SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Tyrex Oil Company
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(Exact name of Registrant as specified in its charter)
Wyoming 83-0245581
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(State of Incorporation) (I.R.S. Employer ID No.)
777 North Overland Trail, Suite 101, Casper, WY 82601
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(Address of Principal Offices)
The OCC Warrant Agreement
-------------------------
(Full Title of the Plan)
Tom N. Richardson
Tyrex Oil Company
777 North Overland Trail, Suite 101
Casper, WY 82601
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(Name and address of Agent for Service)
(303) 234-4260
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(Telephone number, including area code of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offer Price Aggregate Registration
Registered Registered Per Unit Offering Price Fee
- ---------- ---------- ------- -------------- ---
Common Stock(1)750,000 $0.30 $225,000 $45
(1) Issuable upon the exercise of Warrants issued pursuant to the OCC Warrant
Agreement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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The documents containing the information related to the OCC Warrant
Agreement which are not being filed as part of this Registration Statement (the
"Registration Statement") and documents incorporated by reference in response to
Item 3 of Part II of this Registration Statement, which taken together
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933 (the "Securities Act") will be sent or given to the
participant by the Registrant as specified by Rule 428(b)(1) of the Securities
Act.
Item 2. Registrant Information and Employee Plan Annual Information.
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As required by this Item, the Registrant shall provide to the participant
a written statement advising them of the availability without charge, upon
written or oral request, of documents incorporated by reference in Item 3 of
Part II hereof and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act. The statement shall include the address listing the
title or department and telephone number to which the request is to be directed.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant incorporates the following documents filed with the
Securities and Exchange Commission by reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1996; and
(b) Registrant's Quarterly Report(s) on Form 10-Q for the quarter(s) ended
September 30, 1996; December 31, 1996; and March 31, 1997.
(c) Registrants Form 8-K dated June 6, 1997.
(d) Registrants Form 8-K dated June 9, 1997.
(e) All other documents filed by Registrant after the date of this Registration
Statement under Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, (the "Exchange Act") are incorporated by reference herein and in
the Section 10 Prospectus to be a part thereof from the date of filing of such
documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. Not applicable.
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Item 6. Indemnification of Officers and Directors.
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Pursuant to the Registrant's Articles of Incorporation, By-laws and laws of the
State of Wyoming, the Corporation has broad powers to indemnify its directors
and officers against liabilities they may incur in such capacities. The
Corporation's Articles of Incorporation require the Corporation to indemnify
each director and each officer, his or her heirs, executors and administrators
against expenses reasonably incurred for liabilities incurred by him or her in
connection with such action, suit or proceeding to which her or she may be made
a party by reason of him or her being or having been a director or officer of
the Corporation, except in relation to matters as to which he or she shall
finally be adjudged in such action, suit or proceeding to be liable for fraud or
misconduct. In the event of a settlement before or after action or suit,
indemnification shall be provided only in connection with such matters covered
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<PAGE>
by the settlement as to which the Corporation is advised by counsel that the
person to be indemnified was not guilty of such fraud or misconduct. Any right
of indemnification set forth in the Articles of Incorporation do not exclude
other rights to which a person indemnified may be entitled.
Item 7. Exemption from Registration Claimed: Not applicable.
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Item 8. Exhibits.
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1. The OCC Warrant Agreement, as amended.
2. Opinion of Jones & Keller, regarding legality of shares being
issued.
3. Consent of Jones & Keller, (See Opinion)
4. Consent of Hocker, Lovelett, Hargens, & Yennie, P. C.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information in the Registration
Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended that are incorporated by reference into this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement to the securities offered therein, and the offering of
such securities offered at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each post effective
amendment that contains a form of prospectus shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 6, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel that
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions whether such indemnification is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Casper, State of Wyoming on this 2 day of June, 1997.
Tyrex Oil Company
By: /s/ Tom N. Richardson
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Tom N. Richardson, President
Principal Executive and Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
SIGNATURE TITLE DATE
- --------------------------------------------------------------------------
/s/ Tom N. Richardson Director June 2, 1997
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/s/ John D. Traut Director June 2, 1997
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/s/ William P. Gruman Director June 2, 1997
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/s/ Morris R. Massey Director June 2, 1997
- ----------------------
/s/ Doris K. Backus Director June 2, 1997
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PROSPECTUS
Tyrex Oil Company
The OCC Warrant Agreement
-------------------------
This document constitutes part of a prospectus covering shares of common stock
registered under the Securities Act of 1933, as amended (the "Act").
This document (referred to herein as the "Prospectus") and other documents
discussed below constitute a prospectus which is part of a Registration
Statement on Form S-8 covering a total of 750,000 shares of common stock (the
"Common Stock") issuable under the OCC Warrant Agreement (the "Plan") with Tyrex
Oil Company, a Wyoming corporation (the "Company" or "Tyrex").
You, as a consultant or advisor to the Company, have been awarded Warrants
to acquire shares of the Company's Common Stock under the Plan as compensation.
