WARRANT AGREEMENT between ASCENT ENERGY INC. and MELLON INVESTOR SERVICES LLC as WARRANT AGENT July 27, 2001 WARRANT AGREEMENT
WARRANT AGREEMENT
between
ASCENT ENERGY INC.
and
MELLON INVESTOR SERVICES LLC
as WARRANT AGENT
July 27, 2001
THIS WARRANT AGREEMENT, dated as of July 27, 2001 is entered
into between ASCENT ENERGY INC., a Delaware corporation (the
"Company"), and MELLON INVESTOR SERVICES LLC, a New Jersey limited
liability company, as warrant agent (the "Warrant Agent").
RECITALS
WHEREAS, the Company proposes to sell from time to time
Warrants evidenced by Warrant Certificates (as defined below) with each Warrant
representing the right to purchase 191.943 Common Shares; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to act on behalf of the
Company, in connection with the issuance of the Warrant Certificates (as defined
below) and the other matters provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as follows:
1. DEFINITIONS
"Additional Common Shares" shall mean all Common
Shares issued or issuable by the Company after the date of this Agreement, other
than the Warrant Shares.
"Affiliate" shall mean, as to any Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control of such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. Notwithstanding the foregoing,
"Affiliate" shall not include any wholly-owned Subsidiary of the
Company.
"Agreement" shall mean this Warrant Agreement, as
the same may be amended, modified or supplemented from time to time.
"Business Day" shall mean a day which in either New
York, New York or the State of New Jersey is neither a legal holiday nor a day
on which banking institutions are authorized by law or regulation to close.
"Capital Stock" of any Person shall mean any and
all shares, interests, participations, or other equivalents (however designated)
of such Person's capital stock, and any warrants, options or similar rights to
acquire such capital stock.
"Code" shall mean the Internal Revenue Code of
1986, as amended.
"Common Equity Securities" shall mean any class or
series of Common Shares of the Company.
"Common Shares" shall mean (i) the Common Stock,
(ii) any Capital Stock into which such Common Shares may thereafter be changed
and (iii) any share of the Company of any other class issued to holders of such
Common Shares upon any reclassification thereof.
"Common Stock" shall mean the common stock, par
value $.001 per share of the Company, as constituted on the original issuance of
the Warrants.
"Company" shall mean the company identified in the
preamble hereof and its successors and assigns.
"Company Order" shall mean a written request or
order signed in the name of the Company by its Chairman or any Co-Chairman of
the Board, its Chief Executive officer, its President, any Vice President, and
by its Treasurer, any Assistant Treasurer, its Secretary or any Assistant
Secretary, and delivered to the Warrant Agent.
"Company Securities" mean any Common Equity
Securities or other securities, whether debt or equity, that may be issued by
the Company and then outstanding.
"Corporate Agency Office" shall have the meaning
given such term in Section 9.
"Countersigning Agent" shall mean any Person
authorized by the Warrant Agent to act on behalf of the Warrant Agent to
countersign Warrant Certificates.
"Current Market Price" shall mean, with respect to
any security on any date:
(1) if the Company does not have a class of equity securities registered under the Exchange Act, the value of such security (a) determined in good faith in the most recently completed arm's-length transaction between the Company and an unaffiliated third party in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, or (b) if no such determination shall have been made within such six-month period, determined as of such date by the Company's Board of Directors in its reasonable judgment, which determination shall be final and binding upon the Holders; provided that if any of the Holders of 20% or more of the Warrants disagree with such valuation by the Board of Directors and provide notice of such disagreement to the Company requesting an independent valuation, then the Company shall select an independent financial expert who shall determine the value of such security and whose customary compensation shall be provided by the Holders requesting such independent valuation, or
(2) if the Company does have a class of equity securities registered under the Exchange Act, the average of the daily Market Prices of such security for each Business Day during the period commencing thirty (30) Business Days before such date and ending on the date one day prior to such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than thirty (30) consecutive Business Days before such date, then the average of the daily Market Price for all of the Business Days before such date for which daily Market Prices are available provided, however, that in the event that the Current Market Price per share of a security is determined during a period following the announcement by the Company of (A) a dividend or distribution on such a security payable in shares of such a security or securities convertible into shares of such a security, or (B) any subdivision, combination or reclassification of such security, and prior to the expiration of such thirty (30) Business Day period before such date (or, if applicable, such lesser number of Business Days before such date for which daily Market Prices are available) after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then in each such case, Current Market Price shall be properly adjusted to take into account ex-dividend trading.
"Depositary" shall mean the Depository Trust
Company and any and all successors thereto appointed as depositary hereunder by
the Company.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Expiration Date" shall mean the date specified in
a Warrant Certificate on which all rights thereunder shall terminate or such
earlier date as determined in accordance with Section 5.
"Global Warrant" shall have the meaning given such
term in Section 2.3(d).
"Holder" or "Warrantholder" shall mean
any Person in whose name at the time any Warrant Certificate is registered upon
the Warrant Register.
"Institutional Accredited Investor" shall mean an
institution that is an "accredited investor" as that term is defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Market Price" shall mean (A) in the case of a
security listed or admitted to trading on any securities exchange, the closing
price, regular way, on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, (B) in the case of a
security not then listed or admitted to trading on any securities exchange, the
last reported sale price on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reputable quotation source designated by the Company, (C) in the case of a
security not then listed or admitted to trading on any securities exchange and
as to which no such reported sale price or bid and asked prices are available,
the average of the reported high bid and low asked prices on such day, as
reported by a reputable quotation service, or The Wall Street Journal, Eastern
Edition, or if such newspaper is no longer published then in a newspaper of
general circulation in the Borough of Manhattan, City and State of New York,
customarily published on each Business Day, designated by the Company or if
there shall be no bid and asked prices on such day, the average of the high bid
and low asked prices, as so reported, on the most recent day (not more than
thirty (30) days prior to the date in question) for which prices have been so
reported, and (D) if there are no bid and asked prices reported during the
thirty (30) days prior to the date in question, the Current Market Value of the
security shall be determined as if the Company did not have a class of equity
securities registered under the Exchange Act.
"Non-Stock Dividend" shall mean any payment by the
Company to all holders of its Common Shares of any dividend, or any other
distribution by the Company to such holders, of any shares of Capital Stock of
the Company, evidences of indebtedness of the Company, cash or other assets
(including rights, warrants or other securities (of the Company or any other
Person)), other than any dividend or distribution (i) upon a merger or
consolidation or sale to which Section 6.1(h) applies, (ii) of any Common Shares
referred to in Section 6.1(a) or (iii) of cash not in liquidation of the
Company.
"Non-Surviving Combination" shall mean any merger,
consolidation or other business combination by the Company with one or more
other entities in a transaction in which the Company is not the surviving entity
or becomes a wholly-owned subsidiary of another entity.
"outstanding" shall mean, as of the time of
determination, when used with respect of any Warrants, all Warrants originally
issued under this Agreement except (i) Warrants that have been exercised
pursuant to Section 3.2(a), (ii) Warrants that have expired pursuant to Sections
3.2(b), 5 or 7 and (iii) Warrants that have otherwise been acquired by the
Company; provided, however, that in determining whether the Holders of the
requisite amount of the outstanding Warrants have given any request, demand,
authorization, direction, notice, consent or waiver under the provisions of this
Agreement, Warrants owned by the Company or any Subsidiary or Affiliate of the
Company or any Person that is at such time a party to a merger or acquisition
agreement with the Company shall be disregarded and deemed not to be
outstanding.
"Person" shall mean any individual, corporation
(including a business trust), partnership, joint venture, association,
joint-stock company, trust, estate, limited liability company, unincorporated
association, unincorporated organization, government or agency or political
subdivision thereof or any other entity.
"Qualified Institutional Buyer" shall have the
meaning given such term in Rule 144A under the Securities Act.
"Recipient" shall have the meaning given such term
in Section 3.2(e).
"Registration Rights Agreement" shall mean any
registration rights agreement applicable to any Warrant Shares as may be
specified therein.
"Restricted Warrants" shall have the meaning given
such term in Section 2.2(b).
"Restricted Warrant Legend" shall mean the legend
so designated on the Warrant Certificate attached hereto as Exhibit A.
"Rule 144" shall mean Rule 144 promulgated under
the Securities Act.
"SEC" shall mean the Securities and Exchange
Commission or any successor agency thereto.
"Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
"Subsidiary" shall mean, with respect to any
Person, any corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person or a combination thereof.
"Voting Stock" shall mean, with respect to any
Person, one or more classes of the Capital Stock of such Person entitled to vote
under ordinary circumstances in the election of directors, managers or trustees
of such Person.
"Warrant Agent" shall mean the warrant agent named
in the preamble hereof or the successor or successors of such Warrant Agent
appointed in accordance with the terms hereof.
"Warrant Certificates" shall mean those certain
warrant certificates evidencing the Warrants, substantially in the form of
Exhibit A attached hereto.
"Warrant Price" shall mean the exercise price per
Warrant Share, initially set at the price reflected in a Warrant Certificate,
subject to adjustment as provided in Section 6.1(g).
"Warrant Register" shall have the meaning given
such term in Section 9.
"Warrant Shares" shall mean the Common Shares
issuable upon exercise of the Warrants, the number of which is subject to
adjustment from time to time in accordance with Section 6.
"Warrants" shall mean those warrants issued
hereunder at the Warrant Price, subject to adjustment pursuant to Section 6.
2. WARRANT CERTIFICATES
2.1 Issuance of Warrants. Warrant Certificates
evidencing the right to purchase 4,050,000 Common Shares may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company and receipt of a
Company Order (which shall instruct Warrant Agent with respect to this section
2.1), countersign the Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company in accordance with this
Agreement. Each Warrant Certificate shall evidence one or more Warrants, and
each Warrant shall represent the right, subject to the provisions contained
herein and therein, to purchase 191.943 Common Shares. Subsequent to the
original issuance of Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only (a) 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 in Section 2.4 or (b)
upon receipt of a Company Order specifying the number of additional Warrant
Certificates to be issued evidencing Warrants; provided, however, that in no
event shall Warrant Certificates evidencing the right to purchase more than
4,050,000 Common Shares be issued pursuant to this Agreement.
2.2 Form, Denomination and Date of Warrants.
(a) Warrant Certificates shall be substantially in the form
of Exhibit A hereto. The Warrants shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plans as the officers of
the Company executing the same may determine with the approval of the Warrant
Agent. Each Warrant shall be dated the date of its authentication. Any of the
Warrants may be issued with appropriate insertions, omissions, substitutions and
variations, and may have imprinted or otherwise reproduced thereon such legend
or legends, not inconsistent with the provisions of this Agreement, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with the rules of any securities market in which the Warrants are
admitted to trading, or to conform to general usage. All Warrants shall be
otherwise substantially identical except as to Warrant Price, Expiration Date,
denomination and as otherwise provided herein.
