SP-1 300,000
---------- ----------------
WARRANT NO. Number of Shares
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS
AN EXEMPTION FROM THE REQUIREMENT OF SUCH REGISTRATION IS
AVAILABLE UNDER THE CIRCUMSTANCES AT THE TIME OBTAINING.
Void After 5:00 P.M. December 31, 2005
XXXXX OIL AND GAS COMPANY
Common Stock Purchase Warrant
XXXXX OIL AND GAS COMPANY, a NEVADA corporation ("Xxxxx" or the "Company"),
hereby certifies that, Xxxxxxx X. Xxxxxx, with an address of P. O. Box 60219,
Grand Junction, Colorado 81506-8758, or his permitted assigns, for valuable
consideration received, is entitled, subject to the terms and conditions herein
set forth, to purchase from the Company up to 300,000 fully paid and
non-assessable shares of Common Stock, $0.10 par value per share, of the
Company, at the per share purchase price of $0.50 per share (the "Purchase
Price"), from time to time after the earlier of: (a) December 31, 2004 or (b)
either of: (i) the Company's reported closing sales price for its common stock
in the public market is at least $1.50 for at least 80% of trading days in any
consecutive 30 day period before the Expiration Date described below, or (ii)
the Company completes a reorganization or merger transaction, or a sale of
substantially all of its assets, and the reasonable or deemed value received by
common stockholders is at least $1.50 per share in which event this Warrant may
be exercised immediately before the effective date of the event, and up to 5:00
p.m. December 31, 2005 (the "Expiration Date") . The number and character of
such shares of Common Stock are subject to adjustment as provided herein.
1. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Additional Shares of Common Stock" shall mean all shares (including
treasury shares) of Common Stock issued or sold (or, pursuant to Section
3.7 hereof, deemed to be issued) by the Company after the date hereof,
whether or not subsequently reacquired or retired by the Company, other
than shares of Common Stock issuable pursuant to this Warrant.
(c) "Adjusted Exercise Price" shall have the meaning specified in Section 3.2
hereof. -----------------------
(d) "Company" means Xxxxx Oil and Gas Company or any corporation which shall
succeed to or assume the obligations of Xxxxx Oil and Gas Company
hereunder.
(e) "Common Stock" shall mean the Common Stock, par value $0.10 per share, of
the Company and any stock into which such common stock shall have been
changed or any stock resulting from any reclassification of such common
stock, and shall include all other stock of any class (however designated)
of the Company the holders of which have the right, without limitation as
to amount, either to all or to a share of the balance of current dividends
and liquidating dividends after the payment of dividends and distributions
of any shares entitled to preference.
(f) "Convertible Securities" shall mean any evidences of indebtedness, shares
of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock, other than
any securities issuable pursuant to this Warrant.
(g) "Market Price", as used with reference to any share of stock on any
specified date, shall mean: ------------
(i) if such stock is listed and registered on any national securities exchange
or traded on The Nasdaq Stock Market ("Nasdaq") or the OTC Bulletin Board
("OTCBB"), (A) the last reported sale price on such exchange or Nasdaq or
OTCBB of such stock on the business day immediately preceding the specified
date, or (B) if there shall have been no such reported sale price of such
stock on the business day immediately preceding the specified date, the
average of the last reported sale price on such exchange or on Nasdaq or
the OTCBB on (x) the day next preceding the specified date for which there
was a reported sale price and (y) the day next succeeding the specified
date for which there was a reported sale price; or
(ii) if such stock is not at the time listed on any such exchange or traded on
Nasdaq or the OTCBB but is traded on the over-the-counter market as
reported by the National Quotation Bureau or other comparable service, (A)
the average of the closing bid and asked prices for such stock on the
business day immediately preceding the specified date, or (B) if there
shall have been no such reported bid and asked prices for such stock on the
business day immediately preceding the specified date, the average of the
last bid and asked prices on (x) the day next preceding the specified date
for which such information is available and (y) the day next succeeding the
specified date for which such information is available; or
(iii)if clauses (i) and (ii) above are not applicable, the fair value per share
of such stock as determined in good faith and on a reasonable basis by the
Board of Directors of the Company and, if requested, set forth in a
certificate delivered to the holder of this Warrant upon the exercise
hereof.
