AMENDED AND RESTATED WARRANT AGREEMENT
EXHIBIT
4.4
This
Warrant Agreement (this "Agreement") is made as of April 30, 2008, by and
between Zion Oil & Gas, Inc., a Delaware corporation having its principal
place of business at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the
"Company"), and Registrar and Transfer Company, a New Jersey corporation
with
offices at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Warrant
Agent").
WHEREAS,
the Company is engaged in a public offering (the "Public Offering") of Units
("Units") and, in connection therewith, has determined to issue and deliver
up
to (i) 2,500,000 Warrants (the "Public Warrants" and/or the “Warrants”) to the
public investors, each of such Public Warrants evidencing the right of the
holder thereof to purchase one share of common stock, par value $.01 per
share,
of the Company's Common Stock ("Common Stock") for $7.00, subject to adjustment
as described herein;
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the "SEC")
a
Registration Statement on Form S-3, as amended ("Registration Statement"),
for
the registration under the Securities Act of 1933, as amended ("Act") of
the
issuance and sale of the Warrants and the Common Stock issuable upon exercise
of
the Public Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1.
Appointment
of Warrant Agent
. The
Company hereby appoints the Warrant Agent to act as agent for the Company for
the Warrants, and the Warrant Agent hereby accepts such appointment and agrees
to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2.
Warrants
.
2.1
Form
of Warrant
. Each
Warrant shall be issued in registered form only. The Warrants shall be in
substantially the form of Exhibit
A
hereto,
the provisions of which are incorporated herein, and shall be signed by,
or bear
the facsimile signature of, the Chief Executive Officer or President and
Chief
Financial Officer, Treasurer, Secretary or Assistant Secretary of the Company
and shall bear a facsimile of the Company's seal. In the event the person
whose
facsimile signature has been placed upon any Warrant shall have ceased to
serve
in the capacity in which such person signed the Warrant before such Warrant
is
issued, it may be issued with the same effect as if he or she had not ceased
to
be such at the date of issuance.
2.2
Effect
of Countersignature
. Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3
Registration
.
2.3.1
Warrant
Register
. The
Warrant Agent shall maintain books ("Warrant Register") for the registration
of
original issuance and the registration of transfer of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
by
the Company.
2.3.2
Registered
Holder
. Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register ("registered holder"), as the absolute
owner of such Warrant and of each Warrant represented thereby (notwithstanding
any notation of ownership or other writing on the Warrant Certificate made
by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
2.4
Detachability
of Public Warrants
. The
securities comprising the Units will begin to trade separately on the first
trading day following the 30 th
day
after the Termination Date (as defined in the Registration Statement) (the
"Detachment Date").
3.
Terms
and Exercise of Warrants
.
3.1
Warrant
Price
. Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $7.00 in the case of the Public Warrants and
$8.75 in the case of the Underwriter's Warrants per whole share, subject to
the
adjustments provided in this Section 3.1 and Section 4 hereof. The term "Warrant
Price" as used in this Warrant Agreement refers to the price per share at which
Common Stock may be purchased at the time a Warrant is exercised. The Company
in
its sole discretion may lower the Warrant Price at any time prior to the
Expiration Date for a period of not less than ten business days, provided that
any such reduction shall be identical among all of the Public
Warrants.
3.2
Duration
of Warrants
. A
Warrant may be exercised only during the period commencing on the 31st day
following the Termination Date and terminating at 5:00 p.m., New York City
time
on January 31, 2012. Notwithstanding the foregoing, no Warrant shall be
exercisable unless, at the time of exercise, a registration statement relating
to the Common Stock issuable upon the exercise of such Warrant is effective
and
current and a prospectus is available for use by the holders thereof and the
Common Stock has been qualified or deemed to be exempt under the securities
laws
of the state of residence of the holder of such Warrants. The period during
which a Warrant may be exercised shall be deemed the "Exercise Period" and
the
termination of such Exercise Period shall be deemed the "Expiration Date."
Each
Warrant not exercised on or before the Expiration Date shall become void, and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company in
its
sole discretion may extend the duration of the Warrants by delaying the
Expiration Date; provided, however, the Company will provide notice to
registered holders of the Public Warrants of such extension of not less than
20
days and, further provided that any such extension shall be identical in
duration among all of the Public Warrants.
3.3
Exercise
of Warrants
.
3.3.1
Payment
.
Subject to the provisions of the Warrants and this Warrant Agreement, a Warrant,
when countersigned by the Warrant Agent, may be exercised by the registered
holder thereof by surrendering it at the office of the Warrant Agent, or at
the
office of its successor as Warrant Agent, in Cranford, New Jersey, with the
subscription form, as set forth in the Warrant, duly executed by paying in
full, in lawful money of the United States, in cash, good certified check or
good bank draft payable to the order of the Company, the Warrant Price for
each
full share of Common Stock as to which the Warrant is exercised and any and
all
applicable taxes due in connection with the exercise of the Warrant, the
exchange of the Warrant for the Common Stock and the issuance of the Common
Stock.
