Contract
Exhibit 7.04
THIS WARRANT, AND ANY SHARES OF COMMON STOCK ACQUIRED UPON THE EXERCISE OF THIS WARRANT
(“WARRANT SHARES”), HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY OTHER SECURITIES LAWS. THIS
WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE
SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM UNDER THE
SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAW, OR RECEIPT BY THE COMPANY OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE TRANSFERRED
EXCEPT UPON THE CONDITIONS SPECIFIED IN THIS WARRANT AND NO TRANSFER OF THIS WARRANT OR ANY OF
SUCH SHARES WILL BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH CONDITIONS HAVE BEEN COMPLIED WITH.
To Purchase Shares
of Common Stock of
Eagle Ford Oil & Gas Corp
of Common Stock of
Eagle Ford Oil & Gas Corp
THIS CERTIFIES THAT, for value received:
The former Preferred D Shareholder, , is entitled to subscribe for and
purchase from Eagle Ford Oil & Gas Corp (the “Company”), a corporation organized and existing
under the laws of the State of Nevada, at any time or from time to time before the Expiration Date
(as defined below), a total of fully paid and nonassessable shares of the Common Stock of
the Company, par value $.01 per share (the “Common Stock”), at an exercise price of $0.50 per
share of Common Stock (the “Exercise Price”), subject to adjustment from time to time pursuant to
the provisions of Section 5 of this Warrant Agreement. The term “Warrant,” as used herein, means
this Warrant of even date herewith, including all amendments to such Warrant and all warrants
issued in exchange, transfer or replacement therefor. The term “Warrant Shares,” as used herein,
refers to the shares of Common Stock purchased or purchasable upon the exercise of the Warrant.
This Warrant is subject to the following provisions, terms and conditions:
1. Definitions. For the purpose of this Warrant, the following terms have the
following meanings:
“Commission” means the U.S. Securities and Exchange Commission or any other governmental
authority at the time administering the Securities Act.
“Common Stock” has the meaning specified in the introduction to this Warrant.
“Company” has the meaning specified in the introduction to this
Warrant.
“Exercise Agreement” has the meaning specified in Section 2.(a).
“Exercise Date” has the meaning specified in Section 2.(c).
“Exercise Price” has the meaning specified in the introduction to this Warrant.
“Fair Market Value” has the meaning specified in Section 2.(d).
“Net Number” has the meaning specified in Section 2.(b).
“Market Price” As used in this Warrant, the term “Market Price” shall mean the average of the
daily closing prices per share of the Common Stock for the ten (10) consecutive trading days
immediately preceding the day as of which Market Price is being determined. The closing price for
each day shall be the last reported sale price or, in case no such sale takes place on such day,
the average of the reported closing bid and asked prices, in either case on the American Stock
Exchange, or, if the shares of the Common Stock are not listed or admitted to trading on the
American Stock Exchange, on the principal national securities exchange on which the shares are
listed or admitted to trading, or, if the shares are not so listed or admitted to trading, the
average of the highest reported bid and lowest reported asked prices as furnished by the National
Association of Securities Dealers, Inc. (the “NASD”) through NASDAQ or through a similar
organization if NASDAQ is no longer reporting such information or as reported on the NASD’s OTC
Electronic Bulletin Board (“OTC”). If shares of the Common Stock are not listed or admitted to
trading on any exchange or quoted through NASDAQ or any similar organization or reported on OTC,
the Market Price shall be deemed to be the higher of (A) the book value of a share of the Common
Stock as determined by any firm of independent public accountants selected by the Board of
Directors of the Company and reasonably acceptable to the Registered Holder, as of the end of the
most recent fiscal quarter preceding the date as of which the determination is to be made, or (B)
the fair value thereof determined in good faith by the Company’s Board of Directors as expressed by
a resolution of such board as of a date which is within fifteen (15) days of the date as of which
the determination is to be made. The fees and expenses of any accounting firm engaged pursuant to
this clause shall be paid by the Company.
“Securities Act” means the Securities Act of 1933, as amended, and any similar
or successor federal statute, and the rules and regulations of the Commission thereunder, all as
the same are in effect at the time. Reference to a particular section of the Securities Act
includes a reference to the comparable section, if any, of any such similar or successor federal
statute.
“Warrant” has the meaning specified in the introduction to this Warrant.
“Warrant Shares” has the meaning specified in the introduction to this Warrant.
2. Manner of Exercise; Issuance of Certificates; Payment for Shares; No Fractional
Shares.
