1
EXHIBIT 99.3
================================================================================
WARRANT AGREEMENT
BETWEEN
BELCO OIL & GAS CORP.
AND
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
-----------------------------------
DATED AS OF NOVEMBER 26, 1997
-----------------------------------
Warrants to Purchase 1,666,667 Common Shares
================================================================================
2
TABLE OF CONTENTS
RECITALS..........................................................................................................1
AGREEMENT.........................................................................................................1
1. DEFINITIONS...............................................................................................1
2. WARRANT CERTIFICATES......................................................................................6
2.1 Issuance of Warrant................................................................................6
2.2 Form, Denomination and Date of Warrants............................................................6
2.3 Execution and Delivery of Warrant Certificates.....................................................7
2.4 Transfer and Exchange..............................................................................7
3. EXERCISE AND EXPIRATION OF WARRANTS.......................................................................8
3.1 Right to Acquire Warrant Shares Upon Exercise......................................................8
3.2 Exercise and Expiration of Warrants................................................................8
(a) Exercise of Warrants........................................................................8
(b) Expiration of Warrants......................................................................8
(c) Method of Exercise..........................................................................9
(d) Partial Exercise............................................................................9
(e) Issuance of Warrant Shares..................................................................9
(f) Time of Exercise...........................................................................10
3.3 Payment of Taxes..................................................................................10
3.4 Surrender of Certificates.........................................................................10
3.5 Shares Issuable...................................................................................11
4. DISSOLUTION, LIQUIDATION OR WINDING UP...................................................................11
5. ADJUSTMENTS..............................................................................................11
5.1 Adjustments.......................................................................................11
(a) Stock Dividends, Subdivisions and Combinations.............................................11
(b) Certain Other Dividends and Distributions..................................................12
(c) Reclassifications..........................................................................13
(d) Distribution of Warrants or Other Rights to Holders of Common
Shares.....................................................................................13
(e) Superseding Adjustment of Number of Warrant Shares into Which
Each Warrant is Exercisable................................................................13
(f) Other Provisions Applicable to Adjustments under this Section..............................14
(g) Warrant Price Adjustment...................................................................15
(h) Merger, Consolidation or Combination.......................................................15
(i) Compliance with Governmental Requirements..................................................15
(j) Optional Tax Adjustment....................................................................15
3
(k) Warrants Deemed Exercisable...........................16
(l) Limitations on Certain Non-Stock Dividends............16
5.2 Notice of Adjustment.........................................16
5.3 Statement on Warrant Certificates............................16
5.4 Fractional Interest..........................................16
6. LOSS OR MUTILATION..................................................17
7. RESERVATION AND AUTHORIZATION OF WARRANT SHARES.....................17
8. WARRANT TRANSFER BOOKS..............................................18
9. WARRANT HOLDERS.....................................................19
9.1 Voting or Dividend Rights....................................19
9.2 Rights of Action.............................................19
9.3 Treatment of Holders of Warrant Certificates.................19
9.4 Communications to Holders....................................19
10. NOTICES.............................................................20
10.1 Notices Generally............................................20
10.2 Required Notices to Holders..................................21
11. APPLICABLE LAW......................................................22
12. PERSONS BENEFITING..................................................22
13. COUNTERPARTS........................................................22
14. AMENDMENTS..........................................................22
15. INSPECTION..........................................................23
16. SUCCESSOR TO THE COMPANY............................................23
17. ENTIRE AGREEMENT....................................................23
18. HEADINGS............................................................23
EXHIBITS
A. List of Warrant Certificates To Be Issued..........................A-1
B. Form of Warrant Certificate........................................B-1
4
WARRANT AGREEMENT
This WARRANT AGREEMENT, dated as of November 26, 1997 (the "Issue Date"),
is entered into between BELCO OIL & GAS CORP., a Nevada corporation (the
"Company"), and JOINT ENERGY DEVELOPMENT INVESTMENTS LIMITED PARTNERSHIP, a
Delaware limited partnership ("JEDI").
RECITALS
A. This Agreement is entered into in connection with the Agreement and Plan
of Merger, dated as of October 31, 1997, by and among the Company, Belco
Acquisition Sub, Inc., a Delaware corporation, and Coda Energy, Inc., a Delaware
corporation (the "Merger Agreement").
B. Pursuant to the Merger Agreement, the Company proposes to issue to JEDI
1,666,667 Warrants, as hereinafter described, each to purchase from time to time
at the Warrant Price (as defined below) one Common Share (as defined below) of
the Company after the Trigger Date (as defined below) and on or prior to the
Expiration Date (as defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
1. DEFINITIONS
"Additional Common Shares" shall mean all Common Shares issued or issuable
by the Company after the date of this Agreement, other than the Warrant Shares.
"Affiliate" shall mean, as to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control of such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, "Affiliate" shall not include any wholly-owned Subsidiary of the
Company.
"Agreement" shall mean this Warrant Agreement, as the same may be amended,
modified or supplemented from time to time.
"Business Day" shall mean a day which in New York, New York is neither a
legal holiday nor a day on which banking institutions are authorized by law or
regulation to close.
5
"Capital Stock" of any Person shall mean any and all shares, interests,
participations, or other equivalents (however designated) of such Person's
capital stock, and any warrants, options or similar rights to acquire such
capital stock.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than any one or more Principals or their Affiliates, (ii) the
adoption of a plan relating to the liquidation or dissolution of the Company,
(iii) the consummation of any transaction (including, without limitation, any
purchase, sale, acquisition, disposition, merger or consolidation) the result of
which is that any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act), other than one or more Principals or their Affiliates, becomes
the "beneficial owner" (as such term is described in Rule 13d-3 and Rule 13d-5
under the Exchange Act) of more than 50% of the aggregate voting power of all
classes of Capital Stock of the Company having the right to elect directors
under ordinary circumstances, (iv) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors or
(vi) a "Rule 13e-3 transaction" (as such term is defined in Rule 13e-3 under the
Exchange Act). For purposes of this definition, "Principals" means (i) Xxxxxx X.
Xxxxxx, (ii) the spouse of Xxxxxx X. Xxxxxx, (iii) Xxxxxxxx X. Xxxxxx, (iv) the
spouse of Xxxxxxxx X. Xxxxxx, (v) the lineal descendants of Xxxxxx X. Xxxxxx,
and (vi) trusts in which Xxxxxx X. Xxxxxx, the spouse of Xxxxxx X. Xxxxxx,
Xxxxxxxx X. Xxxxxx, the spouse of Xxxxxxxx X. Xxxxxx, or a lineal descendant of
Xxxxxx X. Xxxxxx is a beneficiary, and "Continuing Directors" means, as of any
date of determination, any member of the Board of Directors of the Company who
(i) was a member of such Board of Directors on the date of this Agreement or
(ii) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.
"Common Equity Securities" shall mean any class or series of Common Shares
of the Company.
"Common Shares" shall mean (i) the common stock, par value $.01 per share,
of the Company, as constituted on the original issuance of the Warrants, (ii)
any Capital Stock into which such Common Shares may thereafter be changed and
(iii) any share of the Company of any other class issued to holders of such
Common Shares upon any reclassification thereof.
"Company" shall mean the company identified in the preamble hereof and its
successors and assigns.
"Corporate Office" shall mean the executive offices of the Company located
at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as
the Company shall locate its executive offices.