The purpose of this Prospectus is to briefly describe the Plan's operation, your
rights and responsibilities, and some likely federal tax consequences, in
relation to the Warrants to acquire common stock. The Warrants to acquire
shares awarded to you under the Plan are sometimes referred to herein as
"Warrant Shares".
No person has been authorized by the Company to give any information or to
make any representation other than as contained in this Prospectus document, and
if given or made, such information or representation must not be relied upon by
you as having been authorized by the Company. Neither the delivery of this
Prospectus nor the issuance and delivery of Warrant Shares to you shall, under
any circumstances, create any implication that there has been no change in the
Company's affairs since the date of this Prospectus. This Prospectus speaks
only as of its date.
THE WARRANT SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
This Prospectus does not constitute an offer to sell securities in any
state or in any other jurisdiction to any person to whom it is unlawful to make
such an offer in such state or other jurisdiction.
This Prospectus is dated , 1997
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DESCRIPTION OF THE PLAN
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General: A maximum of 750,000 shares of the Company's Common Stock are issuable
under the terms of the Plan which is the OCC Warrant Agreement with Tyrex Oil
Company, a Wyoming corporation (the "Company"), a copy of which is attached
hereto.
Delivery of Stock or Option and/or Warrant Certificates: The Company has
delivered to One Capital Corporation the OCC Warrant Agreement representing the
number of shares that may be acquired pursuant to exercise of the Warrants
granted to acquire shares; and further, upon exercise of the Warrants pursuant
to the terms of said agreement, the Company shall deliver to One Capital
Corporation, a certificate or certificates registered in its name, representing
the number of shares that may be acquired pursuant to exercise of the Warrants
granted to acquire shares.
Assignability: An award of Warrants to acquire shares may not be assigned. The
shares themselves may be assigned only after such shares have been issued and
delivered, and only in accordance with law and any transfer restrictions imposed
at the time of award.
Employment not Conferred: Nothing in the Plan or in the award of Warrants
shall confer upon One Capital Corporation the right to continue in the employ of
the Company or an affiliated corporation.
Laws and Regulations: The obligation of the Company to issue and deliver
shares following an exercise of Warrants under the Plan shall be subject to the
condition that the Company be satisfied that the sale and delivery thereof will
not violate the Act or any other applicable laws, rules or regulations.
Nature of the Plan: The Plan is strictly compensatory in nature and is not in
the nature of a savings, dividend reinvestment, profit-sharing, or pension plan.
Accordingly, the Plan has no assets or funds to be administered or invested by
its administrators. Please note that you do not and will not own any interest
of any kind in the Plan itself.
Nature of the Award: The Warrant Shares have been issued to you as
compensation or as a bonus for or in recognition of services, or in lieu of
other compensation payable for services. While the award will be treated as
compensation to you in any event, the distinction as to compensation or bonus
for services may be important for other purposes, as discussed below. Once an
award of shares has been made, or awarded Warrants to acquire shares has been
exercised, the shares shall be fully vested.
CERTAIN TAX MATTERS
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No ERISA Applicability: The Plan and Warrant Shares issuable to you are not
subject to the Employee Retirement Income Security Act of 1974, as amended.
Federal Income Tax Consequences:
Stock Options and/or Warrants: The Warrants to be granted are not
"Incentive Stock Options" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended. The grant and the exercise of stock Warrants
may create compensation income to One Capital Corporation and the Company may
take a compensation deduction to the extent the exercise price of the Warrants
was below the fair market value of the underlying shares on the date of grant.
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The income tax treatment of the proceeds from the sale of shares received upon
the exercise of stock Warrants, should be treated as capital gains based upon a
basis in the underlying shares equal to the difference between the sale price
and the fair market value on the date the Warrants was granted.
The foregoing summary of federal income tax aspects is based upon existing
law and interpretations, regulations and rulings, which are subject to change.
Moreover, federal income tax laws are quite complex, and the facts of your
particular situation (or other facts in connection with the award) may engender
a different federal tax result for you. The Company is not in a position to
advise you as to possible federal taxation issues other than income tax or as to
state, county or other local city taxes. You are advised to consult your own
accountant, attorney or other tax advisor. The Company and its personnel cannot
advise you as to state, federal or local tax consequences beyond the general
discussion above.
TRANSFERABILITY OF THE OPTION SHARES
- ------------------------------------
Generally: The shares issuable to you upon exercise of Warrants under the
Plan have been registered with the U.S. Securities and Exchange Commission
("Commission") under the Act, under cover of a Registration Statement on Form S-
8. Having been thus registered under the Act, the shares of stock awarded or
issuable to you upon exercise of Warrants are not "restricted" and will be
freely transferable by you (whether in an open market transaction or in a
private transaction) under the Act without need of further registration or
compliance with any exemption from registration under the Act. Accordingly, the
certificate evidencing the shares is not expected to bear any legend restricting
transfer. Special rules regarding transferability of the shares may apply to
you, however, if you are an "affiliate" of the Company. See "Applicability of
Rule 144" below.