| (a) | The holder of this Warrant may, at any time before the Expiration Date, exercise this
Warrant, in whole or in part, for the purchase of the Warrant Shares which such holder is
entitled to purchase hereunder at the Exercise Price. In order to exercise this Warrant, the
holder hereof must deliver to the Company, (1) a written notice (the “Exercise Agreement”) in
the form attached hereto as Exhibit 2.(a) of such holder’s election to exercise this Warrant,
(2) payment of the aggregate Exercise Price of the shares of Common Stock being purchased in
cash or by certified or cashier’s check, and (3) this Warrant; provided that, in case such
shares have not been registered under the Securities Act, the Company may require that such
holder furnish to the Company a written statement that such holder is purchasing such shares
for such holder’s own account for investment and not with a view to the distribution thereof,
and that none of such shares will be offered or sold in violation of the provisions of the
Securities Act or other applicable state securities laws. |
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| (b) | In lieu of exercising this Warrant pursuant to 2.(a) above, the holder of the Warrant my
elect to exercise the Warrant as follows: the holder of this Warrant may, at its election
exercised in its sole discretion, exercise this Warrant in whole or in part by, in lieu of
making the cash payment otherwise required to be made in Section 2.(a) above, by electing to
receive upon such exercise the “Net Number” of Warrant Shares determined according to the
following formula: |
| Net Number = | (A x B) — (A x C)
|
For purposes of the foregoing formula: |
|||
| A | = | the total number of shares with respect to which this Warrant
is then being exercised; |
|
| B | = | the Closing Price on the Trading Day immediately preceding the
date of the delivery of the Exercise Agreement; and |
|
| C | = | the Warrant Price then in effect for the applicable Warrant
Shares at the time of such exercise. |
|
Any Warrant Shares withheld by the Company in connection with an exercise of this Warrant
pursuant to this Section 2.(b) shall no longer be issuable under this Warrant and this
Warrant shall be deemed to be automatically amended to reduce the number of Warrant Shares
issuable hereunder by an amount equal to the amount of such withheld Warrant Shares.
(c) The Warrant will be deemed to be exercised on the date of receipt by the Company of the
Exercise Agreement, accompanied by payment for the Warrant Shares or delivery of holder’s election
to receive the Net Number of Warrant Shares as set forth in Section 2.(b) and surrender of this
Warrant, as aforesaid, and such date is referred to herein as the “Exercise Date.” Upon such
exercise, the Company will, as promptly as practicable and in any event within five (5) business
days, issue and deliver to such holder a certificate or certificates for the full number of the
Warrant Shares due to such holder hereunder, and will, unless the Warrants have expired, deliver
to the holder hereof a new Warrant representing the number of Warrants, if any, that have not been
exercised, in all other respects identical to this Warrant. As permitted by applicable law, the
holder or its designee in whose name the certificates for Common Stock are to be issued will be
deemed to have become a holder of record of such Common Stock on the Exercise Date and will be
entitled to all of the benefits of such holder on the Exercise Date, including without limitation
the right to receive dividends and other distributions for which the record date falls on or after
the Exercise Date and to exercise voting rights. The Company agrees that the shares so delivered
to the holder will be and are deemed to be issued to the holder hereof or its designee as the
record owner of such shares as of the close of business on the date on which this Warrant is
surrendered and payment made for such shares as aforesaid or holder’s election to receive the Net
Number of Warrant Shares is delivered to the Company.
(d) Certificates for the Warrant Shares so purchased, representing the aggregate number of
shares specified in the Agreement, and calculated in accordance with Sections 2.(a) or 2.(b), if
applicable, will be delivered to the holder hereof within a reasonable time, not exceeding fifteen
(15) business days, after the rights represented by this Warrant have been so exercised. The stock
certificate or certificates so delivered will be in such denominations as may be requested by the
holder hereof and will be registered in the name of the holder or such other names as are
designated by the holder (subject to the transfer restrictions applicable to this Warrant for
shares purchased upon exercise of this Warrant). If this Warrant is exercised only in part, then,
unless this Warrant has
expired, the Company will, at its expense, at the time of delivery of the stock
certificates(s), deliver to such holder a new Warrant representing the right to purchase the
number of shares of Common Stock with respect to which this Warrant is not then exercised. The
Company will pay all expenses and charges payable in connection with the preparation, execution
and delivery of stock certificates pursuant to this Section 2 except that, in case such stock
certificates will be registered in a name or names other than the holder of this Warrant or such
holder’s nominee, funds sufficient to pay all stock transfer taxes which will be payable in
connection with the execution and delivery of such stock certificates will be paid by the holder
hereof to the Company at the time of the delivery of such stock certificates by the Company as
mentioned above.
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(d) This Warrant shall be exercised only for a whole number of Warrant Shares. No fractions
of shares of Common Stock, or scrip for any such fractions of shares, will be issued upon the
exercise of this Warrant. Instead, the Company will pay a cash adjustment in respect of such
fractional interest in an amount equal to the Fair Market Value of such fractional interest as
determined by the Company’s Board of Directors.
3. Period of Exercise. This Warrant is exercisable by the holder hereof, in whole
or in part, at any time and from time to time after the date hereof until May 20, 2014 (the
“Expiration Date”).
4. Shares to be Fully Paid; Reservations of Shares. The Company covenants and
agrees that all Warrant Shares will be duly authorized and validly issued and, upon issuance in
accordance with the terms and conditions hereof, will be fully paid and nonassessable. Without
limiting the generality of the foregoing, the Company covenants and agrees that it will from
time to time take all such action as may be required to assure that the par value per Warrant
Share is at all times equal to or less than the Exercise Price then in effect. The Company
further covenants and agrees that during the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized, and reserved for the
purpose of issue upon exercise of the subscription rights evidenced by this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant and any other Warrants.