-2-
6
"Current Market Price" shall mean, with respect to any security on any
date:
(1) if the Company does not have a class of equity securities
registered under the Exchange Act, the value of such security (a) most
recently determined as of a date within the one month preceding such date
by an Independent Financial Expert using one or more valuation methods that
such Independent Financial Expert, in its best professional judgment,
determines to be most appropriate but without giving effect to the discount
for any lack of liquidity of the security or to the fact that the Company
may not have any class of equity securities registered under the Exchange
Act and assuming that the Warrants are currently exercisable (in the event
of more than one such determination, the determination for the later date
shall be used) or (b) if no such determination shall have been made within
such one month period, determined as of such date by an Independent
Financial Expert as described in (a) above, or
(2) if the Company does have a class of equity securities
registered under the Exchange Act, the average of the daily Market Prices
of such security for each Business Day during the period commencing thirty
(30) Business Days before such date and ending on the date one day prior to
such date or, if the Company has had a class of equity securities
registered under the Exchange Act for less than thirty (30) consecutive
Business Days before such date, then the average of the daily Market Price
for all of the Business Days before such date for which daily Market Prices
are available provided, however, that in the event that the Current Market
Price per share of a security is determined during a period following the
announcement by the Company of (A) a dividend or distribution on such a
security payable in shares of such a security or securities convertible
into shares of such a security, or (B) any subdivision, combination or
reclassification of such security, and prior to the expiration of such
thirty (30) Business Day period before such date (or, if applicable, such
lesser number of Business Days before such date for which daily Market
Prices are available) after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then in each such case, Current Market Price shall be
properly adjusted to take into account ex-dividend trading.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Expiration Date" shall mean November 25, 2000 or such earlier date as
determined in accordance with Section 4.
"Holder" or "Warrantholder" shall mean any Person in whose name at the time
any Warrant Certificate is registered upon the Warrant Register.
-3-
7
"Independent" shall mean a nationally recognized investment banking firm or
Person (as the case may be) (i) that does not then have, and for the ten years
immediately preceding such time has not had (and, in the case of a nationally
recognized investment banking firm, whose directors, officers, employees and
Affiliates do not then have, and for the ten years immediately preceding such
time have not had) a direct or indirect interest in the Company or any of its
Subsidiaries or Affiliates or any successor to any of them and (ii) that is not
then, and for the ten years immediately preceding such time was not (and, in the
case of a nationally recognized investment banking firm, whose directors,
officers, employees or Affiliates are not then, and for the ten years
immediately preceding such time were not) an employee, consultant, advisor,
director, officer or Affiliate (it being understood that the term "Independent"
when applied to a director of the Company, means a non-employee director of the
Company whose only relationship with the Company during the relevant period has
been as a director of the Company) of the Company, any of its Subsidiaries or
Affiliates or any successor to any of them.
"Independent Financial Expert" shall mean an Independent nationally
recognized investment banking firm with assets in excess of $1.0 billion
selected by a majority of the members of the Board of Directors (and by a
majority of the Independent members of the board, if any) of the Company.
"JEDI" shall mean the limited partnership identified in the preamble hereof
and its successors.
"Market Price" shall mean (A) in the case of a security listed or admitted
to trading on any securities exchange, the closing price, regular way, on such
day, or if no sale takes place on such day, the average of the closing bid and
asked prices on such day, (B) in the case of a security not then listed or
admitted to trading on any securities exchange, the last reported sale price on
such day, or if no sale takes place on such day, the average of the closing bid
and asked prices on such day, as reported by a reputable quotation source
designated by the Company, (C) in the case of a security not then listed or
admitted to trading on any securities exchange and as to which no such reported
sale price or bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as reported by a reputable quotation
service, or The Wall Street Journal, Eastern Edition, or if such newspaper is no
longer published then in a newspaper of general circulation in the Borough of
Manhattan, City and State of New York, customarily published on each Business
Day, designated by the Company or if there shall be no bid and asked prices on
such day, the average of the high bid and low asked prices, as so reported, on
the most recent day (not more than ten (10) days prior to the date in question)
for which prices have been so reported, and (D) if there are no bid and asked
prices reported during the ten (10) days prior to the date in question, the
Current Market Value of the security shall be determined as if the Company did
not have a class of equity securities registered under the Exchange Act.
"Non-Stock Dividend" shall mean any payment by the Company to all holders
of its Common Shares of any dividend, or any other distribution by the Company
to such holders, of any shares of Capital Stock of the Company, evidences of
indebtedness of the Company, cash or other assets (including rights, warrants or
other securities (of the Company or any other Person)), other than any
-4-
8
dividend or distribution (i) upon a merger or consolidation or sale to which
Section 5.1(h) applies, (ii) of any Common Shares referred to in Section 5.1(a)
or (iii) of cash not in liquidation of the Company.
"Non-Surviving Combination" shall mean any merger, consolidation or other
business combination by the Company with one or more other entities in a
transaction in which the Company is not the surviving entity or becomes a
wholly-owned subsidiary of another entity.
"outstanding" shall mean, as of the time of determination, when used with
respect of any Warrants, all Warrants originally issued under this Agreement
except (i) Warrants that have been exercised pursuant to Section 3.2(a), (ii)
Warrants that have expired pursuant to Sections 3.2(b), 4 or 6 and (iii)
Warrants that have otherwise been acquired by the Company; provided, however,
that in determining whether the Holders of the requisite amount of the
outstanding Warrants have given any request, demand, authorization, direction,
notice, consent or waiver under the provisions of this Agreement, Warrants owned
by the Company or any Subsidiary or Affiliate of the Company or any Person that
is at such time a party to a merger or acquisition agreement with the Company
shall be disregarded and deemed not to be outstanding.
"Person" shall mean any individual, corporation (including a business
trust), partnership, joint venture, association, joint-stock company, trust,
estate, limited liability company, unincorporated association, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
"Recipient" shall have the meaning given such term in Section 3.2(e).
"Restricted Warrants" shall have the meaning given such term in Section
2.2(b).
"Restricted Warrant Legend" shall mean the legend so designated on the
Warrant Certificate attached hereto as Exhibit A.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" shall mean, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
"Trigger Date" shall mean the earliest of (i) November 26, 1998, (ii) the
date of a Change of Control or (iii) the date of any notice given pursuant to
Section 3.2(g).
-5-
9
"Warrant Certificates" shall mean those certain warrant certificates
evidencing the Warrants, substantially in the form of Exhibit A attached hereto.
"Warrant Price" shall mean the exercise price per Warrant Share, initially
set at $27.50, subject to adjustment as provided in Section 5.1(g).
"Warrant Register" shall have the meaning given such term in Section 8.
"Warrant Shares" shall mean the Common Shares issuable upon exercise of the
Warrants, the number of which is subject to adjustment from time to time in
accordance with Section 5.
"Warrants" shall mean those warrants issued hereunder to purchase initially
up to an aggregate of 1,666,667 Warrant Shares at the Warrant Price, subject to
adjustment pursuant to Section 5.
2. WARRANT CERTIFICATES
2.1 Issuance of Warrant. An aggregate of 1,666,667 Warrants shall be issued
on the date of this Agreement to JEDI. The Company shall issue to JEDI Warrant
Certificates evidencing such Warrants. Each Warrant Certificate issued pursuant
to this Section 2.1 shall evidence the number of Warrants specified therein and
each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase one Warrant Share, subject
to adjustment as provided in Section 5.
2.2 Form, Denomination and Date of Warrants.
(a) Warrant Certificates shall be substantially in the form of Exhibit
A hereto. The Warrants shall be numbered, lettered or otherwise distinguished in
such manner or in accordance with such plans as the officers of the Company
executing the same may determine. Each Warrant shall be dated the date of its
authentication. Any of the Warrants may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with the rules of any securities market in
which the Warrants are admitted to trading, or to conform to general usage. All
Warrants shall be otherwise substantially identical except as to denomination
and as provided herein.
(b) Each Warrant Certificate issued pursuant to this Agreement
("Restricted Warrants") will bear the Restricted Warrant Legend unless removed
in accordance with Section 2.4.
-6-
10
2.3 Execution and Delivery of Warrant Certificates.
(a) Warrant Certificates evidencing the Warrants which may be delivered
under this Agreement are limited to Warrant Certificates evidencing 1,666,667
Warrants, except for Warrant Certificates delivered pursuant to Sections 2.4,
3.2(d), 6 and 8 upon registration of transfer of, or in exchange for, or in lieu
of, one or more previously issued Warrant Certificates.
