EXHIBIT 4.2
SPECIMEN
Neither this warrant nor the shares of common stock issuable upon exercise of
this warrant have been registered under the Securities Act of 1933, and neither
this warrant nor the shares of common stock issuable upon exercise of this
warrant may be sold, transferred, pledged, hypothecated or otherwise disposed of
in whole or in part in the absence of an effective registration statement under
such act or an opinion of counsel reasonably satisfactory to counsel to Seitel,
Inc., in form and substance reasonably satisfactory to Seitel, Inc., that an
exemption from registration under such act or the rules and regulations
thereunder is available with respect to the proposed sale, transfer, pledge,
hypothecation or other disposition.
SEITEL, INC.
COMMON STOCK PURCHASE
WARRANT CERTIFICATE
TO PURCHASE BLANK
SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M., NEW YORK, NEW YORK
LOCAL TIME ON DECEMBER 10, 2000
Certificate No. W-
This Warrant Certificate certifies that (Name, Address, Social Security
Number), its registered assigns is the registered holder ("Holder") of (Number
of Warrants) Common Stock Purchase Warrants (the "Warrants") to purchase shares
of the $.01 par value common stock, ("Common Stock") of SEITEL, INC., a Delaware
corporation (the "Company"). Each Warrant enables the Holder to purchase from
the Company at any time until 5:00 p.m., New York, New York, local time on
December 10, 0000 xxx fully paid and non-assessable share of common stock
("Share") upon presentation and surrender of this Warrant Certificate and upon
payment of the purchase price of $22.00 per Share. Payment shall be made in
lawful money of the United States of America by certified check payable to the
Company at its principal office at 00000 Xxxxxx'x Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000. As hereinafter provided, the purchase price and number of
Shares purchasable upon the exercise of the Warrants are subject to modification
or adjustment upon the happening of certain events.
FOR ALL OTHER PURPOSES STATED HEREIN, THE COMPANY MAY DEEM AND TREAT THE
PERSON IN WHOSE NAME THIS WARRANT CERTIFICATE IS REGISTERED AS THE ABSOLUTE TRUE
AND LAWFUL OWNER HEREOF FOR ALL PURPOSES WHATSOEVER.
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1. Upon surrender to the Company, this Warrant Certificate may be exchanged
for another Warrant Certificate or Warrant Certificates evidencing a like
aggregate number of Warrants. If this Warrant Certificate shall be
exercised in part, the Holder shall be entitled to receive upon surrender
hereof another Warrant Certificate or Warrant Certificates evidencing the
number of Warrants not exercised.
2. No Holder shall be deemed to be the holder of Common Stock or any other
securities of the Company that may at any time be issuable on the exercise
hereof for any purpose nor shall anything contained herein be construed to
confer upon the Holder any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof or to give or withhold
consent to any corporate action (whether upon any reorganization, issuance
of stock, reclassification or conversion of stock, change of par value,
consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings or to receive dividends or subscription rights or otherwise until
a Warrant shall have been exercised and the Common Stock purchasable upon
the exercise thereof shall have become issuable.
3. Each Holder consents and agrees with the Company and any other Holder
that:
A. this Warrant Certificate is exercisable in whole or in part by the
Holder in person or by attorney duly authorized in writing at the
principal office of the Company.
B. anything herein to the contrary notwithstanding, in no event shall the
Company be obligated to issue Warrant Certificates evidencing other
than a whole number of Warrants or issue certificates evidencing other
than a whole number of Shares upon the exercise of this Warrant
Certificate; provided, however, that the Company shall pay with
respect to any such fraction of a Share an amount of cash based upon
the current public market value (or book value, if there shall be no
public market value) for Shares purchasable upon exercise hereof, as
determined in accordance with subparagraph I of Section 10 hereof; and
C. the Company may deem and treat the person in whose name this Warrant
Certificate is registered as the absolute true and lawful owner hereof
for all purposes whatsoever.