Applicability of Rule 144: Special rules will apply to you if you are an
"affiliate" of the Company, or of any parent or subsidiary of the Company, and
in that event a special legend may be placed on the certificate evidencing the
shares awarded to you. If you are an "affiliate," you may be required to sell
the shares of stock pursuant to an effective registration statement, in
compliance with the provisions of Rule 144 of the Commission (except for the
holding period requirement), including the filing of a Form 144 with the
Commission prior to sale, or pursuant to another available exemption from
registration. In general, Rule 144 as currently in effect would allow any
affiliate (defined below) of the Company to publicly sell, within any three-
month period, common shares of the Company in a number equal to the greater of
(i) 1% of the total number of the Company's common shares for the same class
then outstanding, or (ii) the average weekly reported volume of trading in the
Company's common shares during the four calendar weeks immediately preceding the
sale. Sales made in reliance upon Rule 144 also are subject to certain manner-
of-sale provisions, notice requirements and the availability of current public
information concerning the Company.
An "affiliate" of the Company is defined as any person who controls, is
controlled by, or is under common control with the Company. Persons who are
directors or executive officers of the Company, or of any parent or subsidiary
of the Company, and persons who beneficially own 10% or more of the outstanding
Common Stock of the Company or of any parent or subsidiary of the Company, will
be presumed to be affiliates.
An affiliate's failure to comply with the provisions of Rule 144 is a
serious violation of law. If you are an affiliate of the Company, you should
consult with the Secretary of or counsel to the Company prior to making any sale
of these shares. See also "Liability for Short-Swing Sales" below.
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AVAILABILITY OF FORM S-8
- ------------------------
The rules and regulations of the Commission make Form S-8 available to
issuers only for the issuance of securities which are compensatory in nature or
which are issued pursuant to an "employee benefit plan" (defined in Rule 405 of
Regulation C of the Commission to include various types of compensatory plans
and written compensation Plans) to compensate persons who are employees of the
Company or an affiliate of the Company. The term "employee" generally includes
employees, officers, directors, consultants and advisers of the Company or an
affiliate of the Company.
These rules and regulations prohibit the use of Form S-8 to register
securities if the issuance of the securities is in connection with the offer or
sale of securities in a capital-raising transaction. Accordingly, the issuance
of the Warrant Shares to you would be improper if they in fact amount to
compensation for raising or helping to raise capital for the Company by the
offer or sale of securities, even if you are a full-time employee of the Company
with other, regular duties unconnected to the raising of capital. Accordingly,
if you have any question concerning the nature of the services for which the
stock has been awarded to you, you should consult the Secretary of or counsel to
the Company.
STOCK OWNERSHIP REPORTING REQUIREMENTS
- --------------------------------------
The Company's common stock is registered under the Securities Exchange Act
of 1934, as amended ("Exchange Act"), and if you are an executive officer or
director of the Company, or the beneficial owner of 10% or more or the Company's
outstanding Common Stock (a "Section 16(a) reporting person"), you are required
by Section 16(a) of the Exchange Act and the rules of the Commission thereunder,
to file with the Commission a statement of changes of beneficial ownership of
securities on Form 4 to reflect the issuance of the Warrant Shares to you. This
report must be filed no later than the 10th day of the month following the month
in which the Warrant Shares were granted and issued to you. Your failure to
timely file this report, if required, could subject you to fines or penalties
under the Exchange Act and may result in disclosure of your failure to so report
in the Company's annual report on form 10-KSB and proxy statement to be filed
with the Commission. If you recently became an executive officer, director or
10% shareholder of the Company and have not yet filed an initial report of
beneficial ownership of securities on Form 3, then this filing should be
promptly made (it must be filed within 10 days of the triggering event).
Finally, if you are a Section 16(a) reporting person, you may be required to
file, within 45 days of the Company's accounting year end, an annual statement
of beneficial ownership of securities on Form 5 reflecting this award.
You should consult with the Secretary of or counsel to the Company if you
are unsure as to your reporting obligations under Section 16(a) and the rules of
the Commission.
If you are the beneficial owner of more than 5% of the Company's equity
securities, you may be required to file reports under Section 13(d) of the
Exchange Act.
LIABILITY FOR SHORT-SWING SALES
- -------------------------------
The Company's common stock is registered under the Exchange Act and if you
are an executive officer or director of the Company, or the beneficial owner of
10% or more or the Company's outstanding Common Stock (a "Section 16(a)
reporting person"), you are required by Section 16(a) of the Exchange Act and if
you are a Section 16(a) reporting person, you also are subject to the "short-
swing" sales provisions of Section 16(b) of the Exchange Act and rules and
regulations of the Commission thereunder, and the discussion in this paragraph
applies to you. The issuance of the Warrant Shares to you probably will
constitute a "purchase" of those shares by you under Section 16(b). If you are
a Section 16(a) reporting person, a report on Form 4 concerning the award may be
due, even though no "purchase" has occurred for short-swing purposes.