(b) At any time and from time to time on or after the date of this
Agreement, Warrant Certificates evidencing the Warrants may be executed and
delivered by the Company for issuance.
(c) The Warrant Certificates shall be executed in the corporate name
and on behalf of the Company by the Chairman (or any Co-Chairman) of the Board,
the Chief Executive Officer, the President or any one of the Vice Presidents of
the Company under corporate seal reproduced thereon and attested to by the
Secretary or one of the Assistant Secretaries of the Company, either manually or
by facsimile signature printed thereon. In case any officer of the Company whose
signature shall have been placed upon any of the Warrant Certificates shall
cease to be such officer of the Company before and delivery thereof, such
Warrant Certificates may, nevertheless, be issued and delivered with the same
force and effect as though such person had not ceased to be such officer of the
Company, and any Warrant Certificate may be signed on behalf of the Company by
such person as, at the actual date of the execution of such Warrant Certificate,
shall be a proper officer of the Company, although at the date of the execution
of this Agreement any such person was not such an officer.
2.4 Transfer and Exchange.
(a) If a holder of a Restricted Warrant wishes at any time to transfer
such Restricted Warrant to a Person who wishes to take delivery thereof in the
form of a Restricted Warrant, such holder may, subject to the restrictions on
transfer set forth herein and in such Restricted Warrant, cause the exchange of
such Restricted Warrants for one or more Restricted Warrants of any authorized
denomination or denominations and exercisable for the same aggregate number of
Warrant Shares. Upon receipt by the Company at its Corporate Office of (1) such
Restricted Warrant, duly endorsed as provided herein, (2) instructions from such
holder directing the Company to authenticate and deliver one or more Restricted
Warrants exercisable for the same aggregate number of Warrant Shares as the
Restricted Warrant to be exchanged, such instructions to contain the name or
names of the designated transferee or transferees, the authorized denomination
or denominations of the Restricted Warrants to be so issued and appropriate
delivery instructions, and (3) an opinion of counsel, reasonably satisfactory to
the Company, to the transferor of such Restricted Warrant to the effect that the
transfer of such Restricted Warrant has been registered under the Securities Act
or is exempt from registration thereunder pursuant to an applicable exemption
therefrom, then the Company shall cancel or cause to be canceled such Restricted
Warrant and, concurrently therewith, the Company shall execute and deliver, one
or more
-7-
11
Restricted Warrants to the effect set forth therein, in accordance with the
instructions referred to above.
(b) If Warrants are issued upon the transfer, exchange or replacement
of Warrants bearing the Restricted Warrant Legend, or if a request is made to
remove such Restricted Warrant Legend, the Warrants so issued shall bear the
Restricted Warrant Legend, or the Restricted Warrant Legend shall not be
removed, as the case may be, unless there is delivered to the Company
satisfactory evidence, which may include an opinion of counsel as may be
reasonably required by the Company to the effect that neither the Restricted
Warrant Legend nor the restrictions on transfer set forth therein are required
to ensure that transfers thereof comply with the provisions of the Securities
Act or, with respect to Restricted Warrants, that such Warrants are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence the Company shall authenticate and
deliver Warrant Certificates that do not bear the Restricted Warrant Legend.
(c) No service charge shall be made to a Warrantholder for any
registration of transfer or exchange; provided, however, that the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Warrant Certificates.
3. EXERCISE AND EXPIRATION OF WARRANTS
3.1 Right to Acquire Warrant Shares Upon Exercise.
Each Warrant Certificate shall entitle the Holder thereof, subject to the
provisions thereof and of this Agreement, to acquire from the Company, for each
Warrant evidenced thereby, one Warrant Share at the Warrant Price, subject to
adjustment as provided in this Agreement. The Warrant Price shall be adjusted
from time to time as required by Section 5.1. The Warrants are exercisable at
any time on and after the Trigger Date and on or prior to the Expiration Date.
3.2 Exercise and Expiration of Warrants.
(a) Exercise of Warrants. Subject to the terms and conditions set forth
herein, including, without limitation, the exercise procedure described in
Section 3.2(c), a Holder of a Warrant Certificate may exercise all or any whole
number of the Warrants evidenced thereby, on any Business Day on and after the
Trigger Date until 5:00 p.m., New York City time, on the Expiration Date
(subject to earlier expiration pursuant to Section 4) for the Warrant Shares
purchasable thereunder.
(b) Expiration of Warrants. The Warrants shall terminate and become
void as of 5:00 p.m., New York City time, on the Expiration Date, subject to
earlier expiration in accordance with Section 4. In the event that the Warrants
are to expire by reason of Section 4, the term "Expiration Date" shall mean such
earlier date for all purposes of this Agreement.
-8-
12
(c) Method of Exercise. The Holder may exercise all or any of the
Warrants by either of the following methods:
(i) The Holder may deliver to the Company at the Corporate Office
(A) a written notice of such Holder's election to exercise Warrants,
duly executed by such Holder in the form set forth on the reverse of,
or attached to, such Warrant Certificate, which notice shall specify
the number of Warrant Shares to be purchased, (B) the Warrant
Certificate evidencing such Warrants and (C) a sum equal to the
aggregate Warrant Price for the Warrant Shares into which such Warrants
are being exercised, which sum shall be paid in any combination elected
by such Holder of (x) a company or personal check payable to the order
of the Company and delivered to the Company at the Corporate Office, or
(y) wire transfers in immediately available funds to the account of the
Company at such banking institution as the Company shall have given
notice to the Holders in accordance with Section 10.1(b); or
(ii) The Holder may also exercise all or any of the Warrants in a
"cashless" or "net-issue" exercise by delivering to the Company at the
Corporate Office (A) a written notice of such Holder's election to
exercise Warrants, duly executed by such Holder in the form set forth
on the reverse of, or attached to, such Warrant Certificate, which
notice shall specify the number of Warrant Shares to be delivered to
such Holder and the number of Warrant Shares with respect to which such
Warrants are being surrendered in payment of the aggregate Warrant
Price for the Warrant Shares to be delivered to the Holder, and (B) the
Warrant Certificate evidencing such Warrants. For purposes of this
subparagraph (ii), each Warrant Share as to which such Warrants are
surrendered in payment of the aggregate Warrant Price will be
attributed a value equal to (x) the Current Market Price per share of
Common Shares minus (y) the then-current Warrant Price.
(d) Partial Exercise. If fewer than all the Warrants represented by a
Warrant Certificate are exercised, such Warrant Certificate shall be surrendered
and a new Warrant Certificate of the same tenor and for the number of Warrants
which were not exercised shall be executed by the Company. The Company, subject
to the provisions of Section 8, as may be directed in writing by the Holder,
shall deliver the new Warrant Certificate to the Person or Persons in whose name
such new Warrant Certificate is so registered.
(e) Issuance of Warrant Shares. Upon surrender of a Warrant Certificate
evidencing Warrants in conformity with the foregoing provisions and payment of
the Warrant Price in respect of the exercise of one or more Warrants evidenced
thereby, when such payment is received, the Company shall thereupon, as promptly
as practicable, and in any event within five Business Days after receipt by the
Company of such notice of exercise, execute or cause to be executed and deliver
or cause to be delivered to the Recipient (as defined below) a certificate or
certificates representing the aggregate number of Warrant Shares issuable upon
such exercise (based
-9-
13
upon the aggregate number of Warrants so exercised), determined in accordance
with Section 3.5, together with an amount in cash in lieu of any fractional
share(s) determined in accordance with Section 5.4. The certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as such Holder shall request in such notice of exercise and
shall be registered or otherwise placed in the name of, and delivered to, the
Holder or, subject to Section 2.2 and Section 3.3, such other Person as shall be
designated by the Holder in such notice (the Holder or such other Person being
referred to herein as the "Recipient").
(f) Time of Exercise. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date on which all requirements
set forth in Section 3.2(c) applicable to such exercise have been satisfied.