3.3.2
Issuance
of Certificates
. As
soon as practicable after the exercise of any Warrant and the clearance of
the
funds in payment of the Warrant Price, the Company shall issue to the registered
holder of such Warrant a certificate or certificates for the number of full
shares of Common Stock to which he, she or it is entitled, registered in such
name or names as may be directed by him, her or it, and if such Warrant shall
not have been exercised in full, a new countersigned Warrant for the number
of
shares as to which such Warrant shall not have been exercised. Notwithstanding
the foregoing, the Company shall not be obligated to deliver any securities
pursuant to the exercise of a Warrant unless (i) a registration statement under
the Act with respect to the Common Stock issuable upon such exercise is
effective, or (ii) in the opinion of counsel to the Company, the exercise of
the
Warrants is exempt from the registration requirements of the Act and such
securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the registered
holders reside. Warrants may not be exercised by, or securities issued to,
any
registered holder in any state in which such exercise or issuance would be
unlawful. In no event will the Company be required to provide the registered
holder of a warrant with a net-cash settlement or other consideration in lieu
of
physical settlement in shares of Common Stock, regardless of whether the Common
Stock underlying the Warrants is registered pursuant to an effective
registration statement.
3.3.3
Valid
Issuance
. All
shares of Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4
Date
of Issuance
. Each
person in whose name any such certificate for shares of Common Stock is issued
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such shares at the close of business on
the
next succeeding date on which the stock transfer books are open.
4.
Adjustments
.
4.1
Stock
Dividends Split Ups
. If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split up of shares of Common Stock,
or other similar event, then, on the effective date of such stock dividend,
split up or similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such increase
in
outstanding shares of Common Stock.
4.2
Aggregation
of Shares
. If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3
Adjustments
in Exercise Price
.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise
of
the Warrants immediately prior to such adjustment, and (y) the denominator
of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter.
4.4
Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property
of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise
of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares
of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of
this Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
4.5
Notices
of Changes in Warrant
. Upon
every adjustment of the Warrant Price or the number of shares issuable on
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the Warrant Register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6
No
Fractional Shares
.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the
holder of any Warrant would be entitled, upon the exercise of such Warrant,
to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up to the nearest whole number the number of the shares of Common Stock
to
be issued to the Warrant holder.
4.7
Form
of Warrant
. The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
5.
Transfer
and Exchange of Warrants
.
5.1
Transfer
of Warrants
. Prior
to the Detachment Date, the Public Warrants may be transferred or exchanged
only
together with the Unit in which such Warrant is included, and only for the
purpose of effecting, or in conjunction with, a transfer or exchange of such
Unit. Furthermore, each transfer of a Unit on the register relating to such
Units shall operate also to transfer the Warrants included in such Unit. From
and after the Detachment Date this Section 5.1 will have no further force and
effect.
5.2
Registration
of Transfer
. The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon
request.
5.3
Procedure
for Surrender of Warrants
.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, in the event a Warrant surrendered for transfer
bears a restrictive legend, the Warrant Agent shall not cancel such Warrant
and
issue new Warrants in exchange therefor until the Warrant Agent has received
an
opinion of counsel for the Company stating such transfer may be made and
indicating whether the new Warrants must also bear a restrictive
legend.
5.4
Fractional
Warrants
. The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.5
Service
Charges
. No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.6
Warrant
Execution and Countersignature
. The
Warrant Agent is hereby authorized to countersign and deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6.
Other
Provisions Relating to Rights of Holders of Warrants
.
6.1
No
Rights as Stockholder
. A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
6.2
Lost,
Stolen, Mutilated, or Destroyed Warrants
. If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and date
as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
6.3
Reservation
of Common Stock
. The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this Warrant
Agreement.
7.
Concerning
the Warrant Agent and Other Matters
.
7.1
Payment
of Taxes
. The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
7.2
Resignation,
Consolidation, or Merger of Warrant Agent
.
7.2.1
Appointment
of Successor Warrant Agent
. The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days' notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to a court of competent jurisdiction for the
appointment of a successor Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be authorized to exercise
corporate trust powers and subject to supervision or examination by federal
or
state authority. After appointment, any successor Warrant Agent shall be vested
with all the authority, powers, rights, immunities, duties, and obligations
of
its predecessor Warrant Agent with like effect as if originally named as Warrant
Agent hereunder, without any further act or deed; but if for any reason it
becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such
successor Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any successor Warrant
Agent the Company shall make, execute, acknowledge, and deliver any and all
instruments in writing for more fully and effectually vesting in and confirming
to such successor Warrant Agent all such authority, powers, rights, immunities,
duties, and obligations.
