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EXHIBIT 4.6
THIS WARRANT AND THE SECURITIES UNDERLYING THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE SECURITIES
UNDERLYING THIS WARRANTY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 5 OF THIS WARRANT
Warrant No. 1 Number of Shares: up to 618.70
------- (subject to adjustment)
Date of Issuance: November 17, 1999
ENERGY PARTNERS, LTD.
Common Stock Purchase Warrant
Energy Partners, Ltd., a Delaware corporation (the "Company"), for
value received, hereby certifies that Energy Income Fund, L.P., or its
registered assigns (the "Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, at any time during the Exercise Period (as
defined in Section 15 hereof), that number of shares (the "Warrant Shares") of
common stock, no par value, of the Company (the "Common Stock") as set forth in
Section 2(a) hereof, and at an exercise price per share set forth in Section 1
hereof. Capitalized words not defined herein shall have the meanings set forth
in the Stockholder Agreement of even date herewith (the "Stockholder
Agreement").
1. Exercise Price.
The initial exercise price per share at which this Warrant may be
exercised shall be equal to $9,747.79 (the "Exercise Price"), subject to
adjustment pursuant to Section 3.
2. Exercise.
(a) Number of Shares for Which Warrant is Exercisable.
This Warrant shall initially be exercisable to purchase up to 618.70 shares of
Common Stock as set forth on Exhibit A hereto and in this Warrant. The number
of Warrant Shares issuable upon exercise of this Warrant shall be subject to
adjustment as set forth in Section 3 hereof, Section 15(b) hereof and Exhibit A
hereto.
(b) Procedure for Exercise of Warrant. The Warrant may
be exercised in whole or in part on any date during the Exercise Period (each
an "Exercise Date") by surrendering
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this Warrant, with the purchase form provided for herein duly executed by the
Holder or by the Holder's duly authorized attorney-in-fact, at the principal
office of the Company or at such other office or agency in the United States as
the Company may designate by notice in writing to the Holder, accompanied by
payment in cash, bank cashier's check or certified check payable to the order
of the Company equal to the product of (x) the Exercise Price multiplied by (y)
the number of Warrant Shares being purchased.
(c) Cashless Exercise. In addition to and without
limiting the rights of the Holder under the terms of this Warrant, at any time
concurrent with or after the consummation of a public offering of the Company's
Common Stock, the Holder shall have the right to convert this Warrant or any
portion thereof (the "Conversion Right") into shares of Common Stock as
provided in this subsection 2(c). The Holder may exercise this Conversion Right
on any date during the Exercise Period (the "Conversion Date") by surrendering
this Warrant as described in subsection 2(b) above, together with a notice of
conversion, the form of which is attached hereto as Exhibit II. Upon exercise
of the Conversion Right with respect to a particular number of shares subject
to this Warrant (the "Converted Warrant Shares"), the Company shall deliver to
the Holder (without payment by the Holder of any exercise price or any cash or
other consideration) (x) that number of Warrant Shares equal to the quotient
obtained by dividing the value of this Warrant (or the specified portion
hereof) on the Conversion Date by (y) the Fair Market Value of one share of
Common Stock on the Conversion Date. The value of this Warrant shall be
determined by subtracting (A) the aggregate Exercise Price of the Converted
Warrant Shares on the Conversion Date from (B) the aggregate Fair Market Value
(as defined below) of the Converted Warrant Shares on the Conversion Date.
Expressed as a formula, the number of Warrant Shares issuable upon
such conversion shall be computed as follows:
X = B-A
---
Y
Where: X = the number of shares of Common Stock that may be
issued to Holder
Y = the Fair Market Value of one share of Common Stock
A = the aggregate Exercise Price (i.e., Converted
Warrant Shares multiplied by the Exercise Price)
B = the aggregate Fair Market Value (i.e., Converted
Warrant Shares multiplied by the Fair Market Value)
The Fair Market Value per share of Common Stock shall be determined as
follows:
(i) If the Common Stock is listed on a national
securities exchange, the Nasdaq National Market, the Nasdaq SmallCap Market,
the Nasdaq Bulletin Board, or another nationally recognized exchange or trading
system as of the Conversion Date, the Fair Market Value per share of Common
Stock shall be the last reported sale price per share of Common Stock thereon
on the Conversion Date; or, if no such price is reported on such date, such
price on
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the next preceding business day; or, if no such price is reported on such date,
the average of the mean of the high closing bid and the low closing asked
prices for the three preceding business days (provided that if no such price is
reported for the three preceding business days, the Fair Market Value per share
of Common Stock shall be determined pursuant to clause (ii) below.
