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EXHIBIT 4.5
XXXXXXXXX ENERGY, INC.
Form of Warrant Agreement
[for warrants sold attached to equity securities](1)
THIS WARRANT AGREEMENT is dated as of _________________, between
Xxxxxxxxx Energy, Inc., a Delaware corporation (hereinafter called "Xxxxxxxxx",
which term includes any successor corporation), and ___________, as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, Xxxxxxxxx proposes to sell [title of Equity Securities being
offered] (the "Offered Securities") with warrant certificates evidencing one or
more warrants (the "Warrants" or, individually, a "Warrant") representing the
right to purchase [title of Equity Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, Xxxxxxxxx desires the Warrant Agent to act on behalf of
Xxxxxxxxx in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance of Warrants and Execution and
Delivery of Warrant Certificates
Section 1.1. Issuance of Warrants. Warrants shall be initially issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after __________ (the "Detachable Date")] [and
shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
Warrant Securities. Warrant Certificates shall be initially issued in units with
the Offering Securities and each Warrant Certificate included in such a unit
shall evidence _____ Warrants for Offered Securities included in such unit.
Section 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered(2) form
substantially in the form set forth in Exhibit A hereto, shall be dated the date
of its issuance and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of Xxxxxxxxx executing the same
may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of Xxxxxxxxx by its Chief Executive Officer, its President,
or one of its Vice Presidents,
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(1) Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants and Warrant Securities.
(2) If Warrants are issued in bearer form, appropriate revisions will be made to
this Agreement to facilitate such issuance.
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under its corporate seal and attested by its Secretary or one of its Assistant
Secretaries. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of Xxxxxxxxx may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by Xxxxxxxxx shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of Xxxxxxxxx who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of Xxxxxxxxx; and any Warrant
Certificate may be signed on behalf of Xxxxxxxxx by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of Xxxxxxxxx, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that
purpose. [If Offered Securities with Warrants which are not immediately
detachable - or upon the register of the Offered Securities prior to the
Detachable Date. Xxxxxxxxx will or will cause the registrar of the Offered
Securities to make available at all times to the Warrant Agent such information
as to holders of the Offered Securities with Warrants as may be necessary to
keep the Warrant Agent's records up to date.]
Section 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase Warrant Securities (except as provided in
Sections 2.3(c), 3.2 and 4.1) may be executed by Xxxxxxxxx and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of Xxxxxxxxx, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to ____________ Warrant
Securities and shall deliver such Warrant Certificates to or upon the order of
Xxxxxxxxx. Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates or in connection with their transfer, as
hereinafter provided or as provided in Section 2.3(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.1. Warrant Price. [On ___________, the] [The original]
exercise price of each Warrant is [$]____. [During the period from
_____________, through and including _____________, the exercise price of each
Warrant will be [$]___________. On _______________, the exercise price of each
Warrant will be [$]________.] [if applicable, insert relevant amounts in
applicable foreign currency, currency unit or composite currency] Such purchase
price of Warrant Securities is referred to in this Agreement as the "Warrant
Price." The Warrant Price and the number and kind of Warrant Securities for
which a Warrant may be exercised is subject to adjustment from time to time as
set forth in Article V hereof.
Section 2.2. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[_____________] and at or before 5 p.m. New York time
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on ______________ (the "Expiration Date"). Each Warrant not exercised at or
before 5 p.m. New York time on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
Section 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole number of
Warrants may be exercised by providing certain information set forth on
the reverse side of the Warrant Certificate and by paying in full, [in
lawful money of the United States of America] [if applicable -- insert
relevant foreign currency, currency unit or composite currency] [in cash
or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer], in immediately available funds,
the Warrant Price for each Warrant exercised, to the Warrant Agent at
its corporate trust office [or at ________], provided that such exercise
is subject to receipt, within three business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate with the
form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of Xxxxxxxxx maintained with
it and shall advise Xxxxxxxxx by telephone at the end of each day on
which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent
shall promptly confirm such telephone advice to Xxxxxxxxx in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise Xxxxxxxxx of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant
Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iv) such other information
as Xxxxxxxxx shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
Xxxxxxxxx shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled in fully registered form, registered in such
name or names as may be directed by such holder. Such certificate or
certificates evidencing the Warrant Securities shall be deemed to have
been issued and any persons who are designated to be named therein shall
be deemed to have become the holder of record of such Warrant Securities
as of the close of business on the exercise date. No fractional Warrant
Securities will be issued upon exercise of any Warrant. For each
fractional Warrant Security that would otherwise be issued, Xxxxxxxxx
will pay by company check in an amount equal to such fraction multiplied
by the closing sales price of the Warrant Securities on the principal
national securities exchange on which they are listed (or if not so
listed, another equivalent means reasonably determined by Xxxxxxxxx) on
the business day immediately preceding the exercise date. If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised,
Xxxxxxxxx shall execute, and an authorized officer of the Warrant Agent
shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) Xxxxxxxxx shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities; and in the
event that any such transfer is involved, Xxxxxxxxx shall not be
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required to issue or deliver any Warrant Security until such tax or
other charge shall have been paid or it has been established to
Xxxxxxxxx'x satisfaction that no such tax or other charge is due.
