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EXHIBIT 4.6
WARRANT AGREEMENT
BETWEEN
XXXXXX OIL AND GAS COMPANY
AND
DATED AS OF OCTOBER 30, 1992
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WARRANT AGREEMENT dated as of October 30, 1992, between Xxxxxx Oil and
Gas Company, a Delaware corporation (the "Company") and ______________________
("Holder").
WHEREAS, the Company proposes to issue to the Holder as partial
compensation for its agreement to sell the partnership assets of the Xxxxxx Oil
& Gas Drilling Partnership 1989-3 L.P. (the "Partnership") and another for
Xxxxxx Oil & Gas Drilling Program 1990-1 L.P. (the "Partnership") common stock
purchase warrants (the "Warrants") to purchase up to _________ shares (the
"Warrant Shares") of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), each Warrant entitling the holder thereof to purchase one share
of Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein and in the Agreement set forth and for other good and valuable
consideration, the parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue and
deliver the Warrants to Holder, in consideration for, and as part of the
compensation to Holder in connection with the sale of the assets of the
Partnership. The number of Warrants to be issued and delivered shall be
________. No cash consideration will be paid by Holder for the Warrants. The
text of each Warrant, of the purchase form and of each assignment form to be
printed on the reverse thereof shall be substantially as set forth in Exhibit A
attached hereto. The Warrants shall be executed on behalf of the Company by the
manual or facsimile signature of the present or any future Chairman of the
Board, President, Treasurer or Vice President of the Company, under its
corporate seal, affixed or in facsimile, attested by the manual or facsimile
signature of the present or future Secretary or an Assistant Secretary of the
Company. A Warrant bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them shall have ceased to hold
such offices prior to the delivery of such Warrant or did not hold such offices
on the date of this Agreement.
Warrants shall be dated as of the date of execution thereof by the
Company either upon initial issuance or upon division, exchange, substitution or
transfer.
2. REGISTRATION. The Warrants shall be numbered and shall be registered
on the books of the Company (the "Warrant Register") as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant on the
Warrant Register (the
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"Holder") as the owner in fact thereof for all purposes and shall not be bound
to recognize any equitable or other claim to or interest in such Warrant on the
part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with knowledge of such facts that its participation
therein amounts to bad faith. The Warrants shall be registered initially in the
name of Holder in such denominations as Holder may request in writing to the
Company.
3. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Agreement, each Warrant certificate may be exchanged
at the option of the Holder thereof for another certificate or certificates of
different denominations entitling the Holder thereof to purchase upon surrender
to the Company or its duly authorized agent a like aggregate number of Warrant
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Warrant certificate or
certificates shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate or certificates to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate or certificates, as the case may be,
as so requested. Any Warrant issued upon exchange, transfer or partial exercise
of the Warrants shall be the valid obligation of the Company, evidencing the
same generic rights and entitled to the same generic benefits under this
Agreement as the Warrants surrendered for such exchange, transfer or exercise.
4. RESTRICTIONS ON TRANSFER. From the date hereof until October 30,
1994 (the "Restricted Period"), the Warrants and the Warrant Shares may not be
sold, transferred, assigned or hypothecated except by operation of law. The
Warrants shall be transferable only on the Warrant Register upon delivery to the
Company of the Warrant certificate or certificates duly endorsed by the Holder
or by his duly authorized attorney or representative, or accompanied by proper
evidence of succession, assignment or authority to transfer. In all cases of
transfer by an attorney, the original power of attorney, duly approved, or an
official copy thereof, duly certified, shall be deposited with the Company. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Warrant or Warrants to
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the person entitled thereto. Notwithstanding the foregoing and whether or not
during the Restricted Period, the Company shall have no obligation to cause
Warrants to be transferred on its books to any person, unless the Holder of such
Warrants shall furnish to the Company evidence of compliance with the Securities
Act of 1933, as amended (the "Act"), in accordance with the provisions of
Section 11 of this Agreement.
5. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the Holder thereof to purchase one
share of Common Stock subject to adjustment in accordance with Section
9 hereof at any time from 9:00 A.M., Los Angeles time, on October 1,
1993 until 5:00 P.M., Los Angeles time, on October 30, 1997 (the
"Expiration Date") at a purchase price of $10.00 per share.