5. Future Adjustments Provisions. The number of Warrant Shares issuable upon
exercise of this Warrant and the Exercise Price will be subject to the following adjustments:
| (a) | The Exercise Price at which Warrant Shares may be purchased hereunder, and the number of
Warrant Shares to be purchased upon exercise hereof, shall be subject to adjustment from time
to time as hereinafter provided in this Section 5. Upon each adjustment from the Exercise
Price, except pursuant to Section 5 (a) (iii) and 5 (a) (iv), the registered holder of the
Warrant shall thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of the Common Stock (calculated to the nearest whole share)
obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares of the Common Stock purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from such
adjustment. |
The Exercise Price shall be subject to adjustment from time to time as follows:
| (i) | Stock Dividends and Stock Splits. If the number of outstanding shares of Common
Stock is increased at any time after the date of this Warrant by a stock dividend
payable in shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then immediately after the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend or the effective date of such
subdivision or split-up, as the case may be, the Exercise
Price shall be appropriately adjusted so that the adjusted Exercise Price shall bear
the same relation to the Exercise Price in effect immediately prior to such adjustment
as the total number of shares of Common Stock outstanding immediately prior to such
action shall bear to the total number of shares of Common Stock outstanding
immediately after such action. |
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| (ii) | Combination of Stock. If the number of outstanding shares of Common Stock is
decreased at any time after the date of issuance of this Warrant by a combination of
such shares, then, immediately after the effective date of such combination, the
Exercise Price shall be appropriately adjusted so that the adjusted Exercise Price shall
bear the same relation to the Exercise Price in effect immediately prior to such
adjustment as the total number of outstanding shares of Common Stock immediately prior
to such action shall bear to the total number of outstanding shares of Common Stock
immediately after such action. |
| (iii) | Reorganizations, etc. In case of any capital reorganization of the Company, or
of any reclassification of the Common Stock, or in case of the consolidation of the
Company with or the merger of the Company with or into any other Person or of the sale,
lease or other transfer of all or substantially all of the assets of the Company to any
other Person, this Warrant shall, after such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer, be exercisable for the number of
shares of stock or other securities or property to which the Common Stock issuable (at
the time of such capital reorganization, reclassification, consolidation, merger, sale,
lease or other transfer) upon exercise of this Warrant would have been entitled to
receive upon such capital reorganization, reclassification, consolidation, merger, sale,
lease, or other transfer if such exercise had taken place immediately prior thereto; and
in any such case, if necessary, the provisions set forth herein with respect to the
rights and interest thereafter of the holder of this Warrant shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock
or other securities or property thereafter deliverable on the exercise of the Warrant.
In case of any distribution by the Company of any security (including rights or warrants
to subscribe for any such securities) of the Company, evidence of its indebtedness, cash
or other assets to all of the holders of its Common Stock, then in each such case the
Exercise Price in effect thereafter shall be determined by multiplying the Exercise
Price in effect immediately prior thereto by a fraction the numerator of which shall be
the total number of outstanding shares of Common Stock multiplied by the Market Price on
the record date mentioned below, less the Fair Market Value (as determined in good faith
by the Board of Directors) of the securities, evidences of its indebtedness, cash or
other assets distributed by the Company and the denominator of which shall be the total
number of outstanding shares of Common Stock multiplied by the Market Price; such
adjustment shall become effective as of the record date for the determination of
stockholders entitled to receive such distribution. The subdivision or combination of
share of Common Stock issuable upon exercise of this Warrant at any time outstanding
into a greater or lesser number of shares of Common Stock (whether with or without par
value) shall not be deemed to be a reclassification of the Common Stock of the Company
for the purposes of this clause (iii). |
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| (iv) | In case at any time the Company shall grant (whether directly or by assumption in
a merger or otherwise) any rights to subscribe for or to purchase, or any options or
warrants for the purchase of, Common Stock or any stock or securities convertible into
or exchangeable for Common Stock (such convertible or exchangeable stock or securities
being herein called (“Convertible Securities”) whether or not such rights or options or
warrants or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is issuable upon
the exercise of such right or options or warrants or upon conversion or exchange of such
Convertible Securities (determined as provided below) shall be less than the Exercise
Price in effect immediately prior to the time of the granting of such rights or
options or warrants, the Exercise Price shall be calculated in a manner consistent
with calculation of the Exercise Price under clause (iii), except that for purposes of
such calculation, the total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or warrants or upon conversion or exchange of the
total maximum amount of such Convertible Securities issuable upon the exercise of such
rights or options or warrants shall (as of the date of granting of such rights or
options or warrants) be deemed to be outstanding and to have been issued for such
price per share. Except as provided in this clause(iv) of this subsection, no further
adjustments of any Exercise Price shall be made upon the actual issue of such Common
Stock or of such Convertible Securities upon the exercise of such rights or options or
warrants or upon the actual issue of such Common Stock upon conversion or exchange of
such Convertible Securities. For the purposes of this clause (i), the price per share
for which Common Stock is issuable upon the exercise of any such rights or options or
warrants or upon conversion or exchange of any such Convertible Securities shall be
determined by dividing (A) the total amount, if any, received or receivable by the
Company as consideration for the granting of such rights or options or warrants, plus
the minimum aggregate amount of additional consideration payable to the Company upon
the exercise of all such rights or options or warrants, plus, in the case of such
rights or options or warrants which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the issue or sale
of such Convertible Securities and upon the conversion or exchange thereof, by (B) the
total maximum number of shares of Common Stock issuable upon the exercise of such
rights or options or warrants or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such rights or options or
warrants. |
| (v) | In case the Company shall issue (whether directly or by assumption in a merger
or otherwise) or sell any Convertible Securities, whether or not the rights to exchange
or convert thereunder are immediately exercisable, and the price per share for which
Common Stock is issuable upon conversion or exchange of such Convertible Securities