ARTICLE III
Other Provisions Relating to Rights of
Holders of Warrant Certificates
Section 3.1. No Rights as Stockholder Conferred by Warrants or Warrant
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle
the holder thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive dividends, vote, receive
notice of any meeting of stockholders or otherwise have any right as a
stockholder of Xxxxxxxxx.
Section 3.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to Xxxxxxxxx or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, Xxxxxxxxx shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing
a like number of Warrants. Upon the issuance of any new Warrant Certificate
under this Section, Xxxxxxxxx may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Warrant
Agent) in connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of
Xxxxxxxxx, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of mutilated, lost, stolen
or destroyed Warrant Certificates.
Section 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may in his own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against Xxxxxxxxx suitable to enforce or otherwise in
respect of, his right to exercise the Warrants evidenced by his Warrant
Certificate in the manner provided in his Warrant Certificate and in this
Agreement.
ARTICLE IV
Exchange and Transfer of Warrant Certificates
Section 4.1. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable - Upon] [If Offered
Securities with Warrants which are not immediately detachable - Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Securities to which the Warrant Certificate was
initially attached and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Securities. Prior to the Detachable
Date, each transfer of the Offered Securities [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date, upon] surrender at the corporate trust office of the
Warrant Agent [or at ________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations
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evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at __________]
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or at ____________] for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to Xxxxxxxxx and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant
Certificates but Xxxxxxxxx may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of transfer
an authorized officer of the Warrant Agent shall manually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by Xxxxxxxxx, as so requested.
The Warrant Agent shall not be required to effect any exchange or registration
of transfer which will result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant. All Warrant Certificates issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations of Xxxxxxxxx,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such exchange or
registration of transfer.
Section 4.2. Treatment of Holders of Warrant Certificates. [If Warrants
which are not immediately detachable - Every holder of a Warrant Certificate, by
accepting the same, consents and agrees with Xxxxxxxxx, the Warrant Agent and
with every subsequent holder of such Warrant Certificate that until the transfer
of the Warrant Certificate is registered on the books of the Warrant Agent [or
the registrar of the Offered Securities prior to the Detachable Date], Xxxxxxxxx
and the Warrant Agent [or the registrar of the Offered Securities prior to the
Detachable Date] may treat the registered holder as the absolute owner thereof
for any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.]
Section 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to Xxxxxxxxx, be delivered
to the Warrant Agent and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to Xxxxxxxxx from time to time or otherwise dispose
of cancelled Warrant Certificates in a manner satisfactory to Xxxxxxxxx.
ARTICLE V
Adjustments
Section 5.1. Adjustment of Warrant Price and Number of Warrant
Securities Purchasable.
(a) In case at any time Xxxxxxxxx shall issue and sell for cash any
Warrant Securities (excluding (i) Warrant Securities issued in any of
the transactions described in paragraphs (b), (c) or (d) below and (ii)
Warrant Securities issued upon exercise of Warrants) at a price per
Share lower than [___%] below the Market Price determined as of the date
immediately preceding the date of such sale and issuance, the Warrant
Price in effect at the close of business on the date immediately
preceding the date of such sale and issuance shall be reduced by
multiplying such Warrant Price by a fraction, (i) the numerator of which
shall be the sum of (x) the number of Warrant Securities outstanding at
the close of business on the date immediately preceding the
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date of such sale and issuance plus (y) the number of Warrant Securities
which the aggregate amount of cash received or receivable for such sale
and issuance would purchase at such current Market Price per Warrant
Security, and (ii) the denominator of which shall be the total number of
Warrant Securities outstanding immediately after such sale and issuance.