(b) The Warrant Price and the number of shares issuable upon
exercise of Warrants are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 9 of this
Agreement. Subject to the provisions of this Agreement, each Holder
shall have the right, which may be exercised as expressed in such
Warrants, to purchase from the Company (and the Company shall issue and
sell to such Holder) the number of fully paid and nonassessable shares
of Common Stock specified in such Warrants, upon surrender to the
Company, or its duly authorized agent, of such Warrants, with the
purchase form on the reverse thereof duly filled in and signed, and
upon payment to the Company of the Warrant Price, as adjusted in
accordance with the provisions of Section 9 of this Agreement, for the
number of shares in respect of which such Warrants are then exercised.
Payment of such Warrant Price may be made only in cash, or by certified
or official bank check.
Upon such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and (subject to receipt of
evidence of compliance with the Act in accordance with the provisions of Section
11 of this Agreement) in such name or names as the Holder may designate, a
certificate or certificates for the number of full shares of Common Stock so
purchased upon the exercise of such Warrants, together with cash, as provided in
Section 10 of this Agreement, in respect of any fraction of a share of such
stock otherwise issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become a holder of record of such
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shares as of the date of the surrender of such Warrants and payment of the
Warrant Price as aforesaid; PROVIDED, HOWEVER, that if, at the time of surrender
of the Warrant and payment of such Warrant Price, the transfer books for the
Common Stock or other class of stock purchasable upon the exercise of the
Warrants shall be closed, the certificates for the shares in respect of which
the Warrants are then exercised shall be issuable as of the date on which such
books shall next be opened whether before, on or after the Expiration Date and
until such date the Company shall be under no duty to deliver any certificate
for such shares; PROVIDED, FURTHER, however, that the transfer books shall not
be closed at any one time for a period longer than five days unless otherwise
required by law. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the Holders thereof, either in full or from time
to time in part and, in the event that any Warrant is exercised in respect of
less than all of the shares purchasable on such exercise at any time prior to
the Expiration Date, a new certificate evidencing the remaining Warrant or
Warrants will be issued.
5.1. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that
if any shares of Common Stock required to be reserved for purposes of exercise
or conversion of Warrants require, under any Federal or state law or applicable
governing rule or regulation of any national securities exchange, registration
with or approval of any governmental authority, or listing on any such national
securities exchange, before such shares may be issued upon exercise, the Company
will in good faith and as expeditiously as possible endeavor to cause such
shares to be duly registered, approved or listed on the relevant national
securities exchange, as the case may be, PROVIDED, HOWEVER, that in no event
shall such shares of Common Stock be issued, and the Company is hereby
authorized to suspend the exercise of all Warrants, for the period during which
such registration, approval or listing is required but not in effect.
6. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes,
if any, attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants and any securities issued pursuant to Section 9 hereof; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any Warrants or certificates for Warrant Shares and any securities issued
pursuant to Section 9 hereof in a name other than that of the Holder of such
Warrants.
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7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company may in its discretion issue
and deliver in exchange and substitution for and upon cancellation of the
mutilated Warrant, or in lieu of and in substitution for the Warrant lost,
stolen or destroyed, a new Warrant of like tenor and representing an equivalent
right or interest; but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of such Warrant and indemnity or
bond, if requested, also reasonably satisfactory to the Company. An applicant
for such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company
may prescribe.
8. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF
WARRANTS. There have been reserved out of the authorized and unissued shares of
Common Stock, a number of shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the transfer agent for the
Common Stock ("Transfer Agent") and every subsequent transfer agent for any
shares of the Company's capital stock issuable upon the exercise of any of the
rights of purchase aforesaid are hereby irrevocably authorized and directed at
all times until the Expiration Date to reserve such number of authorized and
unissued shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent and with every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the rights of purchase represented by the Warrants. The Company will
supply the Transfer Agent and any such subsequent transfer agent with duly
executed stock certificates for such purpose and will itself provide or
otherwise make available any cash which may be issuable as provided in Section
10 of this Agreement. The Company will furnish to the Transfer Agent and any
such subsequent transfer agent a copy of all notices of adjustments, and
certificates related thereto, transmitted to each Holder pursuant to Section 9.3
hereof. All Warrants surrendered in the exercise of the rights thereby evidenced
shall be cancelled, and such cancelled Warrants shall constitute sufficient
evidence of the number of shares of stock which have been issued upon the
exercise of such Warrants (subject to adjustment as herein provided). No shares
of stock shall be subject to reservation in respect of the Warrants subsequent
to the Expiration Date except to the extent necessary to comply with the terms
of this Agreement.