(h) "Options" shall mean rights, options or warrants to subscribe for, purchase
or otherwise acquire either Common Stock or Convertible Securities.
(i) "Other Securities" shall mean any stock and other securities of the Company
or any other person (corporate or otherwise) which the holders of this
Warrant at any time shall be entitled to receive, or shall have received,
upon the exercise of this Warrant, in lieu of or in addition to the Common
Stock, or which at any time shall be issuable or shall have been issued to
holders of the Common Stock in exchange for, in addition to or in
replacement of the Common Stock or Other Securities pursuant to Section 3.5
or otherwise.
(j) "Purchase Price" shall mean $0.50 per share, subject to adjustment as
provided herein. --------------
2. Exercise of Warrant.
2.1. Manner of Exercise.
(a) This Warrant may be exercised by the holder hereof, in whole or in part
(but not as to fewer than 10,000 shares of the Common Stock unless, at the
time of exercise, this Warrant entitles the holder to purchase fewer than
10,000 shares of the Common Stock), on any business day on or after the
date hereof and before the Expiration Date, by surrender of this Warrant,
with the form of subscription at the end hereof (or a reasonable facsimile
thereof) duly executed by such holder, to the Company at its office in
Grand Junction, Colorado, and, except as otherwise provided in Section
2.1(b), accompanied by payment, by certified or official bank check payable
to the order of the Company, in the amount obtained by multiplying (x) the
number of shares of the Common Stock (without giving effect to any
adjustment therein) -- designated in such form of subscription (or such
reasonable facsimile) by (y) the Purchase - Price, and such holder shall
thereupon be entitled to receive the number of shares of the Common Stock
determined as provided hereunder.
(b) The exercise price of this warrant may be paid, at the election of the
holder in accordance with Section 2.1(a) by delivering to the Company fully
paid shares of the Company's common stock, which shall be valued at the
Market Price on the day preceding the delivery and the value of the shares
delivered may be used for the exercise of this Warrant at the Purchase
Price.
2.2. When Exercise Effective. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in Section 2.1, and the person(s) in whose name(s) the certificate(s) for shares
of the Common Stock (or Other Securities) that are to be issued upon such
exercise in accordance with Section 2.3 shall be deemed the holder(s) of record
thereof at such time.
2.3. Delivery of Stock Certificates, etc. As soon as practicable after the
exercise of this Warrant in full or in part in accordance herewith the Company,
at its expense (including the payment by it of any applicable issue taxes), will
cause to be issued in the name of and delivered to the holder hereof, or as such
holder (upon payment by such holder of any applicable transfer taxes) may
direct,
(a) a certificate or certificates, marked with an appropriate legend referring
to the terms of this Warrant and any applicable restrictions on such shares
imposed by the Federal or any state securities laws, for the number of full
shares of the Common Stock (or Other Securities) to which such holder shall
be entitled upon such exercise plus, in lieu of any fractional share to
which such holder would otherwise be entitled, cash in an amount equal to
the same fraction of the Market Price of one full share of the Common
Preferred Stock on the business day next preceding the date of such
exercise, and
(b) in case such exercise is in part only, a new Warrant or Warrants of like
tenor, calling in the aggregate on the face or faces thereof for the number
of shares of the Common Stock equal (without giving effect to any
adjustment therein) to the number of such shares called for on the face of
this Warrant minus the number of shares designated by the holder upon such
exercise as provided in Section 2.1.
3. Common Stock Issuable Upon Exercise.
3.1. General. The number of shares of the Common Stock which the holder of this
Warrant shall be entitled to receive upon the exercise hereof or, if securities
or other property in addition to or in lieu of the Common Stock shall by reason
of the operation of the provisions of this Section be issuable upon such
exercise, the amount and kind of such securities or other property, shall be
adjusted or determined as provided in this Section 3.
