EXHIBIT 4.29
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("U.S. SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE OF THIS WARRANT MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE U.S. SECURITIES ACT OR PURSUANT TO AN EXEMPTION THEREFROM.
Right to Purchase up to [_______] shares of Common Stock
PACIFIC ENERGY RESOURCES LTD.
(subject to adjustment as provided herein)
FORM OF COMMON STOCK PURCHASE COMPENSATION WARRANT
Certificate No. US UW [___] Issue Date: [______, 200__]
VOID AFTER 5:00 P.M. LOCAL TIME, APRIL 18, 2009
PACIFIC ENERGY RESOURCES LTD., a corporation organized under the laws
of the State of Delaware (the "CORPORATION"), hereby certifies that, for value
received, ENERGY CAPITAL SOLUTIONS, L.P. (the "HOLDER"), is entitled, subject to
the terms set forth below, to purchase from the Corporation from and after the
Issue Date of this Common Stock Purchase Compensation Warrant ("WARRANT") and at
any time or from time to time before 5:00 p.m. local time through the close of
business on April 18, 2009 (the "EXPIRATION DATE"), up to [_______________
(____)] fully paid and nonassessable shares of Common Stock (as hereinafter
defined), at the applicable Exercise Price (as defined below) per share. The
number and character of such shares of Common Stock and the applicable Exercise
Price per share are subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "COMMON STOCK" includes (i) the Corporation's
common stock, par value $0.0001 per share; and (ii) any other
securities into which or for which any of the securities described in
the preceding clause (i) may be converted or exchanged pursuant to a
plan of recapitalization, reorganization, merger, sale of assets or
otherwise.
(b) The term "CORPORATION" includes Pacific Energy Resources
Ltd. and any corporation which shall succeed to, or assume the
obligations of, Pacific Energy Resources Ltd. hereunder.
(c) The term "EXCHANGE RATE" means, in relation to any amount
of currency to be converted into U.S. dollars pursuant to this Warrant,
the U.S. dollar exchange rate as published in the Wall Street Journal
from time to time.
(d) The "EXERCISE PRICE" applicable under this Warrant shall
be CAD $2.65 per share of Common Stock (subject to adjustment pursuant
to SECTION 5).
(e) The term "OTHER SECURITIES" refers to any stock (other
than Common Stock) and other securities of the Corporation or any other
person (corporate or otherwise) which the holder of the Warrant at any
time shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock , or
which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities
pursuant to SECTION 4 or otherwise.
1. EXERCISE OF WARRANT.
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1.1 NUMBER OF SHARES ISSUABLE UPON EXERCISE. From and after the date
hereof through and including the Expiration Date, the Holder shall be entitled
to receive, upon exercise of this Warrant in whole or in part, by delivery to
the Corporation of this Warrant, an original copy of an exercise notice in the
form attached hereto as EXHIBIT A (the "SUBSCRIPTION FORM") duly completed and
executed and the satisfaction of the surrender and payment requirements of
SECTION 2, the number of shares of Common Stock of the Corporation set forth in
the Subscription Form, subject to adjustment pursuant to SECTION 4.
1.2 FAIR MARKET VALUE. For purposes hereof, the "FAIR MARKET VALUE" of
a share of Common Stock as of a particular date (the "DETERMINATION DATE") shall
mean:
(a) If the Corporation's Common Stock is traded or the Toronto
Stock Exchange ("TSX"), then the average of the U.S. dollar equivalent
(calculated at the prevailing Exchange Rate on each day) of the closing
or last sale price reported for the twenty (20) trading days
immediately preceding the Determination Date.
(b) If the Corporation's Common Stock is not traded on the TSX
but is traded on the Nasdaq Global Select Market, Global Market or
Capital Market (collectively, "NASDAQ"), the American Stock Exchange
("AMEX") or another national exchange, the average of the closing or
last sale price reported for the twenty (20) trading days immediately
preceding the Determination Date.
