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Exhibit 4.8
WARRANT AGREEMENT
BETWEEN
XXXXXX OIL AND GAS COMPANY
and
Dated as of May 15, 1992
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WARRANT AGREEMENT dated as of May 15, 1992, between Xxxxxx Oil and Gas
Company, a Delaware corporation (the "Company") and ___________________________
("_______________").
WHEREAS, ________________ has agreed pursuant to the Seller Dealer
Agreement (the "Agreement") dated ____________ _____, 1992 to act as a selling
broker ("Selling Broker") in connection with the Company's proposed public
offering of up to $10,000,000 of 8% Convertible Subordinated Debentures due May
1, 2002 (the "Debentures").
WHEREAS, the Company proposes to issue to __________________ as partial
compensation for its agreement to act as a Selling Broker pursuant to the
Agreement, common stock purchase warrants (the "Warrants") to purchase up to
________ shares (the "Warrant Shares") of the Company's Common Stock par value
$.01 per share (the "Common Stock"), each Warrant entitling the holder thereof
to purchase one share of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein and in the Agreement set forth and for other good and valuable
consideration, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue and
deliver the Warrants to ________, or to bona fide officers or partners thereof
designated by ________, on the Closing Date referred to in the Agreement in
consideration for, and as part of the compensation to ________ in connection
with _______ acting as a Selling Broker pursuant to the Agreement. The number
of Warrants to be issued and delivered shall be ________. No cash consideration
will be paid by ________ for the Warrants. The text of each Warrant, of the
purchase form and of each assignment form to be printed on the reverse thereof
shall be substantially as set forth in Exhibit A attached hereto. The Warrants
shall be executed on behalf of the Company by the manual or facsimile signature
of the present or any future Chairman of the Board, President, Treasurer or
Vice President of the Company, under its corporate seal, affixed or in
facsimile, attested by the manual or facsimile signature of the present or
future Secretary or an Assistant Secretary of the Company. A Warrant bearing
the manual or facsimile signature of individuals who were at any time the
proper officers of the Company shall bind the Company notwithstanding that such
individuals or any of them shall have ceased to hold such offices prior to the
delivery of such Warrant or did not hold such offices on the date of this
Agreement.
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Warrants shall be dated as of the date of execution thereof by the Company
either upon initial issuance or upon division, exchange, substitution or
transfer.
The demand registration rights as set forth in Section 13 hereof may be
exercised during a four year period commencing one year from the effective date
of the offering of Debentures and the piggyback registration rights as set forth
in Section 13 hereof will expire seven years from the effective date of the
offering of Debentures.
2. REGISTRATION. The Warrants shall be numbered and shall be registered on
the books of the Company (the "Warrant Register") as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant on the
Warrant Register (the "Holder") as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith. The Warrants shall be registered
initially in the name of _______________ in such denominations as ______________
may request in writing to the Company.
3. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Agreement, each Warrant certificate may be exchanged
at the option of the holder thereof for another certificate or certificates of
different denominations entitling the Holder thereof to purchase upon surrender
to the Company or its duly authorized agent a like aggregate number of Warrant
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Warrant certificate or
certificates shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate or certificates to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate or certificates, as the case may be,
as so requested. Any Warrant issued upon exchange, transfer or partial exercise
of the Warrants shall be the valid obligation of the Company, evidencing the
same generic rights and entitled to the same generic benefits under this
Agreement as the Warrants surrendered for such exchange, transfer or exercise.
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4. RESTRICTIONS ON TRANSFER. From the date hereof until April 22, 1993 (the
"Restricted Period"), the Warrants and the Warrant Shares may not be sold,
transferred, assigned or hypothecated except to _____________ or to individuals
who are bona fide officers or partners of ______________ or by operation of law.
The Warrants shall be transferable only on the Warrant Register upon delivery to
the Company of the Warrant Certificate or certificates duly endorsed by the
Holder or by his duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment or authority to transfer. In all cases
of transfer by an attorney, the original power of attorney, duly approved, or an
official copy thereof, duly certified, shall be deposited with the Company. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Warrant or Warrants to the person entitled thereto. Notwithstanding the
foregoing and whether or not during the Restricted Period, the Company shall
have no obligation to cause Warrants to be transferred on its books to any
person, unless the Holder of such Warrants shall furnish to the Company evidence
of compliance with the Securities Act of 1933, as amended (the "Act"), in
accordance with the provisions of Section 11 of this Agreement.
5. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the Holder thereof to purchase one share of
Common Stock subject to adjustment in accordance with Section 9 hereof at
any time from 9:00 A.M., Los Angeles time, on November 1, 1993 until 5:00
P.M., Los Angeles time, on April 22, 1997 (the "Expiration Date") at a
purchase price of $10.297 per share (which such price shall not be less
than 125% of the Common Stock Price defined below subject to adjustment in
accordance with Section 9 hereof (the Warrant Price")). The Common Stock
Price is the lower of (i) the average closing price of the Company's Common
Stock, as reported by the American Stock Exchange, for the 30 business days
prior to the business day immediately preceding the Debenture offering
termination date; or (ii) the average closing price of the Company's Common
Stock, as reported by the American Stock Exchange, for the five business
days prior to the business day immediately preceding such date.
(b) The Warrant Price and the number of shares issuable upon exercise of
Warrants are subject to adjustment upon the occurrence of certain events,
pursuant to the provisions of Section 9 of this Agreement. Subject to the
provisions of
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this Agreement, each Holder shall have the right, which may be exercised as
expressed in such Warrants, to purchase from the Company (and the Company
shall issue and sell to such Holder) the number of fully paid and
nonassessable shares of Common Stock specified in such Warrants, upon
surrender to the Company, or its duly authorized agent, of such Warrants,
with the purchase form on the reverse thereof duly filled in and signed,
and upon payment to the Company of the Warrant Price, as adjusted in
accordance with the provisions of Section 9 of this Agreement, for the
number of shares in respect of which such Warrants are then exercised.
Payment of such Warrant Price may be made only in cash, by certified or
official bank check.
Upon such surrender of Warrants, and payment of the Warrant Price as aforesaid,
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the Holder and (subject to receipt of evidence
of compliance with the Act in accordance with the provisions of Section 11 of
this Agreement) in such name or names as the Holder may designate, a certificate
or certificates for the number of full shares of Common Stock so purchased upon
the exercise of such Warrants, together with cash, as provided in Section 10 of
this Agreement, in respect of any fraction of a share of such stock otherwise
issuable upon such surrender. 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 a holder of record of such shares as of the date of the
surrender of such Warrants and payment of the Warrant price as aforesaid;
PROVIDED, HOWEVER, that if, at the time of surrender of the Warrant and payment
of such Warrant Price, the transfer books for the Common Stock or other class of
stock purchasable upon the exercise of the Warrants shall be closed, the
certificates for the shares in respect of which the warrants are then exercised
shall be issuable as of the date on which such books shall next be opened
whether before, on or after the Expiration Date and until such date the Company
shall be under no duty to deliver any certificate for such shares; PROVIDED,
FURTHER, however, that the transfer books shall not be closed at any one time
for a period longer than five days unless otherwise required by law. The rights
of purchase represented by the Warrants shall be exercisable, at the election of
the Holders thereof, either in full or from time to time in part and, in the
event that any Warrant is exercised in respect of less than all of the shares
purchasable on such exercise at any time prior to the Expiration Date, a new
certificate evidencing the remaining Warrant or Warrants will be issued.
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5.1. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that if
any shares of Common Stock required to be reserved for purposes of exercise or
conversion of Warrants require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such shares may be issued upon exercise, the Company
will in good faith and as expeditiously as possible endeavor to cause such
shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be, PROVIDED, HOWEVER, that in no event
shall such shares of Common Stock be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
6. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes, if
any, attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants and any securities issued pursuant to Section 9 hereof; 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 issue or delivery of
any Warrants or certificates for Warrant Shares and any securities issued
pursuant to Section 9 hereof in a name other than that of the Holder of such
Warrants.
7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants 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, or in lieu of and in substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest; but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of such Warrant and indemnity or
bond, if requested, also reasonably satisfactory to the Company. An applicant
for such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
8. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF WARRANTS.
There have been reserved out of the authorized and unissued shares of Common
Stock, a number of shares sufficient to provide for the exercise of the rights
of purchase represented by the Warrants, and the transfer agent for the Common
Stock ("Transfer Agent") and every subsequent transfer agent for any
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shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Company will
supply the Transfer Agent and any such subsequent transfer agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be issuable as provided in Section
10 of this Agreement. The Company will furnish to the Transfer Agent and any
such subsequent transfer agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section 9.3
hereof. All Warrants surrendered in the exercise of the rights thereby evidenced
shall be cancelled, and such cancelled Warrants shall constitute sufficient
evidence of the number of shares of stock which have been issued upon the
exercise of such Warrants (subject to adjustment as herein provided). No shares
of stock shall be subject to reservation in respect of the Warrants subsequent
to the Expiration Date except to the extent necessary to comply with the terms
of this Agreement.
9. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The number and
kind of securities purchasable upon the exercise of each Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as hereafter defined.