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Section 16(b) and the Commission's rules thereunder provide that any sale
of the Company's Common Stock by you within the 6-month period prior to or
following the award of shares to you, at a price greater than the "purchase
price" of the optioned shares, results in an illegal (so-called "short-swing")
profit to you. The "purchase price" of the Warrant Shares will for almost all
purposes be the Warrant exercise price. A short-swing profit is recoverable by
the Company in a legal action within two years after the illegal profit is
realized, which may be brought in federal court. The Company would be entitled
also to recover its reasonable legal fees incurred in recovering the short-swing
profit. Moreover, any shareholder of the Company may bring an action to recover
a short-swing profit, if the Company does not, and likewise recover legal fees.
You are urged to consult the Company Secretary or your own attorney if you
are unsure whether Section 16(b) applies to you and to determine your compliance
with Section 16(b) if it is applicable to you.
INFORMATION AND OTHER MATTERS
- -----------------------------
Additional Information: The Company is subject to the periodic reporting
requirements of Section 12 of the Exchange Act, and pursuant thereto files
periodic reports and other information with the Commission. Reports and other
information so filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street N.W.,
Judiciary Plaza, Washington, D.C. 20549. Copies of such material may be
obtained from the Public Reference Section of the Commission's Washington D.C.
office at prescribed rates. This information is in addition to information
which may be requested orally or in writing from the Company at no charge to you
(see below).
Market Information: Tyrex's common stock is traded on the NASDAQ Market under
the symbol "TYRX". The following table shows the high and low bid prices for
each fiscal quarter for the last three fiscal years. Such quotations represent
inter-dealer prices without retail mark-ups, mark-downs, or commissions and,
accordingly, may not represent actual transactions.
<TABLE>
<CAPTION>
Calendar 1997 1996 1995
Quarter High Low High Low High Low
<S> <C> <C> <C> <C> <C> <C>
First .28 .20 .22 .13 .22 .16
Second .25 .16 .25 .16
Third .25 .16 .25 .09
Fourth .28 .16 .19 .09
</TABLE>
Security Holders: As of March 31, 1997, Tyrex had approximately 2,100
shareholders of record of its common stock.
Dividend Plans: Tyrex has paid no cash dividends and has no current plans to
do so.
Transfer Agent: American Securities Transfer & Trust, Inc. is the transfer
agent and registrar for the Common Stock of the Company. Their telephone number
is (303) 234-5300.
Fees and expenses of Registration: All fees and expenses, including legal
fees and registration fees, incurred in connection with the creation of the
Plan, preparation of this document and preparation and filing of the
Registration Statement, and issuance and delivery of the Warrant Shares, have
been or will be paid by the Company.
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Updating of Prospectus: This Prospectus shall be automatically updated by the
Company's filing of Exchange Act reports (including annual reports on Form 10-
KSB, quarterly reports on Form 10-QSB, current reports on Form 8-K, and annual
reports to shareholders) with the Commission, and all such reports will be
automatically incorporated by reference in this Prospectus and the Company's
Registration Statement on Form S-8 covering the Plan and common shares issuable
thereunder.
Incorporation by Reference: The following documents (a copy of each of which
has been provided to you), are deemed to be incorporated by reference in this
Prospectus and in the Company's Registration Statement on Form S-8, and are
available upon oral or written request from the Secretary of the Company at the
address set forth below:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1996; and
(b) Registrant's Quarterly Report(s) on Form 10-Q for the quarter(s) ended
September 30, 1996; December 31, 1996; and March 31, 1997.
(c) All other documents filed by Registrant after the date of this Registration
Statement under Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, (the "Exchange Act") are incorporated by reference herein.
Documents Attached to this Prospectus: In accordance with Rule 428(b)(2) of the
Commission, the following document or documents are attached to this Prospectus
and are being delivered to every person receiving a copy of this Prospectus:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1996; and
(b) Registrant's Quarterly Report(s) on Form 10-Q for the quarter(s) ended
September 30, 1996; December 31, 1996; and March 31, 1997.
(c) All other documents filed by Registrant prior to the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, (the "Exchange Act") are incorporated by
reference herein.
Where to Request More Information: Additional information, including a copy of
the Plan and of documents listed above which have been incorporated by reference
in this Prospectus, may be requested orally or in writing from the Company by
calling or writing to the Secretary of the Company at the following address:
Tyrex Oil Company, 777 North Overland Trail, Suite 101, Casper, WY 82601. The
Company's telephone number is (307) 234-4260. Such information will be sent to
you promptly upon request and without charge to you.
This Prospectus speaks only as of its date. Any material changes to the
information presented above will be contained in one or more supplements
accompanying this Prospectus.
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OCC WARRANT AGREEMENT
---------------------
This Agreement (the "OCC Warrant Agreement" or, herein, simply the "Agreement")
is made this 28 day of May, 1997, between Tyrex Oil Company, a Wyoming
--
Corporation (the "Company" or "Tyrex"), with offices at 777 North Overland
Trail, Suite 101, Casper, WY 82601, and One Capital Corporation ("OCC"), a
Colorado corporation, with offices at 410 Seventeenth Street, Suite 1940,
Denver, CO 80202. The parties agree as follows:
1. GRANT OF WARRANTS. Tyrex hereby grants to OCC the right and option to
------------------
acquire shares of the Stock at the following purchase prices and terms:
The Warrants shall consist of rights to purchase up to 750,000 shares at a
price of $0.30 per share.