(c) If the Corporation's Common Stock is not traded on the
TSX, Nasdaq or AMEX, but is quoted on the NASD OTC Bulletin Board, then
the mean of (i) the average of the closing bid price and (ii) the
average of the closing ask price, in each case reported for the twenty
(20) trading days immediately preceding the Determination Date.
(d) If the Corporation's Common Stock is not publicly traded,
then as the Holder and the Corporation agree or in the absence of
agreement by arbitration in accordance with the rules then in effect of
the American Arbitration Association before a single arbitrator to be
chosen from a panel of persons qualified by education and training to
pass on the matter to be decided.
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1.3 CORPORATION ACKNOWLEDGMENT. The Corporation will, at the time of
the exercise of the Warrant, upon the request of the Holder acknowledge in
writing its continuing obligation to afford to such Holder any rights to which
such Holder shall continue to be entitled after such exercise in accordance with
the provisions of this Warrant. If the Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the
Corporation to afford to such Holder any such rights.
1.4 LEGENDS.
(a) Each certificate for Common Stock issued upon exercise of
this Warrant shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("U.S. SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S.
SECURITIES ACT OR PURSUANT TO AN EXEMPTION THEREFROM. HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE U.S. SECURITIES ACT."
and
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE
TORONTO STOCK EXCHANGE ("TSX"); HOWEVER, THE SAID SECURITIES CANNOT BE
TRADED THROUGH THE FACILITIES OF TSX SINCE THEY ARE NOT FREELY
TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH
SECURITIES IS NOT "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON
TSX."
(b) If shares of Common Stock are issued to a Canadian
resident upon exercise of this Warrant prior to February 19, 2008, each
certificate for such shares of Common Stock shall, in addition to the
legend in SECTION 1.4(A), bear the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS
SECURITY MUST NOT TRADE THE SECURITY BEFORE FEBRUARY 19, 2008."
2. PROCEDURE FOR EXERCISE.
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2.1 DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. The Corporation
agrees that the shares of Common Stock purchased upon exercise of this Warrant
shall be deemed to be issued to the Holder as the owner of record of such shares
as of the close of business on the date on which the duly completed and executed
Subscription Form, this Warrant and payment for such shares shall have been
received by the Corporation in accordance herewith. As soon as practicable after
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the exercise of this Warrant in full or in part, and in any event within five
(5) business days thereafter, the Corporation, at the Corporation's 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, or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, a certificate or certificates for
the number of duly and validly issued, fully paid and nonassessable shares of
Common Stock (or Other Securities) to which such Holder shall be entitled on
such exercise. As to any fraction of a Share or Warrant that the Holder of one
or more Warrants, the rights under which are exercised in the same transaction,
would otherwise be entitled to purchase upon such exercise, the Corporation
shall pay to such Holder an amount in cash equal to such fraction multiplied by
the Fair Market Value of one share of Common Stock on the date of exercise.
Following a partial exercise of this Warrant prior to the Expiration Date, the
Corporation shall cancel this Warrant and, within five business days, execute
and deliver to the Holder a new Warrant of like tenor covering the remaining
balance of the shares of Common Stock subject to this Warrant.
2.2 EXERCISE. Payment may be made by certified or official bank check
payable to the order of the Corporation equal to the applicable aggregate
Exercise Price, for the number of shares of Common Stock specified in such
Subscription Form (as such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock issuable to the Holder
in accordance with the terms of this Warrant) and the Holder shall thereupon be
entitled to receive the number of duly authorized, validly issued, fully-paid
and non-assessable shares of Common Stock (or Other Securities) determined as
provided herein.
2.3 REPRESENTATION. The Holder of this Warrant has represented to the
Corporation that it is acquiring this Warrant for its own account and not with a
view toward, or for resale in connection with, the public sale or distribution
of this Warrant or the underlying shares of Common Stock, except pursuant to
sales registered or exempted under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The Holder of this Warrant has further represented that as of
the Issue Date, the Holder was a U.S. resident and an "accredited investor" as
that term is defined in Rule 501(a)(3) of Regulation D promulgated by the
Securities and Exchange Commission under the Securities Act. Upon exercise of
this Warrant, the Holder shall, if requested by the Corporation, confirm in
writing, in a form satisfactory to the Corporation, representations concerning
the matters described in this SECTION 2.3.