9.1. MECHANICAL ADJUSTMENTS. The number of Warrant Shares purchasable upon
the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issue
by reclassification of its shares of Common Stock other securities of the
Company (including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving corporation),
the number of Warrant Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the Holder of each
Warrant shall be entitled to receive the kind and number of
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Warrant Shares or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events
described above, had such Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto regardless
of whether the Warrants are exercisable at the time of the happening of
such event or at the time of any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall issue rights, options or warrants to all
holders of its outstanding Common Stock, without any charge to such
holders, entitling them (for a period expiring within 60 days after the
record date mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share which is lower at the record date mentioned
below than the then current market price per share of Common Stock (as
determined in accordance with paragraph (e) below), the number of Warrant
Shares thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon exercise of each Warrant by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights, options or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase, and
of which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants
plus the number of shares which the aggregate offering price of the total
number of shares of common stock so offered would purchase at the current
market price per share of Common Stock at such record date. Such adjustment
shall be made whenever such rights, options or warrants are issued, and
shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights, options or
warrants.
(c) In case the Company shall distribute to all holders of its shares of
Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions payable out of consolidated earnings or earned
surplus and dividends or distributions referred to in paragraph (a) above
or in the paragraph immediately following this paragraph) or rights,
options or warrants, or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock (excluding
those referred to in paragraph (b) above), then in each case the number of
Warrant Shares
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thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, of which
the numerator shall be the then current market price per share of
Common Stock (as determined in accordance with paragraph (e) below) on the
date of such distribution, and of which the denominator shall be the then
current market price per share of Common Stock, less the then fair value
(as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable securities
applicable to one share of Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the determination
of stockholders entitled to receive such distribution.
In the event of distribution by the Company to all holders of its shares
of Common Stock of stock of a subsidiary or securities convertible into or
exercisable for such stock, then in lieu of an adjustment in the number of
Warrant Shares purchasable upon the exercise of each Warrant, the Holder of
each Warrant, upon the exercise thereof at any time after such
distribution, shall be entitled to receive from the Company, such
subsidiary or both, as the Company shall determine, the stock or other
securities to which such Holder would have been entitled if such Holder had
exercised such Warrant immediately prior thereto regardless of whether the
Warrants are exercisable at such time, all subject to further adjustment as
provided in this subsection 9.1; PROVIDED, HOWEVER, that no adjustment in
respect of dividends or interest on such stock or other securities shall be
made during the term of a Warrant or upon the exercise of a Warrant.
(d) In case the Company shall sell and issue shares of Common Stock
(other than pursuant to rights, options, warrants, or convertible
securities initially issued before the date of this Agreement) or rights,
options, warrants or convertible securities containing the right to
subscribe for or purchase shares of Common Stock (excluding shares, rights,
options, warrants or convertible securities issued in any of the
transactions described in paragraphs (a), (b) or (c) above) at a price per
share of Common Stock (determined, in the case of such rights, options,
warrants or convertible securities, by dividing (w) the total of the amount
received or receivable by the Company (determined as provided below) in
consideration of the sale and issuance of such rights,
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options, warrants or convertible securities, by (x) the total number of
shares of Common Stock covered by such rights, options, warrants or
convertible securities) lower than the then current market price per share
of Common Stock (as determined in accordance with paragraph (e) below) in
effect immediately prior to such sale and issuance, then the number of
Warrant shares thereafter purchasable upon the exercise of the Warrants
shall be determined by multiplying the number of Warrant shares theretofore
purchasable upon exercise by a fraction, of which the numerator shall be
the number of shares of Common Stock outstanding on the date of issuance of
such shares, rights, options, warrants or convertible securities plus the
number of shares of Common Stock sold or subject to issuance pursuant to
such rights, options, warrants or convertible securities, and of which the
denominator shall be the number of shares of Common Stock outstanding on
the date of issuance of such shares, rights, options, warrants or
convertible securities plus the number of shares of Common Stock which the
aggregate consideration received or receivable (determined as provided
below) for such sale or issuance would purchase at such current market
price per share. Such adjustment shall be made successively whenever such
an issuance is made. For the purposes of such adjustments, the
consideration received or receivable by the Company for rights, options,
warrants or convertible securities shall be deemed to be the consideration
received by the Company for such right, options, warrants or convertible
securities, plus the consideration or premiums stated in such rights,
options, warrants or convertible securities to be paid for the shares of
Common Stock covered thereby. In case the Company shall sell and issue
shares of Common Stock, or rights, options, warrants or convertible
securities containing the right to subscribe for or purchase shares of
Common Stock, for a consideration consisting, in whole or in part, of
property other than cash or its equivalent, then in determining the "price
per share of Common stock" and the "consideration received or receivable by
the Company" for purposes of the first sentence of this paragraph (d), the
Board of Directors shall determine, in its discretion the fair value of
said property, and such determination, if made in good faith, shall be
binding upon all Holders.
