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EXHIBIT 4.9
▇▇▇▇▇▇▇▇▇ ENERGY, INC.
Form of Warrant Agreement
[for warrants sold alone](1)
THIS WARRANT AGREEMENT is dated as of ___________, between ▇▇▇▇▇▇▇▇▇
Energy, Inc., a Delaware corporation (hereinafter called "▇▇▇▇▇▇▇▇▇", which term
includes any successor corporation), and ________________________________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, ▇▇▇▇▇▇▇▇▇ proposes to sell warrant certificates evidencing one
or more warrants (the "Warrants" or, individually, a "Warrant") representing the
right to purchase [title of Debt or 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, ▇▇▇▇▇▇▇▇▇ desires the Warrant Agent to act on behalf of
▇▇▇▇▇▇▇▇▇ 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. 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.
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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ by its Chief Executive Officer, its President,
one of its Vice Presidents, its Treasurer or one of its Assistant Treasurers
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 ▇▇▇▇▇▇▇▇▇
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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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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 ▇▇▇▇▇▇▇▇▇ shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇; and any Warrant
Certificate may be signed on behalf of ▇▇▇▇▇▇▇▇▇ by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of ▇▇▇▇▇▇▇▇▇, 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.
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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇▇▇▇. 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 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.
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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, 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 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 ▇▇▇▇▇▇▇▇▇ maintained with
it and shall advise ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant,
▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇) on the business day immediately preceding the
exercise date. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, ▇▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ shall not be
required to issue or deliver any Warrant Security until such tax or
other charge shall have been paid or it has been established to
▇▇▇▇▇▇▇▇▇'▇ satisfaction that no such tax or other charge is due.
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ARTICLE III
Other Provisions Relating to Rights of
Holders of Warrant Certificates
Section 3.1. No Rights as Stockholder or Debtholder 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 ▇▇▇▇▇▇▇▇▇, or the right to receive the payment of
principal of, premium, if any, or interest on Warrant Securities or to enforce
any of the covenants in the Indenture.
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 ▇▇▇▇▇▇▇▇▇ or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, ▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇ 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. 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 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
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accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to ▇▇▇▇▇▇▇▇▇ and the Warrant
Agent. No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates but ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇, 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. ▇▇▇▇▇▇▇▇▇
and the Warrant Agent 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 ▇▇▇▇▇▇▇▇▇, be delivered to
the Warrant Agent and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly canceled 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 ▇▇▇▇▇▇▇▇▇ from time to time or otherwise dispose
of canceled Warrant Certificates in a manner satisfactory to ▇▇▇▇▇▇▇▇▇.
ARTICLE V
Adjustments
Section 5.1. Adjustment of Warrant Price and Number of Warrant
Securities Purchasable.
(a) In case at any time ▇▇▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇▇▇ shall pay or make a dividend or other
distribution on any class of stock of ▇▇▇▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇▇▇▇ shall ▇▇▇▇▇ (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 ▇▇▇▇▇▇▇▇▇ as consideration
for the granting of such rights or options, plus the minimum aggregate
amount of additional consideration payable to ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇ as consideration for the issue or sale of such
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Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to ▇▇▇▇▇▇▇▇▇ 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.
(f) In case ▇▇▇▇▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ with, or merger
of ▇▇▇▇▇▇▇▇▇ into, any other corporation or other entity, or in case of
any merger of another corporation or other entity into ▇▇▇▇▇▇▇▇▇ (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 ▇▇▇▇▇▇▇▇▇, or in the case of a capital
reorganization or recapitalization of the capital stock of ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇▇▇▇, such corporation or other entity or ▇▇▇▇▇▇▇▇▇, 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, 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. ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇) resulting from such consolidation or merger or the
corporation purchasing or otherwise
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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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇▇ 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 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 American Stock Exchange or 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
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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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ to
provide for any such adjustment prior to the effective date of any such
action by ▇▇▇▇▇▇▇▇▇ affecting the Warrant Securities shall be evidence
that the Board of Directors of ▇▇▇▇▇▇▇▇▇ has determined that it is
equitable to make no adjustments in the circumstances.
Section 5.2. Voluntary Adjustment by ▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇; provided, that, if ▇▇▇▇▇▇▇▇▇ elects so to reduce the then current
Warrant Price, such reduction shall remain in effect for at least 20 Business
Days, after which time ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇'▇ 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.
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 ▇▇▇▇▇▇▇▇▇'▇ failure to comply with this Article V.
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ARTICLE VI
Concerning the Warrant Agent
Section 6.1. Warrant Agent. ▇▇▇▇▇▇▇▇▇ hereby appoints __________, as
Warrant Agent of ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ as ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) ▇▇▇▇▇▇▇▇▇ agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with ▇▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of ▇▇▇▇▇▇▇▇▇ 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.
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(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 ▇▇▇▇▇▇▇▇▇.
(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 ▇▇▇▇▇▇▇▇▇ of any of the
Warrant Certificates authenticated by the Warrant Agent and delivered
by it to ▇▇▇▇▇▇▇▇▇ pursuant to this Agreement or for the application by
▇▇▇▇▇▇▇▇▇ of the proceeds of the Warrant Certificates. The Warrant
Agent shall have no duty or responsibility in case of any default by
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇.
(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. ▇▇▇▇▇▇▇▇▇ hereby authorizes its
present and any successor Transfer Agent to comply with all such
requests. ▇▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇ and specifying such removal and the date when it shall become
effective. Such resignation or removal shall take effect upon the
appointment by ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇ under Section 6.3(a) shall
continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
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(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 ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇ 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.
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
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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,
▇▇▇▇▇▇▇▇▇ 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.
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Section 7.2. Notices and Demands to ▇▇▇▇▇▇▇▇▇ and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇.
Section 7.3. Addresses. Any communication from ▇▇▇▇▇▇▇▇▇ to the Warrant
Agent with respect to this Agreement shall be addressed to ____________, and any
communication from the Warrant Agent to ▇▇▇▇▇▇▇▇▇ with respect to this Agreement
shall be addressed to ▇▇▇▇▇▇▇▇▇ Energy, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: _______________ (or such other address as shall be specified
in writing by the Warrant Agent or by ▇▇▇▇▇▇▇▇▇).
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. ▇▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or claim under or
by reason of this Agreement.
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.
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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.
▇▇▇▇▇▇▇▇▇ ENERGY, INC.
By
Attest: ----------------------------------
---------------------------
[NAME OF WARRANT AGENT],
as Warrant Agent
By
Attest: ----------------------------------
---------------------------
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EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
Exercisable Only if Countersigned
by the Warrant Agent as Provided Herein
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ Energy,
Inc., (the "▇▇▇▇▇▇▇▇▇"), issued and to be issued on the following basis: [on
_________, ____, the exercise price of each Warrant will be [$]____________;
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.
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇) 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 ▇▇▇▇▇▇▇▇▇ 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
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Agreement and the form of Warrant Securities are on file at the above-mentioned
office of the Warrant Agent [and at _________ ].
This Warrant Certificate may be transferred when 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.
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 ▇▇▇▇▇▇▇▇▇, or the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the Indenture.
This Warrant Certificate shall not be valid for any purpose until
countersigned by the Warrant Agent.
Dated as of
--------------------- ▇▇▇▇▇▇▇▇▇ ENERGY, INC.
By
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
Attest:
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Countersigned
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As Warrant Agent
By
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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 ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇ Energy, Inc., c/o [insert name and address of Warrant Agent], in the
amount of [$]______________ [if applicable, express Warrant exercise price 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
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(Please Print)
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Address
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Social Security Number of Holder
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Signature
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at
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By mail at
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[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
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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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