Exhibit 4.5
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WARRANT AGREEMENT
WARRANT AGREEMENT dated as of ______________ between HYPERDYNAMICS
CORPORATION, a Delaware corporation (the "Company"), and the undersigned
purchaser ("Purchaser") of shares of the Company's Series A Preferred Stock (the
"Preferred Stock").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has agreed to issue to Purchaser warrants ("Warrants")
to purchase up to _____________ shares (the "Shares") of common stock of the
Company, $.001 par value per share (the "Common Stock") in connection with that
certain Regulation D Subscription Agreement of the Company (the "Subscription
Agreement"); and
NOW, THEREFORE, in consideration of the premises, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant.
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Purchaser and/or its designees are hereby granted the right to purchase, at
any time from the date of this Agreement until 5:00 P.M., Atlanta, Georgia time,
on January 6, 2005 (the "Warrant Exercise Term"), up to _________________shares
at an initial Exercise Price (subject to adjustment as provided in Article 7
hereof) of $7.091.
2.. Warrant Certificates.
The warrant certificates (the "Warrant Certificates") delivered and to be
delivered pursuant to this Agreement shall be in the form set forth as Exhibit
A, attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions and other variations as required or permitted by this
Agreement.
3. Exercise of Warrants.
The Exercise Price may be paid in cash or by check to the order of the
Company, or any combination of cash or check, subject to adjustment as provided
in Article 7 hereof. Upon surrender of the Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the Shares purchased, at the
Company's executive offices (currently located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇ 77054), the registered holder of a Warrant Certificate
("Holder" or "Holders") shall be entitled to receive a certificate or
certificates for the Shares so purchased. The purchase rights represented by
each Warrant Certificate are exercisable at the option of the Holder hereof, in
whole or in part (but not as to fractional shares of the Common Stock). In the
case of the purchase of less than all the Shares purchasable under any Warrant
Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the Shares to be purchased thereunder.
4. Issuance of Certificates.
Upon the exercise of the Warrants in accordance with the terms hereof, the
issuance of certificates for the Shares shall be made forthwith (and in any
event within five (5) business days thereafter) without charge to the Holder
thereof including, without limitation, any tax which may be payable in respect
of the issuance thereof, and such certificates shall be issued in the name of,
or in such names as may be directed by, the Holder thereof; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Company shall not
be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to satisfaction of the Company that
such tax has been paid.
The Warrant Certificates and the certificates representing the Shares shall
be executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman or Vice Chairman of the Board of Directors, Chief
Executive Officer or President or Vice President of the Company under its
corporate seal reproduced thereon, attested to by the manual or facsimile
signature of the present or any future Secretary or Assistant Secretary of the
Company. Warrant Certificates shall be dated the date of execution by the
Company upon initial issuance, division, exchange, substitution or transfer.
The Warrant Certificates and, upon exercise of the Warrants, in part or in
whole, certificates representing the Shares shall bear a legend substantially
similar to the following:
"The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), and may not be offered or
sold except (i) pursuant to an effective registration statement under the Act,
or (ii) upon the delivery by the holder to the Company of an opinion of counsel,
reasonably satisfactory to counsel to the issuer, stating that an exemption from
registration under such Act is available."
5. Price.
5.1 Initial and Adjusted Exercise Price. The initial Exercise Price
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of each Warrant shall be $7.091 per Share. The adjusted Exercise Price shall be
the price which shall result from time to time from any and all adjustments of
the initial Exercise Price in accordance with the provisions of Article 7
hereof.
5.2 Exercise Price. The term "Exercise Price" herein shall mean the
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initial Exercise Price or the adjusted Exercise Price, depending upon the
context.
6. Registration Rights.
6.1 Not Registered Under the Securities Act of 1933. The Warrants
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and the Shares have not been registered as of the date of issuance of the
Warrants under the Securities Act of 1933, as amended ("the Act").
6.2 Registrable Securities. As used herein the term "Registrable
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Security" means each of the Shares underlying the Warrants and any shares of
Common Stock issued upon any stock split or stock dividend in respect of such
Shares; provided, however, that with respect to any particular Registrable
Security, such security shall cease to be a Registrable Security when, as of the
date of determination, (i) it has been effectively registered under the
Securities Act and disposed of pursuant thereto, (ii) registration under the
Securities Act is no longer required for the immediate public distribution of
such security or (iii) it has ceased to be outstanding. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be made in the
definition of "Registrable Security" as is appropriate in order to prevent any
dilution or enlargement of the rights granted pursuant to this Article 6.
6.3 Registration Rights. Holders of Registrable Securities hereunder
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shall have the right to register the Registrable Securities at the time that the
Company registers the shares of common stock underlying the Series A Preferred
Stock issued in connection with the Subscription Agreement.