(b) Purchasers of Warrants will receive certificated Warrants
bearing the Restricted Warrant Legend ("Restricted Warrants").
Restricted Warrants will bear the Restricted Warrant Legend unless removed in
accordance with Section 2.4.
2.3 Execution and Delivery of Warrant Certificates.
(a) Warrant Certificates evidencing the Warrants which may be
countersigned and delivered under this Agreement are limited to Warrant
Certificates evidencing 21,100 Warrants, except for Warrant Certificates
countersigned and delivered upon registration of transfer of, or in exchange
for, or in lieu of, one or more previously countersigned Warrant Certificates
pursuant to Sections 3.2(d), 7 and 9.
(b) At any time and from time to time on or after the date of
this Agreement, Warrant Certificates evidencing the Warrants may be executed by
the Company and delivered to the Warrant Agent for countersignature, and the
Warrant Agent shall, upon receipt of a Company Order and at the direction of the
Company set forth therein, countersign and deliver such Warrant Certificates to
the Company for issuance. The Warrant Agent is further hereby authorized to
countersign and deliver Warrant Certificates as required by this Section 2.3 or
by Sections 2.1, 2.2, 3.2(d), 7 or 9.
(c) The Warrant Certificates shall be executed in the
corporate name and on behalf of the Company by the Chairman (or any Co-Chairman)
of the Board, the Chief Executive Officer, the President or any one of the Vice
Presidents of the Company under corporate seal reproduced thereon and attested
to by the Secretary or one of the Assistant Secretaries of the Company, either
manually or by facsimile signature printed thereon. The Warrant Certificates
shall be countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company whose
signature shall have been placed upon any of the Warrant Certificates shall
cease to be such officer of the Company before countersignature by the Warrant
Agent and issue and delivery thereof, such Warrant Certificates may,
nevertheless, be countersigned by the Warrant Agent and issued and delivered
with the same force and effect as though such person had not ceased to be such
officer of the Company, and any Warrant Certificate may be signed on behalf of
the Company by such person as, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company, although at the
date of the execution of this Agreement any such person was not such an officer.
(d) Warrants purchased by Qualified Institutional Buyers
shall be evidenced by one or more permanent global Warrant Certificates in
definitive, fully registered form with the Global Warrant Legend and Restricted
Warrant Legend set forth in the form of Warrant (the "Global Warrant")
and deposited with The Bank of New York, as custodian for and registered in the
name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Warrant Agent as hereinafter provided. The
number of Warrants represented by any such Global Warrant may from time to time
be increased or decreased by adjustments made on the records of the Warrant
Agent and the Depositary or its nominee as hereinafter provided.
(e) This Section 2.3(e) shall apply only to the Global
Warrant deposited with or on behalf of the Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Agreement with respect to any
Global Warrant held on their behalf by the Depositary or under the Global
Warrant, and the Depositary may be treated by the Company, the Warrant Agent,
and any agent of the Company or the Warrant Agent as the absolute owner of the
Global Warrant for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Warrant Agent, or any agent of the
Company or the Warrant Agent, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members the operation of customary practices
governing the exercise of the rights of a holder of any Warrant.
(f) Except as otherwise provided herein, owners of beneficial
interests in the Global Warrant will not be entitled to receive physical
delivery of certificated Warrants. Purchasers of Warrants who are not Qualified
Institutional Buyers will receive certificated Warrants bearing the Restricted
Warrant Legend ("Restricted Warrants"); provided, however, that upon
transfer of such certificated Warrants to a Qualified Institutional Buyer, such
certificated Warrants will, until the Global Warrant has previously been
exchanged, be exchanged for an interest in the Global Warrant pursuant to the
provisions of Section 2.4. Restricted Warrants will bear the Restricted Warrant
Legend unless removed in accordance with Section 2.4(b).
2.4 Transfer and Exchange.
(a) If a holder of a Restricted Warrant wishes at any time to
transfer such Restricted Warrant to a Person who wishes to take delivery thereof
in the form of a Restricted Warrant, such holder may, subject to the
restrictions on transfer set forth herein and in such Restricted Warrant, cause
the exchange of such Restricted Warrants for one or more Restricted Warrants of
any authorized denomination or denominations and exercisable for the same
aggregate number of Warrant Shares. Upon receipt by the Warrant Agent at its
Corporate Agency Office of (i) such Restricted Warrant, duly endorsed as
provided herein, (ii) instructions from such holder directing the Warrant Agent
to authenticate and deliver one or more Restricted Warrants exercisable for the
same aggregate number of Warrant Shares as the Restricted Warrant to be
exchanged, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of the
Restricted Warrants to be so issued and appropriate delivery instructions, (iii)
a certificate in the form of Exhibit B attached hereto given by the Person
acquiring the Restricted Warrants, to the effect set forth therein, and (iv) an
opinion of counsel to the transferor of such Restricted Warrant in the form of
Exhibit C hereto, to the effect set forth therein, then the Warrant Agent shall
cancel or cause to be canceled such Restricted Warrant and, concurrently
therewith, the Company shall execute, and the Warrant Agent shall authenticate
and deliver, one or more Restricted Warrants to the effect set forth therein, in
accordance with the instructions referred to above.
(b) If Warrants are issued upon the transfer, exchange or
replacement of Warrants bearing the Restricted Warrant Legend, or if a request
is made to remove such Restricted Warrant Legend, the Warrants so issued shall
bear the Restricted Warrant Legend, or the Restricted Warrant Legend shall not
be removed, as the case may be, unless there is delivered to the Company
satisfactory evidence, which may include an opinion of counsel as may be
reasonably required by the Company to the effect that neither the Restricted
Warrant Legend nor the restrictions on transfer set forth therein are required
to ensure that transfers thereof comply with the provisions of the Securities
Act. Upon provision of such satisfactory evidence, or the Warrant Agent, at the
direction of the Company, shall authenticate and deliver Warrant Certificates
that do not bear the Restricted Warrant Legend.
(c) No service charge shall be made to a Warrantholder for
any registration of transfer or exchange; provided, however, that the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Warrant Certificates. The Warrant Agent shall have no duty or
obligation under this section 2 or any other similar provision of this Agreement
unless and until it is satisfied that all such taxes and /or governmental
charges have been paid in full.
(d) The Warrant Agent shall use CUSIP numbers in notices of
repurchase or exchange as a convenience to Warrantholders; provided that any
such notice shall state that no representation is made as to the correctness or
accuracy of such numbers either as printed on the Warrants or as contained in
any notice of repurchase or exchange and that reliance may be placed only on the
other identification numbers printed on the Warrants. The Company will promptly
notify the Warrant Agent of any change in the CUSIP numbers.
3. EXERCISE AND EXPIRATION OF WARRANTS
3.1 Right to Acquire Warrant Shares Upon Exercise.
Each Warrant Certificate shall, when countersigned by the
Warrant Agent, entitle the Holder thereof, subject to the provisions thereof and
of this Agreement, to acquire from the Company, for each Warrant evidenced
thereby, 191.943 Warrant Shares at the Warrant Price, subject to adjustment as
provided in this Agreement. The Warrant Price shall be adjusted from time to
time as required by Section 6.1.
3.2 Exercise and Expiration of Warrants.
(a) Exercise of Warrants. Subject to the terms and
conditions set forth herein, including, without limitation, the exercise
procedure described in Section 3.2(c), a Holder of a Warrant Certificate may
exercise all or any whole number of the Warrants evidenced thereby, on any
Business Day from and after the date set forth in the Warrant until 5:00 p.m.,
New York City time, on the Expiration Date (subject to earlier expiration
pursuant to Section 5) for the Warrant Shares purchasable thereunder.
(b) Expiration of Warrants. The Warrants shall
terminate and become null and void as of 5:00 p.m., New York time on the
Expiration Date, subject to earlier expiration in accordance with Section 5. In
the event that the Warrants are to expire by reason of Section 5, the term
"Expiration Date" shall mean such earlier date for all purposes of
this Agreement.
(c) Method of Exercise. The Holder may exercise all or
any of the Warrants by either of the following methods:
(i) The Holder may deliver to the Warrant Agent at the Corporate Agency Office (A) a written notice of such Holder's election to exercise Warrants, duly executed by such Holder in the form set forth on the reverse of, or attached to, such Warrant Certificate, which notice shall specify the number of Warrant Shares to be purchased, (B) the Warrant Certificate evidencing such Warrants and (C) a sum equal to the aggregate Warrant Price for the Warrant Shares into which such Warrants are being exercised, which sum shall be paid in any combination elected by such Holder of (x) certified or official bank checks in New York Clearing House funds payable to the order of the Company and delivered to the Warrant Agent at the Corporate Agency Office, or (y) wire transfers in immediately available funds to the account of the company at such banking institution as the company shall have given prior written notice to the Warrant Agent and the Holders in accordance with Section 13.1(b); or
(ii) The Holder may also exercise all or any of the Warrants in a "cashless" or "net-issue" exercise by delivering to the Warrant Agent at the Corporate Agency Office (A) a written notice of such Holder's election to exercise Warrants on a cashless basis, duly executed by such Holder in the form set forth on the reverse of, or attached to, such Warrant Certificate, which notice shall specify the number of Warrant Shares to be delivered to such Holder and either (x) the number of Warrant Shares with respect to which such Warrants are being surrendered in payment of the aggregate Warrant Price for the Warrant Shares to be delivered to the Holder or (y) the number of Company Securities that are being surrendered in payment in the aggregate Warrant Price for the Warrant Shares to be delivered to the Holder, and (B) the Warrant Certificate evidencing such Warrants, together with any Company Securities being delivered in payment of the Warrant Price. For purposes of this subparagraph (ii), each Warrant Share as to which such Warrants are surrendered in payment of the aggregate Warrant Price will be attributed a value equal to (x) the Current Market Price per share of Common Shares minus (y) the then-current Warrant Price ("Cashless Exercise Ratio") and (iii) each Company Security that is being surrendered in payment of the aggregate Warrant Price will be attributed a value equal to (x) the Current Market Price per share of Common Shares in the case of Common Shares, (y) the aggregate principal amount of any Company Securities that evidence debt and (z) the liquidation preference of any Company Securities that evidence preferred stock. Upon request of the Warrant Agent, the Company shall promptly inform in writing the Warrant Agent of the Cashless Exercise Ratio, and the Warrant Agent shall incur no liability and shall be fully protected in relying on such Cashless Exercise Ratio provided to it by the Company. The Warrant Agent shall have no obligation to take any action under this Section 3.2 with respect to a cashless exercise, nor shall it incur any liability for failing to take such action if it has not received the Cashless Exercise Ratio from the Company.
(d)
Partial Exercise. If fewer than all the Warrants
represented by a Warrant Certificate are exercised, such Warrant Certificate
shall be surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants which were not exercised shall be executed by the Company.
