- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 10-QSB
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1998
COMMISSION FILE NO. 0-09482
COLORADO WYOMING RESERVE COMPANY
(Exact Name of Small Business Issuer as Specified in its Charter)
WYOMING 83-0246080
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
751 HORIZON COURT, SUITE 205
GRAND JUNCTION, COLORADO 81506
(Address of principal executive offices) (Zip Code)
(970) 255-9995
(Issuer's telephone number)
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes |_| No |X|
There were 2,491,694 shares of the Registrant's $.01 par value common stock
outstanding as of February 22, 1999.
Transitional Small Business Disclosure: Yes |_| No |X|
<PAGE>
<TABLE>
<CAPTION>
COLORADO WYOMING RESERVE COMPANY
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
DECEMBER 31, JUNE 30,
1998 1998
--------------- ------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 3,191 $ --
Trade accounts receivable 3,126 3,593
------------- ------------
6,317 3,593
Assets held for sale -- 10,000
Prepaid expenses 3,224 5,686
------------- ------------
Total current assets 9,541 19,279
PROPERTY AND EQUIPMENT:
Unproved oil and gas properties 568,790 653,250
Proved oil and gas properties -- 64,460
Other property and equipment 11,292 13,645
------------- ------------
580,082 731,355
Less accumulated depreciation, other
property and equipment (8,521) (6,383)
------------- ------------
Net property and equipment 571,561 724,972
------------- ------------
$ 581,102 $ 744,251
============= ============
CURRENT LIABILITIES:
Trade accounts payable $ 116,902 $ 67,017
Bank overdrafts -- 19,444
Notes payable, 6% per annum, maturity date
of February 15, 1999 (net of unamortized
discount of $35,000) 95,000 --
Other accrued liabilities 22,819 30,067
Property remediation -- 64,000
Related party payables 76,526 46,596
------------- ------------
311,247 227,124
EQUITY
Common stock, $.01 par value: authorized --
75,000,000 shares; issued and
outstanding -- 2,491,694 and 2,467,694
shares at December 31 and June 30, 1998,
respectively 24,917 24,677
Additional paid-in capital 4,538,080 4,283,320
Warrants 148,100 --
Accumulated deficit (4,441,242) (3,790,870)
------------- ------------
269,855 517,127
------------- -------------
$ 581,102 $ 744,251
============= ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
-2-
<PAGE>
<TABLE>
<CAPTION>
COLORADO WYOMING RESERVE COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
------------------------ ------------------------
1998 1997 1998 1997
------------------------ ------------------------
<S> <C> <C> <C> <C>
Revenues
Oil and gas sales $ 4,063 $ 7,377 $ 9,340 $ 22,094
----------- ----------- ----------- -----------
Total Revenues 4,063 7,377 9,340 22,094
Expenses
Operation of producing properties 4,786 7,566 17,302 16,266
Production taxes 202 704 533 1,562
Exploration cost 12,295 270 22,121 270
Depreciation, depletion and
amortization 1,069 1,676 2,138 3,903
General and administrative 298,276 267,972 490,377 434,402
----------- ----------- ----------- -----------
Total expenses 316,628 278,188 532,471 456,403
----------- ----------- ----------- -----------
Operating loss (312,565) (270,811) (523,131) (434,309)
OTHER INCOME (EXPENSE)
Interest expense (81,820) -- (115,412) --
Interest income -- 7,556 -- 15,722
(Loss) gain on sale of assets (11,829) -- (11,829) 7,682
----------- ----------- ----------- -----------
Loss before income taxes (406,214) (263,255) (650,372) (410,905)
=========== =========== =========== ===========
Provision for income taxes -- -- -- --
----------- ----------- ----------- -----------
Net loss $ (406,214) $ (263,255) $ (650,372) $ (410,905)
=========== =========== =========== ===========
Basic and diluted loss per share $ (0.16) $ (0.17) $ (0.26) $ (0.26)
=========== =========== =========== ===========
Weighted average common
shares outstanding 2,491,694 1,595,076 2,489,838 1,595,076
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
-3-
<PAGE>
<TABLE>
<CAPTION>
COLORADO WYOMING RESERVE COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOW
(UNAUDITED)
SIX MONTHS ENDED
DECEMBER 31,
---------------------------
1998 1997
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (650,372) $ (410,905)
Adjustments to reconcile net loss to net used
in operating activities:
Depletion, depreciation and amortization 2,138 3,903
Loss (gain) on asset sale 11,829 (7,682)
Amortization of note payable discount 113,000 --
Equity issued as compensation 231,000 159,000
Other non-cash compensation 50,000 --
Changes in current assets and liabilities:
Receivables 467 (3,448)
Payables 53,123 32,527
Prepaids 2,462 (7,231)
------------ -----------
Net cash used in operating activities (186,353) (233,836)
Cash flows from investing activities:
Additions to unproved properties (28,472) (26,979)
Asset purchases -- (2,300)
Proceeds from asset sales 63,916 44,682
------------ -----------
Net cash provided by investing activities 35,444 15,403
Cash flows from financing activities:
Notes payable 57,692 --
Sale of warrants 72,408 --
Sale of common stock 24,000 --
------------ -----------
Net cash provided by financing activities 154,100 --
------------ -----------
Net increase (decrease) in cash and equivalents 3,191 (218,433)
Cash and equivalents at beginning of period -- 748,459
------------ -----------
Cash and equivalents at end of period $ 3,191 $ 530,026
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
-4-
<PAGE>
COLORADO WYOMING RESERVE COMPANY
("CWYR" or the "Company")
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
PERIODS ENDED DECEMBER 31, 1998 AND 1997 AND JUNE 30, 1998
(1) INTERIM FINANCIAL STATEMENTS
The accompanying consolidated financial statements are unaudited. However, in
the opinion of management, the accompanying financial statements reflect all
adjustments necessary for a fair presentation.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to the Securities and Exchange
Commission's rules and regulations. Management believes the disclosures made are
adequate to make the information not misleading and suggests that these
financial statements be read in conjunction with the Company's June 30, 1998
Form 10-KSB.
(2) PRIVATE FINANCING TRANSACTION
On September 2, 1998, the Company completed a financing transaction with the
James E. Moore Revocable Trust, u/d/t/dated July 28, 1994 (the "Trust"), by
executing a Loan Agreement, dated as of August 25, 1998 (the "Loan Agreement"),
pursuant to which the Trust loaned $120,000 (the "Bridge Loan") to the Company
to be repaid on or before October 31, 1998. In return for the Bridge Loan, the
Company granted the Trust a security interest in its properties located in the
Paradox Basin of southern Utah and a ten-year warrant to purchase up to 180,000
shares of the Company's Common Stock at an exercise price of $1.00 per share. In
addition, Mr. Rafiq A. Sayed was appointed to serve on the Company's Board of
Directors as a designee of the Trust in connection with the Bridge Loan. As of
September 2, 1998, the Trust beneficially owned approximately 9.4 percent of the
Company's Common Stock. However, effective as of November 23, 1998, the Trust
conveyed warrants to purchase up to 150,000 shares of the Company's Common Stock
to various third parties in private transactions, thereby reducing the Trust's
beneficial ownership in the Company to approximately four percent. The repayment
date of the Bridge Loan was subsequently extended to November 30, 1998 in
connection with the North Dakota Agreement (as defined and described in Note 4).
On December 4, 1998, the Trust agreed to extend the repayment date for the
Bridge Loan from November 30, 1998 to January 15, 1999 (the "Second Loan
Extension"). As partial consideration therefore, the Trust received an
additional warrant for the purchase of up to 100,000 shares of Common Stock at a
price per share of the lower of (i) $1,00 or (ii) the lowest price per share of
-5-
<PAGE>
Common Stock or Common Stock equivalent issued by the Company in any offering of
its securities occurring prior to April 1, 1999. As additional consideration for
the Second Loan Extension, the Company agreed (a) to reprice the warrants to
purchase 180,000 shares of Common Stock previously granted to the Trust at $1.00
in accordance with the price described above for the newly-granted warrants; (b)
to reprice certain other options held by a key consultant to the Company from
$1.75 to $1.00 per share; and to appoint Dr. S.M. Aslam Daud as a member of the
Board of Directors.