7. Adjustments of Exercise Price and Number of Shares.
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7.1 Adjustments. The Exercise Price and the number of shares of Common
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Stock issuable upon exercise of each Warrant shall be subject to adjustment from
time to time as follows:
(i) Stock Dividends; Stock Splits; Reverse Stock Splits; Reclassifications.
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In case the Company shall (a) pay a dividend with respect to its Common Stock in
shares of capital stock, (b) subdivide its outstanding shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller number of
shares of any class of Common Stock or (d) issue any shares of its capital stock
in a reclassification of the Common Stock (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing corporation), other than elimination of par value, a change in par
value, or a change from par value to no par value (any one of which actions is
herein referred to as an "Adjustment Event"), the number of shares of Common
Stock purchasable upon exercise of each Warrant immediately prior to the record
date for such Adjustment Event shall be adjusted so that the Holder shall
thereafter be entitled to receive the number of shares of Common Stock or other
securities of the Company (such other securities thereafter enjoying the rights
of shares of Common Stock under this Warrant Certificate) that such Holder would
have owned or have been entitled to receive after the happening of such
Adjustment Event, had such Warrant been exercised immediately prior to the
happening of such Adjustment Event or any record date with respect thereto. An
adjustment made pursuant to this Section 7.1(i) shall become effective
immediately after the effective date of such Adjustment Event retroactive to the
record date, if any, for such Adjustment Event.
(ii) Adjustment of Exercise Price. Whenever the number of shares of Common
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Stock purchasable upon the exercise of each Warrant is adjusted pursuant to
Section 7.1(i), the Exercise Price for each share of Common Stock payable upon
exercise of each Warrant shall be adjusted to the nearest full Share by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, the numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and the denominator of which shall be the number of shares of Common
Stock so purchasable immediately thereafter.
(iii) De Minimis Adjustments. No adjustment in the Exercise Price and
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number of shares of Common Stock purchasable hereunder shall be required unless
such adjustment would require an increase or decrease of at least $0.15 in the
Exercise Price; provided, however, that any adjustments which by reason of this
Section 7.1(iii) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to
the nearest full share.
7.2 Notice of Adjustment. Whenever the number of shares of Common
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Stock purchasable upon the exercise of each Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall promptly notify the Holder in
writing (such writing referred to as an "Adjustment Notice") of such adjustment
or adjustments and shall deliver to such Holder a statement setting forth the
number of shares of Common Stock purchasable upon the exercise of each Warrant
and the Exercise 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.
7.3 Statement on Warrant Certificates. The form of this Warrant
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Certificate need not be changed because of any change in the Exercise Price or
in the number or kind of shares purchasable upon the exercise of a Warrant.
However, the Company may at any time in its sole discretion make any change in
the form of the Warrant Certificate that it may deem appropriate and that does
not affect the substance thereof and any Warrant Certificate thereafter issued,
whether in exchange or substitution for any outstanding Warrant Certificate or
otherwise, may be in the form so changed.
8. Exchange and Replacement of Warrant Certificates.
Each Warrant Certificate is exchangeable without expense, upon the
surrender hereof by the registered Holder at the principal executive office of
the Company, for a new Warrant Certificate of like tenor and date representing
in the aggregate the right to purchase the same number of Shares in such
denominations as shall be designated by the Holder thereof at the time of such
surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
9. Elimination of Fractional Interests.
The Company shall not be required to issue certificates representing
fractions of shares of Common Stock and shall not be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock.
10. Reservation of Securities.
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon the
exercise of the Warrants, such number of shares of Common Stock as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Warrants and payment of the Exercise Price therefor, all shares
of Common Stock issuable upon such exercise shall be duly and validly issued,
fully paid, non-assessable and not subject to the preemptive rights of any
shareholder.
11. Notices to Warrant Holders.
Nothing contained in this Agreement shall be construed as conferring upon
the Holder or Holders the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration of
the Warrants and their exercise, any of the following events shall occur:
(a).1.1 the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b).1.2 the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
(c).1.3 a dissolution, liquidation or winding up of the Company (other than
in connection with a consolidation or merger) or a 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 written notice
to the Holders of such event at least fifteen (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, convertible or
exchangeable securities or subscription rights, options or warrants, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding up or sale.
12. Notices.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered, or two
days after it is mailed by registered or certified mail, return receipt
requested:
(a).1.1 If to a registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
(a).1.2 If to the Company, to the address set forth in Section 3 of this
Agreement or to such other address as the Company may designate by notice to the
Holders.
13. Supplements and Amendments.
The Company and Purchaser may from time to time supplement or amend this
Agreement without the approval of any Holders of Warrant Certificates in order
to cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company and Purchaser may deem necessary or desirable and which the Company
and Purchaser deem not to adversely affect the interests of the Holders of
Warrant Certificates.