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4. The Company shall maintain books for the transfer and registration of
Warrants. Upon the transfer of any Warrants, the Company shall issue and
register the Warrants in the names of the new Holders. The Warrants shall
be signed manually by the Chairman, Chief Executive Officer, President or
any Vice President and the Secretary (or Assistant Secretary) of the
Company. The Company shall transfer, from time to time, any outstanding
Warrants upon the books to be maintained by the Company for such purpose
upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any transfer, a new Warrant
Certificate shall be issued to the transferee and the surrendered Warrants
shall be cancelled by the Company. Warrants may be exchanged at the option
of the Holder, when surrendered at the office of the Company, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of
Shares. Subject to the terms of this Warrant Certificate, upon such
surrender and payment of the purchase price, the Company shall issue and
deliver with all reasonable dispatch to or upon the written order of the
Holder of such Warrants and in such name or names as such Holder may
designate, a certificate or certificates for the number of full Shares so
purchased upon the exercise of such Warrants. Such certificate or
certificates shall be deemed to have been issued and any person so
designated to be named therein shall be deemed to have become the holder of
record of such Shares as of the date of the surrender of such Warrants and
payment of the purchase price; provided, however, that if, at the date of
surrender and payment, the transfer books of the Shares shall be closed,
the certificates for the Shares shall be issuable as of the date on which
such books shall be opened and until such date the Company shall be under
no duty to deliver any certificate for such Shares; provided, further,
however, that such transfer books, unless otherwise required by law or by
applicable rule of any national securities exchange, shall not be closed at
any one time for a period longer than 20 days. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
Holders, either as an entirety or from time to time for part only of the
Shares.
5. The Company will pay any documentary stamp taxes attributable to the
initial issuance of the Shares issuable upon the exercise of the Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificates for Shares in a name other than
that of the Holder in respect of which such Shares are issued, and in
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such case the Company shall not be required to issue or deliver any
certificate for Shares or any Warrant until the person requesting the same
has paid to the Company the amount of such tax or has established to the
Company's satisfaction that such tax has been paid.
6. In case the Warrant Certificate shall be mutilated, lost, stolen or
destroyed, the Company may, in its discretion, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and substitution for the Warrant
Certificate, lost, stolen or destroyed, a new Warrant Certificate of like
tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction and an indemnity, if requested, also satisfactory to it.
7. The Company warrants that there have been reserved, and covenants that at
all times in the future it shall keep reserved, out of the authorized and
unissued Common Stock, a number of Shares sufficient to provide for the
exercise of the rights or purchase represented by this Warrant Certificate.
The Company agrees that all Shares issuable upon exercise of the Warrants
shall be, at the time of delivery of the certificates for such Shares,
validly issued and outstanding, fully paid and non-assessable and that the
issuance of such Shares will not give rise to preemptive rights in favor of
existing shareholders.
8. As used herein, the term "Exercise Rate" shall mean the number and kind of
shares of capital stock of the Company which the Holder of this Warrant
shall be entitled from time to time to receive for each $1,000.00 of
warrant exercise payment. Unless and until an adjustment thereof shall be
required as hereinafter provided, the Exercise Rate shall be 50 shares of
Common Stock.
9. The term "Exercise Price" shall mean the price obtained by dividing
$1,000.00 by the number of shares constituting the Exercise Rate in effect
at the time for such amount.
10. The Exercise Rate in effect any time shall be subject to adjustment as
follows:
A. Whenever the Company shall (i) pay a dividend on Common Stock in
shares of its Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares, or (iv) issue by reclassification of
its shares of Common Stock (including any reclassification in
connection with a
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consolidation or merger in which the Company is the continuing
corporation) any shares, the Exercise Rate in effect at the time of
the record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be proportionately
adjusted so that the Holder of this Warrant exercising it after such
time shall be entitled to receive the total number and kind of shares
which bear the same proportion to the total issued and outstanding
Common Stock of the Company immediately after such time as the
proportion he would have owned and have been entitled to receive
immediately prior to such time.
B. Whenever the Company shall issue any shares of Common Stock other
than:
(i) shares issued in a transaction described in subparagraph H of
this Paragraph 10; and
(ii) shares issued upon exercise or conversion of securities of the
type referred to in subparagraphs E and F of this Paragraph 10 or
shares issued, subdivided or combined in transactions described
in subparagraph (A) of this Paragraph 10 if and to the extent
that the Exercise Rate shall have been previously adjusted
pursuant to the terms of this subparagraph (B) or subparagraph
(A) of this Paragraph 10 as a result of the issuance, subdivision
or combination of such securities; at a price per share which is
less than the current public market value of a share of Common
Stock, the Exercise Rate in effect immediately prior to such
issuance shall be adjusted by multiplying such Exercise Rate by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance plus
the number of additional shares of Common Stock so issued, and
the denominator of which shall be the number of Shares of Common
Stock outstanding immediately prior to such issuance plus the
number of shares of Common Stock which the fair value of the
consideration received by the Company for the total number of
additional shares so issued would purchase at a price equal to
the current public market value.