Effective December 30, 1998, the principal amount of the Bridge Loan was
increased by $10,000 to $130,000 in exchange for a cash payment to the Company
to enable it to meet certain lease rental obligations due January 1, 1999. At
the same time, the repayment due date of January 15, 1999 was further extended
to February 15, 1999 (the "Third Loan Extension") and as consideration therefor,
the Company agreed to issue to the Trust an additional warrant to purchase
50,000 shares of the Company's Common Stock under the same terms and conditions
applicable to the previously-issued warrant, and to extend the expiration of the
warrant exercise price adjustment mechanism for all warrants issued in
connection with the Bridge Loan, from April 1, 1999 to July 1, 1999.
(3) COMMITMENTS, CONTINGENCIES AND RELATED PARTY TRANSACTIONS
Effective January 1, 1998, the Company entered into an Agreement for
Administrative Services (the "Trinity Agreement") with Trinity Petroleum
Management LLC, a Colorado limited liability company ("Trinity"). Pursuant to
the terms of the Trinity Agreement, Trinity performs certain management
functions for the Company for a fee of $3,000 per month and reimbursement of
certain Trinity hourly personnel charges and third party expenses. The Trinity
Agreement is for a term of one year, continuing thereafter on a month-to-month
basis, terminable upon 60 days written notice by either party. J. Samuel Butler,
a member of the Board of Directors of the Company, currently serves as President
of Trinity and owns approximately 24 percent of Trinity through his ownership of
Butler Resources, LLC. In connection with certain additional services provided
to the Company by Trinity pursuant to the Agreement, on January 22, 1998 the
Company issued to Trinity 25,000 restricted shares of Common Stock as well as an
option to purchase up to 100,000 shares of the Company's Common Stock at an
exercise price of $1.50 per share.
Effective as of January 1, 1998, the Company entered into an Agreement for
Consulting Services (the "SCI Agreement") with Sayed Consulting, Inc., a Nevada
corporation ("SCI"). Pursuant to the terms of the SCI Agreement, SCI performs
certain investor and public relations functions for the Company for a fee of
$1,000 per month and reimbursement of third party expenses. The SCI Agreement is
for a term of one year, but may be terminated by either party with or without
cause upon 30 days written notice to the other party. On January 30, 1998 in
connection with the SCI Agreement, the Company issued to SCI an option to
purchase up to 200,000 shares of the Company's Common Stock at an exercise price
of $1.75 per share, which options have been repriced as of December 4, 1998 to
$1.00 per share pursuant to the Bridge Loan Extension described above. Coupled
with its prior ownership of the Company's Common Stock, SCI beneficially owns
approximately 11.1 percent of the Company. Waseem A. Sayed owns 100 percent of
SCI and serves
-6-
<PAGE>
as its President. Mr. Sayed's brother, Rafiq A. Sayed, was appointed as a member
of the Company's Board of Directors effective September 4, 1998. Dr. Syed A.
Daud, a recently-appointed member of the Board of Directors, serves as Vice
President of Investor Relations & Communications for SCI.
The Company entered into a Contract Operator Agreement and Operating Agreement,
effective March 13, 1998, with ST Oil Company, a Nevada corporation ("ST"),
pursuant to which ST serves as managing agent and attorney-in-fact for the
Company and as operator of record of the Companies properties located in North
Dakota (the "ST Agreement"). In return for its services, ST is entitled to
receive, at payout, a five percent working interest in the leases and wells.
Mr. Butler owns approximately 52 percent of ST and serves as its President and
Chief Executive Officer. Effective November 1, 1998, however, the ST Agreement
was assigned by the Company to FM Energy, LLC in connection with the North
Dakota Agreement. See Note 4.
The Company entered into an employment contract with Mr. Fuerst on October 1,
1996 pursuant to which Mr. Fuerst receives a salary of $10,000 per month and was
granted incentive stock options to purchase up to 500,000 shares of the
Company's common stock at an exercise price of $1.00 per share. The contract is
for an initial term of three years commencing October 1, 1996 and may be
terminated by Mr. Fuerst upon 90 days prior written notice to the Company, and
by the Company without prior notice to Mr. Fuerst, if for Cause (as defined in
the contract). The Company's salary obligation to Mr. Fuerst of $10,000 per
month for the months of June through October 1998 was extinguished in connection
with the purchase by FM Energy, LLC (of which Mr. Fuerst owns 50 percent and
serves as co-manager) of the Company's properties located in North Dakota. The
satisfaction of the Company's salary obligation for such months served as
partial consideration for the purchase.
(4) SALE OF NORTH DAKOTA PROPERTY
Effective as of November 1, 1998, the Company accepted an Offer to Purchase
certain of its properties located in North Dakota (the "North Dakota Agreement")
submitted by FM Energy, LLC ("FM"), a California limited liability company
collectively owned by the Company's President, Kim M. Fuerst, and the Trust.
Pursuant to the North Dakota Agreement, the Company sold its interest in certain
properties located in North Dakota in return for: (a) a cash payment to the
Company of $50,000; (b) extinguishment of the Company's $50,000 obligation to
Kim M. Fuerst as compensation for his services as President of the Company for
the months of June through October 1998; and (c) an extension of the repayment
date for the Bridge Loan from October 31, 1998 to November 30, 1998. The Company
acquired the North Dakota properties during fiscal 1998 for $113,392. See Item 2
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
-7-
<PAGE>
(5) SUBSEQUENT EVENT
During February 1999, the Trust agreed to extend the repayment date for the
Bridge Loan until March 15, 1999. The Company currently is attempting to raise
funds in the amount of $1.5 million through a private placement of equity. There
can be no assurance, however, that the Company will be successful in its
efforts.
(6) LOSS PER SHARE
Basic and diluted earnings per share are the same, as the effect of warrants and
options is antidilutive.
(7) RECENTLY ISSUED FINANCIAL ACCOUNTING STANDARDS
The Financial Accounting Standards Board ("FASB") issued Statement of Financial
Accounting Standard ("SFAS") No. 130, REPORTING COMPREHENSIVE INCOME, in June
1997. This statement, which is effective for fiscal years beginning after
December 15, 1997, establishes standards for reporting of comprehensive income
and its components. The Company adopted this statement effective July 1, 1998.
The adoption had no impact on the financial statements.
FASB also issued SFAS No. 131, SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION, in June 1997. This statement, which is effective for fiscal years
beginning after December 15, 1997, establishes standards for the way the public
business enterprises report information about operating segments in annual
financial statements and requires that those enterprises report selected
information about operating segments in interim financial reports issued to
shareholders. The Company's business is conducted in a single operating segment.
In June 1998, SFAS No. 133, ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING
ACTIVITIES, was issued. SFAS No. 133 establishes new accounting and reporting
standards for derivative instruments and for hedging activities. This statement
requires an entity to establish at the inception of a hedge, the method it will
use for assessing the effectiveness of the hedging derivative and the
measurement approach for determining the ineffective aspect of the hedge. Those
methods must be consistent with the entity's approach to managing risk. SFAS
No. 133 is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. The Company believes that this statement will have no material
effect on the Company's financial statements.
-8-
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1998, CWYR had a cash balance of approximately $3,000. The
Company currently has no revenues and continues to incur obligations related to
certain general and administrative expense items.
The Company is currently attempting to raise $1.5 million through a private
placement of its common stock. Continued development of the Company's only
significant asset, the Paradox Basin Project (see below), is dependent on the
success of the Company's private offering. Since the Company has negative
operating cash flow, the capital raised must be sufficient to cover day-to-day
operations as well as development of the Paradox Basin Project. Failure to raise
the capital could lead to liquidation of CWYR's assets on terms unfavorable to
the Company, and there can be no assurance that the Company will be successful
in its capital-raising efforts.