3. EFFECT OF REORGANIZATION, ETC.; ADJUSTMENT OF EXERCISE PRICE.
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3.1 REORGANIZATION, CONSOLIDATION, MERGER, ETC. If at any time or from
time to time, the Corporation (a) effects a reorganization, (b) consolidates
with or merges into any other person, or (c) transfers all or substantially all
of its properties or assets to any other person under any plan or arrangement
contemplating the dissolution of the Corporation, then, in each such case, as a
condition to the consummation of such a transaction, proper and adequate
provision shall be made by the Corporation whereby the Holder of this Warrant,
on the exercise hereof as provided in SECTION 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
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consummation or in connection with such dissolution, as the case may be, if such
Holder had so exercised this Warrant, immediately prior thereto, all subject to
further adjustment thereafter as provided in SECTION 4.
3.2 DISSOLUTION. In the event of any dissolution of the Corporation
following the transfer of all or substantially all of its properties or assets,
the Corporation, concurrently with any distributions made to holders of its
Common Stock, shall at its expense deliver or cause to be delivered to the
Holder the stock and other securities and property (including cash, where
applicable) receivable by the Holder of this Warrant pursuant to SECTION 3.1, or
if the Holder also instructs the Corporation, to a bank or trust company
specified by the Holder as trustee for the Holder (the "TRUSTEE").
3.3 CONTINUATION OF TERMS. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this SECTION 3, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Corporation, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in SECTION 4. If this
Warrant does not continue in full force and effect after the consummation of the
transactions described in this SECTION 3, then the Corporation's securities and
property (including cash, where applicable) receivable by the Holder of this
Warrant will be delivered to the Holder or the Trustee as contemplated by
SECTION 3.2.
4. EXTRAORDINARY EVENTS REGARDING COMMON STOCK. If the Corporation (a) issues
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock or any preferred stock issued by the Corporation, (b)
subdivides its outstanding shares of Common Stock, or (c) combines its
outstanding shares of the Common Stock into a smaller number of shares of the
Common Stock, then, in each such event, the Exercise Price shall, simultaneously
with the happening of such event, be adjusted by multiplying the then Exercise
Price by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such event and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after such event, and the product so obtained shall thereafter be the Exercise
Price then in effect. The Exercise Price, as so adjusted, shall be readjusted in
the same manner upon the happening of any successive event or events described
herein in this SECTION 4. The number of shares of Common Stock that the Holder
of this Warrant shall thereafter, on the exercise hereof as provided herein in
SECTION 1, be entitled to receive shall be adjusted to a number determined by
multiplying the number of shares of Common Stock that would otherwise (but for
the provisions of this SECTION 4) be issuable on such exercise by a fraction of
which (a) the numerator is the Exercise Price that would otherwise (but for the
provisions of this SECTION 4) be in effect, and (b) the denominator is the
Exercise Price in effect on the date of such exercise.
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5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment or readjustment
in the shares of Common Stock (or Other Securities) issuable on the exercise of
this Warrant as provided for in SECTION 3 OR 4 above, the Corporation at its
expense will promptly cause its Chief Financial Officer or other appropriate
designee to compute such adjustment or readjustment in accordance with the terms
of the Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Corporation for any additional shares of Common Stock (or
Other Securities) issued or sold or deemed to have been issued or sold, (b) the
number of shares of Common Stock (or Other Securities) outstanding or deemed to
be outstanding, and (c) the Exercise Price and the number of shares of Common
Stock to be received upon exercise of this Warrant, in effect immediately prior
to such adjustment or readjustment and as adjusted or readjusted as provided in
this Warrant. The Corporation will forthwith mail or cause to be mailed a copy
of each such certificate to the Holder of this Warrant.
6. RESERVATION OF STOCK, ETC. ISSUABLE ON EXERCISE OF WARRANT. The Corporation
will at all times reserve and keep available, solely for issuance and delivery
on the exercise of this Warrant, shares of Common Stock (or Other Securities)
from time to time issuable on the exercise of this Warrant.