(e) For the purpose of any computation under paragraphs (b), (c) and (d)
of this Section, the current market price per share of Common Stock at any
date shall be the average of the daily closing prices of the Company's
Common Stock, as reported by the American Stock Exchange, for 30
consecutive trading days commencing 45 trading days before the date of such
computation. The closing price for each day shall be the
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last such reported sales price regular way or, in case no such reported
sale takes place on such day, the average of the closing bid and asked
prices regular way for such day, in each case on the principal national
securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if not listed or admitted to trading, the average
of the closing bid and asked prices of the Common Stock in the
over-the-counter market as reported by NASDAQ or any comparable system. In
the absence of one or more such quotations, the Board of Directors of the
Company shall determine the current market price, in good faith, on the
basis of such quotations as it considers appropriate. Notwithstanding the
foregoing, for the purpose of any calculation under paragraph (d) above (A)
with respect to any issuance of options under the Company's employee
compensation stock option plans as in effect or as adopted by the Board of
Directors of the Company on the date hereof, the term "current market
price" in such instances shall mean the fair market price on the date of
the issuance of any such option determined in accordance with the Company's
employee compensation stock option plans as in effect or as adopted by the
Board of Directors of the Company on the date hereof; and (B) with respect
to any issuances of Common Stock (or rights, options, warrants or
convertible securities containing the right to subscribe for or purchase
shares of Common Stock) in connection with bona fide corporate transactions
(other than issuances in such transactions for cash or similar
consideration), the term "fair market price" shall mean the fair market
price per share as determined in arm's length negotiations by the Company
and such other parties (other than affiliates or subsidiaries of the
Company) to such transactions as reflected in the definitive documentation
with respect thereto, unless such determination is not reasonably related
to the closing market price on the date of such determination.
(f) In any case in which this Section 9.1 shall require that any
adjustment in the number of Warrant Shares be made effective as of
immediately after a record date for a specified event, the Company may
elect to defer until the occurrence of the event the issuing to the Holder
of any Warrant exercised after that record date the shares of Common Stock
and other securities of the Company, if any, issuable upon the exercise of
any Warrant over and above the shares of Common Stock and other securities
of the Company, if any, issuable upon the exercise of any Warrant prior to
such adjustment; PROVIDED, HOWEVER, that the Company shall deliver to the
holder a due xxxx or other appropriate instrument evidencing the holder's
right to receive such additional
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shares or securities upon the occurrence of the event requiring such
adjustment.
(g) No adjustment in the number of Warrant Shares purchasable hereunder
shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of Warrant Shares
purchasable upon the exercise of each Warrant; PROVIDED, HOWEVER, that any
adjustments which by reason of this paragraph (g) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest one-thousandth of
a share.
(h) Whenever the number of Warrant Shares purchasable upon the exercise
of each Warrant is adjusted, as herein provided, the Warrant Price payable
upon the exercise of each Warrant shall be adjusted by multiplying such
Warrant Price immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Warrant Shares purchasable upon the
exercise of such Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of Warrant Shares purchasable
immediately thereafter.
(i) No adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant need be made under paragraphs (b), (c) and (d) if
the Company issues or distributes to each Holder of Warrants the rights,
options, warrants, or convertible or exchangeable securities, or evidences
of indebtedness or assets referred to in those paragraphs which each Holder
of Warrants would have been entitled to receive had the Warrants been
exercised prior to the happening of such event or the record date with
respect thereto regardless of whether the Warrants are exercisable at the
time of the happening of such event or at the time of any record date with
respect thereto. No adjustment need be made for a change in the par value
of the Warrant Shares.
(j) For the purpose of this Section 9.1, the term "shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of
the Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. In the event that at any time, as
a result of an adjustment made pursuant to paragraph (a) above, the Holders
shall become entitled to purchase any securities of the Company other than
shares of Common Stock, thereafter the number of such other
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securities so purchasable upon exercise of each Warrant and the Warrant
Price of such securities shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Warrant Shares contained in paragraphs (a)
through (i), inclusive, above, and the provisions of Section 5 and Sections
9.2 through 9.5, inclusive, with respect to the Warrant Shares, shall apply
on like terms to any such other securities.
(k) Upon the expiration of any rights, options, warrants or conversion
or exchange privileges, if any thereof shall not have been exercised, the
Warrant Price and the number of shares of Common Stock purchasable upon the
exercise of each Warrant shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been originally
adjusted (or had the original adjustment not been required, as the case may
be) as if (A) the only shares of Common Stock so issued were the shares of
Common Stock, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion or exchange rights and (B) such
shares of Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance,
sale or grant of all such rights, options, warrants or conversion or
exchange rights whether or not exercised; PROVIDED, FURTHER, that no such
readjustment shall have the effect of increasing the Warrant Price or
decreasing the number of Warrant Shares by an amount in excess of the
amount of the adjustment initially made with respect to the issuance, sale
or grant of such rights, options, warrants or conversion or exchange
rights.
9.2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Warrant Price to any amount determined appropriate by the Board of Directors of
the Company.