During the fiscal year ended June 30, 1997, the Company pursued a strategy of
identifying and acquiring Rocky Mountain natural gas producing properties with
development potential. However, relatively high Rocky Mountain natural gas
prices together with perceptions of a strong future pricing environment, created
a situation that precluded the Company from consummating a producing property
purchase on terms that would allow for an adequate return on the Company's
capital.
Given the preceding, during fiscal 1998 the Company revised its strategy and
entered into an exploration joint venture and a merger agreement. In conjunction
with the merger agreement, the Company amassed a block of exploratory acreage in
the Paradox Basin (Utah). To date, the Company has acquired a total of
approximately 53,000 acres and, subject to financing, could acquire additional
acreage. The project will require 3-D seismic surveys in order to determine if
the acreage is likely to contain hydrocarbons and whether drilling will be
economically feasible. Initially, a 26-square mile seismic shoot would be
conducted. CWYR has undertaken discussions with several seismic companies in an
effort to arrange a financing plan that would provide for the Company's
financial obligation to be conditioned upon successful identification and
definition of a well site(s). Management anticipates that the Company would have
complete access to (although not ownership of) the seismic data.
Pursuant to the joint venture mentioned in the preceding paragraph, the Company
purchased a once producing field in North Dakota from a financially distressed
entity. The purchase included seven producing wells, a saltwater disposal well
and a total of 1,300 acres. Subsequently, an additional 1,700 developmental
acres have been acquired. However, in order to raise cash for its short term
obligations, the Company sold the property during the quarter ended December 31,
1998.
OPERATIONS. Cash used in operating activities during the six months ended
December 31, 1998 was within 1 percent of the same figure for the six months
ended December 31, 1997. Decreased 1998
-9-
<PAGE>
oil and gas sales, offset somewhat by lower 1998 general and administrative
expense and an increase in the accounts payable balance, resulted in the near
identical results for the periods.
INVESTING. The Company disposed of its remaining producing oil and gas
properties during the six months ended December 31, 1998, resulting in higher
proceeds from asset sales than was realized during the comparable 1997 period.
FINANCING. During the six months ended December 31, 1998, the Company sold
24,000 shares of its common stock at $1 per share and, as described in Note 2 to
the Consolidated Financial Statements, entered into a financing arrangement
resulting in the receipt of $130,000 cash.
RESULTS OF OPERATIONS
OIL AND GAS OPERATIONS. The Company's producing properties were only marginally
profitable in the higher price environment existing during the six months ended
December 31, 1997. As prices fell during 1998, the properties began operating at
a loss. For this reason, and due to the Company's lack of liquidity, all of the
Company's producing properties were sold during the six months ended
December 31, 1998.
EXPLORATION COSTS. Exploration costs incurred during the six months ended
December 31, 1998 represent costs incurred in conjunction with CWYR's Paradox
Basin property (which the Company did not own during the six months ended
December 31, 1997).
GENERAL AND ADMINISTRATIVE EXPENSE. General and administrative expense included
noncash charges for equity issued as compensation of $231,000 and $159,000
during the six months ended December 31, 1998 and 1997, respectively. For the
respective quarters ended December 31, 1998 and 1997 the figures were $150,000
and $159,000. Exclusive of these charges, general and administrative expense
decreased for the six months ended December 31, 1998 versus the same period in
1997. The decrease resulted from the Company cutting certain administrative
costs during 1998 in an effort to conserve cash. General and administrative
expense exclusive of equity issued as compensation was higher during the quarter
ended December 31, 1998 versus the same quarter in 1997 due primarily to the
fact that certain professional expenses incurred during the quarter ended
September 30, 1997 were not incurred until the second quarter of fiscal 1999.
OTHER. Interest expense during the six months ended December 31, 1998 consisted
of accrued interest on the note payable described in Note 2 to the Consolidated
Financial Statements of approximately $2,400 and amortization of the note
payable discount resulting from the issuance of warrants with the note of
$113,000. The Company had no debt during the six months ended December 31, 1997.
Interest income realized during 1997 derived from the investment of excess cash.
No excess cash was available during the six months ended December 31, 1998.
YEAR 2000. The Company does not anticipate incurring any costs associated with
modifying its computer system to be Year 2000 compatible. The initial design of
the system used to process the Company's accounting data and well operations
information incorporated Year 2000 capability. The
-10-
<PAGE>
Company currently has no electronic data processing systems other than the
accounting and well operations system.
Since the Company currently has no significant field operations it has no
material relationships with third parties. Accordingly, the Company has limited
exposure regarding Year 2000 issues related to third party companies.
EFFECTS OF RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
The FASB issued SFAS No. 130, REPORTING COMPREHENSIVE INCOME, in June 1997. This
statement, which is effective for fiscal years beginning after December 15,
1997, establishes standards for reporting of comprehensive income and its
components. The Company adopted this statement effective July 1, 1998. The
adoption had no impact on the financial statements.
The FASB also issued SFAS No. 131, SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION, in June 1997. This statement, which is effective for fiscal years
beginning after December 15, 1997, establishes standards for the way the public
business enterprises report information about operating segments in annual
financial statements and requires that those enterprises report selected
information about operating segments in interim financial reports issued to
shareholders. The Company's business is conducted in a single operating segment.
In June 1998, SFAS No. 133, ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING
ACTIVITIES, was issued. SFAS No. 133 establishes new accounting and reporting
standards for derivative instruments and for hedging activities. This statement
requires an entity to establish at the inception of a hedge the method it will
use for assessing the effectiveness of the hedging derivative and the
measurement approach for determining the ineffective aspect of the hedge. Those
methods must be consistent with the entity's approach to managing risk. SFAS
No. 133 is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. The Company believes that the adoption of this statement will
have no material effect on the Company's financial statements.
-11-
<PAGE>
PART II
Item 1. Legal Proceedings.
None.
Item 2. Changes in Securities.
None.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
A list of the Exhibits required by Item 601 of Regulation
S-B to be filed as part of this report is set forth in the
Index to Exhibits and is incorporated herein by reference.
(b) Reports on Form 8-K.
None.
-12-
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the Issuer caused this
Report to be signed on its behalf by the undersigned, thereunto duly authorized.
COLORADO WYOMING RESERVE COMPANY
Dated: March 1, 1999 By: /S/ KIM M. FUERST
--------------------------------------
Kim M. Fuerst, President
-13-
<PAGE>
EXHIBIT INDEX
3.1 Articles of Incorporation. (a)
3.2 Bylaws. (a)
10.1 Extension, dated as of December 4, 1998, to the Bridge Loan between the
Company and the Trust. (b)
10.2 Amendment No. 1 to Registration Rights Agreement and Promissory Note,
dated as of December 4, 1998, between the Company and the Trust. (b)
10.3 Warrant Agreement, dated as of December 4, 1998, between the Company and
the Trust. (b)
10.4 Offer to Purchase, dated as of November 2, 1998, from FM Energy, LLC to
the Company. (b)
10.5 Amendment No. 2 to Registration Rights Agreement and Promissory Note,
dated as of December 30, 1998, between the Company and the Trust.
10.6 Promissory Note, dated as of December 30, 1998, in original principal
amount of $10,000.00, from the Company to the Trust.
10.7 Warrant Agreement, dated as of December 30, 1998, between the Company
and the Trust.
27 Financial Data Schedule.
- ------------------
(a) Incorporated by reference to the Company's Form 10-K for the
fiscal year ended May 31, 1983.
(b) Incorporated by reference to the Company's Form 10-KSB for the
fiscal year ended June 30, 1998.
-14-
AMENDMENT NO. 2
TO
REGISTRATION RIGHTS AGREEMENT
AND
PROMISSORY NOTE
THIS AMENDMENT NO 2 TO REGISTRATION RIGHTS AGREEMENT AND PROMISSORY NOTE (this
"Amendment") is made and entered into as of December 30, 1998 by and between
COLORADO WYOMING RESERVE COMPANY a Wyoming corporation, having its principal
place of business in Grand Junction, Colorado (the "Company"), and JAMES E.