3.2. Adjusted Exercise Price. The number of shares of the Common Stock which the
holder of this Warrant shall be entitled to receive upon the exercise hereof
shall be determined by multiplying the number of shares of the Common Stock
which, but for the provisions of this Section 3, would otherwise be issuable
upon such exercise, as designated by the holder hereof pursuant to Section 2.1,
by the fraction of which the numerator is the per share Purchase Price and the
denominator is the per share Adjusted Exercise Price (as herein defined) in
effect on the date of such exercise. The per share Adjusted Exercise Price of
the Common Stock shall initially be the Purchase Price (as defined in Section 1)
and shall be adjusted and readjusted from time to time as provided in this
Section 3 (and, as so adjusted or readjusted, shall remain in effect until a
further adjustment or readjustment thereof is required by this Section 3).
3.3. Stock Dividends, Stock Splits, etc. In case the Company at any time or from
time to time after the date hereof shall declare or pay any dividend on the
Common Stock payable in Common Stock, or effect a subdivision of the outstanding
shares of the Common Stock into a greater number of shares of the Common Stock
(by reclassification or otherwise than by payment of a dividend in shares of
Common Stock), then, in any such event, the per share Adjusted Exercise Price
per share shall be adjusted effective as of the close of business on (i) the
record date for the determination of shareholders entitled to receive such
dividend if such dividend is in fact paid, or (ii) the day immediately preceding
the day upon which such subdivision shall become effective (any such day, as the
case may be, shall be referred to herein as the "Subdivision Effective Date"),
by multiplying the per share Adjusted Exercise Price in effect immediately prior
to the Subdivision Effective Date by the fraction of which (x) the numerator
shall be the number of shares of the Common Stock outstanding immediately prior
to the Subdivision Effective Date and (y) the denominator shall be the number of
shares of the Common Stock outstanding immediately prior to the Subdivision
Effective Date plus the number of shares of the Common Stock issuable upon the
payment of such dividend or the consummation of such subdivision, as the case
may be.
3.4. Adjustments for Combinations, etc. In case the outstanding shares of the
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Adjusted Exercise
Price shall be adjusted, effective as of the close of business on the day
immediately preceding the day upon which such combination or consolidation is
effective (the "Combination Effective Date"), by multiplying the per share
Adjusted Exercise Price in effect immediately prior to the Combination Effective
Date by the fraction of which (x) the numerator shall be the number of shares of
the Common Stock outstanding immediately prior to the Combination Effective Date
and (y) the denominator shall be the number of shares of the Common Stock
outstanding immediately after the Combination Effective Date. 3.5. Adjustments
for Consolidation, Merger, Sale of Assets, Reorganization, etc. In case the
Company, after the date hereof, (a) shall consolidate with or merge into any
other person and shall not be the continuing or surviving corporation of such
consolidation or merger, or (b) shall permit any other person to consolidate
with or merge into the Company and the Company shall be the continuing or
surviving person but, in connection with such consolidation or merger, the
Common Stock shall be changed into or exchanged for stock or other securities or
property of any other person, or (c) shall effect a capital reorganization or
reclassification of the Common Stock (other than a reclassification subject to
Sections 3.3 or 3.4), then, and in each such case, proper provision shall be
made so that the holder of this Warrant, upon the exercise hereof at any time
after the consummation of such consolidation, merger, reorganization or
reclassification, shall be entitled to receive, in lieu of the Common Stock (or
Other Securities) issuable upon such exercise prior to such consummation, the
stock and other securities and property to which such holder would have been
entitled upon such consummation if such holder had so exercised this Warrant
immediately prior thereto, subject to adjustments (subsequent to such corporate
action) as nearly equivalent as possible to the adjustments provided for in this
Section 3.