9.3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants
selected by the Board of Directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and
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the Warrant Price of such Warrant Shares after such adjustment and setting forth
a brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such certificate, absent manifest
error, shall be conclusive evidence of the correctness of such adjustment.
9.4. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 9.1, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
9.5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC.
In case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
with each Holder an agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale, transfer or
lease had such Warrant been exercised immediately prior to such action
regardless of whether the Warrants are exercisable at the time of such action;
PROVIDED, HOWEVER, that no adjustment in respect of dividends, interest or other
income on or from such shares or other securities and property shall be made
during the term of a Warrant or upon the exercise of a Warrant. Such agreement
shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The provisions of
this Section 9.5 shall similarly apply to successive consolidations, mergers,
sales, transfers or leases.
9.6. STATEMENT ON WARRANTS. Irrespective of any adjustments in the
Warrant Price or the number or kind of shares purchasable upon the exercise of
the Warrants, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
10. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at
13
15
the same time by the same Holder, the number of full Warrant Shares which shall
be issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Warrants so
presented. If any fraction of a Warrant Share would, except for the provisions
of this Section 10 be issuable on the exercise of any Warrant (or specified
portion thereof), the Company shall pay an amount in cash equal to the closing
price for one share of the Common Stock, as determined in accordance with
paragraph (e) of Subsection 9.1, on the trading day immediately preceding the
date the Warrant is presented for exercise, multiplied by such fraction.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933. ________________
represents and warrants to the Company that _________________ will not dispose
of any such Warrants or Warrant Shares except pursuant to (i) an effective
registration statement, or (ii) an applicable exemption from registration under
the Securities Act of 1933 (the "Act"). In connection with any sale by
___________________pursuant to clause (ii) of the preceding sentence,
_________________ shall furnish to the Company an opinion of counsel reasonably
satisfactory to the Company to the effect that such exemption from registration
is available in connection with such sale.
12. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each Holder shall be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE
AND THE SHARES OF COMMON STOCK OR OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE
REGISTRATION STATEMENT, OR (ii) AN APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933. ANY SALE PURSUANT TO CLAUSE (ii) OF
THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT SUCH EXEMPTION FROM
REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE."
The Warrant Shares or other securities issued upon exercise of the
Warrants shall, unless issued pursuant to an effective registration statement,
be subject to a stop-transfer order and the certificate or certificates
evidencing any such Warrant Shares or
14
16
securities shall bear the following legend by which the Holder thereof shall be
bound:
"THE SHARES OR OTHER SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT,
OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933. ANY SALE PURSUANT
TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE
ACCOMPANIED BY AN OPINION OF COUNSEL TO THE EFFECT
THAT SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE
IN CONNECTION WITH SUCH SALE."
13. Registration Rights.
-------------------
(a) DEMAND REGISTRATION RIGHTS. The Company covenants and agrees with
___________ and any subsequent Holders of the Warrants and/or Warrant Shares
that within thirty (30) days after receipt of a written request from Holders of
twenty-five percent in interest of the Warrants and/or Warrant Shares issued
under the Warrant Agreement dated May 15, 1992 that they desire and intend to
transfer all or a portion of such securities (and any securities received by the
Holders of the Warrants pursuant to Section 9 hereof) under such circumstances
that a public offering within the meaning of Act would be involved, the Company
shall file a registration statement (and use its best efforts to cause such
registration statement to become effective under the Act) with respect to the
offering and sale or other disposition of such securities (including any
securities received by the Holders of the Warrants pursuant to Section 9 hereof)
(all such securities, the "Offered Securities"). The Company shall continuously
maintain the effectiveness of such registration statement for the lesser of (i)
180 days after the effective date of the registration statement or (ii) the
consummation of the distribution by the Holders of the Offered Securities
covered by such registration statement (the "Termination Date"); provided,
however, that if at the Termination Date the Offered Securities are covered by a
registration statement which also covers other securities and which is required
to remain in effect beyond the Termination Date, the Company shall maintain in
effect such registration statement as it relates to the Offered Securities for
so long as such registration statement (or any subsequent registration
statement) remains or is required to remain in effect for any of such other
securities. The Company shall not include any securities other than the Offered
Securities in any such registration statement pursuant
15
17
to any "piggyback" or similar registration rights granted by the Company after
the date hereof without the consent of a majority in interest of the Holders of
the Offered Securities. The Company shall not be required to comply with more
than one request for registration pursuant to this Section 13(a) or to cause any
such registration statement to become effective prior to November 1, 1993 or to
comply with a request for registration pursuant to this Section 13(a) made after
April 22, 1997, PROVIDED, HOWEVER, that if a request is properly and timely made
on or prior to April 22, 1997 pursuant to this Section 13(a), the Company shall
be required to comply with such request even though the registration statement
does not or cannot become effective until after April 22, 1997 or the
effectiveness of such registration statement is otherwise required under this
Section 13(a) to be maintained beyond April 22, 1997. All expenses of such
registration shall be borne by the Company, except that underwriting commissions
and expenses attributable to the Warrants and/or Warrant Shares will be borne by
such Holders requesting that such securities be offered.