Subject to Section 5.1(f)(iv), certificate(s) evidencing the Warrant Shares
issued upon the exercise of such Warrant shall be deemed to have been issued
and, for all purposes of this Agreement, the Recipient shall, as between such
Person and the Company, be deemed to be and entitled to all rights of the holder
of record of such Warrant Shares as of such time.
(g) In the event that the Company shall propose any transaction which
would result in a Change of Control, the Company shall send a written notice to
each holder of Warrant Certificates not less than 20 days prior to the
consummation of the transaction that would result in such Change of Control.
3.3 Payment of Taxes.
The Company shall pay any and all taxes (other than income taxes) and other
charges that may be payable in respect of the issue or delivery of Warrant
Shares on exercise of Warrants pursuant hereto. The Company shall not be
required, however, to pay any tax or other charge imposed in respect of any
transfer involved in the issue and delivery of any certificates for Warrant
Shares or payment of cash to any Recipient other than the Holder of the Warrant
Certificate surrendered upon the exercise of a Warrant, and in case of such
transfer or payment, the Company shall not be required to issue or deliver any
certificate or pay any cash until (a) such tax or charge has been paid or an
amount sufficient for the payment thereof has been delivered to the Company or
(b) it has been established to the Company's satisfaction that any such tax or
other charge that is or may become due has been paid.
3.4 Surrender of Certificates.
Any Warrant Certificate surrendered for exercise shall be promptly canceled
by the Company and shall not be reissued by the Company.
-10-
14
3.5 Shares Issuable.
The number of Warrant Shares "issuable upon exercise" of Warrants at any
time shall be the number of Warrant Shares into which such Warrants are then
exercisable. The number of Warrant Shares "into which each Warrant is
exercisable" initially shall be one share, subject to adjustment as provided in
Section 5.1.
4. DISSOLUTION, LIQUIDATION OR WINDING UP
If, on or prior to the Expiration Date, the Company (or any other Person
controlling the Company) shall propose a voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, the Company shall give
written notice thereof to all Holders of Warrant Certificates in the manner
provided in Section 10 prior to the date on which such transaction is expected
to become effective or, if earlier, the record date for such transaction. Such
notice shall also specify the date as of which the holders of record of the
Common Shares shall be entitled to exchange their shares for moneys, securities
or other property deliverable upon such dissolution, liquidation or winding up,
as the case may be, the date on which each Holder of Warrant Certificates shall
be entitled to receive the moneys, securities or other property which such
Holder would have been entitled to receive had such Holder been the holder of
record of the Warrant Shares into which the Warrants were exercisable
immediately prior to such dissolution, liquidation or winding up (net of the
then applicable Warrant Price) and the date on which the rights to exercise the
Warrants shall terminate.
In case of any such voluntary or involuntary dissolution, liquidation or
winding up of the Company, the Company shall retain any moneys, securities or
other property which the Holders are entitled to receive under this Agreement.
After any Holder has surrendered a Warrant Certificate to the Company, the
Company shall make payment in the appropriate amount to such Person or Persons
as it may be directed in writing by the Holder surrendering such Warrant
Certificate. The Company shall not be required to pay interest on any money
deposited pursuant to the provisions of this Section 4.
5. ADJUSTMENTS
5.1 Adjustments.
The number of Warrant Shares into which each Warrant is exercisable and the
Warrant Price shall be subject to adjustment from time to time after the Issue
Date in accordance (and only in accordance) with the provisions of this Section
5:
(a) Stock Dividends, Subdivisions and Combinations. In case at any time
or from time to time after the date hereof the Company shall:
-11-
15
(i) pay to the holders of its Common Shares a dividend payable in, or
make any other distribution on any class of its capital stock in, Common
Shares (other than a dividend or distribution upon a merger or
consolidation or sale to which Section 5.1(h) applies);
(ii) subdivide its outstanding Common Shares into a larger number of
Common Shares (other than a subdivision upon a merger or consolidation or
sale to which Section 5.1(h) applies); or
(iii) combine its outstanding Common Shares into a smaller number of
Common Shares (other than a combination upon a merger or consolidation or
sale to which Section 5.1(h) applies);
then, (x) in the case of any such dividend or distribution, effective
immediately after the opening of business on the day after the date for the
determination of the holders of Common Shares entitled to receive such dividend
or distribution or (y) in the case of any subdivision or combination, effective
immediately after the opening of business on the day after the day upon which
such subdivision or combination becomes effective, the number of Warrant Shares
into which each Warrant is exercisable shall be adjusted to that number of
Warrant Shares determined by (A) in the case of any such dividend or
distribution, multiplying the number of Warrant Shares into which each Warrant
is exercisable at the opening of business on the day after the day for
determination by a fraction (not to be less than one), (1) the numerator of
which shall be equal to the sum of the number of Common Shares outstanding at
the close of business on such date for determination and the total number of
shares constituting such dividend or distribution and (2) the denominator of
which shall be equal to the number of Common Shares outstanding at the close of
business on such date for determination, or (B) in the case of any such
combination, by proportionately reducing, or, in the case of any such
subdivision, by proportionately increasing, the number of Warrant Shares into
which each Warrant is exercisable at the opening of business on the day after
the day upon which such subdivision or combination becomes effective.
(b) Certain Other Dividends and Distributions. In case at any time or
from time to time after the date hereof the Company shall effect a Non-Stock
Dividend (other than any dividend or distribution of any warrants, options or
rights referred to in Section 5.1(d)), then, and in each such case, effective
immediately after the opening of business on the day after the date for the
determination of the holders of Common Shares entitled to receive such
distribution, the number of Warrant Shares into which each Warrant is
exercisable shall be adjusted to that number determined by multiplying the
number of Warrant Shares into which each Warrant is exercisable immediately
prior to the close of business on the date of determination by a fraction, (i)
the numerator of which shall be the Current Market Price per Common Share on
such date of determination and (ii) the denominator of which shall be such
Current Market Price per Common Share minus the portion applicable to one Common
Share of the fair market value (as determined in good faith by the Board of
Directors of the Company) of such securities or other assets so distributed
pursuant to such Non-Stock Dividend.
-12-
16
(c) Reclassifications. A reclassification of the Common Shares (other
than any such reclassification in connection with a merger or consolidation or
sale to which Section 5.1(h) applies) into Common Shares and shares of any other
class of stock shall be deemed a distribution by the Company to the holders of
its Common Shares of such shares of such other class of stock for the purposes
and within the meaning of Section 5.1(b) (and the effective date of such
reclassification shall be deemed to be "the date for the determination of the
holders of Common Shares entitled to receive such distribution" for the purposes
and within the meaning of Section 5.1(b)) and, if the outstanding number of
Common Shares shall be changed into a larger or smaller number of Common Shares
as a part of such reclassification, such change shall be deemed a subdivision or
combination, as the case may be, of the outstanding Common Shares for the
purposes and within the meaning of Section 5.1(a) (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
or combination becomes effective" for the purposes and within the meaning of
Section 5.1(a)).
(d) Distribution of Warrants or Other Rights to Holders of Common
Shares. In case at any time or from time to time after the Effective Date the
Company shall make a distribution to all holders of outstanding Common Shares of
any warrants, options or other rights to subscribe for or purchase any
Additional Common Shares or securities convertible into or exchangeable for
Additional Common Shares (other than a distribution of such warrants, options or
rights upon a merger or consolidation or sale to which Section 5.1(h) applies),
whether or not the rights to subscribe or purchase thereunder are immediately
exercisable, and the consideration per share for which Additional Common Shares
may at any time thereafter be issuable pursuant to such warrants or other rights
shall be less than the Current Market Price per Common Share on the date fixed
for determination of the holders of Common Shares entitled to receive such
distribution, then, and for each such case, effective immediately after the
opening of business on the day after the date for determination, the number of
Warrant Shares into which each Warrant is exercisable shall be adjusted to that
number determined by multiplying the number of Warrant Shares into which each
Warrant is exercisable at the opening of business on the day after such date for
determination by a fraction (not less than one), (i) the numerator of which
shall be the number of Common Shares outstanding at the close of business on
such date for determination plus the maximum number of Additional Common Shares
issuable pursuant to all such warrants or other rights and (ii) the denominator
of which shall be the number of Common Shares outstanding at the close of
business on such date for determination plus the number of Common Shares that
the minimum consideration received and receivable by the Company for the
issuance of such maximum number of Additional Common Shares pursuant to the
terms of such warrants or other rights would purchase at such Current Market
Price.