Each of the Warrants hereby granted may be exercised in whole or in any part,
in the manner, subject to the conditions, and during the time periods specified
herein.
2. TIME PERIOD OF EXERCISE OF WARRANTS. The Warrants may be exercised by
------------------------------------
OCC during time periods as follows:
The Warrants shall be effective for two years from the latest of (i) the date
90 days after the Closing Date of the Agreement and Plan of Reorganization
between Tyrex and Kimbrough Computer Sales Inc. (d/b/a/ "3Si Inc."), (ii) the
date of filing of the S-8 Registration Statement with the S.E.C. registering
the Warrants and underlying shares, or (iii) the date that the Company's
transfer agent notifies OCC that the transfer agent has received all
documents required for issuance of the shares upon exercise of the Warrants,
without restrictive legends. At the end of this period any unexercised
Warrants shall expire. Tyrex shall use its best efforts to ensure that the
requirements per "ii" and "iii" above do occur as promptly as possible after
the Closing Date of the Agreement and Plan of Reorganization, and before the
date per "i" above in this paragraph.
3. NOTICES. Notices hereunder shall be written and shall be delivered to or
-------
from OCC and Tyrex either (a) via telefax, with originally signed notice to
follow via U.S. Mail, or (b) by delivery of such notice via Certified U. S. Mail
or overnight delivery service with signature confirmation. For most
expeditious, timely delivery of communications, telefax shall be the preferred
method of communications. (All telefax notices to OCC shall be sent in
duplicate to telefax numbers (303) 592-1846 and (813) 867-1675, or as otherwise
-------------- --------------
designated from time to time by written notice, delivered in accordance with the
requirements hereof).
4. NOTICES OF INTENT TO EXERCISE. The Warrants may be exercised by OCC
-----------------------------
giving written notice of intent to exercise to Tyrex, delivered in accordance
with section 3 hereof, stating in such notice:
. the number of shares,
. the price of such shares,
. the total payment to be made,
. the proposed method of delivery of payment,
. the requested method of delivery of shares (including, if applicable, the
separate denominations of share certificates), and
. any additional instructions, account numbers, contacts, or other data
necessary or convenient to effect payment and delivery.
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5. NOTICES OF PREPAREDNESS TO DELIVER. Within the same or the next subsequent
----------------------------------
business day following receipt of written notice from OCC of intent to exercise,
Tyrex shall confirm by written notice to OCC, delivered in accordance with
section 3 hereof, stating in such notice:
. acceptance of the proposed exercise in accordance with terms, payment, and
delivery instructions stated by OCC (or, if not so accepted, specific and
detailed statement of reasons for delay(s) or change(s), and proposed
alternative terms, payment, and delivery instructions),
. copy of proofs or written confirmations of transfer agent and of the Company
(or its designated Delivery Agent), of readiness to effect "Delivery Versus
Payment," as stated herein, and
. any additional instructions, account numbers, contacts, or other data
necessary or convenient to effect payment and delivery.
6. DELIVERY VERSUS PAYMENT. Unless the parties hereto agree otherwise in
-----------------------
writing, all deliveries of shares by the Company, in exchange for payments for
Warrants by OCC, shall be made by the method known as "Delivery versus Payment"
("DVP"), such that each such delivery of shares shall be effected
contemporaneously with the receipt of payment for such shares. All payments for
Warrants shares shall be made by OCC in the form of either cashier's check or
federal funds wire transfer. All deliveries of shares by the Company shall be
prearranged to deliver such shares to OCC either simultaneously or within the
same business day (or, in the event that OCC, in its sole and absolute
discretion, shall agree in writing, the following business day).
However, if any law or regulation requires the Company to take any action
with respect to the Stock as to which the Warrants are being exercised, the
Company shall promptly so notify OCC in advance, and the date of both (a) the
delivery of such Stock, and also (b) the payment for such Stock due from OCC,
shall be extended for the period necessary to take such action.
Nevertheless, in the event that, for any reason whatsoever, Tyrex shall
fail to effect delivery of shares pursuant to exercise of Warrants as stated
herein, following receipt of a payment from OCC, the Company shall, on the next
business day, return all funds tendered by OCC pursuant to a proposed exercise
in the same form tendered by OCC (unless OCC, in its sole and absolute
discretion shall agree otherwise in writing).
7. METHOD OF DELIVERY. Generally, all deliveries of shares by Company, in
------------------
exchange for payments for exercise of Warrants by OCC, shall be made via DTC
Electronic Delivery, as stated below. However, in the event that OCC so
requests or agrees in writing, delivery may be made in the form of DVP
certificate(s) for shares, as stated below.
(a) DTC Electronic Delivery Provided that the Company's transfer agent
-----------------------
participates in the Depository Trust Company ("DTC") electronic transfer system,
OCC, at its sole discretion, may request (at least one business day in advance
of payment and delivery) electronic transfer of shares to one or more of OCC's
account(s) at participating broker/dealer firm(s). In such event, the Company
agrees that an authorized officer of the Company shall (immediately upon receipt
of certified check or evidence of wire transfer of funds to the Company) send
via telefax a Letter of Direction ordering its transfer agent to execute same-
day electronic transfer of applicable shares, as directed by OCC.