(b) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and agrees
with _________________ and any subsequent holders of the Warrants and/or Warrant
Shares that, in the event the Company proposes to file a registration statement
under the Act prior to April 22, 1999 with respect to the firm commitment
offering of Common Stock (other than in connection with an exchange offer or a
registration statement on Form S-4 or S-8 or other similar registration
statements not available to register securities so requested to be included)
which the Company believes will be or become effective at any time on or after
November 1, 1993, the Company shall in each case give written notice of such
proposed filing to (i) the holders of the Warrant Shares and (ii) if on or
before the Expiration Date, the holders of the Warrants, in each case at least
30 days before the earlier of the anticipated or the actual effective date of
the registration statement and at least ten days before the initial filing of
such registration statement and such notice shall offer to such Holders the
opportunity to include in such registration statement such number of Warrant
Shares and/or Warrants (and any securities received by the Holders of the
Warrants pursuant to Section 9 hereof) (all such securities, the "Piggyback
Securities", and together with the Offered Securities, the "Registrable
Securities") as they may request. Holders desiring inclusion of Piggyback
Securities in such registration statement shall so inform the Company by written
notice, given within 10 days of the giving of such notice by the Company in
accordance with the provisions of Section 15 hereof. The Company shall permit,
or
16
18
shall cause the managing underwriter of a proposed offering to permit, the
Holders of Piggy-back Securities requested to be included in the registration to
include such securities in the proposed offering on the same terms and
conditions as applicable to securities of the Company, if any, included therein
for the account of any person other than the Company and the Holders of Warrants
and/or Warrant Shares. Notwithstanding the foregoing, if any such managing
underwriter shall advise the Company in writing that, in its opinion, the
distribution of securities by holders thereof, including all or a portion of the
Piggy-back Securities, requested to be included in the registration concurrently
with the securities being registered by the Company would materially adversely
affect the distribution of such securities by the Company for its own account,
then the Holders of such Warrants and/or Warrant Shares shall delay their
offering and sale of Piggy-back Securities (or the portions thereof so
designated by such managing underwriter) for such period, not to exceed 120
days, as the managing underwriter shall request, provided that if any other
securities are included in such registration statement for the account of any
person other than the Company and the Holders of Warrants and/or Warrant Shares,
then such securities, including the Warrants and/or Warrant Shares, so included
shall be apportioned among holders who wish to be included therein pro rata
according to amounts so requested to be included by each such person provided,
further, that if the holder of the Company's securities that have been granted
registration rights by the Company pursuant to a Registration Rights Agreement
dated as of May 31, 1991 (the "Partners Agreement") among the Company, Shallow
Waters Limited Partnership, West Cote Partners Limited Partnership, Palace
Exploration Company and Pelham, Inc. (together, the "Partners") enforce, in the
circumstances described in Section 2(b) thereof, the right granted thereunder in
Section 2(b) thereof to cause all securities of the Company owned by other
persons to be reduced before securities of the Partners are reduced, then the
Company shall (unless objected to by the Partners and prohibited by the Partners
Agreement) reduce the number of securities it is seeking registration of in such
amount equal to the number the Holders of the Piggy-back Securities would have
been required to reduce but for the provisions of this proviso and register such
amount of Piggy-back Securities. No such delay shall in any event impair any
right granted hereunder to make subsequent requests for inclusion pursuant to
the terms of this Section 13(b). The Company shall continuously maintain in
effect any registration statement on Form S3 with respect to which the
Piggy-back Securities have been requested to be included (and so
17
19
included) for a period of not less than (i) 180 days after the effectiveness of
such registration statement or (ii) the consummation of the distribution by the
Holders of the Piggy-back Securities ("Piggy-back Termination Date"); PROVIDED,
HOWEVER, that if at the Piggy-back Termination Date the Piggy-back Securities
are covered by a registration statement which is, or is required to remain, in
effect beyond the Piggy-back Termination Date, the Company shall maintain in
effect the registration statement as it relates to the Piggy-back Securities for
so long as such registration statement remains or is required to remain in
effect for any of such other securities. All expenses of such registration shall
be borne by the Company, except that underwriting commissions and expenses
attributable to the Warrants and/or Warrant Shares and fees and disbursements of
counsel (if any) to the Holders requesting that such Warrants and/or Warrant
Shares be offered will be borne by such Holders.