14. Successors.
All the covenants and provisions of this Agreement by or for the benefit of
the Company and the Holders inure to the benefit of their respective successors
and assigns hereunder.
15. Termination.
This Agreement shall terminate at the close of business on January 6, 2005.
Notwithstanding the foregoing, this Agreement will terminate on any earlier date
when all Warrants have been exercised and all the Shares issuable upon exercise
of the Warrants have been resold to the public; provided, however, that the
provisions of Article 6 shall survive such termination until the close of
business on January 6, 2005.
16. Governing Law.
This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes shall be construed in accordance with the laws of said State.
17. Benefits of This Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and Purchaser and any other registered holder
or holders of the Warrant Certificates, Warrants or the Shares any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company and any other holder or
holders of the Warrant Certificates, Warrants or the Shares.
18. Limited Transferability.
The Warrants shall be transferable or assignable by Purchaser, in whole or
in part, only (i) to any successor firm or corporation of Purchaser, (ii) to any
of the directors, officers, employees, attorneys, consultants, partners, agents
or subsidiaries of Purchaser or of any such successor firm or (iii) in the case
of an individual, pursuant to such individual's last will and testament or the
laws of descent and distribution and is so transferable only upon the books of
the Company which it shall cause to be maintained for the purpose. The Company
may treat the registered holder of the Warrants as he or it appears on the
Company's books at any time as the Holder for all purposes. The Company shall
permit any holder of a Warrant or his duly authorized attorney, upon written
request during ordinary business hours, to inspect and copy or make extracts
from its books showing the registered holders of the Warrants.
19. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
(continued on following page)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
HYPERDYNAMICS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
Attest:______________________
Name:________________________
Title:_______________________
PURCHASER:
By:_________________________
Name:_______________________
Title:______________________
Attest:______________________
Name:________________________
Title________________________
EXHIBIT A
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT APPLICABLE,
PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) UPON THE DELIVERY BY THE HOLDER TO
THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL FOR THE
ISSUER, STATING THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., ATLANTA, GEORGIA TIME, JANUARY 6, 2005
No. A-1 _____ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _____________________ is the
registered holder of _________ Warrants to purchase, at any time from
___________________ until 5:00 P.M. Atlanta, Georgia time on January 6, 2005
("Expiration Date"), up to _________ shares ("Shares") of fully-paid and
non-assessable common stock, $.001 par value ("Common Stock"), of Hyperdynamics
Corporation, a Delaware corporation (the "Company"), at the initial exercise
price, subject to adjustment in certain events (the "Exercise Price"), of $_____
per Share upon surrender of this Warrant Certificate and payment of the Exercise
Price at an office or agency of the Company, but subject to the conditions set
forth herein and in the warrant agreement dated as of ________ ____, ____
between the Company and _____________________ (the "Warrant Agreement").
Payment of the Exercise Price may be made in cash, or by certified or official
bank check in New York Clearing House funds payable to the order of the Company,
or any combination of cash or check.
No Warrant may be exercised after 5:00 P.M., Atlanta, Georgia time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly authorized
issue of Warrants issued pursuant to the Warrant Agreement, which Warrant
Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to in a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain events,
the Exercise Price and/or number of the Company's securities issuable thereupon
may, subject to certain conditions, be adjusted. In such event, the Company
will, at the, request of the holder, issue a new Warrant Certificate evidencing
the adjustment in the Exercise Price and the number and/or type of securities
issuable upon the exercise of the Warrants; provided, however, that the failure
of the Company to issue such new Warrant Certificates shall not in any way
change, alter, or otherwise impair, the rights of the holder as set forth in the
Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferees) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax, or other governmental charge
imposed in connection therewith.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary.
All terms used in this Warrant Certificate which are defined in the Warrant
Agreement shall have the meanings assigned to them in the Warrant Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed under its corporate seal.
Dated: _______________ HYPERDYNAMICS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
Attest:______________________
Name:________________________
Title:_______________________
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase ____________ Shares and herewith tenders
in payment for such Shares cash or a certified or official bank check payable to
the order of ______________________________. in the amount of $_______________,
all in accordance with the terms hereof. The undersigned requests that a
certificate for such Shares be registered in the name of
_____________________________________________________, whose address is
_______________________________________________________________, and that such
Certificate be delivered to ____________________________________________, whose
address is _______________________________________________________________.
Dated:_________________________ Signature:__________________________
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate.)
(Insert Social Security or Other
Identifying Number of Holder)
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _____________________________________________
hereby sells, assigns and transfers unto ______________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint
__________________________________, Attorney, to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: Signature:
(Signature must conform in all respects to name of holder as specified on the
face of the Warrant Certificate)
(Insert Social Security or Other
Identifying Number of Holder)