7. ASSIGNMENT; EXCHANGE OF WARRANT. Subject to compliance with applicable
securities laws, this Warrant, and the rights evidenced hereby, may be
transferred by any registered holder hereof (a "TRANSFEROR") in whole or in
part. On the surrender for exchange of this Warrant, with the Transferor's
endorsement in the form of Exhibit B (the "TRANSFEROR ENDORSEMENT FORM"),
together with evidence reasonably satisfactory to the Corporation demonstrating
compliance with applicable securities laws in a manner consistent with the
restrictive legend on this Warrant, the Corporation, at the Corporation's
expense (but with payment by the Transferor of any applicable transfer taxes),
will cause to be issued and delivered to or on the order of the Transferor
thereof a new Warrant of like tenor, in the name of the Transferor and/or the
transferee(s) specified in such Transferor Endorsement Form (each a
"TRANSFEREE"), 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
so surrendered by the Transferor.
8. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory to the
Corporation of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction of this Warrant, on delivery
of an indemnity agreement and surety bond reasonably satisfactory in form and
amount to the Corporation, the Corporation, at the Holder's expense and Holder's
payment of charges of the Corporation, will execute and deliver, in lieu
thereof, a new Warrant of like tenor.
9. EXERCISE RESTRICTIONS.
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9.1 LIMITATION ON NUMBER OF SHARES ISSUABLE. Notwithstanding anything
contained herein to the contrary, the rights represented by this Warrant shall
not be exercisable by the Holder and the Corporation shall not give effect to
any such exercise, if and solely to the extent that after giving effect to such
exercise, the Holder, together with any person or company acting jointly or in
concert with the Holder with respect to the voting of voting securities of the
Corporation (the "JOINT ACTORS") would in the aggregate directly or indirectly
own or exercise control or direction over the voting of that number of voting
securities of the Corporation (not including shares subject to a warrant as to
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which no notice of exercise and corresponding payment has been delivered) that
is 19.99% or greater of the total issued and outstanding voting securities of
the Corporation after giving effect to such exercise.
9.2 PROVISION OF HOLDER'S CERTIFICATE. Prior to exercising the rights
represented by this Warrant, the Holder shall provide the Corporation with a
certificate stating the number of voting securities of the Corporation held by
the Holder and its Joint Actors, if any, as of the date provided for in the
exercise notice (the "HOLDER'S CERTIFICATE") and the Corporation shall be
entitled to rely on the Officer's Certificate in making any determinations
regarding the total issued and outstanding voting securities of the Corporation
to be held by the Holder and its Joint Actors, if any, after giving effect to
the exercise. The execution of the Subscription Form by the Holder will suffice
as the Holder's acknowledgement of compliance with such exercise limits as set
forth in this SECTION 9.
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10. TRANSFER ON THE CORPORATION'S BOOKS. Until this Warrant is transferred on
the books of the Corporation, the Corporation may treat the registered Holder
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
11. NOTICES, ETC. All notices and other communications from the Corporation to
the Holder of this Warrant shall be delivered by ordinary surface or air mail,
postage prepaid, addressed to the Holder or delivered at their respective
address appearing on the register of Holders.
12. MISCELLANEOUS. Notwithstanding any provision to the contrary contained in
this Warrant, no Common Stock will be issued pursuant to the exercise of this
Warrant if the issuance of such securities may constitute a violation of the
securities laws of any applicable jurisdiction. This Warrant and any term hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF STATE OF CALIFORNIA WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. ANY ACTION BROUGHT CONCERNING THE TRANSACTIONS
CONTEMPLATED BY THIS WARRANT SHALL BE BROUGHT ONLY IN THE STATE COURTS OF
CALIFORNIA OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF CALIFORNIA. The
prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. If any provision of this Warrant is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision of this
Warrant. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision hereof.
IN WITNESS WHEREOF, the Corporation has executed this Warrant as of the
date first written above.
PACIFIC ENERGY RESOURCES LTD.
By: _____________________________
Xxxxxx Xxxxx, President
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