(c) OTHER MATTERS. In connection with the registration of Registerable
Securities in accordance with Paragraph (a) or (b) above, the Company agrees to:
i) Use its best efforts to register or qualify the Registrable
Securities for offer or sale under state securities or Blue Sky laws of
such jurisdictions in which the Holders of such Warrants and/or Warrant
Shares shall designate; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to
general service of process in any jurisdiction where it is not now so
subject, and use its best efforts to do any and all other acts and
things which may be necessary or advisable to enable the holders to
consummate the sale, transfer or other disposition of such securities
in any jurisdiction;
ii) Enter into indemnity and contribution agreements, each in
customary form, with each underwriter, if any, and each Holder of
Registrable Securities included in such registration statement; and, if
requested, enter into an underwriting agreement containing customary
representations, warranties, covenants, allocation of expenses, and
customary closing conditions including, but not limited to, opinions of
counsel and accountants cold comfort letters, with any underwriter who
participates in the offering of Registrable Securities;
18
20
iii) Pay all expenses in connection with the registration of the
Warrants and/or Warrant Shares under the Act and compliance with the
provisions of clause (i) above, except to the extent otherwise provided
in Sections 13(a) and 13(b); and
iv) List the Warrant Shares on each securities exchange in which
the Common Stock is listed.
In connection with the registration of Registrable Securities in
accordance with Paragraph (b) above, the Holders agree to enter into an
underwriting agreement containing customary representations, warranties,
covenants, allocation of expenses (not otherwise inconsistent with this
Agreement), and customary closing conditions, with any underwriter who
participates in the offering of Registrable Securities.
(d) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND HOLDERS. The Company
agrees (i) not to effect any public sale or distribution of any securities
similar to the Registrable Securities or any securities convertible into or
exchangeable or exercisable for such securities (or any option or other right
for such securities), except for any securities that may be issued to the
Holders of the Warrants pursuant to Section 9 hereof, during the 15-day period
prior to, and during the 60-day period beginning on the effective date of any
registration statement under which the Registrable Securities are registered in
accordance with Section 13(a) (other than as part of such registration). As
required under Warrant Agreements dated January 23, 1992 ("Agreement") the
Holders agree not to effect any public sale or distribution of any securities
similar to the Registrable Securities as defined under the Agreement (or any
securities convertible into or exchangeable or exercisable for any such similar
securities) during the periods described in clause (i) of Section 13(d) of the
Agreement, in each case including a sale pursuant to Rule 144 under the Act (or
any similar provision then in effect). Upon notice given pursuant to Section
13(a) of the Agreement, any demand registration rights hereunder with respect to
any securities of the Company lapse until the expiration of 180 days after the
date of completion of any distribution contemplated by Section 13(a) thereof.
The Holders of Warrants and Warrant Shares have no "piggy-back" registration
rights with respect to any registration effected pursuant to Section 13(a) of
the Agreement.
(e) RULE 144. With a view to making available to Holders the benefits
of certain rules of the Securities and Exchange Commission (the "Commission")
that may permit the
19
21
sale of Registrable Securities to the public without registration, the
Company hereby covenants and agrees to use its best efforts to file in
a timely manner all reports and other documents required to be filed by
it under the Act and the Securities Exchange Act of 1934 and the rules
and regulations adopted by the Commission thereunder necessary to
permit sales under Rule 144 under the Act, and the Company will take
such further action to the extent required from time to time to enable
Holders to sell Registrable Securities (whether or not any such
securities have been the subject of a demand or piggy-back request
under Section 13 hereof) without registration under the Act within the
limitation of the exemptions provided by (a) Rule 144 under the Act, as
such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of a
Holder, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
14. NO RIGHTS AS STOCKHOLDERS; NOTICE TO HOLDERS. Nothing contained in
this Agreement or in any of the Warrants shall be construed as conferring upon
the Holders or their transferees the right to vote or to receive dividends or to
consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or securities convertible
into or exchangeable for shares of Common Stock or any right to
subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger, sale, transfer or
lease or all or substantially all of its property, assets, and business
as an entirety) shall be proposed,
then in any one or more of said events the Company shall (a) give notice in
writing of such event to the Holders as provided in
20
22
Section 15 hereof and (b) if there are more than 100 Holders, cause notice of
such event to be published once in The Wall Street Journal (national edition),
such giving of notice and publication to be completed at least 15 days prior to
the date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend, distribution,
or subscription rights, or for the determination of stockholders entitled to
vote on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to publish, mail or receive such notice or any defect therein or
in the publication or mailing thereof shall not affect the validity of any
action taken in connection with such dividend, distribution or subscription
rights, or such proposed dissolution, liquidation or winding up.