The Warrant Agent shall countersign the new Warrant Certificate, registered in
such name or names, subject to the provisions of Section 9, as may be directed
in writing by the Holder, and shall deliver the new Warrant Certificate to the
Person or Persons in whose name such new Warrant Certificate is so registered.
The Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrant Certificates duly executed on behalf of the Company for such
purpose.
(e) Issuance of Warrant Shares. Upon surrender of a
Warrant Certificate evidencing Warrants in conformity with the foregoing
provisions and payment of the Warrant Price in respect of the exercise of one or
more Warrants evidenced thereby, the Warrant Agent shall, when such payment is
received, deliver to the Company the notice of exercise received pursuant to
Section 3.2(c), and, in accordance with Section 3.3, deliver or deposit all
funds received as instructed in writing by the Company (or, in lieu thereof,
deliver the Company Securities as instructed in writing by the Company) and
advise the Company by telephone at the end of such day of the amount of funds so
deposited to its account. The Company shall thereupon, as promptly as
practicable, and in any event within five Business Days after receipt by the
Company of such notice of exercise, execute or cause to be executed and deliver
or cause to be delivered to the Recipient (as defined below) a certificate or
certificates representing the aggregate number of Warrant Shares issuable upon
such exercise (based upon the aggregate number of Warrants so exercised),
determined in accordance with Section 3.6, together with an amount in cash in
lieu of any fractional share(s) determined in accordance with Section 6.4. The
certificate or certificates so delivered shall be, to the extent possible, in
such denomination or denominations as such Holder shall request in such notice
of exercise and shall be registered or otherwise placed in the name of, and
delivered to, the Holder or, subject to Section 2.2 and Section 3.4, such other
Person as shall be designated by the Holder in such notice (the Holder or such
other Person being referred to herein as the "Recipient").
(f) Time of Exercise. A Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date on
which all requirements set forth in Section 3.2(c) applicable to such exercise
have been satisfied. Subject to Section 6.1(f)(iv), certificate(s) evidencing
the Warrant Shares issued upon the exercise of such Warrant shall be deemed to
have been issued and, for all purposes of this Agreement, the Recipient shall,
as between such Person and the Company, be deemed to be and entitled to all
rights of the holder of record of such Warrant Shares as of such time.
3.3 Application of Funds Upon Exercise of Warrants.
Any funds delivered to the Warrant Agent upon exercise of any
Warrant(s) shall be held by the Warrant Agent in trust for the Company. The
Warrant Agent shall promptly deliver and pay to or upon the written order of the
Company all funds received by it upon the exercise of any Warrants by bank wire
transfer to an account designated by the Company or as the Warrant Agent
otherwise may be directed in writing by the Company.
3.4 Payment of Taxes.
The Company shall pay any and all taxes (other than income
taxes) and other charges that may be payable in respect of the issue or delivery
of Warrant Shares on exercise of Warrants pursuant hereto. The Company shall not
be required, however, to pay any tax or other charge imposed in respect of any
transfer involved in the issue and delivery of any certificates for Warrant
Shares or payment of cash to any Recipient other than the Holder of the Warrant
Certificate surrendered upon the exercise of a Warrant, and in case of such
transfer or payment, the Warrant Agent and the Company shall not be required to
issue or deliver any certificate or pay any cash until (a) such tax or charge
has been paid or an amount sufficient for the payment thereof has been delivered
to the Warrant Agent or the Company or (b) it has been established to the
Company's satisfaction that any such tax or other charge that is or may become
due has been paid.
3.5 Surrender of Certificates.
Any Warrant Certificate surrendered for exercise shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by such Warrant Agent and shall not be reissued by the Company. The
Warrant Agent shall destroy such canceled Warrant Certificates and deliver its
certificate of destruction to the Company, unless the Company shall otherwise
direct.
3.6 Shares Issuable.
The number of Warrant Shares "issuable upon
exercise" of Warrants at any time shall be the number of Warrant Shares
into which such Warrants are then exercisable. The number of Warrant Shares
"into which each Warrant is exercisable" initially shall be one share,
subject to adjustment as provided in Section 6.1.
4. REGISTRATION RIGHTS
The Warrantholders and holders of Warrant Shares shall have
the registration rights provided for in any relevant Registration Rights
Agreement. The Warrant Agent shall keep copies of any Registration Rights
Agreement (to the extent the Company has provided any such Registration Rights
Agreement to the Warrant Agent) available for inspection by the Holders during
normal business hours at its Corporate Agency office. The Company shall supply
the Warrant Agent from time to time with such numbers of copies of the
Registration Rights Agreement as the Warrant Agent may request.
5. DISSOLUTION, LIQUIDATION OR WINDING UP
If, on or prior to the Expiration Date, the Company (or any
other Person controlling the Company) shall propose a voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, the
Company shall give written notice thereof to the Warrant Agent and all Holders
of Warrant Certificates in the manner provided in Section 13 prior to the date
on which such transaction is expected to become effective or, if earlier, the
record date for such transaction. Such notice shall also specify the date as of
which the holders of record of the Common Shares shall be entitled to exchange
their shares for moneys, securities or other property deliverable upon such
dissolution, liquidation or winding up, as the case may be, on which date each
Holder of Warrant Certificates shall be entitled to receive the moneys,
securities or other property which such Holder would have been entitled to
receive had such Holder been the holder of record of the Warrant Shares into
which the Warrants were exercisable immediately prior to such dissolution,
liquidation or winding up (net of the then applicable Warrant Price) and the
rights to exercise the Warrants shall terminate.
In case of any such voluntary or involuntary dissolution,
liquidation or winding up of the Company, the Company shall deposit with the
Warrant Agent any moneys, securities or other property which the Holders are
entitled to receive under this Agreement, together with a Company Order as to
the distribution thereof. After receipt of such deposit from the Company and
after any Holder has surrendered a Warrant Certificate to the Warrant Agent, the
Warrant Agent shall make payment in the appropriate amount to such Person or
Persons as it may be directed in writing by the Holder surrendering such Warrant
Certificate. The Warrant Agent shall not be required to pay interest on any
money deposited pursuant to the provisions of this Section 5 except such as it
shall agree with the Company to pay thereon. Any moneys, securities or other
property which at any time shall be deposited by the Company or on its behalf
with the Warrant Agent pursuant to this Section 5 shall be, and are hereby,
assigned, transferred and set over to the Warrant Agent in trust for the purpose
for which such moneys, securities or other property shall have been deposited;
provided that moneys, securities or other property need not be segregated from
other moneys, securities or other property held by the Warrant Agent except to
the extent required by law.
6. ADJUSTMENTS
6.1 Adjustments.
The number of Warrant Shares into which each Warrant is
exercisable and the Warrant Price shall be subject to adjustment from time to
time in accordance (and only in accordance) with the provisions of this Section
6:
(a) Stock Dividends, Subdivisions and Combinations.
If, at any time, the Company shall:
(i) pay to the holders of its Common Shares a dividend payable in, or make any other distribution on any class of its capital stock in, Common Shares (other than a dividend or distribution upon a merger or consolidation or sale to which Section 6.1(h) applies);
(ii) subdivide its outstanding Common Shares into a larger number of Common Shares (other than a subdivision upon a merger or consolidation or sale to which Section 6.1(h) applies); or
(iii) combine its outstanding Common Shares into a smaller number of Common Shares (other than a combination upon a merger or consolidation or sale to which Section 6.1(h) applies);
then, (x) in the case of any such dividend or distribution,
effective immediately after the opening of business on the day after the date
for the determination of the holders of Common Shares entitled to receive such
dividend or distribution or (y) in the case of any subdivision or combination,
effective immediately after the opening of business on the day after the day
upon which such subdivision or combination becomes effective, the number of
Warrant Shares into which each Warrant is exercisable shall be adjusted to that
number of Warrant Shares determined by (A) in the case of any such dividend or
distribution, multiplying the number of Warrant Shares into which each Warrant
is exercisable at the opening of business on the day after the day for
determination by a fraction (not to be less than one), (1) the numerator of
which shall be equal to the sum of the number of Common Shares outstanding at
the close of business on such date for determination and the total number of
shares constituting such dividend or distribution and (2) the denominator of
which shall be equal to the number of Common Shares outstanding at the close of
business on such date for determination, or (B) in the case of any such
combination, by proportionately reducing, or, in the case of any such
subdivision, by proportionately increasing, the number of Warrant Shares into
which each Warrant is exercisable at the opening of business on the day after
the day upon which such subdivision or combination becomes effective.
(b) Certain Other Dividends and Distributions. If, at
any time, the Company shall effect a Non-Stock Dividend (other than any dividend
or distribution of any warrants, options or rights referred to in Section
6.1(d)), then, and in each such case, effective immediately after the opening of
business on the day after the date for the determination of the holders of
Common Shares entitled to receive such distribution, the number of Warrant
Shares into which each Warrant is exercisable shall be adjusted to that number
determined by multiplying the number of Warrant Shares into which each Warrant
is exercisable immediately prior to the close of business on the date of
determination by a fraction, (i) the numerator of which shall be the Current
Market Price per Common Share on such date of determination and (i) the
denominator of which shall be such Current Market Price per Common Share minus
the portion applicable to one Common Share of the fair market value (as
determined in good faith by the Board of Directors of the Company) of such
securities or other assets so distributed.
(c) Reclassifications. A reclassification of the
Common Shares (other than any such reclassification in connection with a merger
or consolidation or sale to which Section 6.1(h) applies) into Common Shares and
shares of any other class of stock shall be deemed a distribution by the Company
to the holders of its Common Shares of such shares of such other class of stock
for the purposes and within the meaning of Section 6.1(b) (and the effective
date of such reclassification shall be deemed to be "the date for the
determination of the holders of Common Shares entitled to receive such
distribution" for the purposes and within the meaning of Section 6.1(b))
and, if the outstanding number of Common Shares shall be changed into a larger
or smaller number of Common Shares as a part of such reclassification, such
change shall be deemed a subdivision or combination, as the case may be, of the
outstanding Common Shares for the purposes and within the meaning of Section
6.1(a) (and the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision or combination becomes effective"
for the purposes and within the meaning of Section 6.1(a)).
(d) Distribution of Warrants or Other Rights to Holders of
Common Shares. If, at any time, the Company shall make a distribution to all
holders of outstanding Common Shares of any warrants, options or other rights to
subscribe for or purchase any Additional Common Shares or securities convertible
into or exchangeable for Additional Common Shares (other than a distribution of
such warrants, options or rights upon a merger or consolidation or sale to which
Section 6.1(h)) applies), whether or not the rights to subscribe or purchase
thereunder are immediately exercisable, and the consideration per share for
which Additional Common Shares may at any time thereafter be issuable pursuant
to such warrants or other rights shall be less than the Current Market Price per
Common Share on the date fixed for determination of the holders of Common Shares
entitled to receive such distribution, then, and for each such case, effective
immediately after the opening of business on the day after the date for
determination, the number of Warrant Shares into which each Warrant is
exercisable shall be adjusted to that number determined by multiplying the
number of Warrant Shares into which each Warrant is exercisable at the opening
of business on the day after such date for determination by a fraction (not less
than one), (i) the numerator of which shall be the number of Common Shares
outstanding at the close of business on such date for determination plus the
maximum number of Additional Common Shares issuable pursuant to all such
warrants or other rights and (ii) the denominator of which shall be the number
of Common Shares outstanding at the close of business on such date for
determination plus the number of Common Shares that the minimum consideration
received and receivable by the Company for the issuance of such maximum number
of Additional Common Shares pursuant to the terms of such warrants or other
rights would purchase at such Current Market Price.