4. No Dilution or Impairment. The Company will not, by amendment of its articles
of organization or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against dilution or other impairment.
5. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all
or substantially all the assets of the Company to any other person or any
consolidation or merger involving the Company and any other person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of the
Company,
the Company will give to the holder of this Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, and (ii) the date or expected date on
which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up is to take place
and the time, if any such time is to be fixed, as of which the holders of record
of the Common Stock (or Other Securities) shall be entitled to exchange their
shares of the Common Stock (or Other Securities) for securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up. Unless otherwise required by law to be given sooner, such notice
shall be mailed within a reasonable time prior to the date therein specified.
6. Reservation of Stock, etc. The Company will at all times reserve and keep
available out of its authorized but unissued Common Stock, solely for issuance
and delivery upon the exercise of this Warrant, the full number of shares of
Common Stock (or Other Securities) then issuable upon the exercise of this
Warrant. All shares of the Common Stock issuable upon the exercise of this
Warrant shall be duly authorized, and when issued and paid for in full, validly
issued, fully paid and non-assessable with no liability on the part of the
holders thereof.
7. Registration Rights.
(a) Definitions. For purposes of this Section 7, the following terms shall have
the following respective meanings:
(i) "Commission" shall mean the United States Securities and Exchange Commission
or any other Federal agency at the time administering the Act.
(ii) The term "holder or holders of Registrable Stock" shall mean the holders of
Common Stock or Other Securities issued pursuant to this Warrant.
(iii) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document by the Commission.
(iv) The term "Registration Period" shall mean the period commencing on the date
hereof and ending (a) if this Warrant shall expire without having been exercised
in whole or in part, the Expiration Date or (b) if this Warrant shall have been
exercised in whole or in part, at such time as all shares of Registrable Stock
have been sold by the initial holder or can be sold publicly without
registration under the Act.
(v) The term "Registrable Stock" means (a) the shares of Common Stock issued or
issuable upon the exercise of this Warrant, and (b) any Other Securities issued
or issuable pursuant to this Warrant; provided, however, that shares of
Registrable Stock shall cease to be Registrable Stock if they are sold or
transferred pursuant to a registered public offering or other transaction which
does not result in restrictions on resale being imposed on the transfer by
virtue of Federal or state securities laws; and provided further that
Registrable Stock shall cease to be Registrable Stock if the holder could sell
or transfer such securities held by him in one or more transactions pursuant to
Rule 144 promulgated under the Act.
(b) Registration.
(i) The Company shall use its best commercial efforts to file, by April 15,
2000, and shall use its best commercial efforts to cause to become effective as
soon as practicable, a registration statement on Form S-3, or if Form S-3 is not
then available, another appropriate form, covering all the Registrable Stock
(the "Initial Registration"). In the event such registration is not so declared
effective or does not include all Registrable Stock, a holder of Registrable
Stock shall have the right to require by notice in writing that the Company
register all or any part of the Registrable Stock held by such holder (a Demand
Registration") and the Company shall thereupon effect such registration in
accordance herewith (which may include adding such shares to an existing shelf
registration). The parties agree that if the holder of Registrable Stock demands
registration of less than all of the Registrable Stock, the Company, at its
option, may nevertheless file a registration statement covering all of the
Registrable Stock. If such registration statement is declared effective with
respect to all Registrable Stock and the Company is in compliance with its
obligations under Subsection (c) hereof, the demand registration rights granted
pursuant to this Subsection (b) shall cease. If such registration statement is
not declared effective with respect to all Registrable Stock the demand
registration rights described herein shall remain in effect until all
Registrable Stock have been registered under the Act. The Company shall provide
holders of Registrable Stock reasonable opportunity to review any such
registration statement or amendment or supplement thereto prior to the filing
thereof, but in no event shall such period exceed seven (7) days. If the
Registrable Stock is registered initially on a form other than Form S-3, the
Company shall register the Registrable Stock on Form S-3 as soon as use of such
form is permissible.