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9. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF WARRANT SHARES. The number
and kind of securities purchasable upon the exercise of each Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as hereafter defined.
9.1. MECHANICAL ADJUSTMENTS. The number of Warrant Shares purchasable
upon the exercise of each Warrant and the Warrant Price shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issue by reclassification of its shares of Common
Stock other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving corporation), the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto
shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of
the Company which he would have owned or have been entitled to receive
after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event
or any record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. An adjustment made
pursuant to this paragraph (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if
any, for such event.
(b) In case the Company shall issue rights, options or warrants to
all holders of its outstanding Common Stock, without any charge to such
holders, entitling them (for a period expiring within 60 days after the
record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share which is lower at the record date
mentioned below than the then current market price per share of Common
Stock (as determined in accordance with paragraph (e) below), the
number of Warrant Shares thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying the number of Warrant
Shares theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common
Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options or warrants plus
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the number of shares which the aggregate offering price of the total
number of shares of common stock so offered would purchase at the
current market price per share of Common Stock at such record date.
Such adjustment shall be made whenever such rights, options or warrants
are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such
rights, options or warrants.
(c) In case the Company shall distribute to all holders of its
shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated
earnings or earned surplus and dividends or distributions referred to
in paragraph (a) above or in the paragraph immediately following this
paragraph) or rights, options or warrants, or convertible or
exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock (excluding those referred to in
paragraph (b) above), then in each case the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, of which
the numerator shall be the then current market price per share of
Common Stock (as determined in accordance with paragraph (e) below) on
the date of such distribution, and of which the denominator shall be
the then current market price per share of Common Stock, less the then
fair value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive) of the portion of
the assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the
record date for the determination of stockholders entitled to receive
such distribution.
In the event of distribution by the Company to all holders of
its shares of Common Stock of stock of a subsidiary or securities
convertible into or exercisable for such stock, then in lieu of an
adjustment in the number of Warrant Shares purchasable upon the
exercise of each Warrant, the Holder of each Warrant, upon the exercise
thereof at any time after such distribution, shall be entitled to
receive from the Company,
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such subsidiary or both, as the Company shall determine, the stock or
other securities to which such Holder would have been entitled if such
Holder had exercised such Warrant immediately prior thereto regardless
of whether the Warrants are exercisable at such time, all subject to
further adjustment as provided in this subsection 9.1; PROVIDED,
HOWEVER, that no adjustment in respect of dividends or interest on such
stock or other securities shall be made during the term of a Warrant or
upon the exercise of a Warrant.
(d) In case the Company shall sell and issue shares of Common
Stock (other than pursuant to rights, options, warrants, or convertible
securities initially issued before the date of this Agreement) or
rights, options, warrants or convertible securities containing the
right to subscribe for or purchase shares of Common Stock (excluding
shares, rights, options, warrants or convertible securities issued in
any of the transactions described in paragraphs (a), (b) or (c) above)
at a price per share of Common Stock (determined, in the case of such
rights, options, warrants or convertible securities, by dividing (w)
the total of the amount received or receivable by the Company
(determined as provided below) in consideration of the sale and
issuance of such rights, options, warrants or convertible securities,
by (x) the total number of shares of Common Stock covered by such
rights, options, warrants or convertible securities) lower than the
then current market price per share of Common Stock (as determined in
accordance with paragraph (e) below) in effect immediately prior to
such sale and issuance, then the number of Warrant Shares thereafter
purchasable upon the exercise of the Warrants shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon
exercise by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such
shares, rights, options, warrants or convertible securities plus the
number of additional shares of Common Stock sold or subject to issuance
pursuant to such rights, options, warrants or convertible securities,
and of which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such shares, rights,
options, warrants or convertible securities plus the number of shares
of Common Stock which the aggregate consideration received or
receivable (determined as provided below) for such sale or issuance
would purchase at such current market price per share. Such adjustment
shall be made successively whenever such an issuance is made. For the
purposes of such adjustments, the consideration received or receivable
by the Company for rights, options, warrants or convertible securities
shall be deemed to be the consideration received by the Company for
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such rights, options, warrants or convertible securities, plus the
consideration or premiums stated in such rights, options, warrants or
convertible securities to be paid for the shares of Common Stock
covered thereby. In case the Company shall sell and issue shares of
Common Stock, or rights, options, warrants or convertible securities
containing the right to subscribe for or purchase shares of Common
Stock, for a consideration consisting, in whole or in part, of property
other than cash or its equivalent, then in determining the "price per
share of Common Stock" and the "consideration received or receivable by
the Company" for purposes of the first sentence of this paragraph (d),
the Board of Directors shall determine, in its discretion, the fair
value of said property, and such determination, if made in good faith,
shall be binding upon all Holders.
