF SHARES AND PAYMENT OF TAXES
6.1 The Company covenants that it will at all times keep available for issue
sufficient authorised but unissued Common Shares as shall then be
issuable on exercise of all outstanding Warrants. The Company covenants
that all Warrant Shares, when issued, shall be duly and validly issued,
fully paid and non-assessable, and free from all taxes, liens and
charges with respect to the issue thereof.
6.2 If any Warrant Shares require registration with or approval of any
government authority under any federal or state law before such shares
may be validly issued or delivered, the Company covenants it will in
good faith and as expeditiously as possible endeavour to secure such
registration or approval, as the case may be.
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6.3 The Warrant holder shall pay all documentary stamp or similar taxes and
other government charges that may be imposed with respect to the
issuance of the Warrants, or the issuance, transfer or delivery of any
Warrant Shares on exercise of the Warrants. In the event the Warrant
Shares are to be delivered in a name other than the name of the
Registered Holder of the Warrant Certificate, no such delivery shall be
made unless the person requesting the same has paid to the Warrant Agent
the amount of any such taxes or charges incident thereto.
6.4 The Warrant Agent is hereby irrevocably authorised to requisition
certificates for Warrant Shares from the Company's Transfer Agent as
required from time to time. The Company has, contemporaneously with the
execution of this agreement, authorised the Transfer Agent to comply
with all such requisitions. The Company will file with the Warrant
Agent a statement setting forth the name and address of its Transfer
Agent for Common Shares issuable on exercise of the Warrants and of each
successor Transfer Agent, if any.
7. REGISTRATION OF TRANSFER OF WARRANT CERTIFICATES
7.1 The Warrant Certificates may not be transferred in whole or in part
except as authorised in this agreement. Warrant Certificates to be
exchanged shall be surrendered to the Warrant Agent at its corporate
office. The Company shall execute, and the Warrant Agent shall
countersign, issue and deliver in exchange therefor, the Warrant
Certificate or Certificates which the holder making the transfer shall
be entitled to receive.
7.2 The Warrant Agent shall keep transfer books at its corporate office in
which it shall register Warrant Certificates and the transfer thereof.
On due presentment for transfer of any Warrant Certificates at such
office, the Company shall execute, and the Warrant Agent shall issue and
deliver to the transferee or transferees, a new Warrant Certificate or
Certificates representing an equal aggregate number of Warrants.
7.3 The Warrants will not be listed or traded on a securities exchange.
8. LOSS OR MUTILATION
On receipt by the Company and the Warrant Agent of evidence satisfactory
as to the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate, the Company shall execute, and the Warrant
Agent shall countersign and deliver in lieu thereof, a new Warrant
Certificate representing an equal aggregate number of Warrants. In the
case of loss, theft or destruction of any Warrant Certificate, the
individual requesting issuance of a new Warrant Certificate shall be
required to indemnify the Company and Warrant Agent in an amount
satisfactory to each of them. In the event a Warrant Certificate is
mutilated, such certificate shall be surrendered and cancelled by the
Warrant Agent prior to delivery of a new Warrant Certificate.
Applicants for a substitute Warrant Certificate shall also comply with
such other regulations and pay such other reasonable charges as the
Company may prescribe.
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9. ADJUSTMENT OF EXERCISE PRICE AND SHARES
9.1 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall issue any of its Common Shares as a stock
dividend or shall subdivide the number of outstanding Common Shares into
a greater number of shares, then, in either of such events, the Exercise
Price in effect at the time of such action shall be reduced
proportionately and the number of Common Shares purchasable pursuant to
the Warrants shall be increased proportionately. Conversely, in the
event the Company shall reduce the number of its outstanding Common
Shares by combining such shares into a smaller number of shares, then,
in such event, the Exercise Price in effect at the time of such action
shall be increased proportionately and the number of Common Shares at
that time purchasable pursuant to the Warrants shall be decreased
proportionately. Such stock dividend paid or distributed on the Common
Shares in shares of any other class of the Company or securities
convertible into Common Shares shall be treated as a dividend paid or
distributed in Common Shares to the extent Common Shares are issuable on
the payment or conversion thereof.