7.2.2
Notice
of Successor Warrant Agent
. In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Common Stock not later than the effective date of any such
appointment.
7.2.3
Merger
or Consolidation of Warrant Agent
. Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Warrant Agreement without any further act.
7.3
Fees
and Expenses of Warrant Agent
.
7.3.1
Remuneration
. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder as set forth on Exhibit B hereto, and will
reimburse the Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties
hereunder.
7.3.2
Further
Assurances
. The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Warrant
Agreement.
7.4
Liability
of Warrant Agent
.
7.4.1
Reliance
on Company Statement
.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chief Executive Officer, President,
Chief Operating Officer, Chief Financial Officer, Executive Vice President,
Secretary or Assistant Secretary of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action taken
or
suffered in good faith by it pursuant to the provisions of this Warrant
Agreement.
7.4.2
Indemnity
. The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Warrant Agreement except as a result of the Warrant
Agent's negligence, willful misconduct, or bad faith.
7.4.3
Exclusions
. The
Warrant Agent shall have no responsibility with respect to the validity of
this
Warrant Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Warrant
Agreement or in any Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible for the manner,
method, or amount of any such adjustment or the ascertaining of the existence
of
facts that would require any such adjustment; nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this Warrant
Agreement or any Warrant or as to whether any shares of Common Stock will when
issued be valid and fully paid and nonassessable.
7.5
Acceptance
of Agency
. The
Warrant Agent hereby accepts the agency established by this Warrant Agreement
and agrees to perform the same upon the terms and conditions herein set forth
and among other things, shall account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase of shares of the Company's
Common Stock through the exercise of Warrants.
7.6
Waiver
. The
Warrant Agent hereby waives any and all right, title, interest or claim of
any
kind ("Claim") in or to any distribution of any account in which funds related
to the purchase or exercise of the Warrants are held, and hereby agrees not
to
seek recourse, reimbursement, payment or satisfaction for any Claim against
any
such account for any reason whatsoever.
8.
Miscellaneous
Provisions
.
8.1
Successors
. All
the covenants and provisions of this Warrant Agreement by or for the benefit
of
the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
8.2
Notices
. Any
notice or other communication required or which may be given hereunder shall
be
in writing and either be delivered personally or by private national courier
service, or be mailed, certified or registered mail, return receipt requested,
postage prepaid, and shall be deemed given when so delivered personally or,
if
sent by private national courier service, on the next business day after
delivery to the courier, or, if mailed, two business days after the date of
mailing, as follows:
Zion
Oil
& Gas, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Chief Executive Officer
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the holder of any Warrant or by the Company to or on the Warrant Agent
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service five days after deposit
of such notice, postage prepaid, addressed (until another address is filed
in
writing by the Warrant Agent with the Company), as follows:
Registrar
and Transfer Company
00
Xxxxxxxx Xxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attn:
Account Executive
8.3
Applicable
law
. The
validity, interpretation, and performance of this Warrant Agreement and of
the
Warrants shall be governed in all respects by the laws of the State of New
Jersey, without giving effect to conflict of laws. Each party hereby agrees
that
any action, proceeding or claim against it arising out of or relating in any
way
to this Warrant Agreement shall be brought and enforced in the appropriate
state
or federal courts in the State of New Jersey, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each party hereby waives
any objection to such exclusive jurisdiction and that such courts represent
an
inconvenient forum.
8.4
Persons
Having Rights under this Warrant Agreement
.
Nothing in this Warrant Agreement expressed and nothing that may be implied
from
any of the provisions hereof is intended, or shall be construed, to confer
upon,
or give to, any person or corporation other than the parties hereto and the
registered holders of the Warrants, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise, or agreement hereof. All covenants, conditions, stipulations, promises,
and agreements contained in this Warrant Agreement shall be for the sole and
exclusive benefit of the parties hereto and their successors and assigns and
of
the registered holders of the Warrants.
8.5
Examination
of the Warrant Agreement
. A copy
of this Warrant Agreement shall be available at all reasonable times at the
office of the Warrant Agent for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his Warrant
for
inspection by it.
8.6
Counterparts
. This
Warrant Agreement may be executed in any number of counterparts and each of
such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
8.7
Effect
of Headings
. The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
8.8
Amendments
. This
Warrant Agreement may be amended by the parties hereto without the consent
of
any registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Warrant Agreement as the parties may deem necessary or desirable
and
that the parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall require the
written consent of a majority of the then outstanding Warrants. Notwithstanding
the foregoing, the Company may lower the Warrant Price or extend the duration
of
the Exercise Period in accordance with Sections 3.1 and 3.2, respectively,
without such consent.