C. Whenever the Company shall pay a dividend or make a distribution
(other than in a transaction which results in an equivalent adjustment
pursuant to other subparagraphs of this Paragraph 10) generally to
holders of its Common Stock or evidences of its
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indebtedness or assets (excluding dividends paid in, or distributions
of cash to the extent of current income or earned surplus of the
Company), or securities of the Company, or rights to subscribe for or
purchase securities of the Company, the Exercise Rate in effect
immediately prior to such distribution shall be adjusted by
multiplying such Exercise Rate by a fraction, the numerator of which
shall be the then current public market value, if any, per share of
the Common Stock receiving such dividend or distribution or, if there
shall be no such current public market value, then the book value per
share as of the close of the month preceding such distribution, and
the denominator of which shall be the numerator less the fair market
value of the portion of the assets, or the evidences of indebtedness
or rights, so distributed which is applicable to each such share;
provided, however, if as a result of such adjustment the Exercise
Price would be a negative figure, such adjustment shall be modified so
that the Exercise Price after such adjustment is $.01 per share.
D. Whenever the Company shall issue by reclassification of its shares of
Common Stock any shares of stock, the Exercise Rate in effect
immediately prior to such issuance shall be proportionately adjusted
so that the Holder of this Warrant exercising it after such time shall
be entitled to receive, the number and kind of shares which, when
added to the number of shares of such kind exercisable hereunder prior
to such issue, would entitle the Holder hereof, upon the exercise
hereof in full, to purchase an amount of shares of such kind which
bears the same proportion to the total issued and outstanding capital
stock of the Company as the proportion he would have owned and have
been entitled to receive immediately prior to such issue. In the event
that at any time, as a result of an adjustment made pursuant to this
Paragraph 10, the Holder of this Warrant shall become entitled upon
exercise thereof to receive any shares of the Company other than
shares of its Common Stock, then thereafter the number of such other
shares so receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained in this
Paragraph 10 in the respect of the Common Stock.
E. For purposes of the adjustments provided for in the foregoing
subparagraphs of this Paragraph 10, if at any time, the Company shall
issue any rights or options for the purchase of, or stock or other
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securities convertible into Common Stock, (such convertible stock or
securities being herein referred to as "Convertible Securities") the
Company shall be deemed to have issued at the time of the issuance of
such rights or options or Convertible Securities the maximum number of
shares of Common Stock issuable upon exercise or conversion thereof
and to have received as consideration for the issuance of such shares
an amount equal to the amount of cash and fair value of other
consideration, if any, received by the Company for the issuance of
such rights or options or Convertible Securities, plus, in the case of
such options or rights, the minimum amounts of cash and fair value of
other consideration, if any, payable to the Company upon the exercise
of such options or rights and, in the case of Convertible Securities,
the minimum amounts of cash and fair value of other consideration, if
any, payable, to the Company.
F. For purposes of the adjustment provided for in subparagraph B above,
if at any time the Company shall issue any rights or options for the
purchase of Convertible Securities, the Company shall be deemed to
have issued at the time of the issuance of such rights or options the
maximum number of shares of Common Stock issuable upon conversion of
the total amount of Convertible Securities covered by such rights or
options and to have received as consideration for the issuance of such
shares an amount equal to the amount of cash and the amount of fair
value of other consideration, if any, received by the Company for the
issuance of such rights or options, plus the minimum amounts of cash
and fair value of other consideration, if any, payable to the Company
upon the exercise of such rights or options and payable to the Company
upon the exercise of such rights or options and payable to the Company
on conversion of such Convertible Securities.
G. Anything in subparagraph E or F above to the contrary notwithstanding,
whenever the Company shall issue any shares (other than on exercise of
this Warrant) upon exercise of any rights or options or upon
conversion of any Convertible Securities and if the Exercise Rate
shall not previously have been adjusted upon the issuance of such
rights, options or Convertible Securities, the computation described
in subparagraph B above shall be made and the Exercise Rate adjusted
in accordance with the provisions thereof (the shares so issued being
deemed for purposes of such computation to have been issued at a price
per share equal to the amount of cash and fair value of other
consideration, if any,
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properly attributable to one such share received by the Company upon
issuance and exercise of such rights or options or sale and conversion
of such Convertible Securities (and upon issuance of any rights or
options pursuant to which such Convertible Securities may have been
sold).
H. Anything in this Paragraph 10 to contrary notwithstanding, no
adjustment in the Exercise Rate or Exercise Price shall be made in
connection with:
(i) Convertible Securities issued pursuant to the Company's
qualified or non-qualified Employee Stock Option Plans or any
other bona fide employee benefit plan or incentive arrangement,
adopted or approved by the Company's Board of Directors or shares
of Common Stock issued pursuant to the exercise of any rights or
options granted pursuant to said plans or arrangements (but only
to the extent that the aggregate number of shares excluded by the
Clause (i) and issued after the date hereof shall not exceed 15%
of the Company's Common Stock outstanding at the time of any such
issuance); and
(ii) The issuance of any shares of Common Stock pursuant to the
exercise of Convertible Securities outstanding as of the date
hereof including without limitation, the conversion of any
Warrant issued in the same placement of securities pursuant to
which this Warrant was issued by the Company.