(e) Superseding Adjustments. In case at any time after
any adjustment of the number of Warrant Shares into which each Warrant is
exercisable shall have been made pursuant to Section 6.1(d) on the basis of the
distribution of warrants or other rights or after any new adjustment of the
number of Warrant Shares into which each Warrant is exercisable shall have been
made pursuant to this Section 6.1(e), such warrants or rights shall expire, and
all or a portion of such warrants or rights shall not have been exercised, then,
and in each such case, upon the election of the Company by written notice to the
Warrant Agent, such previous adjustment in respect of such warrants or rights
which have expired without exercise shall be rescinded and annulled as to any
then outstanding Warrants, and the Additional Common Shares that were deemed for
purposes of the computations set forth in Section 6.1(d) to have been issued or
sold by virtue of such adjustment in respect of such warrants or rights shall no
longer be deemed to have been distributed.
(f) Other Provisions Applicable to Adjustments under this
Section. The following provisions shall be applicable to the making of
adjustments of the number of Warrant Shares into which each Warrant is
exercisable and to the Warrant Price under this Section 6.1:
(i) Treasury Stock. The sale or other disposition (other than any shares specified in the definition of "Additional Common Shares") of any issued Common Shares owned or held by or for the account of the Company shall be deemed an issuance or sale of Additional Common Shares for purposes of this Section 6. The Company shall not pay any dividend on or make any distribution on Common Shares held in the treasury of the Company. For the purposes of this Section 6.1, the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares.
(ii) When Adjustments Are to be Made. The adjustments required by Sections 6.1(a), 6.1(b) 6.1(c) and 6.1(d) shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that no adjustment of the Warrant Shares into which each Warrant is exercisable that would otherwise be required shall be made unless and until such adjustment either by itself or with other adjustments not previously made increases or decreases the Warrant Shares into which each Warrant is exercisable immediately prior to the making of such adjustment by at least 1%. Any adjustment representing a change of less than such minimum amount (except as aforesaid) shall be carried forward and made as soon as such adjustment, together with other adjustments required by Sections 6.1(a), 6.1(b), 6.1(c) and 6.1 (h)) and not previously made, would result in such minimum adjustment.
(iii) Fractional Interests. In computing adjustments under this Section 6, fractional interests in Common Shares shall be taken into account to the nearest one-thousandth of a share.
(iv) Deferral of Issuance upon Exercise. In any case in which this Section 6 shall require that an adjustment to the Warrant Shares into which each Warrant is exercisable be made effective pursuant to Section 6.1(a)(i), 6.1(b) or 6.1(d) prior to the occurrence of a specified event and any Warrant is exercised after the time at which the adjustment became effective but prior to the occurrence of such specified event the Company may elect to defer (with prompt written notice to the Warrant Agent of such election) until the occurrence of such specified event the issuing to the Holder of the Warrant Certificate evidencing such Warrant (or other Person entitled thereto) of, and may delay registering such Holder or other Person as the recordholder of, the Warrant Shares over and above the Warrant Shares issuable upon such exercise determined in accordance with Section 3.6 on the basis of the Warrant Shares into which each Warrant is exercisable prior to such adjustment determined in accordance with Section 3.6; provided, however, that the Company shall deliver to such Holder or other person a due ▇▇▇▇ or other appropriate instrument evidencing the right of such Holder or other Person to receive, and to become the record holder of, such Additional Common Shares, upon the occurrence of the event requiring such adjustment.
(g)
Warrant Price Adjustment. Whenever the number of
Warrant Shares into which a Warrant is exercisable is adjusted as provided in
this Section 6.1, the Warrant Price payable upon exercise of the Warrant shall
simultaneously be adjusted by multiplying such Warrant Price immediately prior
to such adjustment by a fraction, the numerator of which shall be the number of
Warrant Shares into which such Warrant was exercisable immediately prior to such
adjustment, and the denominator of which shall be the number of Warrant Shares
into which such Warrant was exercisable immediately thereafter.
(h) Merger, Consolidation or Combination. In the event
the Company merges, consolidates or otherwise combines with or into any Person,
then, as a condition of such merger, consolidation or combination, lawful and
adequate provisions shall be made whereby Warrantholders shall, in addition to
their other rights hereunder, thereafter have the right to purchase and receive
upon the basis and upon the terms and conditions specified in this Agreement
upon exercise of the Warrants and in Lieu of the Warrant Shares immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock, securities or assets as may be issued
or payable with respect to or in exchange for a number of outstanding Common
Shares equal to the number of Warrant Shares immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby, and in any
such case appropriate provision shall be made with respect to the rights and
interests of the Warrantholders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the number of
Warrant Shares) shall thereafter be applicable, as nearly as may be practicable,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof.
(i) Compliance with Governmental Requirements. Before
taking any action that would cause an adjustment reducing the Warrant Price
below the then par value of any of the Warrant Shares into which the Warrants
are exercisable, the Company will take any corporate action that may be
necessary in order that the Company may validly and legally issue fully paid and
non assessable Warrant Shares at such adjusted Warrant Price.
(j) Optional Tax Adjustment. The Company may at its
option, at any time during the term of the Warrants, increase the number of
Warrant Shares into which each Warrant is exercisable, or decrease the Warrant
Price, in addition to those changes required by Section 6.1(a), 6.1(b), 6.1(c),
6.1(d) or 6.1(g), as deemed advisable by the Board of Directors of the Company,
in order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the Recipients.
6.2 Notice of Adjustment.
Whenever the number of Warrant Shares into which a Warrant is
exercisable is to be adjusted, or the Warrant Price is to be adjusted, in either
case as herein provided, the Company shall compute the adjustment in accordance
with Section 6.1, shall, promptly after such adjustment becomes effective, cause
written notice of such adjustment or adjustments to be given to all Holders in
accordance with Section 13.1(b) and shall deliver to the Warrant Agent a
certificate of the Chief Financial Officer of the Company setting forth the
number of Warrant Shares into which each Warrant is exercisable after such
adjustment, or the adjusted Warrant Price, as the case may be, and setting forth
in a brief, reasonably detailed statement of the facts requiring such adjustment
and the computation by which such adjustment was made. As provided in Section
11.1, the Warrant Agent shall be entitled to rely on such certificate and shall
be under no duty or responsibility with respect to any such certificate, except
to exhibit the same from time to time to any Holder desiring an inspection
thereof during reasonable business hours.
6.3 Statement on Warrant Certificates.
Irrespective of any adjustment in the number or kind of
shares into which the Warrants are exercisable, Warrant Certificates theretofore
or thereafter issued may continue to express the same price and number and kind
of shares initially issuable pursuant to this Agreement.
6.4 Fractional Interest.
The Company shall not issue fractional Warrant Shares on the
exercise of Warrants. If Warrant Certificates evidencing more than one Warrant
shall be presented for exercise at the same time by the same Holder, the number
of full Warrant Shares which shall be issuable upon such exercise thereof shall
be computed on the basis of the aggregate number of Warrants so to be exercised.
If any fraction of a Warrant Share would, except for the provisions of this
Section 6.4, be issuable on the exercise of any Warrant (or specified portion
thereof), the Company shall, in lieu of issuing any fractional Warrant Shares,
pay an amount in cash calculated by it to be equal to the then Current Market
Price per Common Share on the date of such exercise multiplied by such fraction
computed to the nearest whole cent. The Holders, by their acceptance of the
Warrant Certificates, expressly waive their right to receive any fraction of a
Warrant Share or a stock certificate representing a fraction of a Warrant Share.
The Warrant Agent shall have no duty or obligation under this section 6.4
(including but not limited to the payment, calculation or valuation of
fractional Warrant Shares) unless and until the Company has provided or caused
to be provided to the Warrant Agent sufficient cash necessary to satisfy the
Company's obligations with respect to fractional Warrant shares.
7. LOSS OR MUTILATION
Upon (i) receipt by the Company and the Warrant Agent of
evidence satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and such security or
indemnity as may be required by them to save each of them harmless and (ii)
surrender, in the case of mutilation, of the mutilated Warrant Certificate to
the Warrant Agent and cancellation thereof, then, in the absence of prior
written notice to the Company or the Warrant Agent that the Warrants evidenced
thereby have been acquired by a bona fide purchaser, the Company shall execute
and deliver to the Warrant Agent and upon its written request the Warrant Agent
shall countersign and deliver to the registered Holder of the lost, stolen,
destroyed or mutilated Warrant Certificate, in exchange therefor or in lieu
thereof, a new Warrant Certificate of the same tenor and for a like aggregate
number of Warrants. At the written request of such registered Holder, the new
Warrant Certificate so issued shall be retained by the Warrant Agent as having
been surrendered for exercise, in lieu of delivery thereof to such Holder, and
shall be deemed for purposes of Section 3.2 to have been surrendered for
exercise on the date the conditions specified in clauses (i) and (ii) of the
preceding sentence were first satisfied.
Upon the issuance of any new Warrant Certificate under this
Section 7, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
other expenses (including the fees and expenses of the Warrant Agent and of
counsel to the Company) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant
to this Section 7 in lieu of any lost, stolen or destroyed Warrant Certificate
shall constitute an additional contractual obligation of the Company, whether or
not the allegedly 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 7 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, lost, stolen, or destroyed Warrant Certificates.
8. RESERVATION AND AUTHORIZATION OF WARRANT SHARES
The Company shall at all times reserve and keep available,
free from preemptive rights, solely for issue upon the exercise of Warrants as
herein provided, such number of its authorized but unissued Warrant Shares
deliverable upon the exercise of Warrants as will be sufficient to permit the
exercise in full of all outstanding Warrants. The Company covenants that all
Warrant Shares will, at all times that Warrants are exercisable, be duly
approved for listing subject to official notice of issuance on each securities
exchange, if any, on which the Common Shares are then listed. The Company
covenants that (i) all Warrant Shares that may be issued upon exercise of
Warrants shall upon issuance be duly and validly authorized, issued and fully
paid and nonassessable and free of preemptive or similar rights and (ii) the
stock certificates issued to evidence any such Warrant Shares will comply with
the Delaware General Corporation Law and any other applicable law.