(e) For the purpose of any computation under paragraphs (b),
(c) and (d) of this Section, the current market price per share of
Common Stock at any date shall be the daily closing price of the
Company's Common Stock, as reported by the American Stock Exchange. The
closing price for such day shall be the last such reported sales price
regular way or, in case no such reported sale takes place on such day,
the average of the closing bid and asked prices regular way for such
day, in each case on the principal national securities exchange on
which the shares of Common Stock are listed or admitted to trading or,
if not listed or admitted to trading, the average of the closing bid
and asked prices of the Common Stock in the over-the-counter market as
reported by NASDAQ or any comparable system. In the absence of one or
more such quotations, the Board of Directors of the Company shall
determine the current market price, in good faith, on the basis of such
quotations as it considers appropriate. Notwithstanding the foregoing,
for the purpose of any calculation under paragraph (d) above (A) with
respect to any issuance of options under the Company's employee or
director compensation stock option plans as in effect or as adopted by
the Board of Directors of the Company on the date hereof, the term
"current market price" in such instances shall mean the fair market
price on the date of the issuance of any such option determined in
accordance with the Company's employee compensation stock option plans
as in effect or as adopted by the Board of Directors of the Company on
the date hereof; (B) with respect to any issuances of Common Stock (or
rights, options, warrants or convertible securities containing the
right to subscribe for or purchase shares of Common Stock) in
connection with bona fide corporate transactions (other than issuances
in such transactions for cash or similar consideration), the term "fair
market price" shall mean the
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fair market price per share as determined in arm's-length negotiations
by the Company and such other parties (other than affiliates or
subsidiaries of the Company) to such transactions as reflected in the
definitive documentation with respect thereto, unless such
determination is not reasonably related to the closing market price on
the date of such determination; and (c) with respect to any issuance of
the Company's common stock for cash or similar consideration in a firm
commitment underwriting, the current fair market price shall be the
price the shares are sold at, regardless of whether such price is
higher or lower than the quoted price on the date of the sale and
therefore no adjustment will be made.
(f) In any case in which this Section 9.1 shall require that
any adjustment in the number of Warrant Shares be made effective as of
immediately after a record date for a specified event, the Company may
elect to defer until the occurrence of the event the issuing to the
Holder of any Warrant exercised after that record date the shares of
Common Stock and other securities of the Company, if any, issuable upon
the exercise of any Warrant over and above the shares of Common Stock
and other securities of the Company, if any, issuable upon the exercise
of any Warrant prior to such adjustment; PROVIDED, HOWEVER, that the
Company shall deliver to the holder a due xxxx or other appropriate
instrument evidencing the holder's right to receive such additional
shares or securities upon the occurrence of the event
requiring such adjustment.
(g) No adjustment in the number of Warrant Shares purchasable
hereunder shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the number of
Warrant Shares purchasable upon the exercise of each Warrant; PROVIDED,
HOWEVER, that any adjustments which by reason of this paragraph (g) are
not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations shall be made to the
nearest one-thousandth of a share.
(h) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted, as herein provided, the Warrant
Price payable upon the exercise of each Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by
a fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of such Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Warrant Shares purchasable immediately thereafter.
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(i) No adjustment in the number of Warrant Shares purchasable
upon the exercise of each Warrant need be made under paragraphs (b),
(c) and (d) if the Company issues or distributes to each Holder of
Warrants the rights, options, warrants, or convertible or exchangeable
securities, or evidences of indebtedness or assets referred to in those
paragraphs which each Holder of Warrants would have been entitled to
receive had the Warrants been exercised prior to the happening of such
event or the record date with respect thereto regardless of whether the
Warrants are exercisable at the time of the happening of such event or
at the time of any record date with respect thereto. No adjustment need
be made for a change in the par value of the Warrant Shares.