(ii) The Company shall not be obligated to effect Demand Registration under
Subsection (b)(i) if all of the Registrable Stock held by the holder of
Registrable Stock which are demanded to be covered by the Demand Registration
are, at the time of such demand, included in an effective registration statement
and the Company is in compliance with its obligations under Subsection (c)
hereof.
(iii) The Company may suspend the effectiveness of any such registration
effected pursuant to this Subsection (b) in the event, and for such period of
time as, such a suspension is required by the rules and regulations of the
Securities and Exchange Commission ("SEC'). The Company will use its best
efforts to cause such suspension to terminate at the earliest possible date.
(c) Covenants of the Company with Respect to Registration. In connection with
any registration under this Section 7, the Company shall, as expeditiously as is
reasonably possible:
(i) Prepare and file with the Commission a registration statement with respect
to the Participating Holders' Registrable Stock and use its best reasonable
efforts to cause such registration statement to become effective.
(ii) Prepare and file with the Commission such amendments and supplements to
such registration statement and prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(iii) Furnish to the Participating Holders such numbers of copies of a
prospectus, including, if applicable, a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as the selling
shareholders may reasonably request in order to facilitate the disposition of
Registrable Stock owned by the Participating Holders.
(iv) Use its best reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions within the United States as shall be reasonably
requested by the Participating Holders; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(v) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. The Participating Holders shall also
enter into and perform their obligations under such an agreement.
(vi) Notify the Participating Holders, at any time when a prospectus relating to
Registrable Stock covered by such registration statement is required to be
delivered under the Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(vii) Furnish to the Participating Holders, on the date that shares of
Registrable Stock are delivered to the underwriters for sale in connection with
a registration pursuant to this Section 7, if such securities are being sold by
underwriters, or, on the date that the registration statement with respect to
such securities becomes effective, (i) an opinion as to matters of law only,
dated such date, of counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Participating Holders and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
and to the Participating Holders.
(d) Costs and Expenses. The Company shall pay all costs, fees and expenses in
connection with all registration statements filed under this Section 7
including, without limitation, the Company's legal and accounting fees, printing
expenses and blue sky fees and expenses, but not including the fees and expenses
of counsel for the Participating Holders in connection with such registration.
However, the Company shall not pay for underwriting discounts and commissions
and underwriters' expenses allocable to the Registrable Stock being registered
or state transfer taxes.
(e) Indemnification.
(i) The Company shall indemnify each Participating Holder under this Agreement,
its officers and directors and any person controlling it within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any loss,
claim, damage, expense or liability (including without limitation all expenses
reasonably incurred in investigating, preparing, or defending against any claim
whatsoever, such expenses to be reimbursed by the Company as they are incurred)
to which it may become subject under the Act, the Exchange Act or otherwise,
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus or any amendments or supplements thereto in which Registrable Stock
is included or in any application, statement or other document filed by the
Company with the Commission or any securities exchange or in any jurisdiction in
connection with qualifying such shares under the securities laws thereof, or
(ii) the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not misleading,
unless such statement or omission is made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Participating Holder or an underwriter expressly for use in any such
registration statement or other document.
(ii) Each Participating Holder shall, as a condition to such registration of
Registrable Stock, agree to indemnify the Company, its officers and directors
and any person controlling the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against any loss, claim, damage or
expense or liability (including without limitation all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever,
such expenses to be reimbursed by the undersigned as they are incurred) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus or any
amendments or supplements thereto in which Registrable Stock is included or in
any application, statement or other document filed by the Company with the
Commission or any securities exchange or in any jurisdiction in connection with
qualifying such shares under the securities laws thereof, or (ii) the omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, provided in each
case that such statement or omission is made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Participating Holder expressly for use in any such registration statement or
other document, or (iii) any misuse by the Participating Holder of any
prospectus included in the registration statement or any violation of the Act by
the Participating Holder in connection with the sale or distribution of his or
her Registrable Stock under the registration statement.
