Exhibit 10.17
WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement") is made as of December 13, 1996 by and
between CHENIERE ENERGY, INC., a Delaware corporation ("the Company"), and Xxxxx
X. Xxxxxxxx (the "Holder").
Preliminary Recitals
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A. The Company desires to issue to Holder a right to purchase shares of
common stock, no par value per share (the "Common Stock"), of the Company in
consideration of value received by the Company from Holder, as set forth in that
certain agreement dated as of September 14, 1996 (the "Modification and Note
Exchange Agreement") between Company and the Holder with respect to the purchase
by Holder of a Promissory Note and common stock warrant of the Company.
X. Xxxxxx desires to participate in the future growth prospects of the
Company and is willing to accept and receive a right to purchase shares of
Common Stock of the Company, on the terms and subject to the conditions set
forth below.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Holder agree as follows:
1. GRANT OF WARRANT. The Company hereby grants to Holder a warrant to
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purchase up to 64,500 shares (the "Warrant Shares") of Common Stock at the
purchase price of $3.00 per share (the "Warrant"), such Warrant to be
exercisable as hereinafter provided, evidenced by a warrant certificate in the
form attached as Exhibit A hereto (the "Warrant Certificate").
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2. EXERCISE PERIOD. Subject to the other terms of this Agreement regarding
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the exercisability of the Warrant, the Warrant shall be exercisable during the
period (the "Exercise Period") commencing on the date hereof and expiring on
June 14, 1999.
3. EXERCISE OF WARRANT
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(a) This Warrant may be exercised, from time to time, in whole or in part, at
any time prior to the expiration thereof. Any exercise shall be accompanied by
written notice to the Company specifying the number of shares as to which this
Warrant is being exercised, in the form attached to the Warrant Certificate.
Notations of any partial exercise or installment exercise, shall be made by the
Company and attached as a schedule hereto.
(b) The Company shall issue the Warrant Certificate or certificates
evidencing the Warrant Shares within fifteen (15) days after receipt of such
notice and payment as hereinafter provided.
4. PAYMENT OF PURCHASE PRICE UPON EXERCISE. At the time of any exercise of
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the Warrant the purchase price for the Warrant Shares shall be paid in full to
the Company by check or other immediately available funds.
5. PURCHASE FOR INVESTMENT; RESALE RESTRICTIONS. The Holder hereby
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represents, and each assignee of Holder as a condition to transfer shall
represent, that he is acquiring or will acquire the Warrant and the Warrant
Shares for his own account, for investment only with no present intention of
distributing or reselling such securities or any part thereof. Unless at the
time of the acquisition of the Warrant or the exercise of the Warrant, as the
case may be, there shall be, in the opinion of counsel for the Company, a valid
and effective registration statement under the Securities Xxx 0000 ("1933 Act")
and appropriate qualification and registration under applicable state securities
laws relating to the Warrant or the Warrant Shares, as the case may be, the
Holder shall, prior to the assignment of the Warrant or upon exercise of the
Warrant or any portion thereof, as the case may be, give a representation that
he is acquiring such Warrant or Warrant Shares, as the case may be, for his own
account, only for investment and not with the view to the resale or distribution
of any of such securities. In the absence of such registration statement, the
Holder shall execute a written affirmation, in form reasonably satisfactory to
the Company, of such investment intent. The Holder further agrees that he will
not sell or transfer the Warrant or any Warrant Shares, as the case may be,
until he requests and receives an opinion from the Company's counsel, or other
counsel reasonably satisfactory to the Company, to the effect that such proposed
sale or transfer will not result in a violation of the 1933 Act or a
registration statement covering the sale or transfer of the Warrant or Warrant
Shares, as the case may be, has been declared effective by the Securities and
Exchange Commission ("SEC"), or he obtains a no action letter from the SEC with
respect to the proposed transfer. There shall be stamped on the certificate(s)
representing the Warrant or Warrant Shares, as the case may be, an appropriate
legend giving notice of the acquisition of such Warrant or Warrant Shares, as
the case may be, for investment and the restriction on their transfer by reason
thereof.
