Exhibit 4.46
THIS COMMON STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS COMMON STOCK PURCHASE WARRANT, AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, OR (C) IF REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
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AMERICAN INTERNATIONAL PETROLEUM CORPORATION
COMMON STOCK PURCHASE WARRANT
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No.
Number of shares: Holder:
Expiration Date:
Purchase Price Per Share:
For identification only. The governing terms of this
Warrant are set forth below.
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American International Petroleum Corporation, a Nevada corporation (the
"Company"), hereby certifies that, for value received, __________or assigns, is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time after the date hereof and prior to the third
anniversary hereof (the "Exercise Period"), at the Purchase Price hereinafter
set forth, ___________ shares of the fully paid and nonassessable shares of
common stock of the Company, $.08 par value per share (the "Common Stock"). The
number and character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein.
The purchase price per share of Common Stock issuable upon exercise of this
Warrant (the "Purchase Price") shall be; __________ provided, however, that the
Purchase Price shall be adjusted from time to time as provided herein.
Capitalized terms used herein not otherwise defined shall have the meanings
ascribed thereto in the Securities Purchase Agreement dated April 24, 2001 by
and between the Company and, __________ (the "Purchase Agreement"). As used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The term "Company" shall include American International Petroleum
Corporation and any corporation that shall succeed or assume the
obligations of such corporation hereunder.
(b) The term "Common Stock" includes (a) the Company's common stock,
par value $.08 per share, (b) any other capital stock of any class or
classes (however designated) of the Company, authorized on or after such
date, the Holders of which shall have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on
any shares entitled to preference, and the Holders of which shall
ordinarily, in the absence of contingencies, be entitled to vote for the
election of a majority of directors of the Company (even though the right
so to vote has been suspended by the happening of such a contingency) and
(c) any other securities into which or for which any of the securities
described in (a) or (b) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate
or otherwise) that the Holder of this Warrant at any time shall be entitled
to receive, or shall have received, on the exercise of this Warrant, in
lieu of or in addition to Common Stock, or that 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.
ARTICLE 14. Exercise of Warrant.
ARTICLE 14.5 Method of Exercise.
(a) This warrant may be exercised in whole or in part (but not as to a
fractional share of Common Stock), at any time and from time to time during
the Exercise Period by the Holder hereof by delivery of a notice of
exercise (a "Notice of Exercise") substantially in the form attached hereto
as Exhibit A via facsimile to the Company. Promptly thereafter the Holder
shall surrender this Warrant to the Company at its principal office,
accompanied by payment of the Purchase Price multiplied by the number of
shares of Common Stock for which this Warrant is being exercised (the
"Exercise Price"). Payment of the Exercise Price shall be made, at the
option of the Holder, (i) by check or bank draft payable to the order of
the Company, or (ii) by wire transfer to the account of the Company. Upon
exercise, the Holder shall be entitled to receive, promptly refund the
excess to the Holder. Upon exercise, the Holder shall be entitled to
receive, promptly after payment in full, one or more certificates, issued
in the Holder's name or in such name or names as the Holder may direct,
subject to the limitations on transfer contained herein, for the number of
shares of Common Stock so purchased. The shares of Common Stock so
purchased shall be deemed to be issued as of the close of business on the
date on which the Company shall have received from the Holder payment in
full of the Exercise Price (the "Exercise Date").
(b) Notwithstanding anything to the contrary set forth herein, upon
exercise of all or a portion of this Warrant in accordance with the terms
hereof, the Holder shall not be required to physically surrender this
Warrant to the Company. Rather, records showing the amount so exercised and
the date of exercise shall be maintained on a ledger substantially in the
form of Annex B attached hereto (a copy of which shall be delivered
to the Company or transfer agent with each Notice of Exercise). It is
specifically contemplated that the Holder hereof shall act as the
calculation agent for all exercises of this Warrant. In the event of any
dispute or discrepancies, such records maintained by the Holders shall be
controlling and determinative in the absence of manifest error. The Holder
and any assignee, by acceptance of this Warrant, acknowledge and agree
that, by reason of the provisions of this paragraph, following an exercise
of a portion of this Warrant, the number of shares of Common Stock
represented by this Warrant will be the amount indicated on Annex B
attached hereto (which may be less than the amount stated on the face
hereof).
ARTICLE 14.6 Regulation D Restrictions.