Such adjustment shall be made successively whenever such an issuance is
made.
(b) In case Xxxxxxxxx shall pay or make a dividend or other
distribution on any class of stock of Xxxxxxxxx in Warrant Securities or
securities convertible into or exchangeable for Warrant Securities (such
convertible or exchangeable stock or securities being hereinafter called
"Convertible Securities"), other than Convertible Securities which
require payments of cash to be made by the holder thereof in connection
with any conversion into or exchange for Warrant Securities, the Warrant
Price in effect at the close of business on the day fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Warrant Price by a
fraction of which the numerator shall be the number of Warrant
Securities outstanding at the close of business on the date immediately
preceding the date fixed for such determination and the denominator
shall be the sum of such number of Warrant Securities and the total
number of Warrant Securities constituting such dividend or other
distribution or the maximum number of Warrant Securities issuable upon
conversion or exchange of all Convertible Securities constituting such
dividend or other distribution.
(c) In case at any time Xxxxxxxxx shall xxxxx (whether directly or
otherwise) any rights (other than the Warrants and "poison pill" rights
distributed pursuant to a stockholders' rights plan) to subscribe for or
to purchase, or any options for the purchase of, Warrant Securities or
Convertible Securities, whether or not such rights or options or the
right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per Warrant Security for which
Warrant Securities are issuable upon the exercise of such rights or
options or upon conversion or exchange of such Convertible Securities
(determined by dividing (x) the total amount, if any, received or
receivable by Xxxxxxxxx as consideration for the granting of such rights
or options, plus the minimum aggregate amount of additional
consideration payable to Xxxxxxxxx upon the exercise of all such rights
or options, or, in the case of such rights or options which relate to
Convertible Securities, the total amount, if any, received or receivable
by Xxxxxxxxx as consideration for the granting of such rights or
options, plus the minimum aggregate amount of additional consideration,
if any, payable upon the issuance or sale of such Convertible Securities
and upon the conversion or exchange thereof, by (y) the total maximum
number of Warrant Securities issuable upon the exercise of such rights
or options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such rights or options) shall
be less than the Market Price, determined as of the date immediately
preceding the date of granting such rights or options, the Warrant Price
in effect at the close of business on the date immediately preceding the
date of granting such rights or options shall be adjusted by multiplying
such Warrant Price by a fraction, (i) the numerator of which shall be
the sum of (x) the number of Warrant Securities outstanding at the close
of business on the date immediately preceding the date of granting such
rights or options plus (y) the quotient obtained by dividing the product
of the price per Warrant Security, determined as set forth above, and
the maximum number of Warrant Securities issuable upon the exercise of
such rights or options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such rights or
options by the Market Price and (ii) the denominator of which shall be
the sum of the number of Warrant Securities outstanding at the close of
business on the date immediately preceding the date of granting such
rights or options and the maximum number of Warrant Securities issuable
upon the exercise of such rights or options or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise
of such rights or options. Except as provided in this
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subparagraph (c), no further adjustments of the Warrant Price shall be
made upon the issuance of such Warrant Securities or of such Convertible
Securities upon exercise of such rights or options or upon the actual
issuance of such Warrant Securities upon conversion or exchange of such
Convertible Securities.
(d) In case Xxxxxxxxx shall issue (whether directly or by assumption
in a merger or otherwise) or sell any Convertible Securities, whether or
not the rights to exchange or convert thereunder are immediately
exercisable, and the price per Warrant Security for which Warrant
Securities are issuable upon such conversion or exchange (determined by
dividing (x) the total amount received or receivable by Xxxxxxxxx as
consideration for the issue or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any,
payable to Xxxxxxxxx upon the conversion or exchange thereof, by (y) the
total maximum number of Warrant Securities issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
Market Price, determined as of the date immediately preceding the date
of such issuance or sale of such Convertible Securities, then the
Warrant Price in effect at the close of business on the date immediately
preceding the date of issuance or sale of such Convertible Securities
shall be adjusted by multiplying such Warrant Price by a fraction, (i)
the numerator of which shall be the sum of (x) the number of Warrant
Securities outstanding at the close of business on the date immediately
preceding the date of issuance or sale of such Convertible Securities
plus (y) the quotient obtained by dividing the product of the price per
Warrant Security, determined as set forth above, and the maximum number
of Warrant Securities issuable upon conversion or exchange of all such
Convertible Securities by the Market Price and (ii) the denominator of
which shall be the sum of the number of Warrant Securities outstanding
at the close of business on the date immediately preceding the date of
issuance or sale of such Convertible Securities and such maximum number
of Warrant Securities issuable upon conversion or exchange, provided
that (1) except as provided in subparagraph (e), no further adjustments
of the Warrant Price shall be made upon the actual issuance of such
Warrant Securities upon conversion or exchange of such Convertible
Securities, and (2) if any such issuance or sale of such Convertible
Securities is made upon exercise of any rights to subscribe for or to
purchase or any option to purchase any such Convertible Securities for
which adjustments of the Warrant Price have been or are to be made
pursuant to subparagraph (c) or the other provisions of this
subparagraph (d), no further adjustments of the Warrant Price shall be
made by reason of such issuance or sale.
