Exhibit 4.10
THIS WARRANT HAS NOT BEEN, NOR WILL IT BE, REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), NOR HAS IT BEEN APPROVED BY THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES REGULATORY AUTHORITY OF ANY
STATE. THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH WARRANT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS.
NO. 1 (FUNBNC) Restated
WARRANT
to Purchase up to an Aggregate of 100,000
Shares of Common Stock of
HarCor Energy, Inc.
(100,000 shares at $4.75 per share)
VOID AFTER 3:00 p.m. (prevailing New York time)
ON December 31, 1999
This is to certify that, for value received, First Union National Bank of
North Carolina (together with its permitted assigns, "Holder") is entitled to
purchase, subject to the provisions of this Warrant, from HarCor Energy, Inc.
(the "Corporation"), at any time on or after the date hereof for a period ending
December 31, 1999, an aggregate of up to one hundred thousand (100,000) fully
paid and nonassessable shares of common stock, par value $.10 per share (the
"Common Stock"), of the Corporation at a price of $4.75 per share, as adjusted
from time to time pursuant to the terms hereof (the "Exercise Price").
This Warrant is restated and reissued upon the surrender of the initial
Warrant No. 1 (FUNBNC) dated June 30, 1994, for the purchase of 200,000 shares
of the Corporation's Common Stock at $4.75 per share issued to First Union
National Bank of North Carolina and upon the exercise
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in part thereof pursuant to that certain Warrant Exercise Agreement dated
February 12, 1996 between the Holder, First Union Corporation and the
Corporation wherein Amendment No. 1 to the said Warrant authorized the cashless
partial exercise of the Warrant by the Holder's surrender for cancellation of
its rights to purchase 100,000 shares of Common Stock in exchange for 25,000
shares of Common Stock. Pursuant thereto this restated Warrant evidences such
partial exercise of the Warrant and the reduction of the Holder's right to
purchase 200,000 shares of Common Stock to the right to purchase 100,000 shares
of Common Stock, the balance of the shares purchasable hereunder.
1. EXERCISE OF WARRANT. Subject to the provisions hereof, this Warrant
may be exercised in whole or in part (in multiples of at 1,000 shares), at any
time or from time to time on after the date hereof for a period ending December
31, 1999. This Warrant shall be exercised by presentation and surrender hereof
to the Corporation at the principal office of the Corporation, for the account
of the Corporation, accompanied by (i) a written notice of exercise and (ii)
payment to the Corporation, for the account of the Corporation, of the Exercise
Price for the number of shares of Common Stock specified in such notice. The
Exercise Price for the number of shares of Common Stock specified in the notice
shall be payable in immediately available funds.
As soon as practicable after such presentation and surrender, but in no
event later than five (5) business days following such date, the Corporation
shall issue and deliver to the Holder the shares of Common Stock, to which the
Holder is entitled hereunder. Unless at the time of such exercise there is in
existence an effective registration statement under the Securities Act of 1933,
as amended, concerning the shares of common stock issuable upon exercise of this
Warrant, the certificates representing the shares purchased pursuant to the
exercise of this Warrant shall be legended substantially as follows:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended ( the "Act")
or under any state securities laws, and are " restricted securities"
as that term is defined in Rule 144 under the Act. The securities may
not be offered for sale, sold or otherwise transferred without an
effective registration statement for such securities under the Act
and applicable state securities laws, or an opinion of counsel
satisfactory to the Corporation that registration is not required
under such Act and applicable state securities laws."
This Warrant may be exercised in part, provided that the shares of the
Corporation's common stock to be purchased upon any such partial exercise must
be for at least 1,000 shares for any multiple thereof. If this Warrant should
be exercised in part, then the Corporation shall, upon surrender of this Warrant
for cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder to purchase the balance of the shares of Common Stock purchasable
hereunder. Upon receipt by the Corporation of this Warrant, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Corporation shall then be closed or that certificates
representing such shares of
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Common Stock shall not then be actually delivered to the Holder. The
Corporation shall pay any and all expenses, transfer taxes and other charges
payable in connection with the preparation, issuance and delivery of stock
certificates pursuant to this Paragraph 1 in the name of the Holder. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of shares of
Common Stock in a name other than that in which this Warrant is registered, and
no such issuance or delivery shall be made unless and until the person
requesting such issuance has paid to the Corporation the amount of any such tax,
or has established, to the satisfaction of the Corporation, that such tax has
been paid.
No fractional shares of Common Stock shall be issued in connection with the
exercise of this Warrant, but the Corporation shall pay a cash adjustment in
respect of any fraction of a share which would otherwise be issuable in an
amount equal to such fraction multiplied by the highest market price per share
of Common Stock on the day of exercise, as determined by the highest sale price,
regular way, or, if there shall have been no sale on such day, the average of
the highest reported bid and lowest reported asked price, in each case as
officially reported on the principal securities exchange on which the Common
Stock is listed or admitted to trading, or if not listed or admitted to trading
on any securities exchange, the average of the highest reported bid and lowest
reported asked price as furnished by the National Quotation Bureau Incorporated;
provided, however, that if the Common Stock is not traded in such manner that
the quotations referred to herein are available, the market price shall be
deemed to be the fair market value of such Common Stock as determined by the
Board of Directors of the Corporation in good faith.