The Holder hereof represents and warrants to the Company that it has
acquired this Warrant and anticipates acquiring the shares of Common Stock
issuable upon exercise of the Warrant solely for its own account for investment
purposes and not with a view to or for resale of such securities unless such
resale has been registered with the Commission or an applicable exemption is
available therefore. At the time this Warrant is exercised, the Company may
require the Holder to state in the Notice of Exercise such representations
concerning the Holder as are necessary or appropriate to assure compliance by
the Holder with the Securities Act.
ARTICLE 14.7 Company Acknowledgment.
The Company will, at the time of the exercise of this Warrant, upon request
of the Holder hereof, acknowledge in writing its continuing obligation to afford
to such Holder the registration rights to which such Holder shall continue to be
entitled after such exercise in accordance with the provisions of a Registration
Rights Agreement dated February __, 2001 between the Company, LKB Financial, LLC
and GCA (the "Registration Rights Agreement"). If the Holder shall fail to make
any such request, such failure shall not affect the continuing obligation of the
Company to afford such Holder any such rights.
ARTICLE 14.8 Limitation on Exercise.
Notwithstanding the rights of the Holder to exercise all or a portion of
this Warrant as described herein, such exercise rights shall be limited, solely
to the extent set forth in the Purchase Agreement as if such provisions were
specifically set forth herein. In addition, the number of shares of Common Stock
issuable upon exercise of this Warrant is subject to reduction as specified in
Section 10.3 of the Purchase Agreement.
ARTICLE 15. Delivery of Stock Certificates, etc., on Exercise.
As soon as practicable after the exercise of this Warrant, and in any event
within five (5) business days thereafter, the Company at its expense (including
the payment by it of any applicable issue, stamp or transfer taxes) will cause
to be issued in the name of and delivered to the Holder thereof, or, to the
extent permissible hereunder, to such other person as such Holder may direct, a
certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock (or Other Securities) to which such Holder shall be
entitled on such exercise, plus, in lieu of any fractional share to which such
Holder would otherwise be entitled, cash equal to such fraction multiplied
by the then applicable Purchase Price, together with any other stock or other
securities and property (including cash, where applicable) to which such Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
ARTICLE 16. Adjustment for Extraordinary Events.
The Purchase Price to be paid by the Holder upon exercise of this Warrant,
and the consideration to be received upon exercise of this Warrant, shall be
adjusted in case at any time or from time to time in the same manner as the
Series A Convertible Preferred Stock as set forth in Exhibit A to the Purchase
Agreement as if such provisions were specifically set forth herein.
ARTICLE 17. No Impairment.
The Company will not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this warrant against impairment. Without
limiting the generality of the foregoing, the Company (a) will not increase the
par value of any shares of stock receivable on the exercise of this Warrant
above the amount payable therefore on such exercise, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and unassessable shares of stock on the exercise of
this Warrant, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of this Warrant.
ARTICLE 18. Accountant's 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, the
Company at its expense will promptly cause independent certified public
accountants of national standing selected by the Company to compute such
adjustment or readjustment in accordance with the terms of this 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
Company 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 Purchase Price and the number of shares of Common Stock to be received
upon exercise of this Warrant, in effect immediately prior to such issue or sale
and as adjusted and readjusted as provided in this Warrant. The Company will
forthwith mail a copy of each such certificate to the Holder of this Warrant,
and will, on the written request at any time of the Holder of this Warrant,
furnish to such Holder a like certificate setting forth the Purchase Price at
the time in effect and showing how it was calculated.
ARTICLE 19. Notices of Record Date, etc.
In the event of
(1) any taking by the Company of a record of the Holders of any class or
securities for the purpose of determining the Holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(2) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or consolidation or merger of the
Company with or into any other person, or
(3) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, and
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the Holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for then and in each such event the
Company will mail or cause to be mailed to the Holder of this Warrant a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right, and stating the amount of character of
such dividend, distribution or right, and (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any, as of which the Holders of record of Common Stock (or Other Securities)
shall be entitled to exchange their shares of Common Stock (or Other Securities)
for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 20
days prior to the date specified in such notice on which any action is to be
taken.
ARTICLE 20. Reservation of Stock, etc. Issuable on Exercise of Warrant.
The Company will at all times reserve and keep available, solely for
issuance and delivery on the exercise of this Warrant, all shares of Common
Stock (or Other Securities) from time to time issuable on the exercise of this
Warrant.
ARTICLE 21. Exchange of Warrant.