(j) For the purpose of this Section 9.1, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an adjustment made
pursuant to paragraph (a) above, the Holders shall become entitled to
purchase any securities of the Company other than shares of Common
Stock, thereafter the number of such other securities so purchasable
upon exercise of each Warrant and the Warrant Price of such securities
shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the Warrant Shares contained in paragraphs (a) through (i),
inclusive, above, and the provisions of Section 5 and Sections 9.2
through 9.5, inclusive, with respect to the Warrant Shares, shall apply
on like terms to any such other securities.
(k) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights and (B) such shares of Common
Stock, if any, were issued or sold for the consideration actually
received by the Company upon such
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exercise plus the aggregate consideration, if any, actually received by
the Company for the issuance, sale or grant of all such rights,
options, warrants or conversion or exchange rights whether or not
exercised; PROVIDED, HOWEVER, that no such readjustment shall have the
effect of increasing the Warrant Price or decreasing the number of
Warrant Shares by an amount in excess of the amount of the adjustment
initially made with respect to the issuance, sale or grant of such
rights, options, warrants or conversion or exchange rights.
9.2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at its
option, at any time during the term of the Warrants, reduce the then current
Warrant Price to any amount determined appropriate by the Board of Directors of
the Company.
9.3. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Warrant Price of such
Warrant Shares is adjusted, as herein provided, the Company shall promptly mail
by first class, postage prepaid, to each Holder notice of such adjustment or
adjustments and a certificate of a firm of independent public accountants
selected by the Board of Directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price of such
Warrant Shares after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which such
adjustment was made. Such certificate, absent manifest error, shall be
conclusive evidence of the correctness of such adjustment.
9.4. NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 9.1, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
9.5. PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION, ETC.
In case of any consolidation of the Company with or merger of the Company into
another corporation or in case of any sale, transfer or lease to another
corporation of all or substantially all the property of the Company, the Company
or such successor or purchasing corporation, as the case may be, shall execute
with each Holder an agreement that each Holder shall have the right thereafter
upon payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and
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property which he would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale, transfer or lease had such
Warrant been exercised immediately prior to such action regardless of whether
the Warrants are exercisable at the time of such action; PROVIDED, HOWEVER, that
no adjustment in respect of dividends, interest or other income on or from such
shares or other securities and property shall be made during the term of a
Warrant or upon the exercise of a Warrant. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 9. The provisions of this Section 9.5
shall similarly apply to successive consolidations, mergers, sales, transfers or
leases.
9.6. STATEMENT ON WARRANTS. Irrespective of any adjustments in the
Warrant Price or the number or kind of shares purchasable upon the exercise of
the Warrants, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
10. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same Holder, the
number of full Warrant Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Warrant Shares
purchasable on exercise of the Warrants so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 10, be issuable
on the exercise of any Warrant (or specified portion thereof), the Company shall
pay an amount in cash equal to the closing price for one share of the Common
Stock, as determined in accordance with paragraph (e) of Section 9.1, on the
trading day immediately preceding the date the Warrant is presented for
exercise, multiplied by such fraction.
11. REGISTRATION UNDER THE SECURITIES ACT OF 1933. Holder represents
and warrants to the Company that Holder will not dispose of any such Warrants or
Warrant Shares except pursuant to (i) an effective registration statement, or
(ii) an applicable exemption from registration under the Securities Act of 1933
(the "Act"). In connection with any sale by Holder pursuant to clause (ii) of
the preceding sentence, Holder shall furnish to the Company an opinion of
counsel reasonably satisfactory to the Company to the effect that such exemption
from registration is available in connection with such sale.
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11a. Registration on Demand
----------------------
(a) One time, upon the written request of the Holder, the Company will
notify all other holders and upon written request the Holder and other persons
who together with Holder own twenty-five percent of the Warrant Stock issued in
connection with the Offering ("Requesting Holders") that the Company effect
registration, qualification or compliance under the Securities Act and state
securities laws of all or part of the Registrable Securities of the Requesting
Holders and specifying the intended method of disposition thereof, the Company
shall (i) promptly thereupon give written notice of the proposed registration to
all other holders of Warrant Stock issued in connection with the Offering and
(ii) effect, as soon as practicable and within 90 days after such request, all
such registrations, qualifications and compliances under the Securities Act and
state securities law of the Registrable Securities which the Company has been so
requested to register by Requesting Holders and any other holder or holders
joining in such registration as specified in a written request received by the
Company within 15 business days after the Company's notice to the extent
requisite to permit the sale and distribution of such securities; provided,
however, that the Company shall not be obligated to effect a registration under
the Securities Act pursuant to this Section 3 before October 1, 1993.