(e) If (x) the purchase price provided for in any rights or options
referred to in subparagraph (c), or (y) the additional consideration, if
any, payable upon the conversion or exchange of any Convertible
Securities referred to in subparagraphs (c) and/or (d), or (z) the rate
at which any Convertible Securities referred to in subparagraphs (c)
and/or (d) are convertible into or exchangeable for Warrant Securities
shall change (other than under or by reason of provisions contained in
the instruments governing such rights, options or Convertible Securities
that are designed to protect against dilution), the Warrant Price in
effect at the close of business on the date of such event shall
forthwith be adjusted to the Warrant Price which would have been in
effect at such time had such rights, options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. On the expiration of any such option
or right or the termination of any such right to convert or exchange
such Convertible Securities, the Warrant Price in effect at the close of
business on the date of expiration or termination shall be readjusted to
the Warrant Price which would have been in effect at such time had such
right, option or Convertible Securities, to the extent outstanding
immediately prior to the date of such expiration or termination, never
been granted, issued or sold.
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(f) In case Xxxxxxxxx shall, by dividend or otherwise, declare a
dividend or other distribution on its Warrant Securities payable in
evidences of its indebtedness or assets (including securities, but
excluding (i) any rights or options referred to in subparagraph (c) of
this Section, (ii) any dividend or distribution paid in cash out of
consolidated retained earnings or consolidated earned surplus,
determined in accordance with generally accepted accounting principles,
including the making of appropriate deductions for minority interests,
if any, in subsidiaries, and (iii) any dividend or distribution
otherwise paid in Warrant Securities or Convertible Securities), the
Warrant Price in effect at the close of business on the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be adjusted so that the same shall equal the
price determined by multiplying the Warrant Price in effect at the close
of business on the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution by a fraction of
which the numerator shall be the current Market Price per Warrant
Security on the date fixed for such determination less the then fair
market value (as determined by the board of directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Warrant Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share and of which the
denominator shall be such current Market Price per share.
(g) In case Xxxxxxxxx shall at any time subdivide its outstanding
Warrant Securities into a greater number of Warrant Securities, the
Warrant Price in effect immediately prior to such subdivision shall be
proportionately reduced, and conversely, in case the outstanding Warrant
Securities shall be combined into a smaller number of Warrant
Securities, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately upon the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(h) In case of any consolidation of Xxxxxxxxx with, or merger of
Xxxxxxxxx into, any other corporation or other entity, or in case of any
merger of another corporation or other entity into Xxxxxxxxx (other than
a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding Warrant Securities), or in case
of any sale or transfer of all or substantially all of the assets of
Xxxxxxxxx, or in the case of a capital reorganization or
recapitalization of the capital stock of Xxxxxxxxx in such a way that
holders of Warrant Securities shall be able to receive securities, cash
or assets with respect to or in exchange for such Warrant Securities
from the corporation or other entity formed by such consolidation or
resulting from such merger or which acquires such assets, as the case
may be, or from Xxxxxxxxx, in the case of a capital reorganization or
recapitalization not involving a consolidation, merger or sale or
transfer of all or substantially all of the assets of Xxxxxxxxx, such
corporation or other entity or Xxxxxxxxx, as the case may be, and the
Warrant Agent shall execute and deliver an amendment to this Agreement
providing that the holder of each Warrant then outstanding shall have
the right thereafter, during the period such Warrant shall be
exercisable, to exercise such Warrant only for the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, sale, transfer, capital reorganization or recapitalization by a
holder of the number of Warrant Securities for which such Warrant might
have been exercised on the date immediately prior to such consolidation,
merger, sale, transfer, capital reorganization or recapitalization,
assuming such holder of Warrant Securities failed to exercise his rights
of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale,
transfer, capital reorganization or recapitalization (provided that if
the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale, transfer, capital reorganization
or recapitalization is not the same for each Warrant Security in respect
of which such rights of election shall not have been exercised (the
"Non-electing Warrant Securities"), then, for the purpose of this
subparagraph (h), the kind and amount of securities,
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cash and other property receivable upon such consolidation, merger,
sale, transfer, capital reorganization or recapitalization by each Non-
electing Warrant Security shall be deemed to be the kind and amount so
receivable per Warrant Security by a plurality of the Non-electing
Warrant Securities).