(a) On surrender for exchange of this Warrant, properly endorsed and
in compliance with the restrictions on transfer set forth in the legend on
the face of this Warrant, to the Company, the Company at its expense will
issue and deliver to or on the order of the Holder thereof a new Warrant of
like tenor, in the name of such Holder or as such Holder (on payment by
such Holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face of the Warrant so surrendered.
(b) Upon written notice from the Purchasers that the Purchasers have
elected to transfer amongst each other a portion of this Warrant, and on
surrender for amendment and restatement of this Warrant, the Company at its
expense will issue and deliver to or on the order of the Holder thereof a
new Warrant of like tenor, in the name of such Holder as the Purchasers (on
payment by such Holder of any applicable transfer taxes) may direct,
calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock as set forth in such notice reflecting such
transfer.
ARTICLE 22. Replacement of Warrant.
On receipt of evidence reasonably satisfactory to the Company 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 or security reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of this
Warrant, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
ARTICLE 23. Remedies.
The Company stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
ARTICLE 24. Negotiability, etc.
This Warrant is issued upon the following terms, to all of which each
Holder or owner hereof by the taking hereof consents and agrees:
(a) title to this Warrant may be transferred by endorsement and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of such
bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby;
(c) until this Warrant is transferred on the books of the Company, the
Company may treat the registered Holder hereof as the absolute owner hereof
for all purposes, notwithstanding any notice to the contrary; and
(d) notwithstanding the foregoing, this Warrant may be sold,
transferred or assigned except pursuant to an effective registration
statement under the Securities Act or pursuant to an applicable exemption
therefrom.
ARTICLE 25. Registration Rights.
The Company is obligated to register the shares of Common Stock issuable
upon exercise of this Warrant in accordance with the terms of the Registration
Rights Agreement.
ARTICLE 26. Warrant Redemption.
Upon occurrence of the events described in Exhibit A to the Purchase
Agreement setting forth the terms fo the Series A Convertible Preferred Stock
with respect to redemption, the Company, at the request of Holder, shall redeem
all outstanding Warrants that remain unexercised at a redemption price equal to
the greater of (x) an appraised value of the Warrants, as determined by Black
Xxxxxx, on the date they are called for redemption and (y) the number of
Warrants being redeemed multiplied by the excess of (A) the average closing bid
price of the Common Stock for the five trading days immediately prior to the
date that the Warrants are called for redemption over (B) the exercise price of
the Warrants.
ARTICLE 27. Notices, etc.
All notices and other communications from the Company to the Holder of this
Warrant shall be mailed by first class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company in writing by
such Holder or, until any such Holder furnishes to the Company any address, then
to, and at the address of, the last Holder of this Warrant who has so furnished
an address to the Company.
ARTICLE 28. Miscellaneous.
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 construed and enforced in accordance with and governed by the
internal laws of the State of New York. The headings in this Warrant are for the
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.
[Signature Page Follows]
DATED as of April ___, 2001
AMERICAN INTERNATIONAL PETROLEUM
CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
[Corporate Seal]
Attest:
By:________________________________
Assistant Secretary
EXHIBIT A
FORM OF NOTICE EXERCISE - WARRANT
(To be executed only upon exercise
of the Warrant in whole or in part)
To _________________________
The undersigned registered Holder of the accompanying Warrant, hereby
exercises such Warrant or portion thereof for, and purchases thereunder,
__________(1) shares of Common Stock (as defined in such Warrant) and herewith
makes payment therefor in the amount and manner set forth below, as of the date
written below. The undersigned requests that the certificates for such shares of
Common Stock be issued in the name of, and delivered to, whose address is
____________________________________________________.
The Exercise Price is paid as follows:
[ ] Bank draft payable to the Company in the amount of $_____________.
[ ] Wire transfer to the account of the Company in the amount of
$___________.
Upon exercise pursuant to this Notice of Exercise, the Holder will be in
compliance with the Limitation on Exercise (as defined in the Securities
Purchase Agreement pursuant to which this Warrant was issued).
Date: ______________________________ _______________________________________
(Name must conform to name of Holder as
specified on the face of the Warrant)
Date of exercise:
______________________________
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(1)Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying Warrant, to the Holder surrendering the same.
ANNEX B
WARRANT EXERCISE LEDGER
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Original Number of Warrants Exercise Price New Balance Issuer Holder
Date Warrants Exercised Paid of Warrants Initials Initials
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