MOORE REVOCABLE TRUST U/D/T DATED JULY 28, 1994, a trust with the trustee and
beneficiary residing in Playa del Rey, California (the "Investor").
RECITALS:
A. Contemporaneously with the execution and delivery hereof, the Investor is
extending repayment of its loan to the Company in the principal amount of
$120,000, as evidenced by that certain promissory note in favor of Investor
dated August 25, 1998 in the original principal sum of One Hundred Twenty
Thousand Dollars ($120,000.00) (the "First Note"), until February 15, 1999 (the
"Extension"), loaning the Company an additional $10,000 as evidenced by that
certain promissory note in favor of Investor dated December 30, 1998 in the
original principal sum of Ten Thousand Dollars ($10,000.00) (the "Second Note")
and purchasing from the Company, and the Company is selling to the Investor, the
December 30th Warrants (as defined below).
B. In connection with the Extension and the Second Note, the Investor and the
Company desire to amend that certain Registration Rights Agreement entered into
between the Company and the Investor as of August 25, 1998 (the "Registration
Rights Agreement"), as amended by Amendment No 1 to Registration Rights
Agreement and Promissory Note dated as of December 4, 1998 (the "First
Amendment") to extend the registration rights and obligations with respect to
the Common Stock (as defined in Section 1 of the Registration Rights Agreement,
as amended by the First Amendment) underlying the December 30th Warrants.
NOW, THEREFORE, it is agreed:
1. The Registration Rights Agreement as amended by the First Amendment
(hereinafter collectively, the "Registration Rights Agreement") shall be
amended as follows:
a. The following provisions shall be added to Section 1.1 of the
Registration Rights Agreement:
"December 30th Warrant Agreement" shall mean that certain Warrant
Agreement dated December 30, 1998 by and between the Company and the
Investor and governing the December 30th Warrants.
"December 30th Warrants" shall mean the warrants issued by the
Company pursuant to the December 30th Warrant Agreement.
1
<PAGE>
b. The following provisions of Section 1.1 of the Registration Rights
Agreement shall amended and shall replace the corresponding
provisions of Section 1.1 of the Registration Rights Agreement:
"Registrable Securities" shall mean (i) shares of Common Stock now
owned or hereafter acquired by the Investor from the Company, (ii) any
shares of Common Stock issued or then issuable upon complete or partial
exercise of the Warrants, the December Warrants and/or the December 30th
Warrants, and (iii) any shares of Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in replacement of
the shares referenced in (i) and (ii) above, provided, however, that
Registrable Securities shall not include any shares of Common Stock which
have previously been registered or which have been sold to the public.
c. Article III of the Registration Rights Agreement shall be amended and
restated to read:
III
TRANSFER OF SHARES
If, at any time, the Holder sells or otherwise transfers the
Warrants, the December Warrants or the December 30th Warrants, or if,
after the expiration of the period provided in Section 2.11 hereof, the
Holder sells or otherwise transfers shares of Common Stock, then, in
connection therewith, the Holder shall also be deemed to automatically
transfer or assign the rights to cause the Company to register the
Registrable Securities so transferred under Section 2 hereof, provided
that the Company is given written notice prior to or at the time of such
transfer or assignment, stating the name and address of the transferee or
assignee. The Company shall not be obligated to register securities of any
such transferee or assignee unless such transferee or assignee performs
the obligations of a Holder under this Agreement.
2. The second paragraph of the First Note shall be amended to read as
follows:
The unpaid principal and accrued interest shall be payable in full on the
earlier of (i) the receipt by the Borrower of any proceeds from public or
private sale of any its capital stock or other securities or (ii) February
15, 1999 (the "Due Date").
3. The Company represents and warrants to Investor that (a) the execution,
delivery and performance of this Amendment are within its powers, have
been duly authorized and are not in contravention with any law, with
the Company's charter or bylaws, or any undertaking to which it is a
party or by which it is bound; (b) this Amendment is the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms; (c) after giving effect to the
amendments herein contained and in the First Amendment and except as
set forth in the last sentence of paragraph 4 of this Amendment, each
of the representations and warrants of the Company in that certain
Loan Agreement dated as of August 25, 1998 between the Company and
Investor (the "Loan Agreement") are true and correct on and as of the
date hereof with the
2
<PAGE>
same force and effect as if made on and as of the date hereof; and (d)
except as set forth in the last sentence of paragraph 4 of this Amendment,
no Event of Default (as defined in the Loan Agreement) exists or has
occurred and is continuing as of the date hereof.
4. Investor represents and warrants to the Company that each of the
representations and warranties it made to the Company in Article VI of
the Loan Agreement with respect to the Warrants and the Warrant Shares
are true and correct on and as of the date hereof with the same force
and effect as if made on and as of the date hereof with respect to the
December 30th Warrants and the shares of Common Stock underlying the
December Warrants. The Investor acknowledges that it is aware that the
Company has not complied with its filing requirements under the
Securities Exchange Act of 1934 in that the Company has not, as of the
date hereof, filed its quarterly report on Form 10-QSB for the period
ended September 30, 1998.
5. The Company agrees to pay, and to indemnify and hold Investor harmless for
the payment of, all costs and expenses arising in connection with this
Amendment, including the reasonable fees of counsel to Investor in
connection with preparing this Amendment and the related amendment.
6. The Company acknowledges and agrees that Investor has fully performed all
of its obligations under the Loan Agreement, the First Amendment and all
documents executed in connection therewith and all actions which have been
taken by Investor have been reasonable and appropriate under the
circumstances and within its rights under the Loan Agreement and the First
Note and in that certain "Mortgage, Deed of Trust, Security Agreement and
Financing Statement" dated as of August 25, 1998 between the Company, as
Borrower, and Investor, as Lender.
7. Except as expressly amended hereby, the Company agrees that the First
Note, the Second Note and the Registration Rights Agreement and all other
documents and agreements executed by the Company in connection with the
Loan Agreement and the Second Note in favor of Investor (including,
without limitation, the First Amendment) are ratified and confirmed and
shall remain in full force and effect, enforceable against the Company in
accordance with their respective terms, and that it has no set off,
counterclaim or defense with respect to any of the foregoing.
8. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement or December 30th Warrant Agreement,
as the case may be.
9. This Amendment may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
10. This Amendment shall be deemed to be a contract made under the laws of the
State of Colorado and for all purposes shall be construed in accordance
with the internal laws of said State, provided, however, that if, as a
result of the Company's incorporation in the State of Wyoming, the laws of
that State should govern a particular issue, the internal laws of the
State of Wyoming shall govern that issue.
11. All judicial proceedings arising out of or relating to this Amendment
may be brought in any state
3
<PAGE>
or federal court of competent jurisdiction in the State of California, and
by execution and delivery of this Agreement, the Company accepts for
itself generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and waives any defense of forum non convenience and
irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2 TO
REGISTRATION RIGHTS AGREEMENT AND PROMISSORY NOTE effective as of the day and
year first above written.
COLORADO WYOMING RESERVE COMPANY
By:/s/Kim M. Fuerst
-----------------------------
Kim M. Fuerst
Title: President
JAMES E. MOORE REVOCABLE TRUST U/D/T
DATED JULY 28, 1994
By:/s/James E. Moore
-----------------------------
James E. Moore, Trustee
4
PROMISSORY NOTE
$10,000.00 Date: December 30, 1998
For value received, the undersigned COLORADO WYOMING RESERVE COMPANY ("the
Borrower"), with an address at 751 Horizon Court, Suite 205, Grand Junction,
Colorado 81506, promises to pay to the order of James E. Moore Revocable Trust
u/d/t/ dated July 28, 1994 (the "Lender"), at 7827 Berger Avenue, Playa del Rey,
California 90293 (or at such other place as the Lender may designate in
writing), the sum of $10,000.00, together with interest from the date of the
advance of the principal amount of this Note to the Borrower, on the unpaid
principal at the rate of 6.00% per annum.