(b) A registration requested pursuant to this Section will not be
deemed to have been effected (i) unless it has become effective and remained
effective for the period of not less than 180 days.
(c) If Requesting Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section and
provide the name of the managing underwriter or underwriters that the majority
in interest of such Requesting Holders would propose to employ in connection
with the public offering proposed to be made pursuant to the registration
requested; provided that if the Company reasonable objects to any managing
underwriter or underwriters proposed by Requesting Holders, the Requesting
Holders shall propose another managing underwriter or underwriters. If the sale
proposed by the Requesting Holders is to be effected pursuant to an underwritten
public offering, the right of Holder to registration pursuant to this Section 3
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the
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Requesting Holders and such Holder) to the extent provided herein. The Company
and the Requesting Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting, and shall
execute powers of attorney and custodial agreements in customary form for
selling same.
12. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be
subject to a stop-transfer order and the certificate or
certificates therefor shall bear the following legend by which each
Holder shall be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES
OF COMMON STOCK OR OTHER SECURITIES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN
EFFECTIVE REGISTRATION STATEMENT, OR (II) AN APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933.
ANY SALE PURSUANT TO CLAUSE (II) OF THE PRECEDING SENTENCE
MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH EXEMPTION
FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE."
The Warrant Shares or other securities issued upon exercise of the
Warrants shall, unless issued pursuant to an effective registration statement,
be subject to a stop-transfer order and the certificate or certificates
evidencing any such Warrant Shares or securities shall bear the following legend
by which the Holder thereof shall be bound:
"THE SHARES OR OTHER SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (I) AN EFFECTIVE
REGISTRATION STATEMENT, OR (II) AN APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933. ANY SALE PURSUANT TO
CLAUSE (II) OF THE PRECEDING SENTENCE MUST BE
ACCOMPANIED BY AN OPINION OF COUNSEL TO THE
EFFECT THAT SUCH EXEMPTION FROM REGISTRATION
IS AVAILABLE IN CONNECTION WITH SUCH SALE."
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13. NO RIGHTS AS STOCKHOLDERS; NOTICE TO HOLDERS. Nothing contained in
this Agreement or in any of the Warrants shall be construed as conferring upon
the Holders or their transferees the right to vote or to receive dividends or to
consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any of
the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities
convertible into or exchangeable for shares of Common Stock or any
right to subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer
or lease or all or substantially all of its property, assets, and
business as an entirety) shall be proposed,
then in any one or more of said events the Company shall (a) give notice in
writing of such event to the Holders as provided in Section 15 hereof and (b) if
there are more than 100 Holders, cause notice of such event to be published once
in The Wall Street Journal (national edition), such giving of notice and
publication to be completed at least 15 days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. Failure to
publish, mail or receive such notice or any defect therein or in the publication
or mailing thereof shall not affect the validity of any action taken in
connection with such dividend, distribution or subscription rights, or such
proposed dissolution, liquidation or winding up.
14. NOTICES. Any notice pursuant to this Agreement to be given or
made by the Holder of any Warrant or Warrant Shares to or
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on the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed as follows:
Xxxxxx Oil and Gas Company
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Notices or demands authorized by this Agreement to be given or made to or on the
Holder of any Warrant or Warrant Shares shall be sufficiently given or made
(except as otherwise provided in this Agreement) if sent by registered mail,
return receipt requested, postage prepaid, addressed to such Holder at the
address of such Holder as shown on the Warrant Register or the Common Stock
Register, as the case may be.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflict of laws.
16. SUPPLEMENTS AND AMENDMENTS. The Company and the Holders may from
time to time supplement or amend this Agreement in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Holder may deem necessary or desirable and which shall not be
inconsistent with the provisions of the Warrants and which shall not adversely
affect the interests of the Holders. Any amendment to this Agreement may be
effected with the consent of Holders of at least 66 2/3% of the Warrants (for
this purpose Warrant Shares shall be deemed to be Warrants in the proportion
that Warrant Shares are then issuable upon the exercise of Warrants); provided
that, any amendment which shall have the effect of materially adversely
affecting the interests of any Holder shall not be effective with respect to
such Holder if such Holder shall not have consented thereto.
17. SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Holders shall bind and inure to the
benefit of their respective successors and assigns hereunder.
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18. MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Agreement
remains in effect, the Company will not merge or consolidate with or into, or
sell, transfer or lease all or substantially all of its property to, any other
corporation unless the successor or purchasing corporation, as the case may be
(if not the Company), shall expressly assume, by supplemental agreement executed
and delivered to the Holders, the due and punctual performance and observance of
each and every covenant and condition of this Agreement to be performed and
observed by the Company.
19. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holders, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holders of the Warrants and Warrant Shares.
20. CAPTIONS. The captions of the sections and subsections of this
Agreement have been inserted for convenience and shall have no substantive
effect.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day, month and year first above written.
XXXXXX OIL AND GAS COMPANY
By:
--------------------------------
Xxxxx X. Xxxxx,
Vice President-Finance
(CORPORATE SEAL)
Attest:
----------------------------
Xxxx X. Xxxxxxx
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EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK OR
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY
SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. UD-1 _________Warrants
VOID AFTER 5:00 P.M. LOS ANGELES
TIME ON APRIL 22, 1997
XXXXXX OIL AND GAS COMPANY
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ______________, the registered
holder hereof or registered assigns (the "Holder"), is the owner of the number
of Warrants set forth above, each of which entitles the owner thereof to
purchase at any time from 9:00 A.M., Los Angeles time, on November 1, 1993,
until 5:00 P.M., Los Angeles time, on April 22, 1997, one fully paid and
nonassessable share of the Common Stock (subject to adjustment), par value $0.01
per share (the "Common Stock"), of Xxxxxx Oil and Gas Company, a Delaware
corporation (the "Company"), at the purchase price of $10.297 per share, subject
to adjustment (the "Warrant Price"). Payment of the Warrant Price may be made in
cash, or by certified or official bank check.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement dated May 15,
1992 (the "Warrant Agreement") between the Company and _______________________
which Warrant Agreement is hereby incorporated herein by reference and made a
part hereof and to which Warrant Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, A-1
21
duties and immunities hereunder of the Company and the Holders of the Warrant
Certificates. The Warrants shall not be sold, transferred, assigned,
hypothecated or otherwise disposed of prior to the close of business on April
22, 1993 except to the extent set forth in the Warrant Agreement. Copies of the
Warrant Agreement are on file at the principal office of the Company.
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant Certificate as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby, or
to the transfer hereof on the books of the Company, any notice to the contrary
notwithstanding, and until such transfer on such books, the Company may treat
the Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the Holder to purchase a like aggregate number of
shares of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled such Holder to purchase. If this
Warrant Certificate shall be exercised in part, the Holder shall be entitled to
receive upon surrender hereof, another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Holder
hereof to any of the rights of a stockholder of the Company.
A-2
22
IN WITNESS WHEREOF, Xxxxxx Oil and Gas Company has caused the signature
(or facsimile signature) of its Vice President and Secretary to be printed
hereon and its corporate seal (or facsimile) to be printed hereon.
XXXXXX OIL AND GAS COMPANY
By:
------------------------------
Xxxxx X. Xxxxx
Vice President-Finance
Attest:
--------------------------------
Xxxx X. Xxxxxxx, Secretary
X-0
00
XXXXXXXX FORM
(To be executed upon exercise of Warrant). To Xxxxxx Oil and
Gas Company:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, shares of Common Stock, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of cash or a
certified or official bank check in the amount of $___________.
Please issue a certificate or certificates for such shares of Common
Stock in the name of, and pay any cash for any fractional share to:
Name
---------------------------------
(Please Print Name, Address and
Social Security No.)
Signature
----------------------------
NOTE: The above signature should
correspond exactly with the name on
the face of this Warrant Certificate
or with the name of assignee appearing
in the assignment form below.
And, if said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder less any fraction of a share paid in cash.
Dated: , 19 Signature
-------------- --- ----------------------------
-------------------------------------
Please Print Name
A-4
24
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate.)
For value received, hereby sells, assigns and transfers
unto the within Warrant Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
, attorney, to transfer said Warrant Certificate on the books of
the within-named Company, with full power of substitution in the premises.
Dated: , 19
--------------- ---
-------------------------------
NOTE: The above signature should
correspond exactly with the name
on the face of this Warrant
Certificate.
A-5