15. NOTICES. Any notice pursuant to this Agreement to be given or made
by the Holder of any Warrant or Warrant Shares to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows:
Xxxxxx Oil and Gas Company
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Notices or demands authorized by this Agreement to be given or made to or on the
Holder of any Warrant or Warrant Shares shall be sufficiently given or made
(except as otherwise provided in this Agreement) if sent by registered mail,
return receipt requested, postage prepaid, addressed to such Holder at the
address of such Holder as shown on the Warrant Register or the Common Stock
Register, as the case may be.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
17. SUPPLEMENTS AND AMENDMENTS. The Company and the Holders may from
time to time supplement or amend this Agreement in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Holder may deem necessary or desirable and which shall not
21
23
be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interests of the Holders. Any amendment to this Agreement
may be effected with the consent of Holders of at least 66 2/3% of the Warrants
(for this purpose Warrant Shares shall be deemed to be Warrants in the
proportion that Warrant Shares are then issuable upon the exercise of Warrants);
provided that, any amendment which shall have the effect of materially adversely
affecting the interests of any Holder shall not be effective with respect to
such Holder if such Holder shall not have consented thereto.
18. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
19. MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Agreement
remains in effect, the Company will not merge or consolidate with or into, or
sell, transfer or lease all or substantially all of its property to, any other
corporation unless the successor or purchasing corporation, as the case may be
(if not the Company), shall expressly assume, by supplemental agreement executed
and delivered to the Holders, the due and punctual performance and observance of
each and every covenant and condition of this Agreement to be performed and
observed by the Company.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders of the Warrants and Warrant Shares.
21. CAPTIONS. The captions of the sections and subsections of this
Agreement have been inserted for convenience and shall have no substantive
effect.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
22
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day, month and year first above written.
XXXXXX OIL AND GAS COMPANY
By:
---------------------------------
Xxxxx X. Xxxxx,
Vice President - Finance
(CORPORATE SEAL)
Attest:
-----------------------------
Xxxx X. Xxxxxxx
23
25
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK OR
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY
SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. UD-1 Warrants
VOID AFTER 5:00 P.M. LOS ANGELES
TIME ON APRIL 22, 1997
XXXXXX OIL AND GAS COMPANY
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ______________, the registered
holder hereof or registered assigns (the "Holder"), is the owner of the number
of Warrants set forth above, each of which entitles the owner thereof to
purchase at any time from 9:00 A.M., Los Angeles time, on November 1, 1993,
until 5:00 P.M., Los Angeles time, on April 22, 1997, one fully paid and
nonassessable share of the Common Stock (subject to adjustment), par value $0.01
per share (the "Common Stock"), of Xxxxxx Oil and Gas Company, a Delaware
corporation (the "Company"), at the purchase price of $10.297 per share, subject
to adjustment (the "Warrant Price"). Payment of the Warrant Price may be made in
cash, by certified or official bank check.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement dated May 15,
1992 (the "Warrant Agreement") between the Company and
___________________________ which Warrant Agreement is hereby incorporated
herein by reference and made a part hereof and to which Warrant Agreement
reference is hereby made for a full description of the rights, limitations of
rights, obligations,
A-1
26
duties and immunities hereunder of the Company and the holders of the Warrant
Certificates. The Warrants shall not be sold, transferred, assigned,
hypothecated or otherwise disposed of prior to the close of business on April
22, 1993 except to the extent set forth in the Warrant Agreement. Copies of the
Warrant Agreement are on file at the principal office of the Company.
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant Certificate as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby, or
to the transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a like aggregate number of
shares of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled such holder to purchase. 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 for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Holder
hereof to any of the rights of a stockholder of the Company.
A-2
27
IN WITNESS WHEREOF, Xxxxxx Oil and Gas Company has caused the signature
(or facsimile signature) of its Vice President and Secretary to be printed
hereon and its corporate seal (or facsimile) to be printed hereon.
XXXXXX OIL AND GAS COMPANY
By:
-----------------------------------
Xxxxx X. Xxxxx, Vice
President-Finance
Attest:
----------------------------------
Xxxx X. Xxxxxxx, Secretary
X-0
00
XXXXXXXX FORM
(To be executed upon exercise of Warrant). To Xxxxxx Oil and Gas
Company.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, shares of Common Stock, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of cash or a
certified or official bank check in the amount of $___________.
Please issue a certificate or certificates for such shares of Common
Stock in the name of, and pay any cash for any fractional share to:
Name
------------------------------
(Please Print Name, Address
and Social Security No.)
Signature
-------------------------
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant
Certificate or with the name of
assignee appearing in the
assignment form below.
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
Dated: , 19 Signature
---------------- --- ---------------------------
-------------------------------------
Please Print Name
A-4
29
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate.)
For value received, ___________________________ hereby sells, assigns
and transfers unto _________________________________ the within Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ________________, attorney, to
transfer said Warrant Certificate on the books of the withinnamed Company, with
full power of substitution in the premises.
Dated: , 19
--------------- ---
--------------------------------
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant
Certificate.
A-5