(e) Superseding Adjustment of Number of Warrant Shares into Which Each
Warrant is Exercisable. In case at any time after any adjustment of the number
of Warrant Shares into which each Warrant is exercisable shall have been made
pursuant to Section 5.1(d) on the basis of the distribution of warrants or other
rights or after any new adjustment of the number of Warrant Shares into which
each Warrant is exercisable shall have been made pursuant to this Section
5.1(e), such warrants or rights shall expire, and all or a portion of such
warrants or rights shall not have been
-13-
17
exercised, then, and in each such case, upon the election of the Company such
previous adjustment in respect of such warrants or rights which have expired
without exercise shall be rescinded and annulled as to any then outstanding
Warrants, and the Additional Common Shares that were deemed for purposes of the
computations set forth in Section 5.1(d) to have been issued or sold by virtue
of such adjustment in respect of such warrants or rights shall no longer be
deemed to have been distributed.
(f) Other Provisions Applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of the
number of Warrant Shares into which each Warrant is exercisable and to the
Warrant Price under this Section 5.1:
(i) Treasury Stock. The sale or other disposition of any issued Common
Shares owned or held by or for the account of the Company shall be deemed
an issuance or sale of Additional Common Shares for purposes of this
Section 5. The Company shall not pay any dividend on or make any
distribution on Common Shares held in the treasury of the Company. For the
purposes of this Section 5.1, the number of Common Shares at any time
outstanding shall not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip certificates issued
in lieu of fractions of Common Shares.
(ii) When Adjustments Are to be Made. The adjustments required by
Sections 5.1(a), 5.1(b), 5.1(c) and 5.1(d) shall be made whenever and as
often as any specified event requiring an adjustment shall occur, except
that no adjustment of the Warrant Shares into which each Warrant is
exercisable that would otherwise be required shall be made unless and until
such adjustment either by itself or with other adjustments not previously
made increases or decreases the Warrant Shares into which each Warrant is
exercisable immediately prior to the making of such adjustment by at least
1%. Any adjustment representing a change of less than such minimum amount
(except as aforesaid) shall be carried forward and made as soon as such
adjustment, together with other adjustments required by Sections 5.1(a),
5.1(b), 5.1(c) and 5.1(d) and not previously made, would result in such
minimum adjustment.
(iii) Fractional Interests. In computing adjustments under this Section
5, fractional interests in Common Shares shall be taken into account to the
nearest one-thousandth of a share.
(iv) Deferral of Issuance upon Exercise. In any case in which this
Section 5 shall require that an adjustment to the Warrant Shares into which
each Warrant is exercisable be made effective pursuant to Section
5.1(a)(i), 5.1(b) or 5.1(d) prior to the occurrence of a specified event
and any Warrant is exercised after the time at which the adjustment became
effective but prior to the occurrence of such specified event, the Company
may elect to defer until the occurrence of such specified event the issuing
to the Holder of the Warrant Certificate evidencing such Warrant (or other
Person entitled thereto) of, and may delay registering such Holder or other
Person as the recordholder of, the Warrant
-14-
18
Shares over and above the Warrant Shares issuable upon such exercise
determined in accordance with Section 3.5 on the basis of the Warrant
Shares into which each Warrant is exercisable prior to such adjustment
determined in accordance with Section 3.5; provided, however, that the
Company shall deliver to such Holder or other person a due xxxx or other
appropriate instrument evidencing the right of such Holder or other Person
to receive, and to become the record holder of, such Additional Common
Shares, upon the occurrence of the event requiring such adjustment.
(g) Warrant Price Adjustment. Whenever the number of Warrant Shares
into which a Warrant is exercisable is adjusted as provided in this Section 5.1,
the Warrant Price payable upon exercise of the Warrant shall simultaneously be
adjusted by multiplying such Warrant Price immediately prior to such adjustment
by a fraction, the numerator of which shall be the number of Warrant Shares into
which such Warrant was exercisable immediately prior to such adjustment, and the
denominator of which shall be the number of Warrant Shares into which such
Warrant was exercisable immediately thereafter.
(h) Merger, Consolidation or Combination. In the event the Company
merges, consolidates or otherwise combines with or into any Person, then, as a
condition of such merger, consolidation or combination, lawful and adequate
provisions shall be made whereby Warrantholders shall, in addition to their
other rights hereunder, thereafter have the right to purchase and receive upon
the basis and upon the terms and conditions specified in this Agreement upon
exercise of the Warrants and in lieu of the Warrant Shares immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock, securities or assets as may be issued
or payable with respect to or in exchange for a number of outstanding Common
Shares equal to the number of Warrant Shares immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby, and in any
such case appropriate provision shall be made with respect to the rights and
interests of the Warrantholders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the number of
Warrant Shares) shall thereafter be applicable, as nearly as may be practicable,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof.
(i) Compliance with Governmental Requirements. Before taking any action
that would cause an adjustment reducing the Warrant Price below the then par
value of any of the Warrant Shares into which the Warrants are exercisable, the
Company will take any corporate action that may be necessary in order that the
Company may validly and legally issue fully paid and non assessable Warrant
Shares at such adjusted Warrant Price.
(j) Optional Tax Adjustment. The Company may at its option, at any time
during the term of the Warrants, increase the number of Warrant Shares into
which each Warrant is exercisable, or decrease the Warrant Price, in addition to
those changes required by Section 5.1(a), 5.1(b), 5.1(c), 5.1(d) or 5.1(g), as
deemed advisable by the Board of Directors of the Company, in order that any
event treated for Federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the Recipients.
-15-
19
(k) Warrants Deemed Exercisable. For purposes solely of this Section 5,
the number of Warrant Shares which the holder of any Warrant would have been
entitled to receive had such Warrant been exercised in full at any time or into
which any Warrant was exercisable at any time shall be determined assuming such
Warrant was exercisable in full at such time, although such Warrant may not be
exercisable in full at such time pursuant to Section 3.2(a).
(l) Limitations on Certain Non-Stock Dividends. The Company agrees that
it will not declare or pay any Non-Stock Dividend subject to Section 5.1(b)
hereof to the extent that the fair market value of the property or other assets
to be distributed in respect of one Common Share equals or exceeds the Current
Market Price per Common Share at the date of determination.
5.2 Notice of Adjustment.
Whenever the number of Warrant Shares into which a Warrant is exercisable
is to be adjusted, or the Warrant Price is to be adjusted, in either case as
herein provided, the Company shall compute the adjustment in accordance with
Section 5.1, and shall, promptly after such adjustment becomes effective, cause
a notice of such adjustment or adjustments to be given to all Holders in
accordance with Section 10.1(b).
5.3 Statement on Warrant Certificates.
Irrespective of any adjustment in the number or kind of shares into which
the Warrants are exercisable, Warrant Certificates theretofore or thereafter
issued may continue to express the same price and number and kind of shares
initially issuable pursuant to this Agreement.
5.4 Fractional Interest.
The Company shall not issue fractional Warrant Shares on the exercise of
Warrants. If Warrant Certificates evidencing more than one Warrant shall be
presented for exercise at the same time by the same Holder, the number of full
Warrant Shares which shall be issuable upon such exercise thereof shall be
computed on the basis of the aggregate number of Warrants so to be exercised. If
any fraction of a Warrant Share would, except for the provisions of this Section
5.4, be issuable on the exercise of any Warrant (or specified portion thereof),
the Company shall, in lieu of issuing any fractional Warrant Shares, pay an
amount in cash calculated by it to be equal to the then Current Market Price per
Common Share on the date of such exercise multiplied by such fraction computed
to the nearest whole cent. The Holders, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
Share or a stock certificate representing a fraction of a Warrant Share.