6. ADJUSTMENTS. In the event of any change in the outstanding Common Stock
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of the Company by reason of any stock recapitalization, merger, consolidation,
combination or exchange of shares, the kind of shares subject to the Warrant and
their purchase price per share (but not the number of shares) shall be
appropriately adjusted consistent with such change in such manner as the Board
of Directors of the Company may deem equitable. In the event of a stock
dividend or stock split, the kind of shares, the purchase price per share and
number of shares shall be appropriately adjusted, consistent with such change in
such manner as the Board of Directors may deem equitable. Any adjustments that
are made by the Board of Directors shall be final and binding on the Holder.
7. NO RIGHTS OF STOCKHOLDER. The Holder shall have no rights as a
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stockholder with respect to any Warrant Shares prior to the date of purchase
thereof and issuance to him of a certificate or certificates for such shares.
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8. COMPLIANCE WITH LAW AND REGULATIONS. This Agreement and the obligation of
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the Company to sell and deliver the Warrant and the Warrant Shares shall be
subject to all applicable federal and state laws, rules and regulations and to
such approvals by any government or regulatory agency as may be required. If, at
any time, the Board of Directors of the Company shall determine that (a) the
listing, registration or qualification of the Warrant Shares upon any securities
exchange or under any state or federal law or (b) the consent or approval of any
government regulatory body, is necessary or desirable as a condition to, or in
connection with, the offer, sale and issuance of the Warrant Shares, the Warrant
shall not be exercised by the Holder in whole or in part unless such listing,
registration, qualification, consent, approval or agreement shall have been
effected or obtained, free of any conditions not acceptable to the Board of
Directors of the Company.
9. TAX WITHHOLDING REQUIREMENTS. The Company shall have the right to require
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the Holder to remit to the Company an amount sufficient to satisfy any federal,
state or local withholding or other tax requirements applicable to the sale of
the Warrant or the issuance and sale of the Warrant Shares prior to the delivery
of any Warrant Certificate or Certificates for the Warrant Shares.
10. FRACTIONAL SHARES. To the extent required, fractional shares of stock
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shall be issued upon the exercise of this Warrant up to but not more than the
nearest thousandth of a share (.001). The Company shall not be under any
obligation to compensate the Holder in any way for fractional shares in less
than such amounts.
11. SEVERABILITY. Whenever possible, each provision of this Agreement will
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
12. COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, any one of which need not contain the signatures of more than one
party, but all of such counterparts taken together will constitute one and the
same Agreement.
13. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
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inserted for convenience only and do not constitute a part of this Agreement and
shall not be used in the interpretation hereof.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon any and all
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successors and assigns of the parties.
15. AMENDMENTS. This Agreement may not be modified, amended, altered, or
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supplemented except upon the execution and delivery of a written agreement
executed by Holder and the Company.
16. GOVERNING LAW. This Agreement shall be construed according to the laws
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of the State of Delaware without giving effect to the conflict of law provisions
thereof, and all provisions hereof shall be administered according to and its
validity shall be determined under, the laws of such state, except where
preempted by federal laws.
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17. NOTICES. Any notices or other communications required or permitted
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hereunder shall be sufficiently given if delivered personally or three (3) days
after being sent by registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telecopy with oral confirmation, addressed as
follows or to such other address of which the parties may have given notice in
accordance with this Section 17:
If to Holder at the address set forth on the signature page of this Agreement.
If to the Company:
Cheniere Energy, Inc.
Two Xxxxx Center
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
IN WITNESS WHEREOF the parties have executed this Agreement as the date first
written above.
CHENIERE ENERGY, INC.
By:
Xxxxx X. Xxxxxx
Chief Financial Officer
By:
Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxx.
Xxxxxx, XX 00000
(000)000-0000 Fax (000) 000-0000
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAW 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 FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
CHENIERE ENERGY, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
The transferability of this Warrant is restricted as set forth in the related
Warrant Agreement, a copy of which may be obtained from the Company at its
principal office.