The unpaid principal and accrued interest shall be payable in full on the
earlier of (i) the receipt by the Borrower of any proceeds from public or
private sale of any its capital stock or other securities or (ii) February 15,
1999 (the "Due Date").
All payments on this Note shall be applied first in payment of accrued interest
and any remainder in payment of principal.
The Borrower reserves the right to prepay this Note (in whole or in part) prior
to the due date with no prepayment penalty.
If any payment obligation under this Note is not paid when due, the Borrower
promises to pay all costs of collection, including reasonable attorney fees,
whether or not a lawsuit is commenced as part of the collection process.
This Note is made pursuant to an agreement set forth in a Memorandum dated as of
December 28, 1998 from Lender to Borrower, which Memorandum was adopted as an
agreement (the "Agreement") of the parties as of December 30, 1998. To the
extent of any conflict between this Note and the Agreement, the provisions of
this Note shall be controlling.
This Note is secured by a Mortgage, Deed of Trust, Security Agreement and
Financing Statement dated as of August 25, 1998. The Lender is not required to
rely on the above security for the payment of this Note in the case of default,
but may proceed directly against the Borrower.
If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
1) the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
2) the filing of bankruptcy proceedings involving the Borrower as a
debtor;
3) the application for appointment of a receiver for the Borrower;
4) the making of a general assignment for the benefit of the Borrower's
creditors;
1
<PAGE>
5) the insolvency of the Borrower; or
6) the misrepresentation by the Borrower to the Lender for the purpose of
obtaining or extending credit.
In addition, the Borrower shall be in default if (a) there is a sale, transfer,
assignment, or any other disposition (a "Transfer") of any assets pledged as
security for the payment of this Note other than a Transfer at the fair market
value of the assets for cash with all cash proceeds of such Transfer being
immediately paid to Lender on account of this Note, (b) Borrower makes any
payment on any other loan, advance or indebtedness except to trade creditors, or
(c) if there is a default in any security agreement which secures this Note.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the legal
currency of the United States. Borrower waives presentment for payment, protest,
and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Lender
under this Note, or assignment by Lender of this Note shall affect the liability
of the Borrower. All rights of the Lender under this Note are cumulative and may
be exercised concurrently or consecutively at the Lender's option.
This Note shall be construed in accordance with the laws of the State of
Colorado. All judicial proceedings arising out of or relating to this Note may
be brought in any state or federal court of competent jurisdiction in the State
of California, and by execution and delivery of this Note, the Borrower accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non convenience and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Note.
Signed as of this 30th day of December, 1998, at
Borrower:
COLORADO WYOMING RESERVE COMPANY
By: /s/Kim M. Fuerst
---------------------------------
Kim M. Fuerst, President
2
<PAGE>
ASSIGNMENT
For value received, the above Note is assigned and transferred to
- ------------------------------------------------------, ("Assignee") of
- -------------------------, -------------------------,
(City) (State/province)
- ------------------------.
(Country)
3
COLORADO WYOMING RESERVE COMPANY
and
JAMES E. MOORE REVOCABLE TRUST U/D/T DATED JULY 28, 1994
---------------------------------------
WARRANT AGREEMENT
Dated as of December 30, 1998
1
<PAGE>
WARRANT AGREEMENT dated as of December 30, 1998 between COLORADO
WYOMING RESERVE COMPANY, a Wyoming corporation (the "Company"), and JAMES E.
MOORE REVOCABLE TRUST U/D/T DATED JULY 28, 1994 (the "Holder").
WHEREAS, the Company proposes to sell Common Stock Purchase
Warrants, as hereinafter described (the "Warrants"), for $0.001, to purchase up
to an aggregate of 50,000 shares of Common Stock, par value $0.01 per share (the
"Common Stock"), of the Company (the Common Stock issuable on exercise of the
Warrants being referred to herein as the "Warrant Shares"), each Warrant
entitling the holder thereof to purchase one Warrant Share.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the payment by Holder of $50.00, receipt of which is
hereby acknowledge by the Company, and the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1. WARRANT CERTIFICATES. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this Agreement
shall be in registered form only and shall be substantially in the form set
forth in Exhibit A attached hereto.
SECTION 2. EXECUTION OF WARRANT CERTIFICATES. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or its
President or a Vice President and by its Secretary or an Assistant Secretary
under its corporate seal. Each such signature upon the Warrant Certificates may
be in the form of a facsimile signature of the present or any future Chairman of
the Board, President, Vice President, Secretary or Assistant Secretary and may
be imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Vice President, Secretary or
Assistant Secretary, notwithstanding the fact that at the time the Warrant
Certificates shall be countersigned and delivered or disposed of he shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
Any Warrant Certificate may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Warrant Certificate,
shall be a proper officer of the Company to sign such Warrant Certificate,
although at the date of the execution of this Warrant Agreement any such person
was not such officer.
SECTION 3. REGISTRATION. The Company shall number and register the
Warrant Certificates in a register as they are issued by the Company. The
Company may deem and treat the registered holder(s) of the Warrant Certificates
as the absolute owner(s) thereof (notwithstanding any notation of ownership or
other writing thereon made by anyone), for all purposes, and the Company shall
not be affected by any notice to the contrary.
SECTION 4. REGISTRATION OF TRANSFERS AND EXCHANGES. The Company
shall from time to time register the transfer of any outstanding Warrant
Certificates upon the records to be maintained by it
1
<PAGE>
for that purpose, upon surrender thereof accompanied (if so required by it) by a
written instrument or instruments of transfer duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee(s) and the surrendered
Warrant Certificate shall be canceled by the Company. Canceled Warrant
Certificates shall thereafter be disposed of in a manner satisfactory to the
Company.
The Holder agrees that each certificate representing Warrant Shares
will bear the following legend:
"The securities evidenced or constituted hereby have been acquired
for investment and have not been registered under the Securities Act
of 1933, as amended. Such securities may not be sold, transferred,
pledged or hypothecated unless the registration provisions of said
Act have been complied with or unless the Company has received an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required."
Warrant Certificates may be exchanged at the option of the holder(s)
thereof, when surrendered to the Company at its office for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be canceled by the Company.
SECTION 5. TERMS OF WARRANTS, EXERCISE OF WARRANTS. Subject to the terms
of this Agreement, the Warrant holder shall have the right, which may be
exercised commencing at the opening of business on December 30, 1998 and until
5: 00 p.m., Pacific time on December 29, 2008 to receive from the Company the
number of fully paid and nonassessable Warrant Shares which the Warrant holder
may at the time be entitled to receive on exercise of such Warrants and payment
of the Exercise Price then in effect for such Warrant Shares. In the
alternative, the Warrant holder may exercise its right, during the Exercise
Period, to receive Warrant Shares on a net basis, such that, without the
exchange of any funds, the Warrant holder receives that number of Warrant Shares
otherwise issuable (or payable) upon exercise of its Warrants less that number
of Warrant Shares having an aggregate fair market value (as defined below) at
the time of exercise equal to the aggregate Exercise Price that would otherwise
have been paid by the Warrant holder. For purposes of the foregoing sentence,
"fair market value" of the Warrant Shares shall mean (i) if the Common Stock is
in the over-the-counter market and not in The Nasdaq National Market nor on any
national securities exchange, the average of the per share closing bid price on
the 30 consecutive trading days immediately preceding the date in question, as
reported by The Nasdaq Small Cap Market (or an equivalent generally accepted
reporting service if quotations are not reported on The Nasdaq Small Cap
Market), or (ii) if the Common Stock is traded in The Nasdaq National Market or
on a national securities exchange, the average for the 30 consecutive trading
days immediately preceding the date in question of the daily per share closing
prices in The Nasdaq National Market or on the principal stock exchange on which
it is listed, as the case may be. For purposes of clause (i) above, if trading
in the Common Stock is not reported by The Nasdaq Small Cap Market, the
applicable bid price referred to in said clause shall be
2
<PAGE>
the lowest bid price as reported on the OTC Electronic Bulletin Board of the
National Association of Securities Dealers, Inc. or, if not reported thereon, as
reported in the "pink sheets" published by National Quotation Bureau,
Incorporated, and, if such securities are not so reported, shall be the price of
a share of Common Stock determined by the Company's Board of Directors in good
faith. The closing price referred to in clause (ii) above shall be the last
reported sale price or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices, in either case in The
Nasdaq National Market or on the national securities exchange on which the
Common Stock is then listed.. Each Warrant not exercised prior to 5:00 p.m.,
Pacific time, on December 29, 2008 shall become void and all rights thereunder
and all rights in respect thereof under this agreement shall cease as of such
time. No adjustments as to dividends will be made upon exercise of the Warrants.