9.2 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall be recapitalised by reclassifying its
outstanding Common Shares into shares with a different nominal value, or
by changing its outstanding Common Shares to shares without nominal
value or in the event of any other material change of the capital
structure of the Company or of any successor corporation by reason of
any reclassification, recapitalisation or conveyance, prompt,
proportionate, equitable, lawful and adequate provision shall be made
whereby any holder of the Warrants shall thereafter have the right to
purchase, on the basis and the terms and conditions specified in this
agreement, in lieu of the Common Shares of the Company theretofore
purchasable on the exercise of any Warrant, such securities or assets as
may be issued or payable with respect to or in exchange for the number
of Common Shares of the Company theretofore purchasable on exercise of
the Warrants had such reclassification, recapitalisation or conveyance
not taken place; and in any such event, the rights of any holder of a
Warrant to any adjustment in the number of Common Shares purchasable on
exercise of such Warrant, as set forth above, shall continue and be
preserved in respect of any stock, securities or assets which the holder
becomes entitled to purchase; provided, however, that a merger,
acquisition of a going business or a portion thereof (whether for cash,
stock, notes, other securities, or a combination of cash and
securities), exchange of stock for stock, exchange of stock for assets,
or like transaction involving the Company will not be considered a
"MATERIAL CHANGE" for purposes of this clause 9.2, and no adjustment
shall be made under this clause 9 by reason of any such merger,
acquisition, exchange of stock for stock, exchange of stock for assets,
or like transaction.
9.3 In the event the Company, at any time while the Warrants shall remain
unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as
part of the terms of such sale, dissolution, liquidation or winding up
such that the holder of a Warrant may thereafter receive, on exercise of
such Warrant, in lieu of each Common Share of the Company which such
holder would have been entitled to receive upon exercise of such
Warrant, the same kind and amount of any stock, securities or assets as
may be issuable,
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distributable or payable on any such sale, dissolution, liquidation or
winding up with respect to each Common Share of the Company; provided,
however, that in the event of any such sale, dissolution, liquidation or
winding up, the right to exercise the Warrants shall terminate on a date
fixed by the Company, such date to be not earlier than 5.00 p.m.,
Central Time, on the 30th day next succeeding the date on which notice
of such termination of the right to exercise the Warrants has been given
by mail to the holders thereof at such addresses as may appear on the
books of the Company.
9.4 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall take a record of the holders of its
Common Shares for the purpose of entitling them to purchase its Common
Shares at a price per share more than ten per cent. below the then
current market price per share (as defined below) of its Common Shares
at the date of taking such record, then (a) the number of Common Shares
purchasable pursuant to the Warrants shall be redetermined as follows:
the number of Common Shares purchasable pursuant to a Warrant
immediately prior to such adjustment (taking in account fractional
interests to the nearest 1,000th of a share) shall be multiplied by a
fraction, the numerator of which shall be the number of Common Shares of
the Company then outstanding immediately prior to the taking of such
record, plus the number of additional shares offered for purchase, and
the denominator of which shall be the number of Common Shares of the
Company outstanding immediately prior to the taking of such record, plus
the number of shares which the aggregate offering price of the total
number of additional shares so offered would purchase at such current
market price; and (b) the Exercise Price per Common Share purchasable
pursuant to a Warrant shall be redetermined as follows: the Exercise
Price in effect immediately prior to the taking of such record shall be
multiplied by a fraction, the numerator of which is the number of Common
Shares purchasable immediately prior to the taking of such record, and
the denominator of which is the number of Common Shares purchasable
immediately after the taking of such record as determined pursuant to
clause 9.4(a) above; provided, however (c) that any adjustment in the
number of shares issuable as set forth above shall be effective only to
the extent sufficient Common Shares have been registered through a
Registration Statement filed with the Securities and Exchange
Commission, and (d) that any adjustment in the Exercise Price does not
cause the Company to receive proceeds in excess of the amount authorised
by any such Registration Statement. For the purpose hereof, the current
market price per Common Share of the Company at any date shall be deemed
to be the average of the middle market price as derived from the London
Stock Exchange Daily Official List for 30 consecutive business days
commencing 15 business days prior to the record date.