(determined as provided below) shall be less than the Exercise Price in effect
immediately prior to the time of such issue or sale the Exercise Price shall be
calculated in a manner consistent with calculation of the Exercise Price under clause
(iii), except that for purposes of such calculation the total maximum number of shares
of Common Stock issuable upon conversion or exchange of all such Convertible Securities
shall (as of the date of the issue or sale of such Convertible Securities) be deemed to
be outstanding and to have been issued for such price per share, provided that (1)
except as provided in this clause (v) of this subsection, no further adjustments of any
Exercise Price shall be made upon the actual issue of Common Stock upon conversion or
exchange of such Convertible Securities, and (2) if any such issue or sale of such
Convertible Securities is made upon the exercise of any rights to subscribe for or to
purchase or any option to purchase any such Convertible Securities for which
adjustments of any Exercise Price have been or are to be made pursuant to other
provisions of this subsection ( c), no further adjustment of any Exercise Price shall
be made by reason of such issue or sale. For the purposes of this clause (v), the price
per share for which Common Stock is issuable upon conversion or exchange of Convertible
Securities shall be determined by dividing (A) the total amount received or receivable
by the Company as consideration for the issue or sale of such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange thereof, by (B) the total maximum number of
shares of Common Stock issuable upon the conversion or exchange of all such Convertible
Securities. |
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| (vi) | Rounding of Calculations; Minimum Adjustment. All calculations under this Section
5 (a) and under Section 5 (b) shall be made to the nearest cent or to the nearest whole
share, as the case may be. Any provision of this Section 5 to the contrary
notwithstanding, no adjustment in the Exercise Price shall be made if the amount of such
adjustment would be less than one percent, but any such amount shall be carried forward
and an adjustment with respect thereto shall be made at the time of and together with
any subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate one percent or more. |
| (vii) | Timing of Issuance of Additional Common Stock Upon Certain Adjustments. In any
case in which the provision of this Section 5 (a) shall require that an adjustment shall
become effective immediately after a record date for an event, the Company may defer
until the occurrence of such event issuing to the holder of this Warrant after such
record date and before the occurrence of such event the additional shares of Common
Stock or other property issuable or deliverable upon exercise by reason of the
adjustment required by such event over and above the shares of Common Stock or other
property issuable or deliverable upon such exercise before giving effect to such
adjustment; provided, however, that the Company upon request shall deliver to such
holder a due xxxx or other appropriate instrument evidencing such holder’s right to
receive such additional shares or other property, and such cash, upon the occurrence of
the event requiring such adjustment. |
| (b) | Whenever the Exercise Price shall be adjusted as provided in Section 5 (a), and upon each
change in the number of shares of the Common Stock issuable upon exercise of this Warrant, the
Company shall forthwith file, at the office of any transfer agent for this Warrant if there be
any such agent and/or at the principal office of the Company, a statement showing in detail
the facts requiring such adjustment and the Exercise Price and new adjustment, and the Company
shall also cause a copy of such statement to be given to the holder of this Warrant. Each such
statement shall be signed by the Company’s chief financial or accounting officer. Where
appropriate, such copy may be given in advance and may be included as part of a notice
required to be mailed under the provisions of Section 5.(c). |
| (c) | In the event the Company shall propose to take any action of the type described in Section 5,
the Company shall give notice to the holder of this Warrant, which notice shall specify the
record date, if any, with respect to any such action and the approximate date on which such
action is to take place. Such notice shall also set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action (to the extent such effect
may be known at the date of such notice) on the Exercise Price and the number, kind or class
of shares or other securities or property which shall be deliverable upon exercise of this
Warrant. Such notice shall be given at least 10 days prior to the record date for such
action. Failure to give such notice, or any defect therein, shall not affect the legality or
validity of any such action. |
| (d) | If any event occurs as to which in the reasonable opinion of the Registered Holder, in good
faith, the other provisions of this Section 5 are not strictly applicable but the lack of any
adjustment would not in the opinion of the Registered Holder fairly protect the Registered
Holder in accordance with the basic intent and principles of such provisions, or if strictly
applicable would not fairly protect the purchase rights of the Registered Holder in accordance
with the basic intent and principles of such provisions, then the Registered Holder shall give
written notice thereof to the Company. If the Company and the Registered Holder cannot agree
with respect to an adjustment of the Exercise Price hereof within fifteen (15) days of the
delivery of such notice by the Registered Holder to the Company, then the Company shall
appoint a firm of independent certified public accountants (which may be the regular auditors
of the Company) of recognized national standing, which shall give their opinion upon the
adjustment, if any, on a basis consistent with the basic intent and principles established in
the other provisions of this Section 5, necessary to preserve,
without dilution, the exercise rights of the Registered Holder. Upon receipt of such opinion,
the Company shall forthwith make the adjustments described herein. The cost of the services
performed by the firm of independent certified public accountants shall be borne by the
Company; provided, however, that if in the opinion of such firm no adjustment is necessary,
then the cost of such firm shall be borne by the Registered Holder. |
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| (e) | In case the Company at any time while this Warrant shall remain unexpired and unexercised
shall sell all or substantially all of its property or dissolve, liquidate, or wind up its
affairs, lawful provision shall be made as part of the terms of any such sale, dissolution,
liquidation or winding up, so that the holder of this Warrant may thereafter receive upon
exercise hereof in lieu of each Warrant Share that it would have been entitled to receive, the
same kind and amount of any securities or assets as may be issuable, distributable or payable
upon any such sale, dissolution, liquidation or winding up with respect to each share of
Common Stock of the Company, provided, however, that in any case of any such voluntary sale or
of dissolution, liquidation or winding up, the right to exercise this Warrant shall terminate
on a date fixed by the Company; such date so fixed to be not earlier than 5:00 p.m., Central
Standard Time, on the forty-fifth day following the date on which a notice of such termination
of the right to exercise this Warrant has been given, to the registered holder of this Warrant
at its address as it appears on the books of the Company. |
| (f) | In the event that the Company shall at any time prior to the exercise of this Warrant declare
a dividend (other than a dividend consisting solely of shares of Common Stock or a cash