2. RESERVATION OF SHARES; PRESERVATION OF RIGHTS OF HOLDER. (a) The
Corporation hereby agrees that at all time it will maintain and reserve, free
from preemptive rights, such number of authorized but unissued shares of Common
Stock so that this Warrant may be exercised without additional authorization of
Common Stock after giving effect to all other options, warrants, convertible
securities and other rights to acquire shares of Common Stock. The Corporation
further agrees that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
the Corporation.
(b) All shares of Common Stock delivered upon the exercise of the Warrant
shall be validly issued, fully paid and nonassessable;
(c) The Corporation shall list the Common Stock issuable upon the exercise
of the Warrant on any securities exchange upon which any securities of the
Corporation are then listed, if the listing of such securities is then permitted
under the rules of such exchange.
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3. EXCHANGE OR LOSS OF WARRANT. This Warrant is exchangeable, upon
presentation and surrender hereof at the principal office of the Corporation,
only in connection with a partial exercise hereof. The Corporation shall be
under no obligation to issue replacement warrants for the aggregate number of
shares covered hereby except as described herein. The term "Warrant" as used
herein includes any Warrant or Warrants for which this Warrant may be exchanged.
Upon receipt by the Corporation of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in case of loss,
theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Corporation will
execute and deliver a new Warrant of like tenor and date.
4. RESTRICTED TRANSFERABILITY. This Warrant may not be transferred other
than pursuant to a valid exemption from (based upon an opinion of counsel
satisfactory to the Corporation), or registration statement under, the Act and
applicable state securities laws.
5. ADJUSTMENT. The number of shares of Common Stock purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
from time to time as provided in this paragraph 5.
A. (1) If, during the term of this Warrant, the Corporation shall pay
or make make a dividend or other distribution on any class of
capital stock of the Corporation in Common Stock, other than any
such dividend in connection with any preferred stock of the
Corporation which has or may be issued, then the number of shares
of Common Stock purchasable upon exercise of this Warrant shall be
increased by multiplying such number of shares by a fraction, of
which the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the day immediately
preceding the date of such distribution and the numerator shall be
the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such increase to
become effective immediately after the opening of business on the
date following such distribution.
(2) If, during the term of this Warrant, the outstanding shares of
Common Stock shall be subdivided into a greater number of shares of Common
Stock, then the number of shares of Common Stock purchasable upon exercise of
this Warrant at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased and,
conversely, if outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, then the number of shares of Common
Stock purchasable upon exercise of this Warrant at the opening of business on
the day following the day upon which such combination becomes effective shall be
proportionately decreased, such increase or decrease, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
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(3) The reclassification of Common Stock into securities (other than Common
Stock) and/or cash and/or other combination shall be deemed to involve a
subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into the
number or amount of securities and/or cash and/or other consideration
outstanding immediately thereafter and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or the "the day upon which such combination becomes
effective", as the case may be, within the meaning of clause (2) above.
(4) The Corporation may in its sole discretion make such increases in the
number of shares of Common Stock purchasable upon exercise of this Warrant in
addition to those required by this subparagraph (A), as shall be determined by
its Board of Directors to be advisable in order to avoid taxation so far a
practicable if any dividend of stock or stock rights or any event treated as
such for federal increase tax purposes to the recipients.
B. Whenever the number of shares of Common Stock purchasable upon exercise
of this Warrant is adjusted as herein provided, the Exercise Price shall be
adjusted by a fraction, of which the numerator is equal to the number of shares
of Common Stock purchasable prior to the adjustment and the denominator is equal
to the number of shares of Common Stock purchasable after the adjustment.
C. If any consolidation or merger of the Corporation with another entity
or the sale of all or substantially all if its assets to another entity, shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such consolidation, merger or sale, lawful and
adequate provisions shall be made whereby the Holder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of the Common Stock of the
Corporation immediately theretofore purchasable and receivable upon the exercise
of the rights set forth herein, such shares of stock, securities or assets as
may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore purchasable and receivable upon the exercise of
the rights set forth herein had such consolidation, merger or sale not taken
place, and in any such case, appropriate provisions shall be made with respect
to the rights and interests of the Holder to the end that the provisions hereof
(including without limitation provisions for adjustments of the exercise price
and of the number of shares purchasable and receivable upon the exercise of the
Warrant) shall thereafter be applicable, as nearly as may be, in relation to any
shares of stock, securities or assets thereafter deliverable upon the exercise
hereof. If a purchase, tender or exchange offer is made to and accepted by the
holders of more than 50% of the outstanding shares of Common Stock of the
Corporation, the Corporation shall not effect any consolidation, merger or sale
with the person having made such offer or with any affiliate of such person,
unless prior to the consummation
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of such consolidation, merger or sale the Holder shall have been given a
reasonable opportunity to the elect to receive upon the exercise of the Warrant
either the stock, securities or assets then issuable with respect to the Common
Stock of the Corporation or the stock, securities or assets, or the equivalent
issued to previous holders of the Common Stock in accordance with such offer.