I. For purposes of this Paragraph 10, the current public market value of
a share of Common Stock on any date shall be deemed to be the
arithmetical average of the following prices for such of the thirty
(30) business days immediately preceding such day as shall be
available: (i) for any of such days on which the Common Stock shall be
listed on a national securities exchange, the last sale price on such
day or, if there shall have been no sale on such day, the average of
the closing bid and asked prices on such exchange on such day, or (ii)
for any of such days on which the Common Stock shall not be listed on
a national securities exchange but shall be included in the National
Association of Securities Dealers Automated Quotation System
("NASDAQ"), the average of the closing bid and asked prices on such
day quoted by brokers and dealers making a market in NASDAQ, furnished
by any member of the New York Stock Exchange selected by the Company
for that purpose, or (iii) for any of such days on which the Common
Stock shall not be so
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listed on a national securities exchange or included in NASDAQ but
shall be quoted by three brokers regularly making a market in such
shares in the over-the-counter market, the average of the closing bid
and asked prices on such day, furnished by any member of the New York
Stock Exchange selected by the Company for that purpose, or (iv) for
any days on which the information described in items (i), (ii) or
(iii) above is unavailable, the book value per share of the Common
Stock as determined in accordance with generally accepted accounting
principles; provided, however, in its discretion the Board may make an
appropriate reduction in the "current public market value" based upon
any applicable trading restrictions to particular shares of Common
Stock.
J. Anything in this Paragraph 10 to the contrary notwithstanding, no
adjustment in the Exercise Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of
this subparagraph J are not required to be made shall be carried
forward and taken into account in making subsequent adjustments. All
calculations under the Paragraph 10 shall be made to the nearest cent
or to the nearest one-hundredth of a share, as the case may be.
K. No adjustment in the Exercise Rate shall be made for purposes of
subparagraphs B and C of this Paragraph 10 if such adjustment would
result in an increase in such Exercise Price or decrease in the
Exercise Rate except that, in the case of any Convertible Securities
in respect of which an adjustment has previously been made under
subparagraph B above and which has expired or otherwise been cancelled
without exercise of the rights or options evidenced thereby, such
previous adjustment shall be reversed.
L. Before taking any action which could cause an adjustment pursuant to
this Paragraph 10 reducing the Exercise Price per share below the then
par value (if any) of the shares covered hereby, the Company will take
any corporate action which may be necessary in order that the Company
may validly and legally issue at the Exercise Price as so adjusted
share that are fully paid and non-assessable.
M. The number of shares of capital stock of the Company outstanding at
any given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares shall
be considered an issue or sale of such shares for the purposes of this
Paragraph 10.
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N. If any event occurs as to which the other provisions of this Paragraph
10 are not strictly applicable but the lack of any adjustment would
not fairly protect the purchase rights of the Holder of this Warrant
in accordance with the basic intent and principles of such provisions,
or if strictly applicable would not fairly protect the purchase rights
of the Holder of this Warrant in accordance with the basic intent and
principles of such provisions, then the Company shall appoint a firm
of independent certified public accountants (which shall not be the
regular auditors of the Company) of recognized national standing,
which shall give their opinion upon the adjustment, if any, on a basis
consistent with the basic intent and principles established in the
other provisions of this Paragraph 10, necessary to preserve, without
dilution, the exercise rights of the registered Holder of this
Warrant. Upon receipt of such opinion, the Company shall forthwith
make the adjustments described therein. In taking any action or making
any determination pursuant to the provisions of this Section 10, the
Company and its Board of Directors shall, at all times, exercise
reasonable judgment and act in good faith.
O. Upon any adjustment of any Exercise Rate, then and in each such case
the Company shall promptly deliver a notice to the registered Holder
of this Warrant, which notice shall state the Exercise Price and
Exercise Rate resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise hereof, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is
based.