The Company hereby authorizes and directs its current and
future transfer agents for the Common Shares at all times to reserve stock
certificates for such number of authorized shares as shall be requisite for such
purpose. The Warrant Agent is hereby authorized to requisition from time to time
from any such transfer agents stock certificates required to honor outstanding
Warrants upon exercise thereof in accordance with the terms of this Agreement,
and the Company hereby authorizes and directs such transfer agents to comply
with all such requests of the Warrant Agent. The Company will supply such
transfer agents with duly executed stock certificates for such purposes.
Promptly after the date of expiration of all of the Warrants in accordance with
Section 3.2(b), the Warrant Agent shall certify to the Company the aggregate
number of Warrants then outstanding, and thereafter no Warrant Shares shall be
reserved in respect of such Warrants.
9. WARRANT TRANSFER BOOKS
The Warrant Agent will maintain the following offices (each a
"Corporate Agency Office") in the United States of America, where
Warrant Certificates may be surrendered for registration of transfer or exchange
and where Warrant Certificates may be surrendered for exercise of Warrants
evidenced thereby:
(a) By mail:
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Reorganization Department
(b) By hand:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Reorganization Department
(c) By overnight: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Mail Stop -- Reorg
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
The Warrant Agent will give prompt written notice to all
Holders of Warrant Certificates of any change in the location of such offices.
The Warrant Certificates evidencing the Warrants shall be
issued in registered form only. The Company shall cause to be kept at the
offices of the Warrant Agent designated for such purpose a warrant register (the
"Warrant Register") in which, subject to such reasonable regulations
as the Warrant Agent may prescribe and such regulations as may be prescribed by
law, the Company shall provide for the registration of Warrant Certificates and
of transfers or exchanges of Warrant Certificates as herein provided.
Subject to Section 2.4, upon surrender for registration of
transfer of any Warrant Certificate at the Corporate Agency Office, the Company
shall execute and deliver to the Warrant Agent, and the Warrant Agent shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Warrant Certificates evidencing a like aggregate
number of Warrants.
Subject to Section 2.4, (i) at the option of the Holder,
Warrant Certificates may be exchanged at the office of the Warrant Agent upon
payment of the charges hereinafter provided for other Warrant Certificates
evidencing a like aggregate number of Warrants and (ii) whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Warrant Agent, and the Warrant Agent shall countersign and
deliver, the Warrant Certificates of the same tenor and evidencing the same
number of Warrants as evidenced by the Warrant Certificates surrendered by the
Holder making the exchange.
All Warrant Certificates issued upon any registration of
transfer or exchange of Warrant Certificates shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such
registration of transfer or exchange.
Subject to Section 2.4, every Warrant Certificate surrendered
for registration of transfer or exchange shall (if so required by the Company or
the Warrant Agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Warrant Agent, duly
executed by the Holder thereof or his attorney duly authorized in writing.
The Warrant Agent shall, upon request of the Company from
time to time, deliver to the Company such reports of registered ownership of the
Warrants and such records of transactions with respect to the Warrants and the
Warrant Shares as the Company may reasonably request. The Warrant Agent shall
also make available to the Company for inspection by the Company's agents or
employees, from time to time as the Company may reasonably request, such
original books of accounts and records maintained by the Warrant Agent in
connection with the issuance and exercise of Warrants hereunder, such
inspections to occur at the Corporate Agency Office during normal business
hours.
The Warrant Agent shall keep copies of this Agreement and any
notices given to Holders hereunder available for inspection by the Holders
during normal business hours at the Corporate Agency Office. The Company shall
supply the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may request.
10. WARRANT HOLDERS
10.1 Voting or Dividend Rights.
Prior to the exercise of the Warrants, except as may be
specifically provided for herein, (i) no Holder of a Warrant Certificate, as
such, shall be entitled to any of the rights of a holder of Common Shares,
including, without limitation, the right to vote at or to receive any notice of
any meetings of stockholders; (ii) the consent of any Holder shall not be
required with respect to any action or proceeding of the Company; (iii) except
as provided in Section 5, no Holder, by reason of the ownership or possession of
a Warrant or the Warrant Certificate representing the same, shall have any right
to receive any stock dividends, allotments or rights or other distributions
paid, allotted or distributed or distributable to the stockholders of the
Company prior to, or for which the relevant record date preceded, the date of
the exercise of such Warrant; and (iv) no Holder shall have any right not
expressly conferred by this Agreement or Warrant Certificate held by such
Holder.
10.2 Rights of Action.
All rights of action against the Company in respect of this
Agreement, except rights of action vested in the Warrant Agent, are vested in
the Holders of the Warrant Certificates, and any Holder of any Warrant
Certificate, without the consent of the Warrant Agent or the Holder of any other
Warrant Certificate, may, in such Holder's own behalf and for such Holder's
own benefit, enforce and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect of,
such Holder's right to exercise, exchange or tender for purchase such Holder's
Warrants in the manner provided in this Agreement.
10.3 Treatment of Holders of Warrant Certificates.
Every Holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company, with the Warrant Agent and with every
subsequent holder of such Warrant Certificate that, prior to due presentment of
such Warrant Certificate for registration of transfer, the Company and the
Warrant Agent may treat the Person in whose name the Warrant Certificate is
registered as the owner thereof for all purposes and as the Person entitled to
exercise the rights granted under the Warrants, and neither the Company, the
Warrant Agent nor any agent thereof shall be affected by any notice to the
contrary.
10.4 Communications to Holders.
(a) If any Holder of a Warrant Certificate applies in writing
to the Warrant Agent and such application states that the applicant desires to
communicate with other Holders with respect to its rights under this Agreement
or under the Warrants, then the Warrant Agent shall, within five (5) Business
Days after the receipt of such application, and upon payment to the Warrant
Agent by such applicant of the reasonable expenses of preparing such list,
provide to such applicant a list of the names and addresses of all Holders of
Warrant Certificates as of the most recent practicable date.
(b) Every Holder of Warrant Certificates, by receiving and
holding the same, agrees with the Company and the Warrant Agent that neither the
Company nor the Warrant Agent nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 10.4(a).
11. CONCERNING THE WARRANT AGENT
11.1 Nature of Duties and Responsibilities Assumed.
The Company hereby appoints the Warrant Agent to act as agent
of the Company as set forth in this Agreement. The Warrant Agent hereby accepts
the appointment as agent of the Company and agrees to perform that agency upon
the terms and conditions set forth in this Agreement and in the Warrant
Certificates or as the Company and the Warrant Agent may hereafter agree, by all
of which the Company and the Holders of Warrant Certificates, by their
acceptance thereof, shall be bound; provided, however, that the terms and
conditions contained in the Warrant Certificates are subject to and governed by
this Agreement or any other terms and conditions hereafter agreed to by the
Company and the Warrant Agent.
The Warrant Agent shall not, by countersigning Warrant
Certificates or by any other act hereunder, be deemed to make any
representations as to validity or authorization of (i) the Warrants or the
Warrant Certificates (except as to its countersignature thereon), (ii) any
securities or other property delivered upon exercise of any Warrant, (iii) the
accuracy of the computation of the number or kind or amount of stock or other
securities or other property deliverable upon exercise of any Warrant or (iv)
the correctness of any of the representations of the Company made in such
certificates that the Warrant Agent receives. The Warrant Agent shall not at any
time have any duty to calculate or determine whether any facts exist that may
require any adjustments pursuant to Section 6 hereof with respect to the kind
and amount of shares or other securities or any property issuable to Holders
upon the exercise of Warrants required from time to time. The Warrant Agent
shall have no duty or responsibility to determine the accuracy or correctness of
such calculation or with respect to the methods employed in making the same. The
Warrant Agent shall not be accountable with respect to the validity or value (or
the kind or amount) of any Warrant Shares or of any securities or property which
may at any time be issued or delivered upon the exercise of any Warrant or upon
any adjustment pursuant to Section 6 hereof, and it makes no representation with
respect thereto. The Warrant Agent shall not be liable for nor be responsible
for any failure of the Company to make any cash payment or to issue, transfer or
deliver any Warrant Shares or stock certificates or other securities or property
upon the surrender of any Warrant Certificate for the purpose of exercise or
upon any adjustment pursuant to Section 6 hereof or to comply with any of the
covenants of the Company contained in Section 12 hereof.
The Warrant Agent shall not (i) be liable for any recital or
statement of fact contained herein or in the Warrant Certificates or for any
action taken, suffered or omitted by it in good faith on the belief that any
Warrant Certificate or any other documents or any signatures are genuine or
properly authorized, (ii) be responsible for any failure on the part of the
Company to comply with any of its covenants and obligations contained in this
Agreement or in the Warrant Certificates or (iii) be liable for any act or
omission in connection with this Agreement except for its own gross negligence,
bad faith or willful misconduct (each as finally determined by a court of
competent jurisdiction). Anything in this Agreement to the contrary
notwithstanding, in no event shall the Warrant Agent be liable for special,
punitive, indirect, incidental or consequential loss or damage of any kind
whatsoever (including, but not limited, to lost profits), even if the Warrant
Agent has been advised of the possibility of such loss or damage. Any liability
of the Warrant Agent under this Agreement shall be limited to the amount of fees
paid by the Company to the Warrant Agent.
The Warrant Agent is hereby authorized to accept and is
protected in accepting advice or instructions with respect to the performance of
its duties hereunder by Company Order and to apply to any such officer named in
such Company Order for advice or instructions (which instructions will be
promptly given in writing when requested), and the Warrant Agent shall not be
liable for any action taken, suffered or omitted to be taken by it in good faith
in accordance with the advice or instructions in any Company Order. The Warrant
Agent shall be fully protected and authorized in relying upon the most recent
instructions received by any such officer.
The Warrant Agent may execute and exercise any of the rights
and powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys, agents or employees, absent gross negligence, bad
faith or willfull misconduct in the selection and in the continued employment of
any such attorney, agent or employee. The Warrant Agent shall not be under any
obligation or duty to institute, appear in or defend any action, suit or legal
proceeding in respect hereof, unless first indemnified to its satisfaction, but
this provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or without such
indemnity. The Warrant Agent shall promptly notify the Company in writing of any
claim made or action, suit or proceeding instituted against it arising out of or
in connection with this Agreement.
The Company shall perform, execute, acknowledge and deliver
or cause to be performed, executed, acknowledged and delivered all such further
acts, instruments and assurances as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
The Warrant Agent shall act solely as agent of the Company
hereunder and does not assume any obligation or relationship of agency or trust
for or with any of the Holders or any beneficial owners of Warrants. The Warrant
Agent shall not be liable except for the failure to perform such duties as are
specifically set forth herein or specifically set forth in the Warrant
Certificates, and no implied covenants or obligations shall be read into this
Agreement against the Warrant Agent whose duties and obligations shall be
determined solely by the express provisions hereof or the express provisions of
the Warrant Certificates.