dividend or distribution payable out of current or retained earnings) or otherwise distribute
to its stockholders any monies, assets, property, rights, evidences of indebtedness,
securities (other than shares of Common Stock), whether issued by the Company or by another
person or entity, or any other thing of value, the Registered Holder shall thereafter be
entitled, in addition to the shares of Common Stock receivable upon the exercise of the
Warrant, to receive, upon the exercise of the Warrant, the same monies, property, assets,
rights, evidences of indebtedness, securities or any other thing of value that the Registered
Holder would have been entitled to receive at the time of such dividend or distribution had
the Registered Holder been an owner of record of the shares of Common Stock into which the
Warrant is then being exercised as of the record date or other date of determination for such
dividend or distribution and an appropriate provision (which provision may include without
limitation, the establishment of an escrow agreement in favor of the Registered Holder in
which the portion of the dividend or distribution attributable to the Warrant is held) shall
be made a part of any such dividend or distribution. Notwithstanding any provision herein to
the contrary, no adjustment under this Section 5 shall be made with respect to any cash
dividend or distribution payable solely out of current or retained earnings of the Company.
In the event that at any time the Company subdivides its outstanding shares of Common Stock
into a greater number of shares, the Exercise Price in effect immediately prior to such
subdivision will be proportionately reduced (provided that the Exercise Price shall not be
less than the par value of the Warrant Shares), and the number of Warrant Shares purchasable
pursuant to this Warrant immediately prior to such subdivision will be proportionately
increased. Conversely, in the event that the outstanding shares of Common Stock at any time
are combined into a smaller number of shares, the Exercise Price in effect immediately prior
to such combination will be proportionately increased and the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to such combination will be
proportionately reduced. |
| (g) | If the Company effects any reorganization, reclassification or similar change of outstanding
shares of the Common Stock (other than as set forth in Section 5.(a)), or a consolidation or
merger of the Company with another corporation or entity, or a conveyance of all or
substantially all of the assets of the Company, this Warrant will, after such capital
reorganization, reclassification, consolidation, merger or conveyance, be exercisable only for
the number of shares of stock or other properties, including cash, to which a holder of
the number of shares of the Common Stock deliverable upon exercise of this Warrant would have
been entitled upon such capital reorganization, reclassification, change, consolidation,
merger or conveyance if this Warrant had been exercised immediately prior to the effective
date of such event at the Exercise Price then in effect; and, in any such case, appropriate
adjustments (as determined by the Company’s Board of Directors) will be made in the
application of the provisions set forth herein with respect to the rights and interests
thereafter of the holder of this Warrant to the end that the provisions set forth herein will
thereafter be applicable, as nearly as may be reasonable, in relation to any shares of stock
or other securities thereafter deliverable upon the exercise of this Warrant. |
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6. Registration Rights. The Company covenants and agrees as follows:
| (a) | Definitions. For purposes of this Section 6: |
| (i) | The term “Holder” means each of the persons who at the time holds Registrable
Securities or a warrant or warrants (including this Warrant) to purchase Registrable
Securities. |
| (ii) | The term “Public Corporation” means a corporation which has a class of equity
securities registered pursuant to Section 12 of the 1934 Act, or which is required to
file periodic reports pursuant to Section 15(d) of the 1934 Act. |
| (iii) | The terms “register,” “registered” and “registration” refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Act, and such registration statement or document becoming effective. |
| (iv) | The term “Registrable Securities” means (i) the Warrant Shares issuable upon the
exercise of this Warrant and (ii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in replacement of
the Warrant or the Warrant Shares; provided, however, that any such securities shall
cease to be Registrable Securities when (i) one or more registration statements with
respect to the sale of such securities shall have become effective under the Act and all
such securities shall have been disposed of in accordance with the plan of distribution
set forth therein; (ii) such securities shall have been disposed of in accordance with
Rule 144 promulgated under the Act, or any successor rule or regulation thereto, or any
statute hereafter adopted to replace or to establish the exemption that is now covered
by said Rule 144 (“Rule 144 “); (iii) such securities may be sold by a Holder in a
transaction pursuant to the provisions of Rule 144 provided that such rule shall be at
such time available for the sale of all such securities which the Holder at such time
desires to sell; or (iv) such securities may otherwise be sold to the public in a
transaction not requiring registration under the Act. |
| (v) | The term “Registration Expenses” means all registration, qualification and filing
fees, printing expenses, escrow fees and blue sky fees, fees and disbursements of
counsel for the Company and of the Company’s independent certified public accountants,
in each case incident to or required by the registration under this Warrant, and any
other fees and expenses of the registration under this Warrant which are not Selling
Expenses. |
| (vi) | The term “Selling Expenses” means all underwriting discounts, selling commissions
and stock transfer taxes applicable to the securities registered by the Holders and all
fees and disbursements of counsel for any Holder. |
| (vii) | All other capitalized terms used in this Section that are not defined herein
shall have the meaning otherwise given in this Warrant. |
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| (b) | Piggyback Registration Rights. |
| (i) | If, at any time or from time to time, the Company shall determine to register any
of its Common Stock, either for its own account or for the account of a security holder
or holders, other than (A) pursuant to a registration statement on Form S-4 or S-8, the
Company will (X) promptly give the Holders written notice thereof, and (Y) include in
such registration (and any related qualification under blue sky or other state
securities laws), and in any underwriting involved therein, all of the Registrable
Securities specified in a written request or requests made by a Holder or Holders within
twenty (20) days after receipt of such written notice from the Company. |
| (ii) | If the registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise the Holder as part of
the written notice given pursuant to Section 12(b)(i). In such event, the right of each
Holder to registration pursuant to this Section 12(b) shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of the Registrable
Securities owned by such Holder in the underwriting to the extent provided under this
Section 12(b). If a Holder proposes to distribute its Registrable Securities through
such underwriting it shall (together with the Company and any other holders of
securities of the Company distributing their securities through such underwriting) enter
into an underwriting agreement with the managing or lead managing underwriter selected
by the Company in the form customarily used by such underwriter with such changes