(b) DVP Certificate(s) In the event that OCC requests (at least three
------------------
business days in advance of payment and delivery) DVP in certificate form, stock
certificates shall be prepared in denominations as reasonably designated by OCC,
and held by transfer agent, the Company, or its designated Delivery Agent, such
party shall promptly confirm to OCC that such shares are ready for DVP by
sending to OCC, via telefax, copies of both sides of such certificates.
Simultaneous with receipt of a certified check or evidence of wire transfer of
funds to the Company or its designated Delivery Agent, such party shall deliver
applicable share certificates to OCC. To expedite DVP, the Company may
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establish a Delivery Agent (e.g., attorney, broker dealer, depository, bank, or
custodian) located in Denver, CO, to hold shares (and, if desired, to receive
payment) on behalf of the Company, and to execute simultaneous DVP.
8.0 OTHER ISSUES OF SHARES The number and kind of securities purchasable
----------------------
upon the exercise of the Warrants and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events, as follows:
8.1 Adjustments. The number of shares purchasable upon the exercise of
-----------
the Warrants shall be subject to adjustments as follows:
(a) In case the Company shall (i) pay a dividend in Common Stock or
securities convertible into Common Stock or make a distribution to its
stockholders in Common Stock or securities convertible into Common Stock; (ii)
subdivide its outstanding Common Stock; (iii) combine its outstanding Common
Stock into a smaller number of shares of Common Stock; or (iv) issue by
reclassification of its Common Stock other securities of the Company; then the
number of Shares purchasable upon exercise of the Warrants immediately prior
thereto shall be adjusted so that the OCC shall be entitled to receive the kind
and number of Shares or other securities of the Company which is would have
owned or would have been entitled to receive immediately after the happening of
any of the events described above, had such Warrants been exercised immediately
prior to the happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this subsection 8.1(a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) If, prior to the expiration of the Warrants by exercise, by the
terms, or by redemption, the Company shall be recapitalized by reclassifying its
outstanding shares of Common Stock into shares with a different par value, or by
changing its outstanding shares of Common Stock into shares without par value or
in the event of any other material change of the capital structure of the
Company or of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any OCC shall thereafter have the right
to purchase, on the basis and the terms and conditions specified in this
Agreement, in lieu of the Shares theretofore purchasable on the exercise of any
Warrant, such securities or assets as may be issued or payable with respect to
or in exchange for the number of Shares theretofore purchasable on exercise of
the Warrants had such reclassification, recapitalization or conveyance not taken
place; and in any such event, the rights of OCC to any adjustment in the number
of Shares purchasable on exercise of such Warrant, as set forth above, shall
continue to be preserved in respect of any stock, securities or assets which OCC
becomes entitled to purchase.
(c) In case the Company shall issue rights, options, warrants, or
convertible securities to all or substantially all holders of its Common Stock,
without any charge to such holders, entitling them to subscribe for or purchase
Common Stock at a price per share which is lower at the record date mentioned
below than the then current market price, the number of Shares thereafter
purchasable upon the exercise of each shall be determined by multiplying the
number of Shares theretofore purchasable upon exercise of the warrants by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options, warrants
or convertible securities plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding immediately prior to the issuance
of such rights, options, warrants, or convertible securities plus the number of
shares which the aggregate offering price of the total number of shares offered
would purchase at such current market price. Such adjustment shall be made
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whenever such rights, options, warrants, or convertible securities are issued,
and shall become effective immediately and retroactively to the record date for
the determination of shareholders entitled to receive such rights, options,
warrants, or convertible securities.
(d) In case the Company shall distribute to all or substantially all
holders of its Common Stock evidences of its indebtedness or assets (excluding
cash dividends or distributions out of earnings) or rights, options, warrants,
or convertible securities containing the right to subscribe for or purchase
Common Stock (excluding those referred to in subsection 8.1.(b) above), then in
each case the number of Shares thereafter purchasable upon the exercise of the
Warrants shall be determined by multiplying the number of Shares theretofore
purchasable upon exercise of the Warrants by a fraction, of which the numerator
shall be the then current market price on the date of such distribution, and of
which the denominator shall be such current market price on such date minus the
then fair value (determined as provided in subsection 8.1.(g)(y) below) of the
portion of the assets or evidences of indebtedness so distributed or of such
subscription rights, options, warrants, or convertible securities applicable to
one share. Such adjustment shall be made whenever any such distribution is made
and shall become effective on the date of distribution retroactive to the record
date for the determination of stockholders entitled to receive such
distribution.
(e) No adjustment in the number of Shares purchasable pursuant to the
Warrants shall be required unless such adjustment would require an increase or
decrease of at least one percent in the number of Shares then purchasable upon
the exercise of the Warrants or, if the Warrants are not then exercisable, the
number of Shares purchasable upon the exercise of the Warrants on the first date
thereafter that the Warrants become exercisable; provided, however, that any
adjustments which by reason of this subsection 8.1.(e) are not required to be
made immediately shall be carried forward and taken into account in any
subsequent adjustment.