11.2 Right to Consult Counsel.
The Warrant Agent may at any time consult with legal counsel
satisfactory to it (who may be legal counsel for the Company), and the advice or
opinion of such counsel shall be full and complete authorization and protection
to the Warrant Agent and the Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder for any action taken, suffered or
omitted by it in good faith in accordance with the opinion or advice of such
counsel.
11.3 Compensation, Reimbursement and Indemnification.
The Company agrees to pay the Warrant Agent from time to time
compensation for all fees and expenses relating to its services hereunder as the
Company and the Warrant Agent may agree from time to time and to reimburse the
Warrant Agent for reasonable costs, expenses and disbursements, including
reasonable counsel fees and expenses incurred in connection with the
preparation, delivery, amendment, execution and administration of this Agreement
and the exercise and performance of its duties hereunder. The Company further
agrees to indemnify the Warrant Agent for and save it harmless against any
losses, liabilities, settlements, damages, fines, penalties, demands, claims and
expenses arising out of or in connection with the acceptance and administration
of this Agreement, including the reasonable costs, legal fees and expenses of
investigating or defending any claim of such liability, except that the Company
shall have no liability hereunder to the extent that any such loss, liability or
expense results from the Warrant Agent's own gross negligence, bad faith or
willful misconduct (each as finally determined by a court of competent
jurisdiction). The provisions of this Section 11 shall survive the termination
of this agreement, the termination and the expiration of the Warrants, and the
resignation and removal of the Warrant Agent. The costs and expenses incurred in
enforcing this right of indemnification shall be paid by the Company.
No provision of this Agreement shall require the Warrant
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights if it believes that repayment of such funds or adequate indemnification
against such risk or liability is not assured it.
11.4 Warrant Agent May Hold Company Securities.
The Warrant Agent, any Countersigning Agent and any
stockholder, affiliate, director, officer or employee of the Warrant Agent or
any Countersigning Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or its Affiliates, become pecuniarily interested in
transactions in which the Company or its Affiliates may be interested, contract
with or lend money to the Company or its Affiliates or otherwise act as fully
and freely as though it were not the Warrant Agent or the Countersigning Agent,
respectively, under this Agreement. Nothing herein shall preclude the Warrant
Agent or any Countersigning Agent from acting in any other capacity for the
Company or for any other Person.
11.5 Resignation and Removal; Appointment of Successor.
(a) The Warrant Agent may resign its duties and be discharged
from all further duties and liability hereunder (except liability arising as a
result of the Warrant Agent's own gross negligence or willful misconduct)
after giving thirty (30) days' prior written notice to the Company. The
Company may remove the Warrant Agent upon thirty (30) days' written notice,
and the Warrant Agent shall thereupon in like manner be discharged from all
further duties and liabilities hereunder, except as aforesaid. The Warrant Agent
shall, at the expense of the Company, cause notice to be given in accordance
with Section 13.1(b) to each Holder of a Warrant Certificate of said notice of
resignation or notice of removal, as the case may be. Upon such resignation or
removal, the Company shall appoint in writing a new Warrant Agent. If the
Company shall fail to make such appointment within a period of thirty (30)
calendar days after it has been notified in writing of such resignation by the
resigning Warrant Agent or after such removal, then the Holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Warrant Agent. Any new Warrant Agent, whether appointed by the Company
or by such a court, shall be a Person doing business under the laws of the
United States or any state thereof in good standing, authorized under such laws
to act as Warrant Agent, and is ordinarily Shareholder Services business for
publicly held securities. After acceptance in writing of such appointment by the
new Warrant Agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; but if for any reason it
shall be reasonably necessary or expedient to execute and deliver any further
assurance, conveyance, act or deed, the same shall be done at the reasonable
expense of the Company and shall be legally and validly executed and delivered
by the resigning or removed Warrant Agent. Not later than the effective date of
any such appointment, the Company shall file notice thereof with the resigning
or removed Warrant Agent. Failure to give any notice provided for in this
Section 11.5(a), however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Warrant Agent or the
appointment of a new Warrant Agent, as the case may be.
(b) Any Person into which the warrant Agent or any new
Warrant Agent may be merged, or any Person resulting from any consolidation to
which the Warrant Agent or any new Warrant Agent shall be a party, shall be a
successor Warrant Agent under this Agreement without any further act, provided
that such Person would be eligible for appointment as successor to the Warrant
Agent under the provisions of Section 11.5(a). Any such successor Warrant Agent
shall promptly cause notice of its succession as Warrant Agent to be given in
accordance with Section 13.1(b) to each Holder of a Warrant Certificate at such
Holder's last address as shown on the Warrant Register.
11.6 Appointment of Countersigning Agent.
(a) The Warrant Agent may appoint a Countersigning Agent or
Agents which shall be authorized to act on behalf of the Warrant Agent to
countersign Warrant Certificates issued upon original issue and upon exchange,
registration of transfer or pursuant to Section 7, and Warrant Certificates so
countersigned shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. Wherever reference is made in this Agreement to the
countersignature and delivery of Warrant Certificates by the Warrant Agent or to
Warrant Certificates countersigned by the Warrant Agent, such reference shall be
deemed to include countersignature and delivery on behalf of the Warrant Agent
by a Countersigning Agent and Warrant Certificates countersigned by a
Countersigning Agent. Each Countersigning Agent shall be acceptable to the
Company and shall at the time of appointment be a Person doing business under
the laws of the United States of America or any State thereof in good standing,
authorized under such laws to act as Countersigning Agent, and having a combined
capital and surplus of not less than $100,000,000. The combined capital and
surplus of any such new Countersigning Agent shall be deemed to be the combined
capital and surplus as set forth in the most recent annual report of its
condition published by such Countersigning Agent prior to its appointment,
provided that such reports are published at least annually pursuant to law or to
the requirements of a Federal or state supervising or examining authority.
(b) Any Person into which a Countersigning Agent may be
merged, or any Person resulting from any consolidation to which such
Countersigning Agent shall be a party, shall be a successor Countersigning Agent
without any further act, provided that such Person would be eligible for
appointment as a new Countersigning Agent under the provisions of Section
11.6(a), without the execution or filing of any paper or any further act on the
part of the Warrant Agent or the Countersigning Agent. Any such successor
Countersigning Agent shall promptly cause notice of its succession as
Countersigning Agent to be given in accordance with Section 13.1(b) to each
Holder of a Warrant Certificate at such Holder's last address as shown on the
Warrant Register.
(c) A Countersigning Agent may resign at any time by giving
thirty (30) days' prior written notice thereof to the Warrant Agent and to the
Company. The Warrant Agent may at any time terminate the agency of a
Countersigning Agent by giving thirty (30) days' prior written notice thereof
to such Countersigning Agent and to the Company.
(d) The Warrant Agent agrees to pay to each Countersigning
Agent from time to time reasonable compensation for its services under this
Section, and the Warrant Agent shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 11.3.
(e) Any Countersigning Agent shall have the same rights and
immunities as those of the Warrant Agent set forth in Section 11.1.
12. ADDITIONAL COVENANTS OF THE COMPANY
12.1 Maintenance of Office.
So long as any of the Warrants remain outstanding, the
Company will maintain in the City of New York the following: (a) an office or
agency where the Warrants may be presented for exercise, (b) an office or agency
where the Warrants may be presented for registration of transfer and for
exchange as in this Agreement provided and (c) an office or agency where notices
and demands to or upon the Company in respect of the Warrants or of this
Agreement may be served. The Company will give to the Warrant Agent written
notice of the location of any such office or agency and of any change of
location thereof. The Company hereby initially designates the office of the
Warrant Agent at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or such other location as the Company may designate upon notice from the Warrant
Agent as the office or agency for each such purpose. In case the Company shall
fail to maintain any such office or agency or shall fail to give such notice of
the location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the Corporate Agency Office.
13. NOTICES
13.1 Notices Generally.
(a) Any request, notice, direction, authorization, consent,
waiver, demand or other communication permitted or authorized by this Agreement
to be made upon, given or furnished to or filed with the Company or the Warrant
Agent by the other party hereto or by any Holder shall be sufficient for every
purpose hereunder if in writing (including telecopy communication) and
telecopied or delivered by hand (including by courier service) as follows:
If to the Company, to it at:
Ascent Energy Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
or
If to the Warrant Agent, to it at:
Mellon Investor Services LLC
Plaza of the Americas
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to:
Mellon Investor Services LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
or, in either case, such other address as shall have been set
forth in a notice delivered in accordance with this Section 13.1(a).
All such communications shall, when so telecopied or
delivered by hand, be effective when telecopied with confirmation of receipt or
received by the addressee, respectively.
Any Person that telecopies any communication hereunder to any
Person shall, on the same date as such tetecopy is transmitted, also send, by
first class mail, postage prepaid and addressed to such Person as specified
above, an original copy of the communication so transmitted.
(b) Where this Agreement provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Warrant Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Agreement
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made by a method approved by the Warrant Agent as one which would be most
reliable under the circumstances for successfully delivering the notice to the
addressees shall constitute a sufficient notification for every purpose
hereunder.
13.2 Required Notices to Holders.
In case the Company shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Common Shares or to make any
other distribution to the holders of its Common Shares for which an adjustment
is required to be made pursuant to Section 6, (ii) to distribute to the holders
of its Common Shares rights to subscribe for or to purchase any Additional
Common Shares or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Common Shares, (iv) to
effect any transaction described in Section 6.1(h) or (v) to effect the
liquidation, dissolution or winding up of the Company, then, and in each such
case, the Company shall cause to be filed with the Warrant Agent and shall give
to each Holder of a Warrant Certificate, in accordance with Section 13.1(b), a
notice of such proposed action or event. Such notice shall specify (x) the date
on which a record is to be taken for the purposes of such dividend or
distribution; and (y) the date on which such reclassification, transaction,
event, liquidation, dissolution or winding up is expected to become effective
and the date as of which it is expected that holders of Common Shares of record
shall be entitled to exchange their Common Shares for securities, cash or other
property deliverable upon such reclassification, transaction, event,
liquidation, dissolution or winding up. Such notice shall be given, in the case
of any action covered by clause (i) or (ii) above, at least ten (10) days prior
to the record date for determining holders of the Common Shares for purposes of
such action or, in the case of any action covered by clauses (iii) through (v),
at least twenty (20) days prior to the applicable effective or expiration date
specified above or, in any such case, prior to such earlier time as notice
thereof shall be required to be given pursuant to Rule 10b-17 under the Exchange
Act, if applicable.
If at any time the Company shall cancel any of the proposed
transactions for which notice has been given under this Section 13.2 prior to
the consummation thereof, the Company shall give each Holder and the Warrant
Agent prompt notice of such cancellation in accordance with Section 13.1(b)
hereof.