(iii) Promptly upon receipt by a party claiming indemnification hereunder of
notice of the commencement of any action involving a claim referred to above,
such indemnified party will, if a claim in respect thereof is to be made against
a party which may be required to indemnify such party hereunder, give written
notice to the latter of the commencement of such action. In case any such action
is brought against an indemnified party, the indemnifying party shall be
entitled to participate in and to assume the defense of such action, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party. Except as set forth herein, the indemnified party and any
party cooperating in the defense of such claim shall not settle or compromise
any such claim or admit liability without the express written consent of the
indemnifying party. The indemnified party shall have the right to be represented
by an advisory counsel and accountants, at its own expense, and the indemnified
party shall be kept fully informed of such action, suit or proceeding at all
stages thereof whether or not the indemnified party is so represented. After a
period of thirty days following the date the written notice of such claim was
given to the indemnifying party the indemnified party may settle any such claim
(and the amount of any such settlement shall be subject to indemnification
hereunder) unless within such thirty-day period the indemnifying party shall
have provided the indemnified party with notice and evidence to the indemnified
party's satisfaction that the indemnifying party reasonably disputes such claim
and has the financial ability to meet its indemnification obligations hereunder.
Notwithstanding the foregoing, the indemnified party may immediately cause to be
paid or discharged any asserted claim the nonpayment of which would have an
immediate substantial adverse impact on the indemnified party and any claim
which the indemnifying party has not disputed within thirty days of notice as
provided above.
(iv) If the indemnification provided for in this Section 7(e) is unavailable or
insufficient to hold harmless an indemnified party under such subsection in
respect of any losses, claims, damages or liabilities or action in respect
thereof or referred to therein, then each indemnifying party shall in lieu of
indemnifying such indemnified party contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
or actions in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and the Participating Holders, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give the notice required under such
subsections. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company on the one hand, or the
Participating Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Participating Holders agree that it
would not be just and equitable if contribution pursuant to this Section
7(e)(iv) were determined by pro rata allocation or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this subsection. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the Securities Act), shall be entitled
to contribution from any person who is not guilty of such fraudulent
misrepresentations.
(v) The obligations of the Company and the Participating Holders under this
Section 7(e) shall survive the completion of any offering of Registrable Stock
in a registration statement under this Section 7.
(vi) The rights of indemnification contained in this Section 7 shall not be
deemed to be the exclusive remedy of the parties hereto and such rights shall be
in addition to any other rights or remedies which any party hereto may have at
law or equity.
(f) Assignment of Registration Rights. The undersigned's rights set forth in
this Section 7 shall automatically be deemed assigned to any transferee or
assignee of this Warrant or shares of Common Stock or Other Securities issuable
hereunder, provided that immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act; provided however, that, the termination of registration rights in
respect of any shares of Registrable Stock shall be binding upon any transferee
of such shares. Upon the request of any such holder, the Company will confirm in
writing to any transferee of such holder's Registrable Stock the Company's
continuing obligation to afford such transferee the benefits of the Company's
agreements contained in this Section 7, but no failure of the Company to confirm
such obligations shall in any way impair such transferee's rights under this
Section 7.
8. Substitution of Warrants.
8.1. Exchange of Warrants. Subject to the provisions appearing at the top of the
first page of this Warrant concerning, inter alia, the sale, transfer,
encumbrance or other disposition of this Warrant, upon surrender or exchange of
this Warrant, properly endorsed, to the Company, the Company at its expense will
issue and deliver to or upon the order of the holder thereof a new Warrant or
Warrants of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant or Warrants so surrendered.
8.2. Replacement of Warrant. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon delivery of an
indemnity agreement reasonably satisfactory to the Company, or, in the case of
any such mutilation, upon surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
9. Ownership of Warrant. Until this Warrant is transferred on the books of the
Company, the Company may treat the person in whose name this Warrant is issued
as the absolute owner hereof for all purposes, notwithstanding any notice to the
contrary, except that, if and when this Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer hereof as the
absolute owner of this Warrant for all purposes, notwithstanding any notice to
the contrary. A Warrant, if properly assigned, may be exercised to the extent
provided herein by a new holder without first having a new Warrant issued.