(ii) If the Common Stock is not listed on a
national securities exchange, the Nasdaq National Market, the Nasdaq SmallCap
Market, the Nasdaq Bulletin Board or another nationally recognized exchange or
trading system as of the Conversion Date, the Fair Market Value per share of
Common Stock shall be as determined by a nationally recognized investment
banking firm selected in good faith by the Board of Directors of the Company.
(d) Each exercise or conversion of this Warrant shall be
deemed to have been effected immediately prior to the close of business on each
Exercise Date or Conversion Date. At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon such
exercise as provided in subsection 2(e) below shall be deemed to have become
the holder or holders of record of the Warrant Shares represented by such
certificates.
(e) As soon as practicable after the exercise or
conversion of this Warrant in full or in part, and in any event within ten (10)
days thereafter, the Company, at its expense, will cause to be issued in the
name of, and delivered to, the Holder, or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number
of Warrant Shares to which such Holder shall be entitled upon such exercise or
conversion; and
(ii) in case such exercise or conversion is in
part only, a new warrant or warrants (dated the date hereof) of like tenor,
calling in the aggregate on the face or faces thereof for the number of Warrant
Shares equal (without giving effect to any adjustment therein) to the number of
such shares called for on the face of this Warrant minus the sum of (a) the
number of such shares delivered to the Holder upon such exercise or conversion
plus (b) the number of Warrant Shares (if any) canceled in payment of the
Exercise Price or pursuant to the exercise of the Conversion Right.
3. Adjustments.
(a) If outstanding shares of the Company's Common Stock
shall be subdivided into a greater number of shares or a dividend in Common
Stock shall be paid in respect of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately reduced. If
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Exercise Price, the number of Warrant Shares purchasable upon the exercise or
conversion of this Warrant shall be changed to the number determined by
dividing (i) an amount equal to the number of shares issuable upon the exercise
of this Warrant immediately prior to such adjustment,
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multiplied by the Exercise Price in effect immediately prior to such
adjustment, by (ii) the Exercise Price in effect immediately after such
adjustment.
(b) If there shall occur any capital reorganization or
reclassification of the Common Stock (other than a change in par value or a
subdivision or combination as provided for in subsection 3(a) above), or any
consolidation or merger of the Company with or into another corporation, or a
transfer of all or substantially all of the assets of the Company, then, as
part of any such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the Holder of
this Warrant shall have the right thereafter to receive upon the exercise
hereof the kind and amount of shares of stock or other securities or property
which such Holder would have been entitled to receive if, immediately prior to
any such reorganization, reclassification, consolidation, merger or sale, as
the case may be, such Holder had held the number of shares of Common Stock
which were then purchasable upon the exercise of this Warrant if exercised for
full in the same manner as that in which the Warrant is actually exercised. In
any such case, appropriate adjustment (as reasonably determined in good faith
by the Board of Directors of the Company) shall be made in the application of
the provisions set forth herein with respect to the rights and interests
thereafter of the Holder of this Warrant, such that the provisions set forth in
this Section 3 (including provisions with respect to adjustment of the Exercise
Price) shall thereafter be applicable, as nearly as is reasonably practicable,
in relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
(c) When any adjustment is required to be made pursuant
to this Section 3, the Company shall promptly mail to the Holder a certificate
setting forth the Exercise Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Such certificate shall
also set forth the kind and amount of stock or other securities or property
into which this Warrant shall be exercisable following the occurrence of any of
the events specified in subsection 3(a) or 3(b) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be
sold or transferred unless either (i) they first shall have been registered
under the Securities Act or (ii) the Company first shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to
the effect that such sale or transfer is exempt from the registration
requirements of the Securities Act.
(b) Notwithstanding the foregoing, no registration or
opinion of counsel shall be required for a transfer by a Holder in accordance
with the provisions set forth in the Stockholder Agreement dated as of the date
hereof to which the Company and the Holder are parties (the "Stockholder
Agreement").
(c) This Warrant and the Warrant Shares are subject to
Section 2.2 of the Stockholder Agreement.
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(d) Each certificate representing Warrant Shares shall
bear a legend substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") or any applicable state securities laws.
Such securities may not be offered, sold or otherwise
transferred, pledged or hypothecated in the absence of such
registration or an applicable exemption therefrom under the
Securities Act and applicable laws."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Securities Act.
5. No Impairment. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, dissolution, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights
of the holder of this Warrant against impairment.