thereto as the parties thereto shall agree. Notwithstanding any other provision of this
Section 12(b), if the managing or lead managing underwriter determines that market
factors require that the number of Registrable Securities and other securities requested
to be included in the registration be limited, the managing or lead managing underwriter
may reduce the number of Registrable Securities and securities of any other holders of
securities to be included in the registration. If the registration includes an
underwritten primary registration on behalf of the Company, the reduction shall be taken
(i) first from and to the extent of the securities requested to be included in the
registration by the Holders and the holders of any other securities pro rata according
to the number of securities requested by the Holders and such holders to be included in
the registration, and (ii) thereafter from the securities to be registered on behalf of
the Company. If the registration consists only of any underwritten secondary
registration on behalf of holders of securities of the Company, the reduction shall be
taken (i) first from and to the extent of the securities requested to be included in the
registration by the Holders and any other holders of securities included in the
registration other than pursuant to demand registration right pro rata according to the
number of securities requested by the Holders and such other holders to be included in
registration and (ii) thereafter from securities, if any, to be registered on behalf of
holders of securities included in the registration pursuant to demand registration
rights. The Company shall advise any Holders and other holders participating in such
underwriting as to any such limitation and the number of shares that may be included in
the registration and underwriting. If a Holder disapproves of the terms of such
underwriting, such Holder may elect to withdraw therefrom by written notice to the
Company and the managing or lead underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration. |
| (iii) | The Company may withdraw a registration for which registration rights have been
exercised pursuant to this Section 6(b) at any time prior to the time it becomes
effective. |
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| (c) | Expenses of Registration. All Registration Expenses incurred in connection with a
registration pursuant to this Section 6 shall be borne by Company. All Selling Expenses
relating to the Registrable Securities registered on behalf of a Holder shall be borne by such
Holder pro rata based upon the total number of securities included in the registration of, if
such Selling Expenses are specifically allocable to securities held by specific holders, by
such holders to the extent related to the sale of such securities. |
| (d) | Registration Procedures. |
| (i) | In connection with the registration or Registrable Securities pursuant to this
Section 6, the Company shall as expeditiously as is reasonable: |
| (A) | prepare and file with the SEC on any appropriate form a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; |
| (B) | prepare and file with the SEC such amendments (including post-
effective amendments) and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the Act
with respect to the disposition of all Registrable Securities and other
securities covered by such registration statement for a period of 180 days or
until the Holder or Holders have completed the distribution described in such
registration statement, whichever occurs first; |
| (C) | furnish to each seller of such Registrable Securities such number
of conformed copies of such registration statement and of each such amendment and
supplement thereto (at least one of which shall include all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in conformity
with the requirements of the Act, such documents incorporated by reference in
such registration statement or prospectus, and such other documents, as such
seller may reasonably request in order to facilitate the sale or disposition or
such Registrable Securities; |
| (D) | use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under such
other securities or “blue sky” laws of such jurisdictions as the underwriter
shall reasonably request, and do any and all other acts and things as may be
reasonably necessary to consummate the disposition in such jurisdictions of the
Registrable Securities covered by such registration statement, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in respect of doing business in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction. |
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| (E) | immediately notify each seller of Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of
the circumstances then existing or if it is necessary, in the opinion of
counsel to the Company, to amend or supplement such prospectus to comply with
law, and at the request of any such seller prepare and furnish to any such
seller a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and shall otherwise
comply in all material respects with law and so that such prospectus, as
amended or supplemented, will comply with law. |
| (F) | otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
twelve (12) months, beginning with the first month of the first fiscal quarter
after the effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11 (a) of the Act; |
| (G) | use its best efforts to list such securities on each securities
exchange or over-the-counter market on which shares of Common Stock are then
listed, it such securities are not already so listed and if such listing is then
permitted under the rules of such exchange and, if shares of Common Stock are not
then listed on a securities exchange or over-the-counter market, to use its best
efforts to cause such securities to be listed on such securities exchange or
over- the-counter market as the managing or lead managing underwriter shall
reasonably request; |
| (H) | use its best efforts to provide a transfer agent and registrar for
such Registrable Securities not later than the effective date of such
registration statement; and |
| (I) | issue to any underwriter to which any holder of Registrable
Securities may sell such Registrable Securities in connection with any such
registration (and to any direct or indirect transferee of any such underwriter)
certificates evidencing shares of Common Stock without restrictive legends. |
| (ii) | If requested by the managing or lead managing underwriter for any underwritten
offering of Registrable Securities on behalf of a Holder or Holders of Registrable
Securities, the Company will enter into an underwriting agreement with the underwriters
of such offering, such agreement to contain such representations and warranties by the
Company and each such Holder and such other terms and conditions as are contained in
underwriting agreements customarily used by such managing or lead managing underwriter
with such changes as the parties thereto shall agree, including, without limitation,
provisions relating to indemnification and contribution in lieu thereof. |
| (iii) | the Holder or Holders of Registrable Securities included in any registration
shall furnish to the Company such information regarding such Holder or Holders, the
Registrable Securities held by them and the distribution proposed by such Holder or
Holders as the Company may from time to time reasonably request and as shall be
reasonably required in connection with any registration, qualification or compliance
referred to in this Agreement. |
| (iv) | the Holder or Holders of Registrable Securities included in any registration
shall, upon request by the Company and the managing or lead managing underwriter,
execute and deliver custodian
agreements and powers of attorney in form and substance reasonably satisfactory to the
Company and such Holder or Holders and as shall be reasonably necessary to consummate
the offering. |