(f) Whenever the number of Shares purchasable upon the exercise of
the Warrant is adjusted, as herein provided, the exercise price payable upon
exercise of the Warrant shall be adjusted by multiplying such exercise price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of Warrant Shares purchasable upon the exercise of the Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Warrant so purchasable immediately thereafter.
(g) For the purpose of this subsection 8.1, the term "Common Stock"
shall mean (I) the class of stock designated as the Common Stock of the Company
at the date of this Agreement, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. In the event that at any time, as a result of an adjustment made
pursuant to this Section 8 OCC shall become entitled to purchase any securities
of the Company other than Common Stock, (y) if OCC's right to purchase is on any
other basis than that available to all holders of the Company's Common Stock,
the Company shall obtain an opinion of an independent investment banking firm
valuing such other securities; and (z) thereafter the number of such other
securities so purchasable upon exercise of the Warrants shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares contained in this
Section 8.
(h) Upon the expiration of any rights, options, warrants, or
conversion privileges, if such shall have not been exercised, the number of
Shares purchasable upon exercise of the Warrants, to the extent the Warrants
have not then been exercised, shall, upon such expiration, be readjusted and
shall thereafter be such as they would have been had they been originally
adjusted (or had the original adjustment not been required, as the case may be)
on the basis of (I) the fact that the only shares of Common Stock so issued were
the shares of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants, or conversion privileges, and (ii) the fact that
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such shares of Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the consideration, if
any, actually received by the Company for the issuance, sale or grant of all
such rights, options, warrants, or conversion privileges whether or not
exercised; provided, however, that no such readjustment shall have the effect of
decreasing the number of Shares purchasable upon exercise of the Warrants by an
amount in excess of the amount of the adjustment initially made in respect of
the issuance, sale, or grant of such rights, options, warrants, or conversion
rights.
8.2 No Adjustment for Dividends. Except as provided in subsection 8.1, no
---------------------------
adjustment in respect of any dividends or distributions out of earnings shall be
made during the term of the Warrants or upon the exercise of the Warrants.
8.3 No Adjustment in Certain Cases. No adjustments shall be made pursuant
------------------------------
to section 8 hereof in connection with the issuance of the Common Stock sold as
part of the Agreement and Plan or Reorganization or the issuance of Shares upon
exercise of the Warrants. No adjustments shall be made pursuant to Section 8
hereof in connection with the grant or exercise of presently authorized or
outstanding options to purchase the issuance of shares, aggregating up to
469,000 shares of Common Stock, under the company's director or employee benefit
plans or the previous OCC Warrant aggregating 400,000 shares disclosed in the
Agreement and Plan of Reorganization.
8.4 Preservation of Purchase Rights upon Reclassification, Consolidation,
etc. In case any consolidation of the Company with or merger of the Company
into another corporation, or in case of any sale or conveyance to another
corporation of the property, assets, or business of the Company as an entirety
or substantially as an entirety, the company or such successor or purchasing
corporation, as the case may be, shall execute an agreement that OCC shall have
the right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase, upon exercise of the Warrants, the kind and
amount of shares and other securities and property which it would have owned or
have been entitled to receive after the happening of such consolidation, merger,
sale, or conveyance had the Warrants been exercised immediately before or to
such action. In the event of a merger described in Section 368(a)(2)(E) of the
Internal Revenue Code of 1986, in which the Company is the surviving
corporation, the right to purchase Shares under the Warrants shall terminate on
the date of such merger and thereupon the Warrants shall become null and void,
but only if the controlling corporation shall agree to substitute for the
Warrants, its Warrants which entitle the holder thereof to purchase upon their
exercise the kind and amount of shares and other securities and property which
it would have owned or been entitled to receive had the Warrants been exercised
immediately prior to such merger. Any such agreements referred to in this
subsection 8.4 shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section 8
hereof. The provisions of this subsection 8.4 shall similarly apply to
successive consolidations, mergers, sales, or conveyances.
8.5 Par Value of Shares of Common Stock. Before taking any action which
-----------------------------------
would cause an adjustment effectively reducing the portion of the Exercise Price
allocable to each Share below the par value per share of the Common Stock
issuable upon exercise of the Warrants, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Common Stock
upon exercise of the Warrants.
8.6 Independent Public Accountants. The Company may retain a firm of
------------------------------
independent public accountants of recognized national standing (which may be any
such firm regularly employed by the Company) to make any computation required
under this Section 8 and a certificate signed by such firm shall b conclusive
evidence of the correctness of any computation made under this Section 8.
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8.7 Statement on Warrant Certificates. Irrespective of any adjustments in
---------------------------------
the number of securities issuable upon exercise of the Warrants, Warrant
Certificates theretofore or thereafter issued may continue to express the same
number of securities as are stated in the similar Warrant Certificates initially
usable pursuant to this Agreement. However, the Company may, at any time in its
sole discretion (which shall be conclusive), make any change in the form of
Warrant Certificate that it may deem appropriate and that does not affect the
substance thereof; and any Warrant Certificate thereafter issued, whether upon
registration of transfer of, or in exchange or substitution for, an outstanding
Warrant Certificate, may be in the form so changed.