Such amendment shall provide for adjustments which, for events
subsequent to the effective date of such amendment, shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Article V. The above provisions of this paragraph shall similarly
apply to successive consolidations, mergers, sales, transfers, capital
reorganizations or recapitalization.
Xxxxxxxxx shall not effect any such consolidation, merger,
sale or transfer, unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than
Xxxxxxxxx) resulting from such consolidation or merger or the
corporation purchasing or otherwise acquiring such assets or other
appropriate corporation or entity shall assume, by written instrument
executed and delivered to the Warrant Agent, the obligation to deliver
to the holder of each Warrant such shares of stock, securities, cash or
assets as, in accordance with the foregoing provisions, such holders
may be entitled to receive and the other obligations under this
Agreement.
(i) In case an adjustment in the Warrant Price shall be required by
Section 5.1 (a), (b), (c), (d) and/or (f) above, the required adjustment
shall become effective at the opening of business on (i) the Business
Day immediately following the date fixed for the determination of
shareholders of Xxxxxxxxx entitled to receive such dividend or
distribution, in the case of any adjustment pursuant to Section 12(b) or
(f), or (ii) the Business Day immediately following the date of such
sale and issuance or the date of such grating of such rights or options,
as the case may be, in the case of an adjustment pursuant to section 5.1
(a), (c) or (d).
(j) For the purposes of this Article V the number of Warrant
Securities outstanding at any given time shall not include Warrant
Securities owned or held by or for the account of Xxxxxxxxx or of any of
its wholly or majority owned subsidiaries.
(k) Upon each adjustment of the Warrant Price pursuant to this
Section 5.1, each Warrant outstanding at the time of and immediately
prior to such adjustment shall give the holder thereof the right to
purchase, at the Warrant Price resulting from such adjustment, the
number of Warrant Securities obtained by multiplying the Warrant Price
in effect immediately prior to such adjustment by the number of Warrant
Securities issuable upon exercise of such Warrant immediately prior to
such adjustment and dividing the product thereof by the Warrant Price
resulting from such adjustment.
(l) No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least one percent
in such Warrant Price; provided, however, that any one or more such
adjustments which, by reason of this subparagraph (l) is not required to
be made shall be carried forward on a cumulative basis and fully taken
into account in any subsequent adjustment. All calculations under this
Section 5.1 shall be made to the nearest cent or to the nearest 1/100 of
a Warranty Security, as the case may be. The provisions of this Section
12(l) shall also apply to readjustments provided for in subparagraph
(e).
(m) Xxxxxxxxx shall be obligated to issue any additional Warrant
Securities which become issuable upon exercise of Warrants as a result
of any event described in this Section 5.1
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which requires an adjustment in the Warrant Price and the number of
Warrant Securities issuable upon exercise of the Warrants.
(n) For purposes of this Section 5.1, "Market Price" means the
average of the closing prices per Warrant Security on the American Stock
Exchange or the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ"), as the case may be (or, if there
is no such closing price, the mean between the bid and asked prices
reported on NASDAQ, or on any other national securities exchange or
over-the-counter market on which such quotations are regularly
available, as the case may be), on each of the ten trading days
immediately preceding the date as of which the determination of Market
Price is to be made. If at any time the Warrant Securities are not
listed on any national securities exchange or quoted in the
over-the-counter market, the Market Price shall be deemed to be the fair
value thereof determined in good faith by an independent brokerage firm
or Standard & Poor's Corp. as of a date which is within 15 days of the
date as of which the determination of Market Price is to be made.