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| (e) | Indemnification. |
| (i) | The Company will indemnify each Holder with respect to which a registration has
been effected pursuant to this Agreement, each of its officers and directors, if any,
and each underwriter, if any, and each person who controls the Holder or any such
underwriter within the meaning of Section 15 of the Act, against any and all losses,
claims, damages, liabilities or expenses (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement or prospectus, or any amendment or
supplement thereto, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or any violation by the Company
of the Act or any rule or regulation promulgated under the Act applicable to the Company
in connection with any such registration, and the Company will reimburse each such
Holder, each such underwriter and each person who controls such Holder or any such
underwriter, for any legal and other expenses reasonably incurred, as such expenses are
incurred, in connection with investigating, preparing or defending any such claims,
loss, damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder or underwriter
and stated to be specifically for use therein. |
| (ii) | Each Holder will, if Registrable Securities held by such Holder are included in
the securities as to which such registration is being effected, indemnify the Company,
each of its directors and officers, each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls the
Company or such underwriter within the meaning of Section 15 of the Act and each other
such holder of securities included in the registration against any and all losses,
claims, damages, liabilities and expenses (or actions in respect thereof), arising out
of or based on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement or prospectus, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or necessary to
make the statement therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Company, such holders, underwriters or
control persons for any legal or any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by such Holder.
Notwithstanding the foregoing, the liability of each Holder under this Section 6(e)
shall be limited to an amount equal to the aggregate proceeds received by such Holder
from the sale of Registrable Securities hereunder, unless such liability arises out of
or is based on willful conduct by such Holder. |
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| (iii) | Each party entitled to indemnification under this Section 6 (the “Indemnified
Party”) shall give notice to the party required to provide indemnification (the
“Indemnifying Party “) promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any such
claims or any litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation, shall
be approved by the Indemnified Party (which approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
Indemnified Party’s expense; provided, however that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party’s ability to defend such action.
Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume
the defense for matters as to which there is, in the opinion of counsel to the
Indemnifying Party, a conflict of interest or separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all liability in
respect of such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection with
the defense of such claim and the litigation resulting therefrom. |
| (f) | Contribution. |
| (i) | If the indemnification provided for in Section 6(e) hereof is unavailable to the
Indemnified Parties in respect of any losses, claims, damages, liabilities or expenses
(or actions in respect thereof) referred to therein, then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one hand and
the Indemnified Party on the other in connection with the statement or omission which
resulted in such losses, claims, damages, liabilities or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue statement
(or alleged untrue statement), of a material fact or the omission (or alleged omission)
to state a material fact relates to information supplied by the Indemnifying Party or
the Indemnified Party and, the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The
Company and each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 6(f) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. |
| (ii) | Notwithstanding anything to the contrary contained herein, the obligation of each
Holder to contribute pursuant to this Section 6(f) is several and not joint and no
selling Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities of such Holder were offered to
the public exceeds the amount of any damages which such selling Holder has otherwise
been required to pay by reason of such untrue statement (or alleged untrue statement) or
omission (or alleged omission). |
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| (iii) | No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. |
| (g) | 1934 Act Registration. The Company covenants and agrees that until such time as there shall
be no Registrable Securities outstanding: |
| (i) | it will, if required by law, maintain an effective registration statement
(containing such information and documents as the SEC shall specify) with respect to the
Common Stock under Section 12(g) of the 1934 Act and will file in a timely manner such
information, documents and reports as the SEC may require or prescribe for companies
whose stock has been registered pursuant to said Section 12(g); |
| (ii) | it will, if a registration statement with respect to the Common Stock under
Section 12(b) or Section 12(g) of the 1934 Act is effective, make whatever filings with
the SEC or otherwise make generally available to the public such financial and other
information as may be necessary in order to enable the Holders to sell shares of Common
Stock pursuant to the provisions of Rule 144 promulgated under the Act, or any successor
rule or regulation thereto or any statue hereafter adopted to replace or to establish
the exemption that is now covered by said Rule 144 (“Rule 144 “); |
| (iii) | it will, if no longer required to file reports pursuant to Section 12(g) of the
1934 Act, upon the request of the Registered Holder, make publicly available the
information specified in subparagraph (c)(2) of Rule 144, and will take such further
action as any Holder may reasonably request, all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration under the
Act within the limitation of the exemptions provided by Rule 144 or any similar rule or
regulation hereafter adopted by the SEC; and |
| (iv) | upon the request of any Holder, it will deliver to such Holder a written
statement as to whether it has complied with the requirements of this Section 12(g). |
The Company represents and warrants that such registration statement or any information,
documents or report filed with the SEC in connection therewith or any information so made
public shall not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements contained
therein not misleading. The Company agrees to indemnify and hold harmless (or to the extent
the same is not enforceable, make contribution to) the Holders, their partners, advisory
committee members, officers, directors and employees acting for any Holder in connection with
any offering or sale by such Holder of Registrable Securities or any person, firm, corporation
controlling (within the meaning of either Section 15 of the Act or Section 20 of the 1934 Act)
such Holder from and against any and all losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arising out of or resulting from any breach of the foregoing
representation or warranty, all on terms and conditions comparable to those set forth in
Section 6.(e); provided, however, that the Company shall be given written notice and an
opportunity to assume on terms and conditions comparable to those set forth in Section 6.(e)
the defense thereof.