P. In the case of the issuance of shares of Common Stock or Convertible
Securities for a consideration in whole or in part, other than cash,
the consideration other than cash shall be deemed to be the fair
market value thereof as reasonably determined in good faith by the
Board of Directors of the Company (irrespective of accounting
treatment thereof); provided, however, that if such consideration
consists of the cancellation of debt issued by the Company the
consideration shall be deemed to be the amount the Company received
upon issuance of such debt (gross proceeds) plus accrued interest and,
in the case of original issue discount or zero coupon indebtedness,
accreted value to the date of such cancellation, but not including any
premium or discount at which the debt may then be trading or which
might otherwise be appropriate for such class of debt;
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Q. The Company shall not issue any shares of its capital stock (other
than common stock) at or for consideration which is less than fair
value determined by the Board of Directors of the Company in light of
all circumstances surrounding such issuance.
11. In the case:
A. The Company shall declare any dividend or distribution on its Common
Stock (or on any other shares which the Holder of this Warrant may
become entitled to receive upon exercise hereof); or
B. The Company shall authorize the issuance to holders of its Common
Stock (or on any other shares which the Holder of this Warrant may
become entitled to receive upon exercise hereof) any subscription
rights or warrants; or
C. Of any subdivision, combination or reclassification of shares of
Common Stock of the Company (or any shares of the Company which are
subject to this Warrant), or of any proposed consolidation or merger
to which the Company is to be a party and for which the approval of
any shareholders of the Company is required, or of the proposed sale
or transfer of all or substantially all of the assets of the Company;
or
D. Of the proposed voluntary or involuntary dissolution, liquidation, or
winding up of the Company; or
E. The Company proposes to effect any transaction not specified above
which would require an adjustment of the Exercise Rate pursuant to
Paragraph 10 hereof; then the Company shall cause to be mailed to
Holders of this Warrant, at least ten (10) days prior to the
applicable record or other date hereinafter specified, a notice
describing such transaction in reasonable detail, specifying the
character, amount and terms of all securities and the amounts of cash
and other property, if any, involved in such transaction and stating
(i) the date as of which the holders of Common Stock (or any such
other shares) of record to be entitled to receive any such dividend,
distribution, rights, or warrants is to be determined, or (ii) the
date of which any such subdivision, combination, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation,
winding up, or other transaction is expected to become effective, and
the date as of
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which it is expected that holders of Common Stock (or any such other
shares) of record shall be entitled to exchange the same for
securities or other property, if any, deliverable upon such
transaction.
12. The Company covenants and agrees that it will not merge or consolidate with
or into or sell or otherwise transfer all or substantially all of its
assets to any other corporation or entity unless at the time of or prior to
such transaction such other corporation or other entity shall expressly
assume all of the liabilities and obligations of the Company under this
Warrant and (without limiting the generality of the foregoing) shall
expressly agree that the Holder of this Warrant shall thereafter have the
right (subject to subsequent adjustment as nearly equivalent as practicable
to the adjustments provided for in Paragraph 10 of this Warrant) to receive
upon the exercise of this Warrant the number and kind of shares of stock
and other securities and property receivable upon such transaction by a
Holder of the number and kind of shares which would have been receivable
upon the exercise of this Warrant immediately prior to such transactions.
13. The Holder of this Warrant Certificate, each transferee hereof and any
holder and transferee of any Shares, by his acceptance thereof, agrees that
(i) no public distribution of Warrants or Shares will be made in violation
of the Act, and (ii) during such period as the delivery of a prospectus
with respect to Warrants or Shares may be required by the Act, no public
distribution of Warrants or Shares will be made in a manner or on terms
different from those set forth in, or without delivery of, a prospectus
then meeting the requirements of Section 10 of the Act and in compliance
with all applicable state securities laws. The Holder of this Warrant
Certificate and each transferee hereof further agrees that if any
distribution of any of the Warrants or Shares is proposed to be made by
them otherwise than by delivery of a prospectus meeting the requirements of
Section 10 of the Act, such action shall be taken only after submission to
the Company of an opinion of counsel, reasonably satisfactory in form and
substance to the Company's counsel, to the effect that the proposed
distribution will not be in violation of the Act or of applicable state
law. Furthermore, it shall be a condition to the transfer of the Warrants
that any transferee thereof deliver to the Company his written agreement to
accept and be bound by all of the terms and conditions contained in this
Warrant Certificate.
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WITNESS the following signatures as of this ____ day of _______, 19__.
SEITEL, INC.
By:
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Xxxx X. Frame
President
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PURCHASE FORM
TO: SEITEL, INC. DATE:
The undersigned hereby irrevocably elects to exercise the attached Warrant
Certificate, Certificate No. W- , to the extent of (number of shares) Shares
of Common Stock, $.01 par value per share of SEITEL, INC., and hereby makes
payment of $ in payment of the aggregate exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:________________________________
Address:_____________________________
_____________________________
_____________________________
_____________________________
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By:
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