-16-
20
6. LOSS OR MUTILATION
Upon (i) receipt by the Company of evidence reasonably satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and such reasonable and customary security or indemnity
as may be required by the Company to save the Company harmless and (ii)
surrender, in the case of mutilation, of the mutilated Warrant Certificate to
the Company and cancellation thereof, then, in the absence of notice to the
Company that the Warrants evidenced thereby have been acquired by a bona fide
purchaser, the Company shall execute and deliver to the registered Holder of the
lost, stolen, destroyed or mutilated Warrant Certificate, in exchange therefor
or in lieu thereof, a new Warrant Certificate of the same tenor and for a like
aggregate number of Warrants. At the written request of such registered Holder,
the new Warrant Certificate so issued shall be retained by the Company as having
been surrendered for exercise, in lieu of delivery thereof to such Holder, and
shall be deemed for purposes of Section 3.2 to have been surrendered for
exercise on the date the conditions specified in clauses (i) and (ii) of the
preceding sentence were first satisfied.
Upon the issuance of any new Warrant Certificate under this Section 6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
Every new Warrant Certificate executed and delivered pursuant to this
Section 6 in lieu of any lost, stolen or destroyed Warrant Certificate shall
constitute an additional contractual obligation of the Company, whether or not
the allegedly 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 6 are exclusive and shall preclude (to the
extent lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen, or destroyed Warrant Certificates.
7. RESERVATION AND AUTHORIZATION OF WARRANT SHARES
The Company shall at all times reserve and keep available, free from
preemptive rights, solely for issue upon the exercise of Warrants as herein
provided, such number of its authorized but unissued Warrant Shares deliverable
upon the exercise of Warrants as will be sufficient to permit the exercise in
full of all outstanding Warrants. The Company covenants that all Warrant Shares
will, at all times that Warrants are exercisable, be duly approved for listing
subject to official notice of issuance on each securities exchange, if any, on
which the Common Shares are then listed. The Company covenants that (i) all
Warrant Shares that may be issued upon exercise of Warrants shall upon issuance
be duly and validly authorized, issued and fully paid and nonassessable and free
of preemptive or similar rights and (ii) the stock certificates issued to
evidence any such Warrant Shares
-17-
21
will comply with Section 78 of the Nevada Revised Statutes (or its successor)
and any other applicable law.
The Company hereby authorizes and directs its current and future transfer
agents for the Common Shares at all times to reserve stock certificates for such
number of authorized shares as shall be requisite for such purpose. The Company
will supply such transfer agents with duly executed stock certificates for such
purposes.
8. WARRANT TRANSFER BOOKS
The Company will maintain at the Corporate Office where Warrant
Certificates may be surrendered for registration of transfer or exchange and
where Warrant Certificates may be surrendered for exercise of Warrants evidenced
thereby. The Company will give prompt written notice to all Holders of Warrant
Certificates of any change in the location of Corporate Office.
The Warrant Certificates evidencing the Warrants shall be issued in
registered form only. The Company shall cause to be kept at the Corporate Office
a warrant register (the "Warrant Register") in which, subject to such reasonable
regulations as the Company may prescribe and such regulations as may be
prescribed by law, the Company shall provide for the registration of Warrant
Certificates and of transfers or exchanges of Warrant Certificates as herein
provided.
Subject to Section 2.4, upon surrender for registration of transfer of any
Warrant Certificate at the Corporate Office, the Company shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Warrant Certificates evidencing a like aggregate number of Warrants.
Subject to Section 2.4, (i) at the option of the Holder, Warrant
Certificates may be exchanged at the Corporate Office upon payment of the
charges herein provided for other Warrant Certificates evidencing a like
aggregate number of Warrants and (ii) whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute and deliver the Warrant
Certificates of the same tenor and evidencing the same number of Warrants as
evidenced by the Warrant Certificates surrendered by the Holder making the
exchange.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Subject to Section 2.4, every Warrant Certificate surrendered for
registration of transfer or exchange shall (if so required by the Company) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, duly executed by the Holder thereof or his attorney
duly authorized in writing.
-18-
22
9. WARRANT HOLDERS
9.1 Voting or Dividend Rights.
Prior to the exercise of the Warrants, except as may be specifically
provided for herein, (i) no Holder of a Warrant Certificate, as such, shall be
entitled to any of the rights of a holder of Common Shares, including, without
limitation, the right to vote at or to receive any notice of any meetings of
stockholders; (ii) the consent of any Holder shall not be required with respect
to any action or proceeding of the Company; (iii) except as provided in Section
4, no Holder, by reason of the ownership or possession of a Warrant or the
Warrant Certificate representing the same, shall have any right to receive any
stock dividends, allotments or rights or other distributions paid, allotted or
distributed or distributable to the stockholders of the Company prior to, or for
which the relevant record date preceded, the date of the exercise of such
Warrant; and (iv) no Holder shall have any right not expressly conferred by this
Agreement or Warrant Certificate held by such Holder.
9.2 Rights of Action.
All rights of action against the Company in respect of this Agreement are
vested in the Holders of the Warrant Certificates, and any Holder of any Warrant
Certificate, without the consent of the Holder of any other Warrant Certificate,
may, in such Holder's own behalf and for such Holder's own benefit, enforce and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the manner
provided in this Agreement.
9.3 Treatment of Holders of Warrant Certificates.
Every Holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company and with every subsequent holder of such Warrant
Certificate that, prior to due presentment of such Warrant Certificate for
registration of transfer, the Company may treat the Person in whose name the
Warrant Certificate is registered as the owner thereof for all purposes and as
the Person entitled to exercise the rights granted under the Warrants, and
neither the Company nor any agent of the Company shall be affected by any notice
to the contrary.
9.4 Communications to Holders.
(a) If any Holder of a Warrant Certificate applies in writing to the
Company and such application states that the applicant desires to communicate
with other Holders with respect to its rights under this Agreement or under the
Warrants, then the Company shall, within five (5) Business Days after the
receipt of such application, and upon payment to the Company by such applicant
of the reasonable expenses of preparing such list, provide to such applicant a
list of the names and addresses of all Holders of Warrant Certificates as of the
most recent practicable date.
-19-
23
(b) Every Holder of Warrant Certificates, by receiving and holding the
same, agrees with the Company that neither the Company nor any agent of either
of the Company shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 9.4(a).
10. NOTICES
10.1 Notices Generally.
(a) Any request, notice, direction, authorization, consent, waiver,
demand or other communication permitted or authorized by this Agreement to be
made upon, given or furnished to or filed with the Company by the other party
hereto or by any Holder shall be sufficient for every purpose hereunder if in
writing (including telecopy communication) and telecopied or delivered by hand
(including by courier service) as follows:
If to the Company, to it at:
Belco Oil & Gas Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
If to a Holder, to it at:
to the address provided
to Company upon issuance
of the Warrants
or, in either case, such other address as shall have been set forth in a notice
delivered in accordance with this Section 10.1(a).
All such communications shall, when so telecopied or delivered by hand, be
effective when telecopied with confirmation of receipt or received by the
addressee, respectively.
Any Person that telecopies any communication hereunder to any Person shall,
on the same date as such telecopy is transmitted, also send, by first class
mail, postage prepaid and addressed to such Person as specified above, an
original copy of the communication so transmitted.
(b) Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
-20-
24
it appears in the Warrant Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made by a method reasonably approved in good faith by
the Company as one which would be most reliable under the circumstances for
successfully delivering the notice to the addressees shall constitute a
sufficient notification for every purpose hereunder.