(o) If Xxxxxxxxx shall take any action affecting the Warrant
Securities, other than action described in this Section 5.1, which in
the opinion of the Board of Directors of Xxxxxxxxx would materially
adversely affect the exercise rights of the holders of the Warrants, the
Warrant Price for the Warrants may be adjusted, to the extent permitted
by law, in such manner, if any, and at such time, as such Board of
Directors may determine in good faith to be equitable in the
circumstances. Failure of the Board of Directors of Xxxxxxxxx to provide
for any such adjustment prior to the effective date of any such action
by Xxxxxxxxx affecting the Warrant Securities shall be evidence that the
Board of Directors of Xxxxxxxxx has determined that it is equitable to
make no adjustments in the circumstances.
Section 5.2. Voluntary Adjustment by Xxxxxxxxx. Xxxxxxxxx may at its
option, at any time during the term of the Warrants, reduce the then current
Warrant Price to any amount deemed appropriate by the Board of Directors of
Xxxxxxxxx; provided, that, if Xxxxxxxxx elects so to reduce the then current
Warrant Price, such reduction shall remain in effect for at least 20 Business
Days, after which time Xxxxxxxxx may, at its option, reinstate the Warrant Price
in effect prior to such reduction.
Section 5.3. Notice of Adjustment. Whenever the Warrant Price is
adjusted as herein provided, the Chief Financial Officer of Xxxxxxxxx shall
compute the adjusted Warrant Price in accordance with the foregoing provisions
and shall prepare a certificate setting forth such adjusted Warrant Price and
showing in reasonable detail the facts upon which such adjustment is based. A
copy of such certificate shall be filed promptly with the Warrant Agent.
Promptly after delivery of such certificate, Xxxxxxxxx shall prepare a notice of
such adjustment of the Warrant Price setting forth the adjusted Warrant Price
and the date on which such adjustment becomes effective and shall mail, or cause
the Warrant Agent to mail at Xxxxxxxxx'x expense, such notice of such adjustment
of the Warrant Price to each holder of a Warrant at his last address as shown on
the Warrant Register.
Section 5.4. No Adjustment for Dividends. Except as provided in Section
5.1 hereof, no adjustment in respect of any dividends or other payments or
distributions made to holders of securities issuable upon exercise of Warrants
shall be made during the term of a Warrant or upon the exercise of a Warrant.
Section 5.5. Statement on Warrants Certificate. Irrespective of any
adjustments in the number or kind of securities purchasable upon the exercise of
the Warrants or the Warrant Securities, any Warrant Certificate theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrant Certificate initially issuable pursuant to
this Agreement.
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Section 5.6. Warrant Agent's Adjustment Disclaimer. The Warrant Agent
has no duty to determine when an adjustment under this Article V should be made,
how it should be made or what it should be. The Warrant Agent shall not be
accountable for and makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent shall
not be responsible for Xxxxxxxxx'x failure to comply with this Article V.
ARTICLE VI
Concerning the Warrant Agent
Section 6.1. Warrant Agent. Xxxxxxxxx hereby appoints __________, as
Warrant Agent of Xxxxxxxxx in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
_________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of Xxxxxxxxx as Xxxxxxxxx may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 6.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which Xxxxxxxxx agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Xxxxxxxxx agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with Xxxxxxxxx for all services rendered
by the Warrant Agent and to reimburse the Warrant Agent for reasonable
out-of-pocket expenses (including counsel fees) incurred by the Warrant
Agent in connection with the services rendered hereunder by the Warrant
Agent. Xxxxxxxxx also agrees to indemnify the Warrant Agent for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any
claim of such liability.
(b) In acting under this Warrant Agreement and in connection with
the Warrant Certificates, the Warrant Agent is acting solely as agent of
Xxxxxxxxx and does not assume any obligation or relationship of agency
or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it,
and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such
counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it
in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) The Warrant Agent, and its officers, directors and employees,
may become the owner of, or acquire any interest in, Warrants, with the
same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they
may engage or be interested in any financial or other transaction with
Xxxxxxxxx and may act on,
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or as depositary, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of Xxxxxxxxx as freely as if
it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of
this Agreement or of the Warrant Certificates.
(g) The Warrant Agent shall have no liability with respect to any
invalidity of this Agreement or any of the Warrant Certificates.
(h) The Warrant Agent shall not be responsible for any of the
recitals or representations herein or in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon), all of
which are made solely by Xxxxxxxxx.