9.5 On exercise of the Warrants by the holders, the Company shall not be
required to deliver fractions of Common Shares; provided, however, that
prompt, proportionate, equitable, lawful and adequate adjustment in the
Exercise Price payable shall be made in respect of any such fraction of
one Common Share on the basis of the Exercise Price per share.
9.6 In the event, prior to expiration of the Warrants by exercise or by
their terms, the Company shall determine to take a record of the holders
of its Common Shares for the purpose of determining shareholders
entitled to receive any stock dividend, distribution or other right
which will cause any change or adjustment in the number, amount, price
or nature of the Common
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Shares or other stock, securities or assets deliverable on exercise of
the Warrants pursuant to the foregoing provisions, the Company shall
give to the Registered Holders of the Warrants at the addresses as may
appear on the books of the Company at least 15 days' prior written
notice to the effect that it intends to take such a record. Such notice
shall specify the date as of which such record is to be taken; the
purpose for which such record is to be taken; and the number, amount,
price and nature of the Common Shares or other stock, securities or
assets which will be deliverable on exercise of the Warrants after the
action for which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the
Registered Holders of the Warrant Certificates of any corporate action
hereunder, the failure of the Company to give notice shall not
invalidate such corporate action of the Company.
9.7 The Warrant shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Common Shares, unless
the Warrant is exercised and the Common Shares purchased prior to the
record date fixed by the board of directors of the Company for the
determination of holders of Common Shares entitled to such dividend or
other right.
9.8 No adjustment of the Exercise Price shall be made as a result of or in
connection with (a) the establishment of one or more employee stock
option plans for employees of the Company, or the modification, renewal
or extension of any such plan, or the issuance of Common Shares on
exercise of any options pursuant to any such plan, (b) the issuance of
individual warrants or options to purchase Common Shares, the issuance
of Common Shares upon exercise of such warrants or options, or the
issuance of Common Shares in connection with compensation arrangements
for directors, officers, employees or agents of the Company or any
Subsidiary, and the like, or (c) the issuance of Common Shares in
connection with a merger, acquisition of a going business or a portion
thereof (whether for cash, stock, notes, other securities, or a
combination of cash and securities), exchange of stock for stock,
exchange of stock for assets, or like transaction.
10. EXTENSION OF WARRANT EXERCISE PERIOD
The Warrant Exercise Period may be extended one or more times, and from
time to time, in the sole discretion of the Company and the Warrant
Agent. Any such extension shall be evidenced by a written modification
of this Warrant Agreement executed by the Company and the Warrant Agent.
Within fifteen days of the execution of any such written modification of
this Warrant Agreement, the Company shall file with the Securities and
the Exchange Commission a Post-effective Amendment to the Registration
Statement registering the Common Shares underlying the Warrants.
11. PURCHASE OR REDEMPTION OF WARRANTS BY THE COMPANY
11.1 The Warrants are redeemable upon 30 days' notice to their holders for
$.01 per Warrant. Notice of any such redemption will be mailed by the
Company to the Registered Holders of the Warrants at the addresses as
may appear on the books of the Company. Unless, prior to the expiration
of such 30-day notice period, a Registered Holder exercises his right to
purchase the
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Shares of Common Stock covered by his Warrants, such Registered Holder
will forfeit his right to do so, and will be entitled only to the
redemption price of such Warrants, if redeemed.