10. Notices, etc. All notices and other communications from the Company to the
holder of this Warrant or from the holder of this Warrant shall be delivered
personally, by facsimile (if confirmed and followed by delivery by first class
mail), reputable overnight courier service, or mailed by first class registered
or certified mail, postage prepaid, to the Company at 000 Xxxxxxx Xxxxx, Xxxxx
000, X. X. Box 60219, Grand Junction, Colorado 81506-8758, Attn: President, or
to the holder at such address as may have been furnished to the Company in
writing by such holder, or, until an address is so furnished, to and at the
address of the last holder of this Warrant who has so furnished an address to
the Company. Any such notice shall be deemed to have been given on the date of
personal delivery, facsimile, delivery to a reputable overnight courier service
or deposit in the mail.
11. Warrant Holder Not a Shareholder. Holder shall not, by virtue of anything
contained in this Agreement or otherwise, prior to exercise of this Warrant, be
entitled to any right whatsoever, either in law or equity, of a shareholder of
the Company, including without limitation, the right to receive dividends or to
vote or to consent or to receive notice as a shareholder in respect of the
meetings of shareholders or the election of directors of the Company or any
other matter; provided however that all holders of Warrants will be entitled to
notice if: (a) the Company grants holders of its Common Stock rights to purchase
any shares of capital stock or any other rights, or (b) the Company authorizes a
reclassification, capital reorganization, consolidation, merger or sale of
substantially all of its assets.
12. Nontransferable. This Warrant is nontransferable without the prior consent
of the Company. Any such transfer shall be made in accordance with Section 8.1
above.
13. Miscellaneous. The Company may from time to time supplement or amend this
Warrant without the approval of the holder in order to cure any ambiguity or to
be correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision, or to make any other provisions in
regard to matters or questions herein arising hereunder which the Company may
deem necessary or desirable and which shall not materially adversely affect the
interest of the holder. This Warrant and any term hereof may be amended,
changed, waived, discharged or terminated only by an instrument in writing
signed by the Company and consented to in writing by the holder of this Warrant.
If for any reason any provision, paragraph or term of this Warrant is held to be
invalid or unenforceable, all other valid provisions herein shall remain in full
force and effect and all terms, provisions and paragraphs of this Warrant shall
be deemed to be severable. This Warrant shall be construed and enforced in
accordance with and governed by the laws of the state of Colorado applicable to
contracts made and to be performed entirely therein. The headings in this
Warrant are for reference purposes only and shall not limit or otherwise affect
the meaning hereof.
Dated as of: November 2, 2000.
XXXXX OIL AND GAS COMPANY
By: _________________________________
Xxxxxxx X. Xxxxxx, President
ATTEST:
---------------------------
Xxxxxxx X. Xxxxx, Secretary
FORM OF SUBSCRIPTION
[To be signed only upon exercise of the Warrant]
To: XXXXX OIL AND GAS COMPANY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ___________* shares of the Common Stock of XXXXX OIL AND
GAS COMPANY and herewith makes payment of $ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to,
_________________, whose address is ------------------------ --------------.
Dated:
(Signature must conform in all
respects to the name of the holder
as specified on the face of the
Warrant)
(Address)
* Insert the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
FORM OF ASSIGNMENT
[To be signed only upon transfer of the Warrant]
For value received, the undersigned hereby sells, assigns and transfers
unto the right represented by the within Warrant to purchase shares of the
Common Stock of XXXXX OIL AND GAS COMPANY to which the within Warrant relates,
and appoints Attorney to transfer such right on the books of XXXXX OIL AND GAS
COMPANY, with full power of substitution in the premises.
Dated:
(Signature must conform in all
respects to the name of the holder
as specified on the face of the
Warrant)
(Address)
Signed in the presence of:
