Exhibit 99.8
TRANCHE B WARRANT
WARRANT TO PURCHASE COMMON STOCK
The Warrant represented by this certificate and the shares of
Common Stock issuable upon the exercise hereof have not been
registered under the Securities Act of 1933, as amended, and may
not be offered, sold, transferred or otherwise disposed of except
in compliance with said Act. This Warrant and such shares are
also subject to the restrictions contained in a Registration
Rights Agreement dated as of July 27, 1995, a copy of which is on
file at the office of the Secretary of the Company.
The exercise of this Warrant is subject to restrictions stated in
Section 3.2 hereof. The transfer of this Warrant is subject to
the restrictions stated in Section 1.2(b) hereof.
The number of shares of Common Stock that may be purchased upon
exercise of this Warrant may be less than the number of Warrants
set forth below, pursuant to Section 7.1 hereof or other
provisions. Reference should be made to the Secretary of the
Company for a confirmation of the number of shares of Common
Stock that can be purchased at any time upon exercise of this
Warrant.
Certificate Number Certificate for
1 11,250,000
Warrants
This certificate is transferable
in Denver, Colorado
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FOREST OIL CORPORATION
Incorporated under the laws of the State of New York
THIS CERTIFIES THAT, for value received, JOINT ENERGY
DEVELOPMENT INVESTMENTS LIMITED PARTNERSHIP, a Delaware limited
partnership, or registered assigns, is entitled to purchase from
Forest Oil Corporation, a New York corporation (the "Company"),
at any time after the date of this Warrant and prior to
5:00 P.M., Denver time, on the Expiration Date, at the purchase
price of $2.00 per share (as such price may be adjusted pursuant
to Section 7, the "Warrant Price") the number of shares of common
stock, $.10 par value per share, together with the associated
rights distributed to the holders of shares of Company common
stock pursuant to the Rights Agreement dated as of October 14,
1993 between the Company and Mellon Securities Trust Corporation,
as Rights Agent, as amended (the "Common Stock"), which is equal
to the number of Warrants set forth above (as such number of
shares may be adjusted pursuant to Section 7, the "Warrant
Shares").
Section 1. Transferability of Warrants.
1.1 The Warrant Register and Registration. The Secretary of
the Company shall keep or cause to be kept at the office of the
Company books for the registration and transfer (the "Warrant
Register") of this Warrant certificate and any other Warrant
certificate issued hereunder (collectively including the initial
Warrant, the "Warrants"). The Warrants shall be numbered and
shall be registered in the Warrant Register as they are issued.
The Company and the Secretary of the Company shall be entitled to
treat a person as the owner in fact for all purposes of each
Warrant registered in such person's name (each registered owner
is herein referred to as a "Holder") 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 of transfer of Warrants that 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 of transfer, or with such knowledge
of such facts that its participation therein amounts to bad
faith.
1.2 Transfer.
(a)The Warrants shall be transferable only on the Warrant
Register upon delivery thereof duly endorsed by the Holder or by
his duly authorized attorney or representative, which endorsement
shall be guaranteed by a bank or trust company located in the
United States of America or by a broker or dealer that is a
member of a registered national securities exchange, 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 and remain with
the Secretary of 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 and remain with the Secretary of
the Company in its discretion. Upon any registration of
transfer, the Company shall deliver a new Warrant or Warrants to
the persons entitled thereto. Subject to Section 1.2(b), the
Warrants shall be freely transferable, provided that the Holder
may transfer the Warrants without registration under the
Securities Act of 1933, as amended, only if the Holder shall
deliver to the Company an opinion of counsel reasonably
satisfactory to the Company that such registration is
unnecessary.
(b) Until the Termination Date (as defined in the
JEDI/Anschutz Option dated as of the date hereof), (the
"JEDI/Purchaser Option Termination Date"), the Warrants shall
remain attached to the Tranche B Loan, as defined in the JEDI
Loan Agreement dated as of December 28, 1993 between the Company
and Joint Energy Development Investments Limited Partnership, a
Delaware limited partnership ("JEDI"), as amended as of July 27,
1995 (the "JEDI Loan Agreement"), and shall not be transferable
except to any transferee of the Tranche B Loan in accordance with
the terms of Section 8.07 of the JEDI Loan Agreement as in effect
on the date hereof.
1.3 Form of Warrant. The Warrants shall be executed on
behalf of the Company by its Chairman of the Board, President or
one of its Vice Presidents and attested to by the Secretary of
the Company or an Assistant Secretary. The signature of any of
such officers on the Warrants may be manual or facsimile.
Section 2. Exchange of Warrant.Each Warrant may be exchanged
at the option of the Holder thereof for another Warrant or
Warrants entitling the Holder thereof to purchase a like
aggregate number of Warrant Shares as the Warrant or Warrants
surrendered then entitle such Holder to purchase. Any Holder
desiring to exchange a Warrant or Warrants shall make such
request in writing delivered to the Secretary of the Company, and
shall surrender, properly endorsed, which endorsement shall be
guaranteed as provided in Section 1.2(a) if the new Warrant or
Warrants are to be issued other than in the name of the Holder,
the Warrant or Warrants to be so exchanged at the office of the
Secretary of the Company. Thereupon, a new Warrant or Warrants,
as the case may be, as so requested, shall be delivered to the
person entitled thereto.
Section 3. Term of Warrants; Exercise of Warrants.
3.1 Term of Warrants. Each Holder shall have the right until
5:00 P.M., Denver time, on the Expiration Date (as defined below)
to purchase from the Company the number of fully paid and
nonassessable Warrant Shares that the Holder may at the time be
entitled to purchase on exercise of such Warrants at the Warrant
Price. "Expiration Date" means the date that is the earliest of
(1) if the Company exercises the Conveyance Option (as defined in
the JEDI Loan Agreement), the date that is the third anniversary
of the Conveyance Date (as defined in the JEDI Loan Agreement),
(2) the date that is thirty (30) days after the receipt by the
Holder of the Early Termination Notice (as defined below), except
that if, within five Business Days (as defined below) after
receipt of the Early Termination Notice, the Holder shall duly
exercise any demand registration right pursuant to the
Registration Rights Agreement dated as of the date hereof between
the Company and JEDI with respect to any Tranche B Warrant
Shares, the Expiration Date shall be the last day of the period
during which the Company shall be required by Section 1(g)(3) of
such Registration Rights Agreement to maintain the effectiveness
of the registration statement covering the sale of such Warrant
Shares, and (3) December 31, 2002. "Business Day" means any day
excluding Saturday, Sunday and any day which is a legal holiday
for commercial banks under the laws of the State of Colorado or
the State of Texas. "Early Termination Notice" means a written
notice to the Holder by the Company advising the Holder of the
expiration of the Warrants thirty (30) days after receipt thereof
and certifying to the Holder that the Average Closing Price (as
defined below) of the Common Stock for both the ninety (90) day
and fifteen (15) day periods immediately preceding the date of
the Early Termination Notice was greater than $2.50 per share (as
adjusted pursuant to Section 7, the "Termination Minimum Price");
provided, however, that the Company may issue an Early
Termination Notice only after July 27, 1998 and only if the
Conveyance Option has not been exercised. "Average Closing
Price" per share of Common Stock for any period shall be the sum
of the daily closing prices divided by the number of trading days
in the period. The closing price for each day shall be the last
reported sales price regular way or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices regular way, in either case on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading, or, if not listed or admitted to trading on
any national securities exchange, on NASDAQ National Market
System or, if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on NASDAQ
National Market System, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors of the
Company for such purpose or if no such prices are available, the
fair market value of the Common Stock as determined by good faith
action of the Board of Directors of the Company. After the
Expiration Date, any previously unexercised Warrants shall be
void, have no value and be of no further effect.
3.2 Exercise of Warrants.
(a) On or before the JEDI/Purchaser Option Termination
Date, the Warrants may be exercised only pursuant to this Section
3.2(a). The Warrants may be exercised, without the surrender
thereof, upon the delivery to the Secretary of the Company of (1)
a duly completed form of Election to Purchase attached hereto
with respect to a number of Warrant Shares specified therein,
signed by Optionee (as defined in the JEDI/Anschutz Option)
pursuant to an irrevocable power of attorney granted by the
Holder in the JEDI/Anschutz Option, and (2) a certificate of the
President or chief financial officer of Optionee to the effect
that (A) Optionee has exercised the JEDI/Anschutz Option with
respect to a number of Tranche B Warrant Shares (as defined in
the JEDI/Anschutz Option) in the aggregate equal to the number of
Warrant Shares specified in the Election to Purchase, (B)
Optionee has delivered to the Holder the Anschutz Notice (as
defined in the JEDI Loan Agreement) and (C) Optionee has paid to
the Holder the aggregate Option Price (as defined in the
JEDI/Anschutz Option) for such number of Tranche B Warrant
Shares. The payment of such aggregate Option Price for such
number of Tranche B Warrant Shares shall constitute payment in
full of the Warrant Price for such number of Warrant Shares.
Subject to Section 8, upon delivery of the Election to Purchase
and the related certificate referred to in clause (2) above and
payment of the Warrant Price as aforesaid, and without regard to
the surrender of any Warrant in connection therewith, the Company
shall issue and cause to be delivered with all reasonable
dispatch to or at the order of Optionee and in the name of
Optionee or at its order, a certificate for the number of full
Warrant Shares so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 8, in respect to any
fractional Warrant Share otherwise issuable upon such surrender.
Such certificate shall be deemed to have been issued to such
transferee and such transferee shall be deemed to have become a
holder of record of such Warrant Shares as of the date of the
payment of the Warrant Price; provided, however, that if, at the
date of payment of such Warrant Price, the transfer books for the
Warrant Shares or other class of stock purchasable upon the
exercise of such Warrant shall be closed, the certificates for
the Warrant Shares in respect of which such Warrant is then
exercised shall be issuable as of the date on which such books
shall next be opened (whether before or after the Expiration
Date) and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Shares; provided,
further, that the transfer books, unless otherwise required by
law, shall not be closed at any one time for a period longer than
20 days. On or before the JEDI/Purchaser Option Termination
Date, the rights of purchase represented by the Warrant shall be
exercisable, at the election of Purchaser, either in full or from
time to time in part. After each such issuance of Warrant Shares
pursuant to this Section 3.2(a), the Company shall notify the
Holder that the number of Warrants evidenced hereby has been
reduced by the number of Warrants so exercised and the Holder
shall deliver this Warrant to the Company in care of the
Secretary of the Company. The Company shall issue and cause to
be delivered with all reasonable dispatch to the Holder a new
Warrant evidencing the remaining Warrants that were evidenced by
the Warrant.
(b) After the JEDI/Purchaser Option Termination Date, the
Warrants may be exercised only pursuant to this Section 3.2(b).
The Warrants may be exercised upon surrender to the Company in
care of the Secretary of the Company, of the Warrant to be
exercised, together with the duly completed and signed form of
Election to Purchase attached hereto, and upon payment to the
Company of the Warrant Price for the number of Warrant Shares in
respect of which such Warrant is then exercised. Payment of the
aggregate Warrant Price in connection with an exercise pursuant
to this Section 3.2(b), shall be made, at the election of the
Holder, (1) by wire transfer of immediately available funds in
accordance with written wire transfer instructions to be provided
by the Company, (2) by cancellation of Indebtedness (as defined
in the JEDI Loan Agreement) which is $1,000 or an integral
multiple thereof, or (3) by a combination of (1) and (2). In
order to pay the Warrant Price pursuant to clause (2) or (3) of
this paragraph, the Holder shall deliver to the Company a
certificate of an officer or other duly authorized representative
of the Holder substantially to the effect that the Holder is
paying the amount of the Warrant Price therein specified by the
cancellation of an equal amount of Indebtedness and that,
effective as of the date of the certificate, an appropriate
notation has been made on the ledger forming a part of the Note
(as defined in JEDI Loan Agreement) reflecting the amount of
Indebtedness cancelled. Subject to Section 8, upon such
surrender of the Warrant and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with
all reasonable dispatch to the Holder and in the name of the
Holder, a certificate for the number of full Warrant Shares so
purchased upon the exercise of such Warrants, together with cash,
as provided in Section 8, in respect of any fractional Warrant
Share otherwise issuable upon such surrender. Such certificate
shall be deemed to have been issued to the Holder and the Holder
shall be deemed to have become a holder of record of such Warrant
Shares as of the date of the surrender of such Warrants and
payment of the Warrant Price; provided, however, that if, at the
date of surrender of such Warrant and payment of such Warrant
Price, the transfer books for the Warrant Shares or other class
of stock purchasable upon the exercise of such Warrant shall be
closed, the certificates for the Warrant Shares in respect of
which such Warrant is then exercised shall be issuable as of the
date on which such books shall next be opened (whether before or
after the Expiration Date) and until such date the Company shall
be under no duty to deliver any certificate for such Warrant
Shares; provided, further that the transfer books, unless
otherwise required by law, shall not be closed at any one time
for a period longer than 20 days. The rights of purchase
represented by the Warrant shall be exercisable, at the election
of the Holder, either in full or from time to time in part. If a
Warrant is exercised in respect of less than all of the Warrant
Shares purchasable on such exercise at any time prior to the
Expiration Date, a new Warrant evidencing the right to purchase
the remaining Warrant Shares will be issued, and the Company
shall deliver the new Warrant to the Holder pursuant to the
provisions of this Section.
Section 4. Payment of Taxes, Legend.
4.1 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 the Warrant; provided,
however, that the Company shall not be required to pay any tax or
taxes that may be payable in respect of any transfer involved in
the issue or delivery of any certificates for Warrant Shares in a
name other than that or the Holder and the Company shall not be
required to issue or deliver such certificates unless of until
the Holder shall have paid to the Company the amount of such tax
or shall have established to the satisfaction of the Company that
such tax has been paid.
4. 2 Legends.
(a)Each certificate for Warrant Shares and any certificate
issued in exchange therefor or on conversion or upon transfer,
except certificates issued in connection with a sale registered
under the Securities Act of 1933, as amended, and except as
provided below, shall bear the legends to the following effect:
1. "The shares represented by this certificate have not
been registered under the Securities Act of 1933 and may not
be offered, sold, transferred or otherwise disposed of
except in compliance with said Act."
2. "The shares represented by this certificate are subject
to restrictions set forth in the Registration Rights
Agreement dated as of July 27, 1995, a copy of which is on
file in the office of the Secretary of the Company."
3. "This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a Rights
Agreement between Forest Oil Corporation and Mellon
Securities Trust Company, dated as of October 14, 1993 (the
"Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on
file at the principal executive offices of Forest Oil
Corporation. Under certain circumstances, as set forth in
the Rights Agreement, those Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. Forest Oil Corporation will mail to the
holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor.
As described in the Rights Agreement, Rights issued to or
acquired by any Acquiring Person (as defined in the Rights
Agreement) shall, under certain circumstances, become null
and void."
(b) The legend stated in Section 4.2(a)(1) shall be removed
by delivery of one or more substitute certificates without such
legend if the holder thereof shall have delivered to the Company
a copy of a letter from the staff of the Securities and Exchange
Commission or an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that the
legend is not required for purposes of the Securities Act of
1933, as amended.
(c) The legend stated in Section 4.2(a)(2) shall be removed
at such time as the Warrant Shares are no longer subject to the
Registration Rights Agreement referenced therein.
Section 5. Mutilated or Missing Warrants. If any Warrant
shall be mutilated, lost, stolen or destroyed, the Company shall
issue and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and
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 it. An applicant for such a substitute Warrant
shall also comply with such other reasonable requirements and pay
such other reasonable charges as the Company may prescribe.
Section 6. Reservation of Warrant Shares; Purchase of
Warrants.
6.1 Reservation of Warrant Shares. There have been reserved,
and the Company shall at all times keep reserved, free from
preemptive rights, out of its authorized capital stock, the
number of shares of Common Stock or other shares of capital stock
sufficient to provide for the exercise of the rights of purchase
represented by the outstanding Warrants. The 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 will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required
for such purpose. The Company will keep a copy of each Warrant
on file with every transfer agent for any shares of the Company's
capital stock issuable upon the exercise of the rights of
purchase represented by the Warrants. Each transfer agent for
the Common Stock is hereby irrevocably authorized to cause to be
issued from time to time the stock certificates required to honor
outstanding Warrants upon exercise thereof in accordance with the
terms hereof. The Company will supply such transfer agent with
duly executed stock certificates for such purpose and will
provide or otherwise make available any cash which may be payable
as provided in Section 8 hereof. All Warrants surrendered in the
exercise of the rights thereby evidenced shall be cancelled by
the Company and retired. Promptly after the Expiration Date, the
Secretary of the Company shall certify to the Company the
aggregate number of Warrants then outstanding, and thereafter no
shares of Common Stock shall be subject to reservation in respect
of such Warrants.
The Company covenants that all shares issued upon
exercise of the Warrants will, upon issuance in accordance with
the terms hereof be fully paid and nonassessable and free from
all taxes, liens, charges and security interests created by the
Company.
6.2 Purchase of Warrants by the Company. The Company
shall have the right, except as limited by law, other agreements
or herein, to purchase or otherwise acquire Warrants at such
times, in such manner and for such consideration as it may
deem appropriate.
6.3 Cancellation of Warrants. If the Company shall
purchaseor otherwise acquire Warrants, the same shall thereupon
be cancelled by the Company and retired. The Company shall cancel
any Warrant surrendered for exchange, substitution, transfer or
exercise in whole or in part.
Section 7. Adjustment of Warrant Price, Number of Warrant
Shares and Termination Minimum Price. The number and kind of
securities purchasable upon the exercise of each Warrant, the
Warrant Price and the Termination Minimum Price shall be subject
to adjustment from time to time upon the happening of certain
events, as hereinafter described.
7.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant, the Warrant Price
payable in connection therewith and the Termination Minimum Price
shall be subject to adjustment from time to time as follows:
(a) If the Company shall at any time pay a dividend on its
Common Stock (including, if applicable, shares of such stock held
by the Company in treasury) in shares of its Common Stock,
subdivide its outstanding shares of Common Stock into a larger
number of shares or combine its outstanding shares of Common
Stock into a smaller number of shares, the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that this Warrant shall thereafter
be exercisable for the number of Warrant Shares equal to the
number of shares of Common Stock which the Holder would have held
after the happening of any of the events described above had this
Warrant been exercised in full immediately prior to the happening
of such event. An adjustment made pursuant to this paragraph (a)
shall become effective retroactively to the record date in the
case of a dividend and shall become effective on the effective
date in the case of a subdivision or combination.
(b) If the Company shall issue rights or warrants to all
holders of shares of Common Stock for the purpose of entitling
them (for a period not exceeding forty-five (45) days from the
date of issuance) to subscribe for or purchase shares of Common
Stock at a price per share (taking into account any consideration
received by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined in good
faith by the Board of Directors) less than the average market
price per share (determined as provided below) of the Common
Stock on the declaration date for such issuance, then in each
such case, the number of Warrant Shares thereafter issuable upon
exercise of this Warrant after such record date shall be
determined by multiplying the number of Warrant Shares issuable
upon exercise of this Warrant on the date immediately preceding
such declaration date by a fraction, the numerator of which shall
be the sum of the number of shares of Common Stock outstanding on
such declaration date and the number of additional shares of
Common Stock so offered for subscription or purchase in
connection with such rights or warrants, and the denominator of
which shall be the sum of the number of shares of Common Stock
outstanding on such declaration date and the number of shares of
Common Stock which the aggregate offering price of the total
number of shares so offered would purchase at such average market
price; provided, however, if all the shares of Common Stock
offered for subscription or purchase are not delivered upon the
exercise of such rights or warrants, upon the exercise of such
rights or warrants the number of Warrant Shares issuable upon
exercise of this Warrant shall thereafter be readjusted to the
number of Warrant Shares which would have been in effect had the
numerator and the denominator of the foregoing fraction and the
resulting adjustment been made based upon the number of shares of
Common Stock actually delivered upon the exercise of such rights
or warrants rather than upon the number of shares of Common Stock
offered for subscription or purchase. Such adjustment shall be
made whenever any such rights or warrants are issued, and shall
become effective on the date of issuance retroactive to the
record date for determination of shareholders entitled to receive
such rights or warrants. For the purposes of this paragraph (b),
the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company.
(c) If the Company shall distribute to all the holders of
Common Stock (i) any rights or warrants to subscribe for or
purchase any security of the Company (other than those referred
to in paragraph (b) above) or any evidence of indebtedness or
other securities of the Company (other than Common Stock), or
(ii) assets (other than cash) having a fair market value (as
determined in a resolution adopted by the Board of Directors of
the Company, which shall be conclusive evidence of such fair
market value) in an amount during any 12-month period equal to
more than 10% of the market capitalization (as defined below) of
the Company, then in each such case the number of Warrant Shares
issuable upon exercise of this Warrant shall be, after the record
date for determination of the shareholders entitled to receive
such distribution, determined by multiplying the number of
Warrant Shares issuable upon exercise of this Warrant on the day
immediately preceding the date of declaration or authorization by
the Board of Directors of the Company of such distribution by a
fraction, the numerator of which shall be the average market
price per share (determined as provided in paragraph (e) below)
of the Common Stock on such declaration date, and the denominator
of which shall be such average market price per share less the
then fair market value (as determined by the Board of Directors
of the Company as provided above) of the portion of the assets,
rights, warrants, evidences of indebtedness or other securities
so distributed applicable to one share of Common Stock. Such
adjustment shall become effective retroactively immediately after
the declaration date. The term "market capitalization" shall
mean an amount determined by multiplying the number of shares of
Common Stock outstanding on such declaration date by the average
market price per share (determined as provided in paragraph (e)
below) of the Common Stock on such declaration date.
(d) In case of any capital reorganization or any
reclassification (other than a change in par value) of the
capital stock of the Company, or of any exchange or conversion of
the Common Stock for or into securities of another corporation,
or in case of the consolidation or merger of the Company with or
into any other person (other than a merger which does not result
in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or in case of any sale or
conveyance of all or substantially all of the assets of the
Company, the person formed by such consolidation or resulting
from such capital reorganization, reclassification or merger or
which acquires such assets, as the case may be, shall make
provision such that this Warrant shall thereafter be exercisable
for the kind and amount of shares of stock, other securities,
cash and other property receivable upon such capital
reorganization, reclassification of capital stock, consolidation,
merger, sale or conveyance, as the case may be, by a holder of
the shares of Common Stock equal to the number of Warrant Shares
issuable upon exercise of this Warrant immediately prior to the
effective date of such capital reorganization, reclassification
of capital stock, consolidation, merger, sale or conveyance,
assuming (i) such holder of Common Stock of the Company is not a
person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such
sale or transfer was made as the case may be ("constituent
entity"), or an affiliate of a constituent entity, and (ii) such
person failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property
receivable upon such capital reorganization, reclassification of
capital stock, consolidation, merger, sale or conveyance and, in
any case appropriate adjustment (as determined by the Board of
Directors) shall be made in the application of the provisions
herein set forth with respect to rights and interests thereafter
of the Holder, to the end that the provisions set forth herein
(including the specified changes in and other adjustments of the
number of Warrant Shares issuable upon exercise of this Warrant)
shall thereafter be applicable, as near as reasonably may be, in
relating to any shares of stock or other securities or other
property thereafter deliverable upon exercise of this Warrant.
(e) For the purpose of any computation under this Section 7,
the average market price per share of Common Stock on any date
shall be the average of the daily closing prices for the fifteen
(15) consecutive trading days commencing twenty (20) trading days
before the date of declaration or authorization by the Board of
Directors of the Company of such issuance or distribution. The
closing price for each day shall be the last reported sales price
regular way or, in case no such sale takes place on such day, the
average of the closing bid and asked prices regular way, in
either case on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if
not listed or admitted to trading on any national securities
exchange, on NASDAQ National Market System or, if the Common
Stock is not listed or admitted to trading on any national
securities exchange or quoted on NASDAQ National Market System,
the average of the closing bid and asked prices as furnished by
any New York Stock Exchange member firm selected from time to
time by the Board of Directors of the Company for such purpose or
if no such prices are available, the fair market value of the
Common Stock as determined by good faith action of the Board of
Directors of the Company.
(f) All calculations under this Section 7 shall be made to
the nearest one-thousandth of a share of Common Stock.
(g) Whenever the number of Warrant Shares purchasable upon
the exercise of this Warrant is adjusted as provided in
paragraphs (a) through (f), inclusive, above, the Warrant Price
payable upon exercise of this Warrant and the Termination Minimum
Price shall be adjusted by multiplying each of such Warrant Price
and the Termination Minimum Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the
number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment, and the denominator
of which shall be the number of Warrant Shares so purchasable
immediately thereafter.
(h) In case of any consolidation or merger of the Company
with or into another entity (whether or not the Company is the
surviving entity) or in case of any sale, transfer or lease of
all or substantially all of the assets of the Company, the
Company or such successor or purchasing entity, as the case may
be, shall execute with the Holder an agreement that the Holder
shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon
exercise of this Warrant the kind and amount of shares and other
securities, cash and property that the Holder would have owned or
would have been entitled to receive after the happening of such
consolidation, merger, sale, transfer, lease or conveyance had
this Warrant been exercised in full immediately prior to such
action, and if the successor or purchasing entity is not a
corporation, such person shall provide appropriate tax
indemnification with respect to such shares or other securities
and property so that upon exercise of this Warrant, the Holder
would have the same benefits it otherwise would have had if such
successor or purchasing person were a corporation. Such
agreement shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for
in Sections 7(a) through 7(h), inclusive. The provisions of this
Section 7(h) shall similarly apply to successive consolidations,
mergers, sales or conveyances.
(i) For the purpose of this Section 7, 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 Warrant or (ii)
any other class of stock resulting from successive changes or
reclassification 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) through (d)
above, the Holder shall become entitled to receive any shares of
the Company other than shares of Common Stock, thereafter the
number of such other shares so receivable upon exercise of this
Warrant, the Warrant Price and the Termination Minimum Price
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 (h), inclusive, above, and the provisions of Sections
7.2, 7.3, 7.4 and 7.5, inclusive, with respect to the Warrant
Shares, shall apply on like terms to any such other shares.
(j) Upon the expiration of any rights, options, warrants or
exercise or exchange privileges, if any thereof shall not have
been exercised, the Warrant Price and the Termination Minimum
Price 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 (1) 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,
exchange privileges or exercise rights and (2) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the
consideration, if any, actually received by the Company for the
issuance, sale or grant of all of such rights, options, warrants
or exercise rights whether or not exercised; provided that no
such readjustment shall have the effect of increasing the Warrant
Price or the Termination Minimum Price or decreasing the number
of Warrant Shares purchasable upon the exercise of this Warrant
by an amount in excess of the amount of the adjustment initially
made in respect to the issuance, sale or grant of such rights,
options, warrants or exercise rights.
7.2 Time of Adjustments. Each adjustment required by
Section 7 shall be effective as and when the event requiring
such adjustment occurs.
7.3 Notice of Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant, the Warrant
Price or the Termination Minimum Price is adjusted as herein
provided, the Company shall promptly mail by first class mail,
postage prepaid, the Holder 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, the Warrant Price
and the Termination Minimum Price after such adjustment, setting
forth a brief statement of the facts requiring such adjustment
and setting forth the computation by which such adjustment was
made. Such certificate shall be conclusive evidence of the
correctness of such adjustment.
7.4 No Adjustment for Dividends. Except as provided in
Section 7.1, no adjustment in respect of any dividends shall be
made during the term of a Warrant or upon the exercise of a
Warrant.
7.5 Statement on Warrants. Irrespective of any adjustments
in the Warrant Price, the Termination Minimum Price or the number
or kind of shares purchasable upon the exercise of Warrants,
Warrants theretofore or thereafter issued may continue to express
the same prices and number and kind of shares as are stated in
the initial Warrant.
Section 8. Fractional Interests. The Company shall not be
required to issue fractional Warrant Shares on the exercise of
Warrants. If any fraction of a Warrant Share would be issuable
on the exercise of Warrants (or specified portion thereof), the
Company shall, in lieu of issuance of such fraction of a Warrant
Share, calculate and pay an amount in cash equal to the closing
price per Warrant Share on the trading day immediately preceding
the date of exercise of the Warrant multiplied by such fraction.
The closing price shall be the last reported sales price regular
way or, in case no such sale takes place on such day, the average
of the closing bid and asked prices regular way, in either case
on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, on
NASDAQ National Market System or, if the Common Stock is not
listed or admitted to trading on any national securities exchange
or quoted on NASDAQ National Market System, the average of the
closing bid and asked prices as furnished by any New York Stock
Exchange member firm selected from time to time by the Board of
Directors of the Company for such purpose or if no such prices
are available, the fair market value of the Common Stock as
determined by good faith action of the Board of Directors of the
Company.
Section 9. No Rights as Shareholder; Notices to Holders.
Nothing contained in this Warrant or in any of the Warrants shall
be construed as conferring upon the Holder the right to vote or
to receive dividends or to consent or to receive notice as
shareholders in respect of any meeting of shareholders for the
election of directors of the Company or any other matter, or any
rights whatsoever as shareholders 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 (or any other
distribution) on Common Stock, other than a cash dividend or
shall declare or authorize repurchase of in excess of 10% of the
then outstanding shares of Common Stock; or
(b) the Company shall authorize the granting to all holders
of Common Stock of rights or warrants to subscribe for or
purchase any shares of stock of any class or any other rights or
warrants; or
(c) The Company shall propose any capital reorganization,
recapitalization, subdivision or reclassification of Common Stock
(other than a subdivision or combination of the outstanding
Common Stock or Stock, or a change in par value, or from par
value to no par value or from no par value to par value), or any
consolidation or merger to which the Company is a party for which
approval of any shareholders of the Company shall be required, or
the sale, transfer or lease of all or substantially all of the
assets of the Company; or
(d) the voluntary or involuntary dissolution, liquidation or
winding up of the Company (other than in connection with a
consolidation, merger, or sale of 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 give
notice in writing of such event to the Holder 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 shareholders
entitled to such dividend, distribution, or subscription rights,
or for the determination of shareholders entitled to vote on such
proposed consolidation, merger, sale, transfer or lease of
assets, dissolution, liquidation or winding up.
Section 10. Notices. All notices, requests and other
communications with respect to the Warrants shall be in writing.
Communications may be made by telecopy or similar writing. Each
communication shall be given to the Holder, in care of Enron
Capital Corp., at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxx (telecopy number: (000) 000-0000), with a
copy to Enron Capital & Trade Resources Corp., 0000 00xx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, attention: Xxxxxxxx Xxxxxx
(Telecopy No.: (000) 000-0000) and to the Company at 1500
Colorado National Building, 000-00xx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 (telecopy number: (000) 000-0000), or at any other address
as the party may specify for this purpose by notice to the other
party. Each communication shall be effective (1) if given by
telecopy, when the telecopy is transmitted to the proper address
and the receipt of the transmission is confirmed, (2) if given by
mail, 72 hours after the communication is deposited in the mails
properly addressed with first class postage prepaid or (3) if
given by any other means, when delivered to the proper address
and a written acknowledgement of delivery is received.