(i) The Warrant Agent shall be obligated to perform only such duties
as are herein and in the Warrant Certificates specifically set forth and
no implied duties or obligations shall be read into this Agreement or
the Warrant Certificates against the Warrant Agent. The Warrant Agent
shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to
it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by Xxxxxxxxx of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
Xxxxxxxxx pursuant to this Agreement or for the application by Xxxxxxxxx
of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by Xxxxxxxxx in
the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.2,
to make any demand upon Xxxxxxxxx.
(j) The Warrant Agent is hereby authorized to obtain from time to
time from the present transfer agent for the Warrant Securities (the
"Transfer Agent"), and any successor Transfer Agent, stock certificates
required to honor outstanding Warrants. Xxxxxxxxx hereby authorizes its
present and any successor Transfer Agent to comply with all such
requests. Xxxxxxxxx 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 2.3
hereof, and the Warrant Agent shall not be responsible for any delay or
failure by such Transfer Agent in supplying such stock certificates.
Section 6.3. Resignation and Appointment of Successor.
(a) Xxxxxxxxx agrees, for the benefit of the holders of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder
until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to Xxxxxxxxx of such intention on its part, specifying
the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the
date on which such notice is given unless Xxxxxxxxx otherwise agrees.
The Warrant Agent hereunder may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of Xxxxxxxxx
and specifying such removal and the date when it shall
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become effective. Such resignation or removal shall take effect upon the
appointment by Xxxxxxxxx, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under
the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of Xxxxxxxxx under Section 6.3(a) shall
continue to the extent set forth therein notwithstanding the resignation
or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under the
Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy law or similar
law or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any substantial
part of its property, or shall admit in writing its inability to pay or
meet its debts as they mature, or if a receiver or custodian of it or of
all or any substantial part of its property shall be appointed, or if an
order of any court shall be entered for relief against it under the
provisions of the Federal Bankruptcy Code, as now constituted or
hereafter amended, or under any other applicable Federal or State
bankruptcy or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by
Xxxxxxxxx, by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the
Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to Xxxxxxxxx an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor,
upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party,
or any corporation to which the Warrant Agent shall sell or otherwise
transfer all or substantially all the assets and business of the Warrant
Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
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ARTICLE VII
Miscellaneous
Section 7.1. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
Xxxxxxxxx and the Warrant Agent may deem necessary or desirable; provided, that
such action shall not materially and adversely affect the interests of the
holders of the Warrant Certificates and, provided further, that Xxxxxxxxx and
the Warrant Agent may amend this Agreement in any manner prior to the issuance
of any Warrants hereunder. With the consent of the holders of not less than a
majority in number of the then outstanding unexercised Warrants affected,
Xxxxxxxxx and the Warrant Agent may modify or amend any other term of this
Agreement; provided, however, that no such modification or amendment may be made
without the consent of the holders affected thereby if such proposed amendment
would (i) shorten the period of time during which the Warrants may be exercised;
(ii) otherwise materially and adversely affect the exercise rights of the
holders of the Warrants; or (iii) reduce the number of outstanding Warrants.
Section 7.2. Notices and Demands to Xxxxxxxxx and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to Xxxxxxxxx by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
Xxxxxxxxx.
Section 7.3. Addresses. Any communication from Xxxxxxxxx to the Warrant
Agent with respect to this Agreement shall be addressed to ____________, and any
communication from the Warrant Agent to Xxxxxxxxx with respect to this Agreement
shall be addressed to Xxxxxxxxx Energy, Inc., Xxxxxxxxx Energy, Inc., 0000
Xxxxxx Xxxxxxx, X.X. Xxx 0000, Xxxxxx, Xxxxx 00000, Attention: _______________
(or such other address as shall be specified in writing by the Warrant Agent or
by Xxxxxxxxx).
Section 7.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by and
construed in accordance with, the laws of the State of [New York], without
giving effect to the conflict of laws principles thereof.
Section 7.5. Delivery of Prospectus. Xxxxxxxxx will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with, the delivery of the Warrant Securities issued
upon such exercise, a Prospectus.
Section 7.6. Obtaining of Governmental Approvals. Xxxxxxxxx will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and State
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer, and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
Section 7.7. Persons Having Rights under Warrant Agreement. Nothing in
this Agreement shall give to any person other than Xxxxxxxxx, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or claim under or
by reason of this Agreement.
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Section 7.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 7.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 7.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificates for
inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereunto, and
the same to be attested, all as of the day and year first above written.
XXXXXXXXX ENERGY, INC.