11.2 In the event the Company shall purchase, redeem, or otherwise acquire
Warrants, the same shall thereupon be delivered to the Warrant Agent and
be cancelled and retired by the Warrant Agent.
12. DUTIES, COMPENSATION AND TERMINATION OF WARRANT AGENT
12.1 The Warrant Agent shall act 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, value or authorisation
of the Warrant Certificates or the Warrants represented thereby or of
the Common Shares or other property delivered on exercise of any
Warrant. The Warrant Agent shall not be under any duty or
responsibility to any holder of the Warrant Certificates to make or
cause to be made any adjustment of the Exercise Price or to determine
whether any fact exists which may require any such adjustments.
12.2 The Warrant Agent shall not (a) be liable for any recital or statement
of fact contained herein or for any action taken 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, (b) 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 the Warrant
Certificates, or (c) be liable for any act or omission in connection
with this agreement except for its own negligence or wilful misconduct.
12.3 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 or omitted by it in good faith in
accordance with such notice, statement, instruction, request, direction,
order or demand.
12.4 Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed
by a director and attested by its secretary or assistant secretary. The
Warrant Agent shall not be liable for any action taken or omitted by it
in accordance with such notice, statement, instruction, request,
direction, order or demand.
12.5 The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its
reasonable expenses. The Company further agrees to indemnify the
Warrant Agent against any and all losses, expenses and liabilities,
including judgments, costs and counsel fees, for any action taken or
omitted by the Warrant Agent in the execution of its duties and powers
hereunder, excepting losses, expenses and liabilities arising as a
result of the Warrant Agent's negligence or wilful misconduct.
12.6 The Warrant Agent may resign its duties or the Company may terminate the
Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own negligence or wilful misconduct) on 30
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days' prior written notice to the other party. At least 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. On such resignation or
termination, the Company shall appoint a new Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days
after it has been notified in writing of the resignation by the Warrant
Agent, then the Registered Holder of any Warrant Certificate may apply
to any court of competent jurisdiction for the appointment of a new
Warrant Agent. Any new Warrant Agent, whether appointed by the Company
or by such court, shall be a bank or trust company having a capital and
surplus, as shown by its last published report to its shareholders, of
not less than $1,000,000.
12.7 After acceptance in writing of an appointment of a 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; provided, however, if 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. The Company shall
file a notice of appointment of a new Warrant Agent 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.
12.8 Any corporation into which the Warrant Agent or any new Warrant Agent
may be converted or merged, or any corporation resulting from any
consolidation to which the Warrant Agent or any new Warrant Agent shall
be a party, or any corporation succeeding to the corporate trust
business of the Warrant Agent shall be a successor Warrant Agent under
this agreement, provided that such corporation is eligible for
appointment as a successor to the Warrant Agent. Any such successor
Warrant Agent shall promptly cause notice of its succession as Warrant
Agent to be mailed to the Company and to the Registered Holder of each
Warrant Certificate. No further action shall be required for
establishment and authorisation of such successor Warrant Agent.
12.9 The Warrant Agent, its officers or directors and its subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the
Company and otherwise deal with the Company in the same manner and to
the same extent and with like effect as though it were not the Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company.
13. MODIFICATION OF AGREEMENT
The Warrant Agent and the Company may by supplemental agreement make any
changes or corrections in this agreement they shall deem appropriate to
cure any ambiguity or to correct any defective or inconsistent provision
or mistake or error herein contained. Additionally, the parties may
make any changes or corrections deemed necessary which shall not
adversely affect the interests of the holders of Warrant Certificates;
provided, however, this agreement shall not otherwise be modified,
supplemented or altered in any respect, except with the consent in
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writing of the Registered Holders of Warrant Certificates representing
not less than 66 2/3 per cent. of the Warrants outstanding; provided,
however, that no change in the number or nature of the Warrant Shares
purchasable on exercise of a Warrant, or the Exercise Price or the
Exercise Period thereof shall be made without the consent, in writing,
of the Registered Holder of the Warrant Certificate representing such
Warrant, other than such changes as are specifically prescribed by this
agreement.