14. APPLICABLE LAW
THIS AGREEMENT, EACH WARRANT CERTIFICATE ISSUED HEREUNDER,
EACH WARRANT EVIDENCED THEREBY AND ALL RIGHTS ARISING HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
15. PERSONS BENEFITING
This Agreement shall be binding upon and inure to the benefit
of the Company and the Warrant Agent, and their respective successors and
assigns and the Holders from time to time of the Warrant Certificates. Nothing
in this Agreement is intended or shall be construed to confer upon any Person,
other than the Company, the Warrant Agent and the Holders of the Warrant
Certificates, any right, remedy or claim under or by reason of this Agreement or
any part hereof. Each Holder, by acceptance of a Warrant Certificate, agrees to
all of the terms and provisions of this Agreement applicable thereto.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
17. AMENDMENTS
The Company and the Warrant Agent may, without the consent or
concurrence of the Holders of the Warrant Certificates, by supplemental
agreement or otherwise, amend this Agreement for the purpose of making any
changes or corrections in this Agreement that (i) are required to cure any
ambiguity or to correct or supplement any defective or inconsistent provision or
clerical omission or mistake or manifest error herein contained or (ii) add to
the covenants and agreements of the Company in this Agreement further covenants
and agreements of the Company thereafter to be observed, or surrender any rights
or powers reserved to or conferred upon the Company in this Agreement or (iii)
to otherwise change or supplement any other provisions in this Agreement in any
manner which the Parties hereto may deem necessary or desirable; provided,
however, that in either case, such amendment shall not adversely affect the
rights or interests of the Holders of the Warrant Certificates hereunder in any
material respect. This Agreement may otherwise be amended by the Company and the
Warrant Agent only with the consent of the Holders of a majority of the then
outstanding Warrants. Notwithstanding the foregoing, the consent of each Holder
of a Warrant affected shall be required for any amendment pursuant to which the
Warrant Price would be increased or the number of Warrant Shares purchasable
upon exercise of Warrants would be decreased (other than pursuant to adjustments
provided herein).
The Warrant Agent shall join with the Company in the
execution and delivery of any such amendment unless such amendment affects the
Warrant Agent's own rights, duties or immunities hereunder, in which case the
Warrant Agent may, but shall not be required to, join in such execution and
delivery. Upon execution and delivery of any amendment pursuant to this Section
17, such amendment shall be considered a part of this Agreement for all purposes
and every Holder of a Warrant Certificate theretofore or thereafter
countersigned and delivered hereunder shall be bound thereby.
Promptly after the execution by the Company and the Warrant
Agent of any such amendment, the Company shall give notice to the Holders of
Warrant Certificates, setting forth in general terms the substance of such
amendment, in accordance with the provisions of Section 13.1(b). Any failure of
the Company to mail such notice or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment.
18. INSPECTION
The Warrant Agent shall cause a copy of this Agreement to be
available at all reasonable times at the Corporate Agency 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 Certificate for inspection by it.
19. SUCCESSOR TO THE COMPANY
So long as Warrants remain outstanding, the Company will not
enter into any Non-Surviving Combination unless the acquirer (or its parent
company under any triangular acquisition) shall expressly assume by a
supplemental agreement, executed and delivered to the Warrant Agent, in form
reasonably satisfactory to the Warrant Agent, the due and punctual performance
of every covenant of this Agreement on the part of the Company to be performed
and observed and shall have provided for exercise rights in accordance with
Section 6.1 (h)). Upon the consummation of such Non-Surviving Combination, the
acquirer (or its parent company under any triangular acquisition) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Agreement with the same effect as if such acquirer (or its
parent company under any triangular acquisition) had been named as the Company
herein.
20. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement of the parties
hereto as to the subject matter hereof and supersedes all previous agreements
among all or some of the parties hereto with respect thereto, whether written,
oral or otherwise.
21. HEADINGS
The descriptive headings of the several Sections of this
Agreement are inserted for convenience and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
ASCENT ENERGY INC.
By: _________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
MELLON INVESTOR SERVICES LLC
By: _________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Vice President
Business Development
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
Restricted Warrant Legend
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED TO OR FOR THE ACCOUNT OR BENEFIT OF ANY PERSON
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS
AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) UNDER THE
SECURITIES ACT), (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD AS COMPLIES
WITH RULE 144 UNDER THE SECURITIES ACT) AFTER THE LATER
OF THE DATE OF ORIGINAL ISSUANCE OF THIS SECURITY AND THE LAST DATE ON WHICH
THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY
(THE "RESALE RESTRICTION TERMINATION DATE") RESELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY, EXCEPT (A) TO THE ISSUER, (B) TO A PERSON
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH THE RESALE PROVISIONS OF RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE WARRANT AGENT A WRITTEN CERTIFICATION CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (COPIES OF SUCH FORM CAN BE OBTAINED FROM THE WARRANT AGENT),
(D) PURSUANT TO THE RESALE LIMITATIONS PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE AT ALL TIMES
WITHIN ITS CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS,
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHICH THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE
PROPOSED TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE WARRANT AGENT AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE FOREGOING RESTRICTIONS ON RESALE
WILL NOT APPLY SUBSEQUENT TO THE RESALE RESTRICTION TERMINATION DATE.
ASCENT ENERGY INC.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
(VALID ONLY IF COUNTERSIGNED BY THE WARRANT AGENT
AS PROVIDED HEREIN)
No. __________________
_______________ Warrants
THIS CERTIFIES THAT, for value received,
__________________________ or registered assigns, is the registered owner of
________________ Warrants to Purchase Common Shares of Ascent Energy Inc., a
Delaware corporation (the "Company," which term includes any successor
thereto under the Warrant Agreement), and is entitled, subject to and upon
compliance with the provisions hereof and of the Warrant Agreement, at such
Holder's option, at any time from and after ______________ to purchase from
the Company 191.943 Warrant Shares for each Warrant evidenced hereby, at the
purchase price of $5.21 per share (as adjusted from time to time, the
"Warrant Price"), payable in full at the time of purchase, the number
of Warrant Shares into which and the Warrant Price at which each Warrant shall
be exercisable, each being subject to adjustment as provided in Section 6 of the
Warrant Agreement.
The Holder of this Warrant Certificate may exercise all or
any whole number of the Warrants evidenced hereby, on any Business Day from and
after the Separation Date (as defined in the Warrant Agreement) until 5:00 p.
m., New York City time, on June 30, 2011 (subject to earlier expiration pursuant
to Section 5 of the Warrant Agreement, the "Expiration Date") for the
Warrant Shares purchasable hereunder.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless this Warrant Certificate has been countersigned by the
Warrant Agent by manual signature of an authorized officer on behalf of the
Warrant Agent, this Warrant Certificate shall not be valid for any purpose and
no Warrant evidenced hereby shall be exercisable.
IN WITNESS WHEREOF, the Company has caused this certificate
to be duly executed under its corporate seal.
ASCENT ENERGY INC.
SEAL
By:_________________________________
Name:
Title:
ATTEST:
Dated:
Countersigned:
MELLON INVESTOR SERVICES LLC
Warrant Agent
By:____________________________________
Authorized Signature
REVERSE OF WARRANT CERTIFICATE
ASCENT ENERGY INC.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
1. General.
The Warrants evidenced hereby are one of a duly authorized
issue of Warrants of the Company designated as its Warrants to Purchase Common
Shares ("Warrants"), limited in aggregate number to ________ Warrants
issued under and in accordance with the Warrant Agreement, dated as of July 27,
2001 (the "Warrant Agreement"), between the Company and Mellon
Investor Services LLC, as warrant agent (the "Warrant Agent", which
term includes any successor thereto permitted under the Warrant Agreement), to
which Warrant Agreement and all amendments thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Warrant Agent, the Holders of Warrant
Certificates and the owners of the Warrants evidenced thereby and of the terms
upon which the Warrant Certificates are, and are to be, countersigned and
delivered. A copy of the Warrant Agreement shall be available at all reasonable
times at the office of the Warrant Agent for inspection by the Holder hereof.
In the event of the exercise of less than all of the Warrants
evidenced hereby, a new Warrant Certificate of the same tenor and for the number
of Warrants which are not exercised shall be issued by the Company in the name
or upon the written order of the Holder of this Warrant Certificate upon the
cancellation hereof.
All Warrant Shares issuable by the Company upon the exercise
of Warrants shall, upon such issuance, be duly authorized, validly issued, fully
paid and nonassessable and free of preemptive or similar rights. The Company
shall pay any and all taxes (other than income taxes) that may be payable in
respect of the issue or delivery of Warrant Shares on exercise of Warrants. The
Company shall not be required, however, to pay any tax or other charge imposed
in respect of any transfer involved in the issue and delivery of any
certificates for Warrant Shares or payment of cash to any Person other than the
Holder of the Warrant Certificate surrendered upon the exercise of a Warrant,
and in case of such transfer or payment, the Warrant Agent and the Company shall
not be required to issue or deliver any certificate or pay any cash until (a)
such tax or charge has been paid or an amount sufficient for the payment thereof
has been delivered to the Warrant Agent or to the Company or (b) it has been
established to the Company's satisfaction that any such tax or other charge
that is or may become due has been paid.
The Warrant Certificates are issuable only in registered form
in denominations of whole numbers of Warrants. Upon surrender at the office of
the Warrant Agent and payment of the charges specified herein and in the Warrant
Agreement, this Warrant Certificate may be exchanged for Warrant Certificates in
other authorized denominations or the transfer hereof may be registered in whole
or in part in authorized denominations to one or more designated transferees,
subject to the restrictions on transfer set forth herein and in the Warrant
Agreement; provided, however, that such other Warrant Certificates issued upon
exchange or registration of transfer shall evidence the same aggregate number of
Warrants as this Warrant Certificate. The Company shall cause to be kept at the
office of the Warrant Agent the Warrant Register in which, subject to such
reasonable regulations as the Warrant Agent may prescribe and such regulations
as may be prescribed by law, the Company shall provide for the registration of
Warrant Certificates and of transfers or exchanges of Warrant Certificates.
2. Expiration.
Except as provided in the Warrant Agreement, all outstanding
Warrants shall expire and all rights of the Holders of Warrant Certificates
evidencing such Warrants shall terminate and cease to exist, as of 5:00 p.m.,
New York time, on the Expiration Date. "Expiration Date" shall mean
June 30, 2011, or such earlier date as determined in accordance with the Warrant
Agreement.
3. Registration Rights.
The Warrantholders and the holders of Warrant Shares shall
have the registration rights provided for in the Registration Rights Agreement,
dated as of July 27, 2001 (the "Registration Rights Agreement"), by
and between the Company named on the execution pages thereof and the Purchasers
named on the execution pages thereof. A copy of the Registration Rights
Agreement is on file at the office of the Warrant Agent.
4. Liquidation of the Company.
If, on or prior to the Expiration Date, the Company (or any
other Person controlling the Company) shall propose a voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company, each
Warrantholder shall receive the securities, money or other property which such
Warrantholder would have been entitled to receive had such Warrantholder been
the holder of record of the Warrant Shares into which the Warrants were
exercisable immediately prior to such dissolution, liquidation or winding up
(net of the then applicable Warrant Price), and the rights to exercise such
Warrants shall terminate.