A Warrant may be exercised upon surrender to the Company at its
principal office of the certificate or certificates evidencing the Warrants to
be exercised with the form of election to purchase on the reverse thereof duly
filled in and signed, and upon payment to the Company of the exercise price (the
'Exercise Price") which is set forth in the form of Warrant Certificate attached
hereto as Exhibit A as adjusted as herein provided, for the number of Warrant
Shares in respect of which such Warrants are then exercised. Payment of the
aggregate Exercise Price shall be made (i) in cash or by certified or official
bank check payable to the order of the Company, or (ii) in the manner provided
in the first paragraph of this Section 5.
Upon such surrender of Warrants and payment of the Exercise Price
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the Warrant holder and in such name or names as
the holder may designate, a certificate or certificates for the number of full
Warrant Shares issuable upon the exercise of such Warrants together with cash as
provided in Section 11; provided, however, that if any consolidation, merger or
lease or sale of assets is proposed to be effected by the Company as described
in subsection (m) of Section 10 hereof, or a tender offer or an exchange offer
for shares of Common Stock of the Company shall be made, upon such surrender of
Warrants and payment of the Exercise Price as aforesaid, the Company shall, as
soon as possible, but in any event not later than two business days thereafter,
issue and cause to be delivered the full number of Warrant Shares issuable upon
the exercise of such Warrants in the manner described in this sentence together
with cash as provided in Section 11. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and payment of the Exercise Price.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued pursuant to the provisions of this Section.
All Warrant Certificates surrendered upon exercise of Warrants shall
be canceled by the Company. Such canceled Warrant Certificates shall then be
disposed of by the Company.
3
<PAGE>
SECTION 6. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrant Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue of any Warrant Certificates or any certificates for Warrant Shares
in a name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 7. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants, but only upon receipt of evidence satisfactory to the Company of such
loss, theft or destruction of such Warrant Certificate and indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
SECTION 8. RESERVATION OF WARRANT SHARES. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of any of the rights
of purchase aforesaid will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Company will supply such Transfer Agent with
duly executed certificates for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 11. The Company
will furnish such Transfer Agent a copy of all notices of adjustments and
certificates related thereto, transmitted to each holder pursuant to Section 12
hereof.
Before taking any action which would cause an adjustment pursuant to
Section 10 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
4
<PAGE>
The Company covenants that all Warrant Shares which may be issued
upon exercise of Warrants will, upon issue, be fully paid, nonassessable, free
of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issue thereof.
SECTION 9. OBTAINING STOCK EXCHANGE LISTINGS. The Company will from
time to time take all action which may be necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges and markets within the United States of
America, if any, on which other shares of Common Stock are then listed.
SECTION 10. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES ISSUABLE. The Exercise Price and the number of Warrant Shares issuable
upon the exercise of each Warrant are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 10. For purposes of
this Section 10, "Common Stock" means shares now or hereafter authorized of any
class of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
(a) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK.
If the Company:
(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
(4) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares
of its capital stock; then the Exercise Price in effect immediately prior
to such action shall be proportionately adjusted so that the holder of any
Warrant thereafter exercised may receive the aggregate number and kind of
shares of capital stock of the Company which he would have owned
immediately following such action if such Warrant had been exercised
immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
5
<PAGE>
If after an adjustment a holder of a Warrant upon exercise of it may
receive shares of two or more classes of capital stock of the Company, the
Company shall determine the allocation of the adjusted Exercise Price between
the classes of capital stock. After such allocation, the exercise privilege and
the Exercise Price of each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Common Stock in this
Section.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 60 days
after the record date mentioned below to purchase shares of Common Stock at a
price per share less than the current market price per share on that record
date, the Exercise Price shall be adjusted in accordance with the formula:
O + N x P
-----
E' = E x M
---------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the record
date.
The adjustment shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) ADJUSTMENT FOR OTHER DISTRIBUTIONS.
6
<PAGE>
If the Company distributes to all holders of its Common Stock any of
its assets or debt securities or any rights or warrants to purchase debt
securities, assets or other securities of the Company, the Exercise Price shall
be adjusted in accordance with the formula:
E' = E x M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the current market price per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of Common
Stock. The Board of Directors shall determine the fair market value.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This subsection (c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of the Company prepared in accordance with generally accepted
accounting principles. Also, this subsection does not apply to rights, options
or warrants referred to in subsection (b) of this Section 10.
(d) ADJUSTMENT FOR COMMON STOCK ISSUE.
If the Company issues shares of Common Stock for a consideration per
share less than the current market price per share on the date the Company fixes
the offering price of such additional shares, the Exercise Price shall be
adjusted in accordance with the formula:
P
-
E' = E x O + M
-----
A
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
7
<PAGE>
O = the number of shares outstanding immediately prior to the issuance
of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share on the date of issuance of such
additional shares.
A = the number of shares outstanding immediately after the issuance of
such additional shares.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (b) and
(c) of this Section 10,
(2) the exercise of Warrants, or the conversion or exchange
of other securities convertible or exchangeable for Common Stock,
(3) Common Stock issued to the Company's employees under
bona fide employee benefit plans adopted by the Board of Directors and
approved by the holders of Common Stock when required by law, if such
Common Stock would otherwise be covered by this subsection (d) (but only
to the extent that the aggregate number of shares excluded hereby and
issued after the date of this Warrant Agreement shall not exceed 5% of
the Common Stock outstanding at the time of the adoption of each such
plan, exclusive of antidilution adjustments thereunder),
(4) Common Stock upon the exercise of rights or warrants
issued to the holders of Common Stock,
(5) Common Stock issued to shareholders of any person which
merges into the Company in proportion to their stock holdings of such
person immediately prior to such merger, upon such merger,
(6) Common Stock issued in a bona fide public offering
pursuant to a firm commitment underwriting or
(7) Common Stock issued in a bona fide private placement
through a placement agent which is a member firm of the National
Association of Securities Dealers, Inc. (except to the extent that any
discount from the current market price attributable to restrictions on
transferability of the Common Stock, as determined in good faith by the
Board of Directors and described in a Board resolution which shall be
filed with the Trustee, shall exceed 20%).
8
<PAGE>
(e) ADJUSTMENT FOR CONVERTIBLE SECURITIES ISSUE.
If the Company issues any securities convertible into or
exchangeable for Common Stock (other than securities issued in transactions
described in subsections (b) and (c) of this Section 10) for a consideration per
share of Common Stock initially deliverable upon conversion or exchange of such
securities less than the current market price per share on the date of issuance
of such securities, the Exercise Price shall be adjusted in accordance with this
formula:
P
-
E' = E x O + M
-----
O + D
where:
E' = the adjusted Exercise Price.
E = the then current Exercise Price.
O = the number of shares outstanding immediately prior to the issuance
of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the current market price per share on the date of issuance of such
securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or exchange
rate.
The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or exchange
of such securities have not been issued when such securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of Common Stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to:
(1) convertible securities issued to shareholders of any
person which merges into the Company, or with a subsidiary of the Company,
in proportion to their stock holdings of such person immediately prior to
such merger, upon such merger,
9
<PAGE>
(2) convertible securities issued in a bona fide public
offering pursuant to a firm commitment underwriting, or
(3) convertible securities issued in a bona fide private
placement through a placement agent which is a member firm of the National
Association of Securities Dealers, Inc. (except to the extent that any
discount from the current market price attributable to restrictions on
transferability of Common Stock issuable upon conversion, as determined in
good faith by the Board of Directors and described in a Board resolution
which shall be filed with the Trustee, shall exceed 20% of the then
current market price).