Section 11. No Waivers; Remedies; Specific Performance.
(a) Prior to the Expiration Date,no failure or delay by any
party in exercising any right, power or privilege with respect to
the Warrants shall operate as a waiver of the right, power or
privilege. A single or partial exercise of any right, power or
privilege shall not preclude any other or further exercise of the
right, power or privilege or the exercise of any other right,
power or privilege. The rights and remedies provided in the
Warrants shall be cumulative and not exclusive of any rights or
remedies provided by law.
(b) In view of the uniqueness of the Warrants, the Holder
would not have an adequate remedy at law for money damages in the
event that any of the obligations arising under the Warrants is
not performed in accordance with its terms, and the Company
therefore agrees that the Holder shall be entitled to specific
enforcement of the terms of the Warrants in addition to any other
remedy to which they may be entitled, at law or in equity.
Section 12. Amendments, Etc. No amendment, modification,
termination, or waiver of any provision of a Warrant, and no
consent to any departure from any provision of the Warrant, shall
be effective unless it shall be in writing and signed and
delivered by the Company, the Holder and, until the JEDI/Purchase
Option Termination Date, the Purchaser, and then it shall be
effective only in the specific instance and for the specific
purpose for which it is given. The rights of the Holder and the
terms and provisions of this Warrant including, without
limitation, the performance of the obligations of the Company
hereunder, shall not be affected in any manner whatsoever by the
terms and provisions of any other agreement, whether entered into
prior to or after the date of this Warrant, including, without
limitation, the Second Amendment to the JEDI Loan Agreement or of
any instruments, notes or other agreements entered into pursuant
thereto, or the performance of, or failure to perform, the
obligations of any party thereunder.
Section 13. Governing Law. The Warrants shall be governed by
and construed in accordance with the internal laws of the State
of New York. All rights and obligations of the Company shall be
in addition to and not in limitation of those provided by
applicable law.
Section 14. Severability of Provisions. Any provision of the
Warrants that is prohibited or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
the prohibition or unenforceability without invalidating the
remaining provisions of the Warrants or affecting the validity or
enforceability of the provision in any other jurisdiction.
Section 15. Headings and References.Headings in the Warrants
are included for the convenience of reference only and do not
constitute a part of the Warrants for any other purpose.
References to parties and sections in the Warrant are references
to the parties or the sections of the Warrant, as the case may
be, unless the context shall require otherwise.
Section 16. Non-Exclusive Jurisdiction. Each of the Company
and the Holder, by acceptance hereof, (1) agrees that any legal
action with respect to the Warrant may be brought in the courts
of the State of New York or of the United States of America for
the Southern District of New York, (2) each of the Company and
the Holder, by acceptance hereof, accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of those courts and (3) irrevocably waives any
objection, including, without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens,
which it may now or hereafter have to the bringing of any legal
action in those jurisdictions.
Section 17.Waiver of Jury Trial. Each of the Company and the
Holder, by acceptance hereof, waives any right to a trial by jury
in any legal action to enforce or defend any right under the
Warrants or any amendment, instrument, document or agreement
delivered, or which in the future may be delivered, in connection
with the Warrants and agrees that any legal action shall be tried
before a court and not before a jury.
Section 18. Merger or Consolidation of the Company. The
Company will not merge or consolidate with or into any other
corporation unless the corporation resulting from such merger or
consolidation (if not the Company) shall expressly assume, by
supplemental agreement, the due and punctual performance and
observance of each and every covenant and condition of this
Warrant to be performed and observed by the Company.
---------------------------------------------------
THIS WARRANT is executed by the Company on the date set
forth below in New York, New York.
Dated: July 27, 1995 FOREST OIL CORPORATION
Attest: By:
----------------- ----------------------
Name: Name:
Title: Title:
S-1
----------------------------------------------------
FOREST OIL CORPORATION
Election to Purchase
Mail Address
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The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for and to
purchase thereunder, shares of the stock provided for herein, and
requests that certificates for such shares be issued in the name
of
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(Please Print Name, Address and Social Security No.)
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and, if said number of shares shall not be all the shares
purchasable thereunder, that a new Warrant Certificate for the
balance remaining of the shares purchasable under the within
Warrant Certificate be registered in the name of the undersigned
holder of this Warrant or his Assignee as below indicated and
delivered to the address stated below.
Date:_____________ ,______.
Name of holder of this Warrant or Assignee:
--------------------
(Please Print)
Address:
--------------------------------
--------------------------------
Signature:
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Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in every
particular without alteration or enlargement or any change
whatever unless this Warrant has been assigned.
Signature Guaranteed:
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