5. Anti-Dilution Adjustments.
The number of Warrant Shares issuable upon exercise of a
Warrant shall be adjusted on occurrence of certain events, including, without
limitation, the payment of a certain dividends on, or the making of a certain
distributions in respect of, the Common Shares, including the distribution of
rights to purchase Common Shares (or securities convertible into or exchangeable
for Common Shares) at a price below the Current Market Price. An adjustment
shall also be made in the event of a combination, subdivision or
reclassification of the Common Shares.
Adjustments will be made whenever and as often as any
specified event requires an adjustment to occur.
6. Procedure for Exercising Warrant.
Subject to the provisions hereof and of the Warrant
Agreement, the Holder of this Warrant Certificate may exercise all or any whole
number of the Warrants evidenced hereby by either of the following methods:
(A) The Holder may deliver to the Warrant Agent at the Corporate Agency Office (i) a written notice of such Holder's election to exercise all or a portion of the Warrants evidenced hereby, duly executed by such Holder in the form set forth below, which notice shall specify the number of Warrant Shares to be purchased, (ii) this Warrant Certificate and (iii) a sum equal to the aggregate Warrant Price for the Warrant Shares into which the Warrants represented by this Warrant Certificate are being exercised, which sum shall be paid in any combination elected by such Holder of (x) certified or official bank checks in New York Clearing House funds payable to the order of the Company and delivered to the Warrant Agent at the Corporate Agency Office, or (y) wire transfers in immediately available funds to the account of the company at such banking institution as the Company shall have given notice to the Warrant Agent and the Holders in accordance with the Warrant Agreement; or
(B) The Holder may also exercise all or any of the Warrants in a "cashless" or "net-issue" exercise by delivering to the Warrant Agent at the Corporate Agency Office (A) a written notice of such Holder's election to exercise Warrants, duly executed by such Holder in the form set forth on the reverse of, or attached to, such Warrant Certificate, which notice shall specify the number of Warrant Shares to be delivered to such Holder and either (x) the number of Warrant Shares with respect to which such Warrants are being surrendered in payment of the aggregate Warrant Price for the Warrant Shares to be delivered to the Holder or (y) the number of Company Securities that are being surrendered in payment in the aggregate Warrant Price for the Warrant Shares to be delivered to the Holder, and (B) the Warrant Certificate evidencing such Warrants, together with any Company Securities being delivered in payment of the Warrant Price. For purposes of this subparagraph (ii), each Warrant Share as to which such Warrants are surrendered in payment of the aggregate Warrant Price will be attributed a value equal to (x) the Current Market Price per share of Common Shares minus (y) the then-current Warrant Price and (iii) each Company Security that is being surrendered in payment of the aggregate Warrant Price will be attributed a value equal to (x) the Current Market Price per share of Common Shares in the case of Common Shares, (y) the aggregate principal amount of any Company Securities that evidence debt and (z) the liquidation preference of any Company Securities that evidence preferred stock.
7. Registered Holder.
Prior to due presentment of this Warrant Certificate for
registration of transfer, the Company, the Warrant Agent and any agent of the
Company or the Warrant Agent may treat the Person in whose name this Warrant
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Warrant Agent nor any such agent shall be affected by notice to the
contrary.
8. Amendment.
The Warrant Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of Warrant Certificates
under the Warrant Agreement at any time by the Company and the Warrant Agent
with the consent of the Holders of Warrant Certificates evidencing a majority of
the then outstanding Warrants.
9. Status as Warrantholder.
Prior to the exercise of the Warrants, except as may be
specifically provided for in the Warrant Agreement, (i) no Holder of a Warrant
Certificate, as such, shall be entitled to any of the rights of a holder of
Common Shares of the Company, including, without limitation, the right to vote
at, or to receive any notice of, any meetings of stockholders of the Company;
(ii) the consent of any Holder shall not be required with respect to any action
or proceeding of the Company; (iii) except as provided with respect to the
dissolution, liquidation or winding up of the Company, no Holder, by reason of
the ownership or possession of a Warrant or the Warrant Certificate representing
the same, shall have any right to receive any stock dividends, allotments or
rights or other distributions (except as specifically provided in the Warrant
Agreement), paid, allotted or distributed or distributable to the stockholders
of the Company prior to or for which the relevant record date preceded the date
of the exercise of such Warrant; and (iv) no Holder shall have any right not
expressly conferred by the Warrant Agreement or Warrant Certificate held by such
Holder. Notwithstanding anything herein to the contrary, if the Company declares
and pays any cash dividend or makes any distribution in cash in respect of its
Common Shares, it shall pay each Holder of Warrants an amount in cash equal to
the amount that such Holder would have received had it been a holder of record
of the Warrant Shares issuable upon exercise of its Warrants immediately prior
to the record date for such dividend or distribution.
10. Governing Law.
This Warrant Certificate, each Warrant evidenced thereby and
the Warrant Agreement shall be governed by and construed in accordance with the
Laws of the State of New York, without giving effect to principles of conflicts
of Laws to the extent that application of the Law of another jurisdiction would
be required thereby.
11. Definitions.
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.
FORM OF EXERCISE
In accordance with and subject to the terms and conditions
hereof and of the Warrant Agreement, the undersigned registered Holder of this
Warrant Certificate hereby irrevocably elects to exercise Warrants evidenced by
this Warrant Certificate or represents that such Holder has tendered the Warrant
Price for each of the Warrants evidenced hereby being exercised in the aggregate
amount of $ in the indicated combination of:
(i) cash ($ );
(ii) certified bank check payable to the order of the Company
($ );
(iii) official bank check in New York Clearing House funds
payable to the order of the Company ($ );
(iv) wire transfer in immediately available funds to the
account designated by the Company for such purpose ($ ); or
(v) surrender of Warrants or other Company Securities having
a value determined in accordance with the Warrant Certificate ($ )
The undersigned requests that the Warrant Shares issuable
upon exercise be in fully registered form in such denominations and registered
in such names and delivered, together with any other property receivable upon
exercise, in such manner as is specified in the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated:__________________________
Name:________________________
(Please Print)
_________________________
(Insert Social Security or Other
Identifying Number of Holder)
Address:
____________________________
____________________________
____________________________
Signature
(Signature must conform in all respects to name of Holder as
specified on the face of this Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member firm of a national securities
exchange.)
Signature Guaranteed:
Instructions (i) as to denominations and names of Warrant
Shares issuable upon exercise and as to delivery of such securities and any
other property issuable upon exercise and (ii) if applicable, as to Warrant
Certificates evidencing unexercised Warrants:
Assignment
(Form of Assignment To Be Executed If Holder Desires To
Transfer Warrant Certificate)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
Please insert social security
or other identifying number
(Please print name and address including zip code)
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 within-named Company with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all respects to name of Holder as
specified on the face of this Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member firm of a national securities
exchange.)
Signature Guaranteed:
EXHIBIT B
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers Pursuant to ss.2.4(a) of the Warrant Agreement)
_____________, 20__
Mellon Investor Services LLC, Plaza of the Americas, ▇▇▇ ▇.
▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:___________________
Re: Ascent Energy Inc. Warrants to Purchase Common Shares
(the ______ "Warrants")
Reference is hereby made to the Warrant Agreement dated as of
September 9, 1997 (the "Warrant Agreement") between Ascent Energy Inc.
and Mellon Investor Services LLC, as Warrant Agent. Capitalized terms used but
not defined herein shall have the meanings given them in the Warrant Agreement.
This letter relates to Warrants exercisable for an aggregate
of ___________ Common Shares ("Warrant Shares"), which Warrants are
held in the name of name of transferor (the "Transferor") to effect
the transfer of the Warrants to the undersigned.
In connection with such request, and in respect of such
Warrants, we confirm that:
1. We have received and such information as we deem necessary
in order to make our investment decision.
2. We understand that the Warrants and Warrant Shares have
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Warrants or Warrant Shares to
offer, sell or otherwise transfer such securities prior to the date which is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate or the Company was the owner of such securities (or
any predecessor thereto) (the "Resale Restriction Termination Date")
only (a) to the Company (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as the Warrants or
Warrant Shares are eligible for resale pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a Qualified Institutional
Buyer (as defined in Rule 144A) that purchases for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) to an "Accredited
Investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) which is an institution (an "Institutional Accredited
Investor") that is purchasing for his own account or for the account of
such an Institutional Accredited Investor for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act, (e) pursuant to the resale limitations provided by Rule
144 under the Securities Act (if available), or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities law. The foregoing restrictions on sale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Warrants or Warrant Shares is proposed to be made pursuant
to clause (d) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Company which shall provide, among other things, that the
transferee is an Institutional Accredited Investor and that it is acquiring such
Warrants or Warrant Shares for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company
and the Warrant Agent reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Warrants or
Warrant Shares pursuant to clauses (d), (e) or (f) above to require the delivery
of an opinion of counsel, certifications and/or other information satisfactory
to the Company and the Warrant Agent.
3. We are an [Institutional] Accredited Investor or, if the
transfer is of a beneficial interest in the Global Warrant, a Qualified
Institutional Buyer, in either case purchasing for our own account or for the
account of such an [Institutional] Accredited Investor as to each of which we
exercise sole investment discretion and we are acquiring the Warrants or Warrant
Shares for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act and we have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investments for an indefinite period.
4. All of you are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
______________________________
(Name of Purchaser)
By:___________________________
Name:________________________
Title:_________________________
Date:_________________________
Upon transfer, the Securities should be registered in the
name of the new beneficial owner as follows:
Name:____________________________
Address:___________________________
__________________________________
Taxpayer ID Number:_________________
EXHIBIT C
|
FORM OF LEGAL
OPINION ON TRANSFER
_____________, 20__
Mellon Investor Services LLC, Plaza of the Americas, ▇▇▇ ▇.
▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:___________________
Re: Ascent Energy Inc. Warrants to Purchase Common Shares
(the "Warrants")
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the
sale by (the "Transferor") to (the "Purchaser") of Warrants
to Purchase Common Shares exercisable for an aggregate of Common Shares, par
value $.001 per share, of Ascent Energy Inc. (the "Warrants").
We have examined such documents and records as we have deemed
appropriate. In our examination of the foregoing, we have assumed the
authenticity of all documents, the genuineness of all signatures and the due
authorization, execution and delivery of the aforementioned by each of the
parties thereto. We have further assumed the accuracy of the representations
contained in the Accredited Investor Transferee Certificate executed and
delivered by the Purchaser in connection with its purchase of the Warrants made
by the parties executing such document. We have also assumed that the sale of
the Warrants to the Transferor was exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the
"Securities Act").
Based on the foregoing, we are of the opinion that the sale
to the Purchaser of the Warrants does not require registration of such Warrants
under the Securities Act.
Very truly yours,