(f) CURRENT MARKET PRICE.
In subsections (b), (c), (d) and (e) of this Section 10 the current
market price per share of Common Stock on any date shall be the fair market
value per Warrant Share as determined in accordance with the first paragraph of
Section 5 of this Agreement.
(g) CONSIDERATION RECEIVED.
For purposes of any computation respecting consideration received
pursuant to subsections (d) and (e) of this Section 10, the following shall
apply:
(1) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided that in
no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue
or otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock for
a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive,
and described in a Board resolution, a copy of which shall be mailed to
each holder; and
(3) in the case of the issuance of securities convertible into
or exchangeable for shares, the aggregate consideration received therefor
shall be deemed to be the consideration received by the Company for the
issuance of such securities plus the additional minimum consideration, if
any, to be received by the Company upon the conversion or exchange thereof
(the consideration in each case to be determined in the same manner as
provided in clauses (1) and (2) of this subsection).
(h) WHEN DE MINIMIS ADJUSTMENT MAY BE DEFERRED.
10
<PAGE>
No adjustment in the Exercise Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the Exercise
Price. Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
(i) WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in
subsections (a), (b), (c), (d) or (e) of this Section 10 if Warrant holders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(j) NOTICE OF ADJUSTMENT.
Whenever the Exercise Price is adjusted, the Company shall provide
the notices required by Section 12 hereof.
(k) VOLUNTARY REDUCTION.
The Company from time to time may reduce the Exercise Price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period; provided, however, that in no event
may the Exercise Price be less than the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to
Warrant holders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced Exercise Price takes effect. The
notice shall state the reduced Exercise Price and the period it will be in
effect.
A reduction of the Exercise Price does not change or adjust the
Exercise Price otherwise in effect for purposes of subsections (a), (b), (c),
(d) and (e) of this Section 10.
11
<PAGE>
(l) NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an
adjustment in the Exercise Price pursuant to subsections (a), (b), (c),
(d) or (e) of this Section 10 and if the Company does not arrange for
Warrant holders to participate pursuant to subsection (i) of this Section
10;
(2) the Company takes any action that would require a
supplemental Warrant Agreement pursuant to subsection (m) of this Section
10; or
(3) there is a liquidation or dissolution of the Company, the
Company shall mail to Warrant holders a notice stating the proposed record
date for a dividend or distribution or the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall mail the
notice at least 15 days before such date. Failure to mail the notice or
any defect in it shall not affect the validity of the transaction.
(m) REORGANIZATION OF COMPANY.
If the Company consolidates or merges with or into, or transfers or
leases all or substantially all its assets to, any person, upon consummation of
such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the holder of a
Warrant would have owned immediately after the consolidation, merger, transfer
or lease if the holder had exercised the Warrant immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Company, or the person to which such sale or conveyance
shall have been made, shall enter into a supplemental Warrant Agreement so
providing and further providing for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Section.
The successor Company shall mail to Warrant holders a notice describing the
supplemental Warrant Agreement.
If the issuer of securities deliverable upon exercise of Warrants
under the supplemental Warrant Agreement is an affiliate of the formed,
surviving, transferee or lessee corporation, that issuer shall join in the
supplemental Warrant Agreement.
If this subsection (m) applies, subsections (a), (b), (c), (d) and
(e) of this Section 10 do not apply.
(n) WHEN ISSUANCE OR PAYMENT MAY BE DEFERRED.
In any case in which this Section 10 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event (i) issuing to the holder of any Warrant exercised after such record date
the
12
<PAGE>
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise over and above the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercise Price
and (ii) paying to such holder any amount in cash in lieu of a fractional share
pursuant to Section 11; PROVIDED, HOWEVER, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional Warrant Shares, other capital stock and cash
upon the occurrence of the event requiring such adjustment.
(o) ADJUSTMENT IN NUMBER OF SHARES.
Upon each adjustment of the Exercise Price pursuant to this Section
10, each Warrant outstanding prior to the making of the adjustment in the
Exercise Price shall thereafter evidence the right to receive upon payment of
the adjusted Exercise Price that number of shares of Common Stock (calculated to
the nearest hundredth) obtained from the following formula:
N' = N x E
---
E'
where:
N' = the adjusted number of Warrant Shares issuable upon exercise of a
Warrant by payment of the adjusted Exercise Price.
N = the number or Warrant Shares previously issuable upon exercise of
a Warrant by payment of the Exercise Price prior to adjustment.
E' = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
(p) FORM OF WARRANTS.
Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 11. FRACTIONAL INTERESTS. The Company shall not be required
to issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 11,
be issuable on the exercise of any Warrants (or specified portion thereof), the
13
<PAGE>
Company shall pay an amount in cash equal to the Exercise Price on the day
immediately preceding the date the Warrant is presented for exercise, multiplied
by such fraction.
SECTION 12. NOTICES TO WARRANT HOLDERS. Upon any adjustment of the
Exercise Price pursuant to Section 10, the Company shall promptly thereafter (i)
cause to be given to each of the registered holders of the Warrant Certificates
at his address appearing on the Warrant register a certificate of a firm of
independent public accountants of recognized standing selected by the Board of
Directors of the Company (who may be the regular auditors of the Company)
setting forth the Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based and setting forth the number of Warrant Shares (or
portion thereof) issuable after such adjustment in the Exercise Price, upon
exercise of a Warrant and payment of the adjusted Exercise Price, which
certificate shall be conclusive evidence of the correctness of the matters set
forth therein, by first-class mail, postage prepaid. Where appropriate, such
notice may be given in advance and included as a part of the notice required to
be mailed under the other provisions of this Section 12.
In case:
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for or
purchase shares of Common Stock or of any other subscription rights or warrants;
or
(b) the Company shall authorize the distribution to all holders of
shares of Common Stock of evidences of its indebtedness or assets (other than
cash dividends or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in shares of Common Stock or distributions
referred to in subsection (a) of Section 10 hereof); or
(c) of any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or of the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange offer for shares of
Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company proposes to take any action (other than actions of
the character described in Section 10(a)) which would require an adjustment of
the Exercise Price pursuant to Section 10; then the Company shall cause to be
given to each of the registered holders of the Warrant Certificates at his
address appearing on the Warrant register, at least 20 days (or 10 days in any
case specified in clauses (a) or (b) above) prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first-class mail, postage prepaid, a written notice stating (i)
the date as of which the holders of record of shares of Common Stock to be
entitled to receive any such rights,
14
<PAGE>
options, warrants or distribution are to be determined, or (ii) the initial
expiration date set forth in any tender offer or exchange offer for shares of
Common Stock, or (iii) the date on which any such consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up is expected to
become effective or consummated, and the date as of which it is expected that
holders of record of shares of Common Stock shall be entitled to exchange such
shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up. The failure to give the notice required by this
Section 12 or any defect therein shall not affect the legality or validity of
any distribution, right, option, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up, or the vote upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 13. NOTICES TO COMPANY. Any notice or demand authorized by
this Agreement to be given or made by the Company or by the registered holder of
any Warrant Certificate to or on the Company shall be sufficiently given or made
when and if deposited in the mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Company), as
follows:
COLORADO WYOMING RESERVE COMPANY
751 Horizon Court, Suite 205
Grand Junction, Colorado 81506
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Transfer Agent.
SECTION 14. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
holders may from time to time supplement or amend this Agreement with the
approval of all holders of Warrant Certificates.
SECTION 15. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Holder shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 16. TERMINATION. This Agreement shall terminate at 5:00
p.m., Pacific time on December 29 , 2008. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date if all Warrants have been
exercised.
SECTION 17. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement
and each Warrant Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Colorado and for all purposes shall be
construed in accordance with the internal laws of said State, provided,
15
<PAGE>
however, that if, as a result of the Company's incorporation in the State of
Wyoming, the laws of that State should govern a particular issue, the internal
laws of the State of Wyoming shall govern that issue.