D. In the event of (i) any taking by the Corporation of a record of the
holders of any class of 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 assets, or to receive any other right, (ii) any
reorganization of the Corporation, or any reclassification or recapitalization
of the capital stock of the Corporation, or any transfer of all or substantially
all of the assets of the Corporation to, or consolidation or merger of the
Corporation with any other person or (iii) any voluntary or involuntary
dissolution or liquidation of the Corporation then and in each such event the
Corporation will mail or cause to be mailed to the Holder a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the amount and character of such dividend,
distribution or right, 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 shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding- up. Such notice
shall be mailed at least 20 days prior to the proposed record at therein
specified.
For the purpose of this Paragraph 5, the term "Common Stock" shall include
any shares of the Corporation of any class or series which has no preference or
priority in the payment of dividends or in the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and which is not subject to redemption to the Corporation.
6A. OPTIONAL REDEMPTIONS OF THE WARRANTS.
(a) Subject to the rights of holders of Warrants to exercise such Warrants
pursuant to provisions of the Warrants, the Warrants shall be subject to
redemption at the Corporation's option, in whole or in part (in multiples of
Warrants representing 100 shares of Common Stock), at any time on or after the
third anniversary the Closing Date if, for at least 30 days within a period of
40 connective trading days ending no more than 10 days prior to the date of
notice of redemption, the closing sale price of the Corporation's Common Stock
as reported on NASDAQ, the American Stock Exchange, or the New York Stock
Exchange, as appropriate, has been equal to or in excess of 200% of the Exercise
Price (as defined in the Warrant) in effect on the date such notice of
redemption is given.
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(b) The redemption price for the Warrants shall be payable immediately upon
redemption, by certified bank or cashier's checks, and shall be $1.00
multiplied by the number of shares of Common Stock issuable upon exercise
of the Warrants so redeemed.
6B. NOTICE OF REDEMPTIONS. The Corporation shall give each holder of
Warrants written notice of each redemption pursuant to Paragraph 6A not less
than 60 days prior to the redemption date, specifying such redemption date, the
number of Warrants to be redeemed on such date, that such redemption is to be
made pursuant to Paragraph 6A. Each such notice shall be accompanied by an
Officer's Certificate stating that all of the applicable conditions set forth in
Paragraph 6A have been fulfilled. Notice of redemption having been given as
aforesaid, the redemption amount due in respect of the Warrants specified in
such notice and as calculated in Paragraph 6A(b), shall become due and payable
on such redemption date unless the holder of such Warrants shall have prior
exercised such Warrants pursuant to the terms thereof, unless the filing by the
Corporation of a registration statement under the Securities Act relating to the
Common Stock obtainable upon exercise of the Warrants shall have been requested
by a holder thereof (either before or after receipt of such notice) pursuant to
a registration rights agreement between the Corporation and such holder, in
which case the redemption shall be effected 60 days after the declaration of
effectiveness of such registration statement by the Commission or unless the
holder of such Warrant is restricted (otherwise than pursuant to the Act or
applicable state securities laws) under such other agreement to which the
Corporation is a party from sale or distribution of the Common Stock, in which
case the redemption shall be effected 60 days after the lapse or termination of
the restriction. Should the Warrants not be redeemed on such redemption date
due to the Corporation's failure to perform its obligations under this Paragraph
6B, any subsequent redemption may be effected only after compliance with the
provisions of this Paragraph 6 from and after such redemption date.
7. NOTICE. Whenever the number of shares of Common Stock for which this
Warrant is exercisable is adjusted as provided in paragraph 5 hereof, the
Corporation shall promptly compute such adjustment and mail to the Holder a
certificate, signed by the chief financial officer of the Corporation, setting
forth the number of shares of Common Stock for which this Warrant is exercisable
and the exercise price as a result of such adjustment, a brief statement of the
facts requiring such adjustment, the computation thereof and when such
adjustment will become effective.
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8. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Corporation.
9. TERMINATION. This Warrant and the rights conferred hereby shall
terminate at the aforementioned time on December 31, 1999.
10. GOVERNING LAW. This Warrant shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware without regard to conflict of
laws principles.
11. REMEDIES. The Corporation stipulates that the remedies at law of the
Holder in the even of any default or threatened default by the Corporation 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 thereof or
otherwise.
DATED: May 1, 1996.
ATTEST: HARCOR ENERGY, INC.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxx, Secretary Xxxx X. Xxxxxxxxxx
President and Chief Executive Officer
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