14. NOTICES
All notices, demands, elections, opinions or requests (however
characterised or described) required or authorised hereunder shall be
deemed given sufficiently in writing and set by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to:-
in the case of the Company: Alliance Resources plc
Xxxxxxxxx Xxxxx
00-00 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
and, in the case of the Warrant Agent: Society National Bank
P. O. Xxx 0000
Xxxxxx, Xxxxx 00000-0000
and, if to the Registered Holder of a Warrant Certificate, at the
address of such holder as set forth on the books maintained by the
Warrant Agent.
15. PERSONS BENEFITING
This agreement shall be binding upon and inure to the benefit of the
Company, the Warrant Agent and their respective successors and assigns,
and the holders from time to time of the Warrant Certificates. Nothing
in this agreement is intended to or shall be construed to confer on any
other person any right, remedy or claim or to impose on any other person
any duty, liability or obligation.
16. FURTHER INSTRUMENTS
The parties shall execute and deliver any and all such other instruments
and shall take any and all such other actions as may be reasonable or
necessary to carry out the intention of this agreement.
17. SEVERABILITY
If any provision of this agreement shall be held, declared or pronounced
void, voidable, invalid, unenforceable or inoperative for any reason by
any court of competent jurisdiction, government authority or otherwise,
such holding, declaration or pronouncement shall not adversely affect
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any other provision of this agreement, which shall otherwise remain in
full force and effect and be enforced in accordance with its terms, and
the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
18. WAIVER
All the rights and remedies of either party under this agreement are
cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this agreement
shall operate as a waiver of any subsequent right or remedy arising from
a subsequent breach of this agreement. The consent of any party where
required hereunder to any act or occurrence shall not be deemed to be a
consent to any other act or occurrence.
19. GENERAL PROVISIONS
This agreement shall be construed and enforced in accordance with, and
governed by, the laws of England. Except as otherwise expressly stated
herein, time is of the essence in performing hereunder. This agreement
embodies the entire agreement and understanding between the parties and
supersedes all prior agreements and understandings relating to the
subject matter hereof, and this agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this agreement are
for convenience of reference only and shall not limit or otherwise
affect the meaning thereof. This agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS whereof this agreement has been executed on the date first above
written.
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Signed by )
)
for and on behalf of ALLIANCE RESOURCES PLC )
in the presence of:- )
Signed by )
)
for and on behalf of SOCIETY NATIONAL )
BANK in the presence of:- )
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS........................................................ 1
2. APPOINTMENT OF WARRANT AGENT....................................... 2
3. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES...................... 3
4. FORM AND EXECUTION OF WARRANT CERTIFICATES......................... 3
5. EXERCISE OF WARRANTS............................................... 4
6. RESERVATION OF SHARES AND PAYMENT OF TAXES......................... 5
7. REGISTRATION OF TRANSFER OF WARRANT CERTIFICATES................... 5
8. LOSS OR MUTILATION................................................. 6
9. ADJUSTMENT OF EXERCISE PRICE AND SHARES............................ 6
10. EXTENSION OF WARRANT EXERCISE PERIOD............................... 9
11. PURCHASE OR REDEMPTION OF WARRANTS BY THE COMPANY.................. 9
12. DUTIES, COMPENSATION AND TERMINATION OF WARRANT AGENT.............. 10
13. MODIFICATION OF AGREEMENT.......................................... 11
14. NOTICES............................................................ 12
15. PERSONS BENEFITING................................................. 12
16. FURTHER INSTRUMENTS................................................ 13
17. SEVERABILITY....................................................... 13
18. WAIVER............................................................. 13
19. GENERAL PROVISIONS................................................. 13