All judicial proceedings arising out of or relating to this
Agreement and each Warrant Certificate issued hereunder may be brought in any
state or federal court of competent jurisdiction in the State of California, and
by execution and delivery of this Agreement, the Company accepts for itself
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non convenience and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this Agreement or
any Warrant Certificate issued hereunder.
SECTION 18. TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT. The
Warrants may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee. Subject to compliance with such laws, title to
the Warrants may be transferred by endorsement (by the Holder executing the
Assignment Form annexed to the Warrant Certificate) and delivery in the same
manner as a negotiable instrument transferable by endorsement and delivery.
SECTION 19. EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of
theWarrant Certicate for exchange, properly endorsed on the Assignment Form and
subject to the provisions of this Agreement with respect to compliance with
applicable securities laws and with the limitations on assignments and transfers
and contained in Section 18, the Company at its expense shall issue to or on the
order of the Holder a new Warrant Certificate of like tenor, in the name of the
Holder or as the Holder may direct, for the number of shares issuable upon
exercise hereof.
SECTION 20. COMPLIANCE WITH SECURITIES LAWS. The Holder agrees that
the Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the federal or any state
securities laws. Prior to any proposed transfer of this Warrant, the holder
thereof shall give written notice to the Company of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company (it being agreed that Freshman, Marantz, Orlanski,
Cooper & Klein, a law corporation, shall be satisfactory) to the effect that the
proposed transfer may be effected without registration under the Securities Act,
whereupon the holder shall be entitled to transfer this Warrant in accordance
with the terms of its notice; provided, however, that no such opinion of counsel
shall be required for a transfer to one or more partners of the transferor (in
the case of a transferor that is a partnership) or to an affiliated corporation
(in the case of a transferor that is a corporation). Each Warrant transferred as
above provided shall bear the legend set forth at the beginning of the form
Warrant Certificate annexed hereto as Exhibit A.
SECTION 21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Holder and the registered holders of the Warrant Certificates any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Holder and the
registered holders of the Warrant Certificates.
16
<PAGE>
SECTION 22. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
COLORADO WYOMING RESERVE COMPANY
By:/s/Kim M. Fuerst
-----------------------------
Kim M. Fuerst
Title: President
JAMES E. MOORE REVOCABLE TRUST U/D/T DATED
JULY 28, 1994,
By:/s/JAMES E. MOORE
-----------------------------
JAMES E. MOORE, Trustee
17
<PAGE>
EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SAID SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT.
EXERCISABLE ON OR BEFORE DECEMBER 29, 2008
No. 50,000 Warrants
-----
Warrant Certificate
COLORADO WYOMING RESERVE COMPANY
This Warrant Certificate certifies that JAMES E. MOORE REVOCABLE
TRUST U/D/T DATED JULY 28, 1994, or registered assigns, is the registered holder
of Warrants expiring December 29, 2008 (the "Warrants") to purchase Common
Stock, par value $0.01 per share (the "Common Stock"), of COLORADO WYOMING
RESERVE COMPANY, a Wyoming corporation (the "Company"). Each Warrant entitles
the holder upon exercise to receive from the Company on or before 5:00 p.m.
Pacific Time on December 29, 2008, one fully paid and nonassessable share of
Common Stock (a "Warrant Share") at the initial exercise price (the "Exercise
Price") of the lower of (a) $1.00 or (b) the lowest price per share of common
stock or price per share common stock equivalent issued by the Company in any
offering of its securities occurring prior to July 1, 1999, payable in lawful
money of the United States of America upon surrender of this Warrant Certificate
and payment of the Exercise Price at the office of the Company, but only subject
to the conditions set forth herein and in the Warrant Agreement referred to
herein. Notwithstanding the foregoing, Warrants may be exercised without the
exchange of funds pursuant to the net exercise provisions of Section 5 of the
Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement. As used herein, "price per
share of common stock equivalent" shall mean the effective price per share of
common stock issuable upon exercise of any warrant or other right to purchase
common stock or issuable upon conversion of any security convertible into common
stock, as the case may be.
No Warrant may be exercised after 5:00 p.m., Pacific Time on
December 29, 2008, and to the extent not exercised by such time such Warrants
shall become void.
A-1
<PAGE>
This Warrant Certificate shall be governed and construed in
accordance with the internal laws of the State of Colorado, provided, however,
that if, as a result of the Company's incorporation in the State of Wyoming, the
laws of that State should govern a particular issue, the internal laws of the
State of Wyoming shall govern that issue.
All judicial proceedings arising out of or relating to this Warrant
Certificate may be brought in any state or federal court of competent
jurisdiction in the State of California, and by execution and delivery of this
Agreement, the Company accepts for itself generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non convenience and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Warrant Certificate.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring December 29, 2008 entitling the
holder on exercise to receive shares of Common Stock, par value $0.01 per share,
of the Company (the "Common Stock"), and are issued or to be issued pursuant to
a Warrant Agreement dated as of December 30,1998 (the "Warrant Agreement"), duly
executed and delivered by the Company to James E. Moore (the "Holder"), which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company, the
Holder and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder and any transferee of the registered Holder) of the
Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof
upon written request to the Company.
Warrants may be exercised at any time on or before December 29,
2008. The holder of Warrants evidenced by this Warrant Certificate may exercise
them by surrendering this Warrant Certificate, with the form of election to
purchase set forth hereon properly completed and executed, together with payment
of the Exercise Price in cash at the office of the Company. In the event that
upon any exercise of Warrants evidenced hereby the number of Warrants exercised
shall be less than the total number of Warrants evidenced hereby, there shall be
issued to the holder hereof or his assignee a new Warrant Certificate evidencing
the number of Warrants not exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay
the cash value thereof determined as provided in the Warrant Agreement.
A-2
<PAGE>
Warrant Certificates, when surrendered at the office of the Company
by the registered holder thereof may be exchanged, in the manner and subject to
the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company may deem and treat the registered holder(s) thereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder of the Company.
IN WITNESS WHEREOF, COLORADO WYOMING RESERVE COMPANY has
caused this Warrant Certificate to be signed by its President and by its
Secretary, and has caused its corporate seal to be affixed hereunto or imprinted
hereon.
Dated: December 30, 1998
COLORADO WYOMING RESERVE COMPANY
By
-------------------------------
President
A-3
<PAGE>
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive ________ shares of Common
Stock and herewith tenders payment for such shares to the order of COLORADO
WYOMING RESERVE COMPANY in the amount of $_______ in accordance with the terms
hereof, unless the holder is exercising Warrants pursuant to the net exercise
provisions of Section 5 of the Warrant Agreement. The undersigned requests that
a certificate for such shares be registered in the name of _______________,
whose address is ________________________ and that such shares be delivered to
___________________________ whose address is ________________________. If said
number of shares is less than all of the shares of Common Stock purchasable
hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of such shares be registered in the name of _____________,
whose address is _______________________ and that such Warrant Certificate be
delivered to ____________________________, whose address is ___________________.
Signature:
Date:
A-4
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(Replace this text with the legend)
</LEGEND>
<CIK> 0000318852
<NAME> COLORADO WYOMING RESERVE COMPANY
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> OCT-01-1998
<PERIOD-END> DEC-31-1998
<EXCHANGE-RATE> 1
<CASH> 3,191
<SECURITIES> 0
<RECEIVABLES> 3,126
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 9,541
<PP&E> 580,082
<DEPRECIATION> (8,521)
<TOTAL-ASSETS> 581,102
<CURRENT-LIABILITIES> 311,247
<BONDS> 0
0
0
<COMMON> 24,917
<OTHER-SE> 244,938
<TOTAL-LIABILITY-AND-EQUITY> 581,102
<SALES> 4,063
<TOTAL-REVENUES> 4,063
<CGS> 4,988
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 323,469
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 81,820
<INCOME-PRETAX> (406,214)
<INCOME-TAX> 0
<INCOME-CONTINUING> (406,214)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (406,214)
<EPS-PRIMARY> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