10.2 Required Notices to Holders.
In case the Company shall propose (i) to pay any dividend payable in stock
of any class to the holders of its Common Shares or to make any other
distribution to the holders of its Common Shares for which an adjustment is
required to be made pursuant to Section 5, (ii) to distribute to the holders of
its Common Shares rights to subscribe for or to purchase any Additional Common
Shares or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Common Shares, (iv) to
effect any transaction described in Section 5.1(h) or (v) to effect the
liquidation, dissolution or winding up of the Company, then, and in each such
case, the Company shall give to each Holder of a Warrant Certificate, in
accordance with Section 10.1(b), a notice of such proposed action or event. Such
notice shall specify (x) the date on which a record is to be taken for the
purposes of such dividend or distribution; and (y) the date on which such
reclassification, transaction, event, liquidation, dissolution or winding up is
expected to become effective and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, transaction, event, liquidation, dissolution or winding up.
Such notice shall be given, in the case of any action covered by clause (i) or
(ii) above, at least ten (10) days prior to the record date for determining
holders of the Common Shares for purposes of such action or, in the case of any
action covered by clauses (iii) through (v), at least twenty (20) days prior to
the applicable effective or expiration date specified above or, in any such
case, prior to such earlier time as notice thereof shall be required to be given
pursuant to Rule 10b-17 under the Exchange Act, if applicable.
If at any time the Company shall cancel any of the proposed transactions
for which notice has been given under this Section 10.2 prior to the
consummation thereof, the Company shall give each Holder prompt notice of such
cancellation in accordance with Section 10.1(b) hereof.
-21-
25
11. APPLICABLE LAW
THIS AGREEMENT, EACH WARRANT CERTIFICATE ISSUED HEREUNDER, EACH WARRANT
EVIDENCED THEREBY AND ALL RIGHTS ARISING HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE APPLICATION OF THE
LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
12. PERSONS BENEFITING
This Agreement shall be binding upon and inure to the benefit of the
Company and JEDI, and their respective successors and assigns and the Holders
from time to time of the Warrant Certificates. Nothing in this Agreement is
intended or shall be construed to confer upon any Person, other than the
Company, JEDI and the Holders of the Warrant Certificates, any right, remedy or
claim under or by reason of this Agreement or any part hereof. Each Holder, by
acceptance of a Warrant Certificate, agrees to all of the terms and provisions
of this Agreement applicable thereto.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
14. AMENDMENTS
This Agreement may be amended by the Company only with the consent of the
Holders of a majority of the then outstanding Warrants. Notwithstanding the
foregoing, the consent of each Holder of a Warrant affected shall be required
for any amendment pursuant to which the Warrant Price would be increased or the
number of Warrant Shares purchasable upon exercise of Warrants would be
decreased (other than pursuant to adjustments provided herein).
Upon execution and delivery of any amendment pursuant to this Section 14,
such amendment shall be considered a part of this Agreement for all purposes and
every Holder of a Warrant Certificate theretofore or thereafter delivered
hereunder shall be bound thereby.
Promptly after the execution by the Company of any such amendment, the
Company shall give notice to the Holders of Warrant Certificates, setting forth
in general terms the substance of such amendment, in accordance with the
provisions of Section 10.1(b). Any failure of the Company to mail such notice or
any defect therein, shall not, however, in any way impair or affect the validity
of any such amendment.
-22-
26
15. INSPECTION
The Company may require such Holder to submit his Warrant Certificate for
inspection by it.
16. SUCCESSOR TO THE COMPANY
So long as Warrants remain outstanding, the Company will not enter into any
Non-Surviving Combination unless the acquirer (or its parent company under any
triangular acquisition) shall expressly assume by a supplemental agreement,
executed and delivered to the Company, in form reasonably satisfactory to the
Company, the due and punctual performance of every covenant of this Agreement on
the part of the Company to be performed and observed and shall have provided for
exercise rights in accordance with Section 5.1(h). Upon the consummation of such
Non-Surviving Combination, the acquirer (or its parent company under any
triangular acquisition) shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such acquirer (or its parent company under any triangular
acquisition) had been named as the Company herein.
17. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement of the parties hereto as to
the subject matter hereof and supersedes all previous agreements among all or
some of the parties hereto with respect thereto, whether written, oral or
otherwise.
18. HEADINGS
The descriptive headings of the several Sections of this Agreement are
inserted for convenience and shall not control or affect the meaning or
construction of any of the provisions hereof.
-23-
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
BELCO OIL & GAS CORP.
By:
-----------------------------------
Xxxxxx X. Xxxxxx, Chairman of the
Board and Chief Executive Officer
JOINT ENERGY DEVELOPMENT INVESTMENTS
LIMITED PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its general partner
By: Enron Capital Corp., its
general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
28
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR
SUCH LAWS.
BELCO OIL & GAS CORP.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
No. Warrants
------------------- ----------------
THIS CERTIFIES THAT, for value received, _______________________
___________________________, or registered assigns, is the registered owner of
______________________ Warrants to Purchase Common Shares of Belco Oil & Gas
Corp., a Nevada corporation (the "Company," which term includes any successor
thereto under the Warrant Agreement), and is entitled, subject to and upon
compliance with the provisions hereof and of the Warrant Agreement, at such
Holder's option, at any time when the Warrants evidenced hereby are exercisable,
to purchase from the Company one Warrant Share for each Warrant evidenced
hereby, at the purchase price of $27.50 per share (as adjusted from time to
time, the "Warrant Price"), payable in full at the time of purchase, the number
of Warrant Shares into which and the Warrant Price at which each Warrant shall
be exercisable, each being subject to adjustment as provided in Section 5 of the
Warrant Agreement.
The Holder of this Warrant Certificate may exercise all or any whole number
of the Warrants evidenced hereby, on any Business Day on and after the Trigger
Date until 5:00 p.m., New York City time, on November , 2000 (subject to earlier
expiration pursuant to Section 4 of the Warrant Agreement, the "Expiration
Date") for the Warrant Shares purchasable hereunder.
A-1
29
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-2
30
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed under its corporate seal.
BELCO OIL & GAS CORP.
[SEAL] By:
------------------------------
Xxxxxx X. Xxxxxx, Chairman of
the Board and Chief
Executive Officer
ATTEST:
-------------------------
Dated:
A-3
31
[REVERSE OF WARRANT CERTIFICATE]
BELCO OIL & GAS CORP.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
1. General.
The Warrants evidenced hereby are one of a duly authorized issue of
Warrants of the Company designated as its Warrants to Purchase Common Shares
("Warrants"), limited in aggregate number to Warrants issued under and in
accordance with the Warrant Agreement, dated as of November , 1997 (the "Warrant
Agreement"), between the Company and Joint Energy Development Investments
Limited Partnership, a Delaware limited partnership ("JEDI"), to which Warrant
Agreement and all amendments thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, JEDI, the Holders of Warrant Certificates and the owners of the
Warrants evidenced thereby and of the terms upon which the Warrant Certificates
are, and are to be, delivered. A copy of the Warrant Agreement shall be
available at all reasonable times at the Corporate Office for inspection by the
Holder hereof.
In the event of the exercise of less than all of the Warrants evidenced
hereby, a new Warrant Certificate of the same tenor and for the number of
Warrants which are not exercised shall be issued by the Company in the name or
upon the written order of the Holder of this Warrant Certificate upon the
cancellation hereof.
All Warrant Shares issuable by the Company upon the exercise of Warrants
shall, upon such issuance, be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive or similar rights. The Company shall pay
any and all taxes (other than income taxes) that may be payable in respect of
the issue or delivery of Warrant Shares on exercise of Warrants. The Company
shall not be required, however, to pay any tax or other charge imposed in
respect of any transfer involved in the issue and delivery of any certificates
for Warrant Shares or payment of cash to any Person other than the Holder of the
Warrant Certificate surrendered upon the exercise of a Warrant, and in case of
such transfer or payment, the Company shall not be required to issue or deliver
any certificate or pay any cash until (a) such tax or charge has been paid or an
amount sufficient for the payment thereof has been delivered to the Company or
(b) it has been established to the Company's satisfaction that any such tax or
other charge that is or may become due has been paid.