7. Entire Agreement. This Agreement pursuant to which this Warrant is issued
contain the entire agreement between the holder hereof and the Company with respect to the
Warrant Shares purchasable upon exercise hereof and the related transactions and supersedes all
prior arrangements or understands with respect
thereto.
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8. Governing Law; Venue. This Warrant will be construed and enforced in accordance
with, and the rights of the parties will be governed by, the laws of the State of Texas, without
regard to principles of conflicts of law.
9. Waiver and Amendment. Any term or provision of this Warrant may be waived at any
time by the party which is entitled to the benefits thereof and any term or provision of this
Warrant may be amended or supplemented at any time by agreement of the holder hereof and the
Company, except that any waiver of any term or condition, or any amendment or supplementation,
of this Warrant shall be in writing. A waiver of any breach or failure to enforce any of the
terms or conditions of this Warrant will not in any way effect, limit or waive a party’s rights
hereunder at any time to enforce strict compliance thereafter with every term or condition of
this Warrant
10. Transfer. This Warrant may be sold or transferred to a third party; provided,
however, that this Warrant and the Warrant Shares may not be offered, sold, pledged or otherwise
transferred, except in compliance with the restrictions set forth on the front page.
11. Illegality. In the event that any one or more of the provisions contained in this
Warrant are determined to be invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in any other respect and the remaining
provisions of this Warrant will not, at the election of the party for whom the benefit of the
provision exists, be in any way impaired.
12. Notice. Any notice or other document required or permitted to be given or
delivered to the holder hereof will be in writing and delivered at, or sent by telecopy or
certified or registered mail to such holder at, the last address shown on the books of the
Company for the registration of this Warrant or at any more recent address of which the holder
hereof has notified the Company in writing. Any notice or other document required or permitted to
be given or delivered to the Company will be delivered at, or sent by telecopy or certified or
registered mail to the principal office of the Company.
13. Limitation of Liability; Not Shareholders. No provision of this Warrant will be
construed as conferring upon the holder hereof the right to vote, consent, receive dividends or
receive notices (other than as herein expressly provided) in respect of meetings of shareholders
for the election of directors of the Company or any other matter whatsoever as a shareholder of
the Company. No provision hereof, in the absence of affirmative action by the holder hereof to
purchase shares of Common Stock, and no mere enumeration herein of the rights or privileges of the
holder hereof, shall give rise to any liability of such holder for the purchase price of any
shares of Common Stock or as a shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
14. Exchange, Loss or Destruction of Warrant. Upon receipt of evidence satisfactory
to the Company of the loss, theft, mutilation or destruction of this Warrant, and in the case of
any such loss, theft or destruction upon delivery of a bond of indemnity or such other security in
such form and amount as is reasonably satisfactory to the Company, or in the event of such
mutilation upon surrender and cancellation of this Warrant, the Company will make and deliver a
new Warrant of like tenor, in lieu of such lost, stolen, destroyed or mutilated Warrant. Any
Warrant issued under the provisions of this Section in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, will constitute an original contractual
obligation on the part of the Company. This
Warrant will be promptly canceled by the Company upon the surrender hereof in connection with any
exchange or replacement. The Company will pay all taxes (other than securities transfer taxes) and
all other expenses and charges payable in connection with the preparation, execution and delivery
of Warrants pursuant to this Section.
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15. Compliance with Securities Act and Applicable Law. Except where a certificate
for Warrant Shares is issued in connection with a distribution of such shares pursuant to a
registration statement under the Securities Act, each certificate for Warrant Shares initially
issued upon the exercise of this Warrant and each certificate for shares of capital stock of the
Company issued to any subsequent transferee of any such certificate will bear the following
legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933 OR ANY OTHER SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
UNDER THE SECURITIES ACT OF 1933 AND ANY OTHER APPLICABLE SECURITIES LAW, OR RECEIPT BY
THE CORPORATION OF AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE CORPORATION
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER SUCH ACT.
16. Headings. The Section and other headings herein are for convenience only and are
not a part of this Warrant and will not affect the interpretation thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized
officer on June , 2011.
| Eagle Ford Oil & Gas Corp |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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