8.8 Treasury Stock. For purposes of this Section 10, shares of Common
--------------
Stock owned or held at any relevant time by , or for the account of, the
Company, in its treasury or otherwise, shall not be deemed to be outstanding for
purposes of the calculations and adjustments described.
9. NO RIGHTS PRIOR TO EXERCISE OF OPTION. OCC shall have no rights as a
-------------------------------------
shareholder in the shares of Stock purchasable pursuant to Warrants hereunder
until payment of the purchase price and delivery.
10. RIGHTS FOLLOWING EXERCISE OF WARRANTS. Ownership rights in the Stock
--------------------------------------
shall vest with OCC as and when exercised.
11. TRANSFERABILITY OF WARRANTS, AND UNDERLYING STOCK. The Stock underlying the
-------------------------------------------------
Warrants has been registered with the Securities and Exchange Commission on Form
S-8 and may be sold in market transactions subject to compliance with Section 15
of the Securities Exchange Act of 1934. Any sale or transfer of the Warrants
and/or Stock purchased pursuant to these Warrants must be in accordance with
applicable federal and state securities laws. During the term of the Warrants,
the Warrants hereby granted shall be exercisable only by OCC, and the Warrants
shall be divisible and transferable solely as provided by operation of law to an
affiliate or successor of OCC, upon the dissolution and winding up of OCC, or to
the professionals of OCC who shall perform services under the OCC Agreement.
12. BINDING EFFECT. This Agreement shall be binding upon the trustees,
--------------
administrators, and successors of the parties hereto.
13. ARBITRATION. Any controversy or claim arising out of, or relating to, this
------------
agreement, or the making, performance, or interpretation thereof, shall be
settled as follows:
(a) The Company and OCC shall use their best efforts to communicate, negotiate,
compromise, mediate, or otherwise resolve or settle any controversy or claim in
a confidential manner among themselves on or before six months from date of
delivery of written notice of a controversy or claim by one party to the other.
(b) Failing resolution within six months per item 1, such controversy or claim
shall be settled by arbitration in Denver, Colorado, in accordance with the
Rules of the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court in any state having jurisdiction
over the subject matter of the controversy, claim, or award. The parties hereby
agree that the Arbitrator shall be instructed, in considering such controversy
or claim, to give favorable weight to prior constructive efforts of either party
to reasonably resolve or settle such controversy or claim per item 1 above.
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14. MISCELLANEOUS. Each party agrees that it will provide additional
-------------
information, execute and deliver documents and perform any and all acts
necessary to carry out the terms and intent of this Agreement. If any term of
this Agreement conflicts with the law, all other terms of this Agreement shall
remain in effect and enforceable. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, supersedes all prior
agreements and understandings, and may be modified or amended only in writing,
signed by all parties. All captions and titles are for convenience only, and
may not be used to interpret or to define the terms of this Agreement. Where
appropriate, singular terms include the plural, and pronouns of one gender
include any gender.
The parties agree to keep this Agreement confidential, other than
disclosure to their respective boards, officers, and legal or accounting
advisors, and as required by law or regulation. Whenever feasible, each party
shall offer the other prior rights of review, comment and editorial adjustment
with respect to any public or third party disclosure of the terms hereof.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be executed
as first herein set forth.
Tyrex Oil Company
/s/Tom N. Richardson
- ---------------------
Name: Tom N. Richardson
Office: President
One Capital Corporation
/s/ Michael V. Schranz
- -----------------------
Name: Michael V. Schranz
Managing Director
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EXHIBITS 2 AND 3
JONES & KELLER
Attorneys At Law
1625 Broadway
Suite 1600
Denver, CO 80202
(303 573-1600
May 29, 1997
Tyrex Oil Company
777 North Overland Trail, Suite 101
Casper, WY 82601
Gentlemen:
Reference is made to the One Capital Corporation Warrant Agreement and
Registration Statement on Form S-8 related thereto as proposed to be filed with
the Securities and Exchange Commission.
Based on our review of these documents, appropriate Board of Directors'
Resolutions and such other matters as we deemed relevant, it is our opinion that
the warrants have been legally issued and that the shares described in the
Warrant Agreement when issued in accordance with its terms will be validly
issued, fully paid and non-assessable.
We hereby consent to the use of our opinion set forth above in the referenced
Registration Statement on Form S-8.
Very truly yours,
JONES & KELLER, P.C.
/s/ Samuel E. Wing
--------------------
Samuel E. Wing
<PAGE>
EXHIBIT 4
HOCKER, LOVELETT, HARGENS & SKOGEN, P.C.
Certified Public Accountants
AUDITOR'S CONSENT
We hereby consent to the use of our audit reports and their incorporation by
reference in the registration Statement on Form S-8 to be filed by Tyrex Oil
Company with respect to warrants issued to One Capital Corporation.
/s/ Hocker, Lovelett, Hargens & Skogen, P.C.
Date: June 2, 1997
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