The Warrant Certificates are issuable only in registered form in
denominations of whole numbers of Warrants. Upon surrender at the Corporate
Office and payment of the charges specified herein and in the Warrant Agreement,
this Warrant Certificate may be exchanged for Warrant Certificates in other
authorized denominations or the transfer hereof may be registered in whole or in
part in authorized denominations to one or more designated transferees, subject
to the restrictions
A-4
32
on transfer set forth herein and in the Warrant Agreement; provided, however,
that such other Warrant Certificates issued upon exchange or registration of
transfer shall evidence the same aggregate number of Warrants as this Warrant
Certificate. The Company shall cause to be kept at the Corporate Office the
Warrant Register in which, subject to such reasonable regulations as the Company
may prescribe and such regulations as may be prescribed by law, the Company
shall provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates.
2. Expiration.
Except as provided in the Warrant Agreement, all outstanding Warrants shall
expire and all rights of the Holders of Warrant Certificates evidencing such
Warrants shall terminate and cease to exist, as of 5:00 p.m., New York time, on
the Expiration Date. "Expiration Date" shall mean November , 2000, or such
earlier date as determined in accordance with the Warrant Agreement.
3. Liquidation of the Company.
If, on or prior to the Expiration Date, the Company (or any other Person
controlling the Company) shall propose a voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, each Warrantholder
shall receive the securities, money or other property which such Warrantholder
would have been entitled to receive had such Warrantholder been the holder of
record of the Warrant Shares into which the Warrants were exercisable
immediately prior to such dissolution, liquidation or winding up (net of the
then applicable Warrant Price), and the rights to exercise such Warrants shall
terminate.
4. Anti-Dilution Adjustments.
The number of Warrant Shares issuable upon exercise of a Warrant shall be
adjusted on occurrence of certain events, including, without limitation, the
payment of certain dividends on, or the making of certain distributions in
respect of, the Common Shares, including the distribution of rights to purchase
Common Shares (or securities convertible into or exchangeable for Common Shares)
at a price below the Current Market Price. An adjustment shall also be made in
the event of a combination, subdivision or reclassification of the Common
Shares. Adjustments will be made whenever and as often as any specified event
requires an adjustment to occur.
5. Procedure for Exercising Warrant.
Subject to the provisions hereof and of the Warrant Agreement, the Holder
of this Warrant Certificate may exercise all or any whole number of the Warrants
evidenced hereby by either of the following methods:
A-5
33
(A) The Holder may deliver to the Corporate Office (i) a written notice
of such Holder's election to exercise all or a portion of the Warrants
evidenced hereby, duly executed by such Holder in the form set forth below,
which notice shall specify the number of Warrant Shares to be purchased,
(ii) this Warrant Certificate and (iii) a sum equal to the aggregate
Warrant Price for the Warrant Shares into which the Warrants represented by
this Warrant Certificate are being exercised, which sum shall be paid in
any combination elected by such Holder of (x) certified or official bank
checks in New York Clearing House funds payable to the order of the Company
and delivered to the Corporate Office, or (y) wire transfers in immediately
available funds to the account of the Company at such banking institution
as the Company shall have given notice to the Holders in accordance with
the Warrant Agreement; or
(B) The Holder may also exercise all or any of the Warrants in a
"cashless" or "net-issue" exercise by delivering to the Company at the
Corporate Agency Office (i) a written notice of such Holder's election to
exercise all or a portion of the Warrants evidenced hereby, duly executed
by such Holder in the form set forth below, which notice shall specify the
number of Warrant Shares to be delivered to such Holder and the number of
Warrant Shares with respect to which Warrants represented by this Warrant
Certificate are being surrendered in payment of the aggregate Warrant Price
for the Warrant Shares to be delivered to the Holder, and (ii) this Warrant
Certificate. For purposes of this subparagraph (B), each Warrant Share as
to which such Warrants are surrendered in payment of the aggregate Warrant
Price will be attributed a value equal to (x) the Current Market Price per
share of Common Shares minus (y) the then-current Warrant Price.
6. Registered Holder.
Prior to due presentment of this Warrant Certificate for registration of
transfer, the Company and any agent of the Company may treat the Person in whose
name this Warrant Certificate is registered as the owner hereof for all
purposes, and neither the Company nor any agent of the Company shall be affected
by notice to the contrary.
7. Amendment.
The Warrant Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of Warrant Certificates under the Warrant
Agreement at any time by the Company with the consent of the Holders of Warrant
Certificates evidencing a majority of the then outstanding Warrants.
A-6
34
8. Status as Warrantholder.
Prior to the exercise of the Warrants, except as may be specifically
provided for in the Warrant Agreement, (i) no Holder of a Warrant Certificate,
as such, shall be entitled to any of the rights of a holder of Common Shares of
the Company, including, without limitation, the right to vote at, or to receive
any notice of, any meetings of stockholders of the Company; (ii) the consent of
any Holder shall not be required with respect to any action or proceeding of the
Company; (iii) except as provided with respect to the dissolution, liquidation
or winding up of the Company, no Holder, by reason of the ownership or
possession of a Warrant or the Warrant Certificate representing the same, shall
have any right to receive any stock dividends, allotments or rights or other
distributions (except as specifically provided in the Warrant Agreement), paid,
allotted or distributed or distributable to the stockholders of the Company
prior to or for which the relevant record date preceded the date of the exercise
of such Warrant; and (iv) no Holder shall have any right not expressly conferred
by the Warrant Agreement or Warrant Certificate held by such Holder.
Notwithstanding anything herein to the contrary, if the Company declares and
pays any cash dividend or makes any distribution in cash in respect of its
Common Shares, it shall pay each Holder of Warrants an amount in cash equal to
the amount that such Holder would have received had it been a holder of record
of the Warrant Shares issuable upon exercise of its Warrants immediately prior
to the record date for such dividend or distribution.
9. Governing Law.
THIS WARRANT CERTIFICATE, EACH WARRANT EVIDENCED THEREBY AND THE WARRANT
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO
THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
10. Definitions.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
A-7
35
FORM OF EXERCISE
In accordance with and subject to the terms and conditions hereof and of
the Warrant Agreement, the undersigned registered Holder of this Warrant
Certificate hereby irrevocably elects to exercise ____________________ Warrants
evidenced by this Warrant Certificate or represents that such Holder has
tendered the Warrant Price for each of the Warrants evidenced hereby being
exercised in the aggregate amount of $_________ in the indicated combination of:
(i) cash ($____________);
(ii) certified bank check payable to the order of the Company
($________);
(iii) official bank check in New York Clearing House funds payable to
the order of the Company ($_________);
(iv) or wire transfer in immediately available funds to the account
designated by the Company for such purpose ($________); or
(v) "cashless" or "net-issue" exercise with respect to ________
Warrants pursuant to Section 3.2(c)(ii) of the Warrant Agreement and
Section 5(A) of this Warrant Certificate.
The undersigned requests that the Warrant Shares issuable upon exercise be
in fully registered form in such denominations and registered in such names and
delivered, together with any other property receivable upon exercise, in such
manner as is specified in 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 the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-8
36
Dated: Name:
-------------------------------- -------------------------
(Please Print)
--------------------------------------
(Insert Social Security or Other
Identifying Number of Holder) Address:
----------------------
------------------------------
------------------------------
Signature
Signature Guaranteed:
--------------------------------------
Instructions (i) as to denominations and names of Warrant Shares issuable
upon exercise and as to delivery of such securities and any other property
issuable upon exercise and (ii) if applicable, as to Warrant Certificates
evidencing unexercised Warrants:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
A-9
37
Assignment
(Form of Assignment To Be Executed If Holder Desires To Transfer
Warrant Certificate)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto
Please insert social security
or other identifying number
---------------------------------------------
------------------------------------------------------
(Please print name and address including zip code)
------------------------------------------------------
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 within-named Company with full power of
substitution in the premises.
Dated:
------------------------
Signature
Signature Guaranteed:
------------------------------
A-10