By
---------------------------
Attest:
------------------------------
[NAME OF WARRANT AGENT],
as Warrant Agent
By
---------------------------
Attest:
------------------------------
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Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend of Warrants which are not immediately detachable: Prior to
______, this Warrant Certificate cannot be transferred or exchanged unless
attached to [Title of Offered Securities].] Exercisable Only if Countersigned by
the Warrant Agent as Provided Herein
XXXXXXXXX ENERGY, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on
[No.] Warrants
This certifies that ____________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after 5 p.m. New York time on
_________, and] on or before 5 p.m. New York time on _________, [Title of
Warrant Securities] (the "Warrant Securities"), of Xxxxxxxxx Energy, Inc.
("Xxxxxxxxx"), on the following basis: [on _________, the exercise price of each
Warrant is [$]; during the period from _____________, through and including
_______________, the exercise price of each Warrant will be [$] ________]. The
holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, [in lawful money
of the United States of America] [if applicable, express Warrant exercise price
in applicable foreign currency, currency unit or composite currency] [in cash or
by certified check or official bank check or by bank wire transfer, in each
case] [by bank wire transfer], in immediately available funds, the Warrant Price
for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successors as warrant agent (the "Warrant Agent"), [or ______________] currently
at the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised. Xxxxxxxxx
will not be required to issue fractional shares of Warrant Securities upon
exercise of the Warrants or distribute stock certificates that evidence
fractional shares of Warrant Securities. In lieu of fractional Warrant
Securities, there shall be paid by Xxxxxxxxx to the registered holder of this
Warrant Certificate at the time such Warrant Certificate is exercised an amount
in cash payable by company check equal to the closing sales price of the Warrant
Securities on the American Stock Exchange (or if not so listed, another
equivalent means reasonably determined by Xxxxxxxxx) on the business day
immediately preceding the exercise date, multiplied by such fraction.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ___________, (the "Warrant Agreement") between
Xxxxxxxxx and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement and the form of Warrant Securities are on file at the
above-mentioned office of the Warrant Agent [and at ].
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[If Offered Securities with Warrants which are not immediately
detachable - Prior to ___________ this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Securities. After such date, this [If Offered Securities with
Warrants which are immediately detachable - Transfer of this] Warrant
Certificate may be transferred when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or _____] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the terms provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable - After]
countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of Warrant Securities, including, without limitation, the
right to receive dividends, vote, receive notice of any meeting of stockholders
or otherwise have any right as a stockholder of Xxxxxxxxx.
This Warrant Certificate shall not be valid for any purpose until
countersigned by the Warrant Agent.
Dated as of
--------------------- XXXXXXXXX ENERGY, INC.
By
-------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
Attest:
--------------------------------
Countersigned
----------------------------------
As Warrant Agent
By
-------------------------------
Authorized Signature
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[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in cash
or by certified check or official bank check or by bank wire transfer] [by bank
wire transfer], in immediately available funds, the Warrant Price in full for
Warrants exercised to [insert name of Warrant Agent] Corporate Trust Department
[insert address of Warrant Agent], Attn: [or ], which [payment] [wire transfer]
must specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below and
present this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise Warrants evidenced by this
Warrant Certificate, to purchase _______________ [Title of Warrant Securities]
(the "Warrant Securities") of Xxxxxxxxx Energy, Inc. and represents that he has
tendered payment for such Warrant Securities [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer], in immediately available funds, to the order of Xxxxxxxxx Energy,
Inc., c/o [insert name and address of Warrant Agent], in the amount of
[$]______________ [if applicable -- insert relevant amounts in applicable
foreign currency, currency unit or composite currency] in accordance with the
terms hereof]. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form and in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below. If the number of Warrants exercised is less than
all of the Warrants evidenced hereby, the undersigned requests that a new
Warrant Certificate representing the remaining Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated Name
------------------------------------- ------------------------
(Please Print)
-------------------------------------------
Address
-------------------------------------------
Social Security Number of Holder
-------------------------------------------
Signature
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at
--------------------------------------------
--------------------------------------------
By mail at
--------------------------------------------
--------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants--complete as
appropriate.]
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Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For value received ____________________________ hereby sells, assigns
and transfers unto ____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print name and address, including zip code of assignee, and Social
Security Number or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
Dated
-------------------------------- ------------------------------
Signature
(Signature must conform in all
respect to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee of a
commercial bank, trust company,
or member broker of the New
York, American, Midwest
or Pacific Stock Exchange.)
Signature Guaranteed:
--------------------------------------
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