No. WA-17 Up to 64,500 Shares
THIS CERTIFIES THAT for value received Xxxxx X. Xxxxxxxx (the "Holder") or
registered assigns is the owner of a Warrant to purchase during the period
expiring no later than 5:00 p.m. New York time on June 14, 1999, the number of
fully paid and non-assessable shares of Common Stock, $.003 par value per share
(the "Common Stock"), of Cheniere Energy, Inc., a Delaware corporation
(hereinafter called the "Company"), specified above upon payment of the Warrant
Price (as defined below) set forth in the warrant agreement between the Company
and the Holder (the "Warrant Agreement").
As provided in the Warrant Agreement, certain adjustments may be made in the
sole discretion of the Board of Directors of the Company in the number of shares
of Common Stock issuable upon exercise of this Warrant in the event of the
change in the number of shares of Common Stock of the Company outstanding by
reason a stock split, combination of stock or stock dividend in such manner as
the Board of Directors may deem equitable.
The warrant price per share (hereinafter called the "Warrant Price") shall be
$3.00. As provided in the Warrant Agreement, the Warrant Price is payable upon
the exercise of this Warrant, in cash by check or other immediately available
funds.
Upon the exercise of this Warrant, the form of election to purchase attached
hereto must be properly completed and executed and surrendered to the Company or
its transfer agent. In the event that this Warrant is exercised in respect of
fewer than all of such shares, a new Warrant for the remaining number of such
shares, substantially in the form hereof, will be issued on such surrender.
This Warrant is issued under, and the rights represented hereby are subject
to, the
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terms and provisions contained in the Warrant Agreement. By acceptance of an
assignment of this Warrant any assignee agrees and assents to all the terms and
provisions of the Warrant Agreement. Reference is hereby made to terms and
conditions of the Warrant Agreement for a more complete statement of the rights
and limitations of rights of the registered holder hereof and the rights and
obligations of the Company thereunder, which terms and conditions are
incorporated herein by reference. Copies of the Warrant Agreement are on file at
the principal office of the Company.
The Company shall be required upon the exercise of this Warrant to issue
fractions of shares only up to the nearest thousandth of a share (.001).
This Warrant is transferable at the office of the Company (or of its transfer
agent) by the registered holder hereof in person or by attorney-in-fact duly
authorized in writing, but only in the manner and subject to the limitations
provided in the Warrant Agreement, and upon surrender of this Warrant, proper
completion and delivery of an assignment in the form attached hereto and the
payment of any transfer taxes. Upon any such transfer, a new Warrant, or new
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Common Stock will be
issued to the transferee in exchange for this Warrant.
This Warrant when surrendered at the office of the Company (or of its transfer
agent) by the registered holder hereof, in person or by attorney duly authorized
in writing, may be exchanged, in the manner and subject to the limitations
provided in the Warrant Agreement 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 of Common Stock.
If this Warrant shall be surrendered for exercise within any period during
which the transfer books for shares of the Common Stock of the Company or other
securities purchasable upon the exercise of this Warrant are closed for any
purpose, the Company shall not be required to make delivery of certificates for
the securities purchasable upon such exercise until the date of the reopening of
said transfer books.
The Holder of this Warrant shall not be entitled to any of the rights of a
stockholder of the Company prior to the exercise hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
representative, thereunto duly authorized, as of this 13th day of December,
1996.
CHENIERE ENERGY, INC.
By:
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Xxxxx X. Xxxxxx
Chief Financial Officer
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Annex 1
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PURCHASE FORM
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Dated
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The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing __________ shares of Common Stock and hereby makes
payment in full by check or other immediately available funds totaling $_______.
INSTRUCTIONS FOR REGISTRATION OF STOCK
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Name
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(Please typewrite or print in block letters)
Address
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Signature
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Annex 2
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ASSIGNMENT FORM
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Name
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(Please typewrite or print in block letters)
Address
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the right to purchase Common Stock represented by this Warrant to the extent of
________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint _______________, Attorney-in-Fact, to
transfer the same on the books of the Company with full power of substitution in
the premises.
Date______________, 19__
Signature
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