8.9
Severability
. This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of
this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
ZION
OIL & GAS, INC.
|
||
By:
|
/s/
Xxxxxxx X. Xxxxx
|
|
Name:
Xxxxxxx X. Xxxxx
|
||
Title:
Executive Vice President
|
||
REGISTRAR
AND TRANSFER COMPANY
|
||
By:
|
/s/
Xxxxxxx X. Tatler
|
|
Name:Xxxxxxx
X. Tatler
|
||
Title:
Vice President
|
[Face
of Certificate - ZION OIL & GAS, INC.]
(SEE
REVERSE SIDE FOR LEGEND)
W
WARRANTS
(THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO 5:00 P.M., NEW YORK CITY TIME,
JANUARY 31, 2012)
ZION
OIL
& GAS, INC.
CUSIP
000000000
WARRANT
THIS
CERTIFIES THAT, for value received _____________ is the registered holder
of a
Warrant or Warrants expiring January 31, 2012 (the "Warrant") to purchase
one
fully paid and non-assessable share of Common Stock, par value $.01 per share
(the "Shares"), of ZION OIL & GAS, INC., a Delaware corporation (the
"Company"), for each Warrant evidenced by this Warrant Certificate. The Warrant
entitles the holder thereof to purchase from the Company, commencing on the
31
ST
day
following the Termination Date (as defined in the Prospectus pursuant to
which
the Unit of which this Warrant forms a part was sold), such number of Shares
of
the Company at the price of $7.00 per share, upon surrender of this Warrant
Certificate and payment of the Warrant Price at the office or agency of the
Warrant Agent, Registrar and Transfer Company (such payment to be made by
check
made payable to the Warrant Agent), but only subject to the conditions set
forth
herein and in the Warrant Agreement between the Company and the Warrant Agent.
In no event shall the registered holder of this Warrant be entitled to receive
a
net-cash settlement or other consideration in lieu of physical settlement
in
Shares of the Company. The Warrant Agreement provides that, upon the occurrence
of certain events, the Warrant Price and the number of Warrant Shares
purchasable hereunder, set forth on the face hereof, may, subject to certain
conditions, be adjusted. The term Warrant Price as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased
at
the time the Warrant is exercised.
This
Warrant may expire on the date first above written if it is not exercised
prior
to such date by the registered holder pursuant to the terms of the Warrant
Agreement.
No
fraction of a Share will be issued upon any exercise of a Warrant. If, upon
exercise of a Warrant, a holder would be entitled to receive a fractional
interest in a Share, the Company will, upon exercise, round up to the nearest
whole number the number of shares of common stock to be issued to the warrant
holder.
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his/her/its
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant 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, but without payment of any service charge, for
another
Warrant Certificate or Warrant Certificates of like tenor and evidencing
in the
aggregate a like number of Warrants.
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number
of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as
the
absolute owner of this Warrant Certificate (notwithstanding any notation
of
ownership or other writing hereon made by anyone) for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all
other
purposes, and neither the Company nor the Warrant Agent shall be affected
by any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.
COUNTERSIGNED:
Registrar
and Transfer Company
WARRANT
AGENT
BY:
AUTHORIZED
OFFICER
DATED:
(Signature)
CHIEF
EXECUTIVE OFFICER
(Seal)
(Signature)
SECRETARY
SUBSCRIPTION
FORM
To
Be
Executed by the Registered Holder in Order to Exercise
Warrants
The
undersigned Registered Holder irrevocably elects to exercise _________ Warrants
represented by this Warrant Certificate, and to purchase the shares of Common
Stock issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
___________________________________________________________________________________________________________________
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
___________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and
be
delivered
to_________________________________________________________________________________________________
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
___________________________________________________________________________________________________________________
and,
if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants
be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:
Dated:
(SIGNATURE)
(ADDRESS)
(TAX
IDENTIFICATION NUMBER)
THE
SIGNATURE TO THE ASSIGNMENT OF THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED
BY A
COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK
EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR CHICAGO STOCK
EXCHANGE.
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value
Received,_____________________hereby sell, assign, and transfer
unto
_____________________________________________________
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
_____________________________________________________
_____________________________________________________
_____________________________________________________
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and
be
delivered
to__________________________________________________________________________________
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
Of
the
Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and
appoint________________________________Attorney
to transfer this Warrant Certificate on the books of the Company, with full
power of substitution in the premises.
Dated:
(SIGNATURE)
Notice:
The signature to this assignment must correspond with the name as written
upon
the face of the certificate in every particular, without alteration or
enlargement or any change whatever.
Signature(s)
Guaranteed:
THE
SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE
17Ad-15).