6. Liquidating Dividends. If the Company pays a dividend or
makes a distribution on the Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally accepted
accounting principles) except for a stock dividend payable in shares of Common
Stock (a "Liquidating Dividend"), then the Company will pay or distribute to
the Holder of this Warrant, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Liquidating Dividend which
would have been paid to such Holder if he had been the owner of record of such
Warrant Shares immediately prior to the date on which a record is taken for
such Liquidating Dividend or, if no record is taken, the date as of which the
record holders of Common Stock entitled to such dividends or distribution are
to be determined.
7. Notices of Record Date, etc.
In case:
(a) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company; or
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(c) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder of this Warrant a notice specifying, as the case may be, (i) the date on
which a record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution/liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
record date or effective date for the event specified in such notice.
8. Reservation of Stock. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant and the Warrant Shares.
9. Exchange of Warrants. Upon the surrender by the Holder of any
Warrant or Warrants, properly endorsed, to the Company at the principal office
of the Company, the Company will, subject to the provisions of Section 4
hereof, issue and deliver to or upon the order of such Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such Holder or
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face or faces of the Warrant
or Warrants so surrendered.
10. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
11. Transfers, etc.
(a) The Company will maintain a register containing the
names and addresses of the Holders of this Warrant and all comparable Warrants.
Any Holder may change its address as shown on the warrant register by written
notice to the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, upon
surrender of this Warrant with a properly executed assignment (in the form of
Exhibit III hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the
warrant register, the Company may treat the Holder of this Warrant as the
absolute owner hereof for all purposes;
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provided, however, that if and when this Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to the
contrary.
12. Mailing of Notices, etc. All notices and other communications
from the Company to the Holder of this Warrant shall be mailed by first-class
certified or registered mail, or overnight courier service, postage prepaid, to
the address set forth in the Stockholder Agreement. All notices and other
communications from the Holder of this Warrant or in connection herewith to the
Company shall be mailed by first-class certified or registered mail or
overnight courier service, postage prepaid, to the Company at its principal
office set forth below. The principal office of the Company is as follows:
Energy Partners, Ltd.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13. No Rights as Stockholder. Until the exercise of this Warrant,
the Holder of this Warrant shall not have or exercise any rights by virtue
hereof as a stockholder of the Company. The shares of Common Stock purchased
hereunder shall be subject to the terms and conditions set forth in the
Shareholder Agreement if it is still in effect.
14. Governing Law. This Warrant will be governed by and construed
in accordance with the laws of the State of Delaware.
15. Exercise Period; Termination.
(a) This Warrant shall be exercisable in whole or in
part at any time (A) concurrent with or after the first to occur (the "Warrant
Trigger Date") of (i) the consummation of a Qualifying Public Offering (as
defined in the Stockholder Agreement), (ii) the Measurement Date (as defined in
Exhibit A hereto), (iii) the merger or consolidation of the Company, or the
sale, lease or exchange of all or substantially all the assets of the Company,
in either case, as a result of which the holders of more than 50% of the Common
Stock receive cash or securities of another Person (an "Acquisition Event") and
(iv) the adoption of a plan leading to the liquidation of the Company and (B)
on or before the Termination Date (as defined below) (the "Exercise Period").
Unless previously exercised in full pursuant to the terms of this Warrant, the
right to exercise this Warrant shall expire (the "Termination Date") 60 days
from the Warrant Trigger Date.
(b) If the Exercise Period is commenced as a result of
an Acquisition Event, the number of Warrant Shares issuable upon exercise of
this Warrant shall be changed to the number determined by multiplying (i) the
number of shares issuable upon exercise of this Warrant immediately prior to
such Acquisition Event by (ii) a fraction, the numerator of which is the total
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number of Escrow Shares that are released to Management Shareholders as a
result of any agreement of the Company or action of the Board of Directors of
the Company relating to the Acquisition Event, and the denominator of which is
the total number of Escrow Shares then held by the Company.
16. Registration Rights. Upon exercise of this Warrant, the
Holder shall have and be entitled to exercise, together with all other holders
of Registrable Securities possessing registration rights under that certain
Registration Rights Agreement, of even date herewith, between the Company and
the parties who have executed the counterpart signature pages thereto or are
otherwise bound thereby (the "Registration Rights Agreement"), the rights of
registration granted under the Registration Rights Agreement to Registrable
Securities (with respect to the shares of Common Stock issuable upon exercise
of this Warrant). By its receipt of this Warrant, Holder agrees to be bound by
the Registration Rights Agreement.
IN WITNESS WHEREOF, ENERGY PARTNERS, LTD. has caused this Warrant to
be executed by its officer thereunto duly authorized, effective as of the Date
of Issuance.
ENERGY PARTNERS, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President & CEO
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