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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _______)*
Gothic Energy Corporation
____________________________________________________________
(Name of Issuer)
Common Stock, Par Value $ .01 Per Share
____________________________________________________________
(Title of Class of Securities)
87259G-10-9
____________________________________________________________
(CUSIP Number)
Stephen F. Gates, Amoco Corporation, MC2106A, 200 E.
Randolph Drive,
Chicago, IL 60601, (312) 856-5474
____________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 23, 1998
____________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the
statement [_]. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership
of five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1 (a) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect
to the subject class of securities, and for any subsequent
amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section
18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act
(however, see the Notes).
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SCHEDULE 13D
CUSIP NO. 87259G-10-9 PAGE 1 OF 7 PAGES
1. Name of Reporting Person
S.S. or I.R.S. Identification No. Of Above Person
Amoco Corporation
2. Check the Appropriate Box if a member of a group*
(a) [_] (b) [_]
3. SEC Use Only
4. Source of Funds*
00
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d)
or 2(3) [_].
6. Citizenship or Place of Organization
Indiana
Number of 7. Sole Voting Power
Shares 1,500,000 Shares - Amoco Corporation
Beneficially Owned By 8. Shared Voting Power
Each 9. Sole Dispositive Power
Reporting 1,500,000 Shares - Amoco Corporation
Person With 10. Shared Dispositive Power
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,500,000 Shares of Common Stock
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*
[_]
13. Percent of Class Represented by Amount in Row (11)
8.5%
14. Type of Reporting Person*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT:
Include both sides of the cover page, responses to Items 1-7
(Including Exhibits) of the Schedule, and the Signature
Attestation.
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
Item 1. Security and Issuer
Common Stock, par value $.01 per share, of Gothic Energy
Corporation as Issuer, 5727 South Lewis Avenue, Suite 700,
Tulsa, Oklahoma 74105.
Item 2. Identity and Background
Reporting Persons (1):
Name: Amoco Corporation
State of Incorporation: Indiana
Principal Business: Integrated Petroleum and Chemical Operations
Address of Principal Business
and Principal Executive Office: 200 East Randolph Drive
Chicago, Illinois 60601
The Executive Officers and Directors of Amoco Corporation
are:
NAME & BUSINESS ADDRESS OCCUPATION
H. L. Fuller Chairman of the Board,
200 East Randolph Drive CEO, & Director
Chicago, Illinois 60601
W. G. Lowrie President & Director
200 East Randolph Drive
Chicago, Illinois 60601
J. E. Fligg Sr. Executive Vice President-
200 East Randolph Drive Strategic Planning &
Chicago, Illinois 60601 International Business Development
J. F. Campbell Senior Vice President,
200 East Randolph Drive Human Resources
Chicago, Illinois 60601
J. L. Carl Executive Vice President &
200 East Randolph Drive Chief Financial Officer
Chicago, Illinois 60601
G. S. Spindler Senior Vice President,
200 East Randolph Drive Law and Corporate Affairs
Chicago, Illinois 60601
E. J. Sosa Executive Vice President -
200 East Randolph Drive Chemicals Sector
Chicago, Illinois 60601
W. D. Ford Executive Vice President -
200 East Randolph Drive Petroleum Products Sector
Chicago, Illinois 60601
L. R. Flury Executive Vice President -
200 East Randolph Drive Exploration & Production Sector
Chicago, Illinois 60601
D. F. Work Senior Vice President,
200 East Randolph Shared Services
Chicago, Illinois 60601
T. M. Solso Director; President and Chief
200 East Randolph Drive Operating Officer, Cummins
Chicago, Illinois 60601 Engine Company, Inc.,
Columbus, IN
R. J. Ferris Director; Co-Chairman (Retired)
200 East Randolph Drive Doubletree Corporation, Phoenix,
Chicago, Illinois AZ
J. H. Bryan Director; Chairman and Chief
200 East Randolph Drive Executive Officer, Sara Lee
Chicago, Illinois 60601 Corporation, Chicago , IL
R. S. Block Director; Executive Vice
200 East Randolph Drive President and Chief Insurance
Chicago, Illinois 60601 Officer(Retired), The
Equitable, New York, NY
D. R. Beall Director; Chairman of the
200 East Randolph Drive Executive Committee, and
Chicago, Illinois 60601 Retired Chairman and Chief
Executive Officer, Rockwell
International Corporation,
Costa Mesa, CA
E. B. Davis, Jr. Director; President and Chief
200 East Randolph Drive Executive Officer,
Chicago, Illinois 60601 Wisconsin Power and
Light Company and WPL Holdings, Inc.
Madison, WI
M. R. Seger Director; Financial Economist
200 East Randolph Drive and Former Governor of the
Chicago, Illinois 60601 Federal Reserve Board,
Washington, DC
W. E. Massey Director; President,
200 East Randolph Drive Morehouse College, Atlanta, GA
Chicago, Illinois 60601
M. H.Wilson Director; Vice Chairman RBC
200 East Randolph Drive Dominion Securities, Inc.,
Chicago, Illinois 60601 Toronto, Ontario, Canada
F. A. Maljers Director; Chairman (Retired)
200 East Randolph Drive Unilever, N.V., Rotterdam,
Chicago, Illinois 60601 The Netherlands
A. C. Martinez Director; Chairman and Chief
200 East Randolph Drive Executive Officer, Sears
Chicago, Illinois 60601 Roebuck and Co., Hoffman
Estates, IL
Neither Amoco Corporation nor any of the above listed
Executive Officers or Directors of any of them has, during
the last five years, been convicted in a criminal proceeding
or been or become subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Each individual identified above is a United States citizen,
except M. H. Wilson, who is Canadian, F.A. Maljers, who is
Dutch, and J. E. Fligg, who is Australian.
Item 3. Source and Amount of Funds or Other Consideration
A warrant to purchase the subject securities was received by
Amoco Corporation from Gothic Energy Corporation as partial
consideration for the purchase by Gothic Energy Corporation
of oil and gas properties from Amoco Production Company, an
indirect wholly owned subsidiary of Amoco Corporation.
Item 4. Purpose of Transaction
A warrant to purchase the Shares was acquired as partial
consideration for the sale of oil and gas properties by
Amoco Production Company, an indirect wholly owned
subsidiary of Amoco Corporation, to Gothic Energy
Corporation. Amoco Corporation intends to hold the warrant
as an investment for its own account. Amoco has no current
intention to effect any change in control, or to influence
the control of, the Issuer.
(a) Not applicable
(b) Not applicable
(c) Not applicable
(d) Not applicable
(e) Not applicable
(f) Not applicable
(g) Not applicable
(h) Not applicable
(i) Not applicable
(j) Not applicable
Item 5. Interest in Securities of the Issuer
(a) Amoco Corporation is the owner of record of a warrant
to purchase 1,500,000 shares of Gothic Energy Corporation
Common Stock (the "Shares"), which Shares constitute 8.5%
of such stock outstanding.
(b) Amoco Corporation has the sole power to vote or dispose
of the warrant and, if the warrant is exercised, the Shares.
(c) Amoco Corporation received the warrant to purchase
1,500,000 shares and other consideration for certain of
its oil and gas properties transferred to Gothic Energy
Corporation, pursuant to a Purchase and Sale Agreement
between the parties and dated November 24, 1997.
(d) Not applicable
(e) Not applicable
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer
The warrant may be exercised, in whole or in part, at any
time after January 23, 1998, until 5:00 p.m., Tulsa,
Oklahoma, time, on November 24, 2002. The holders of at
least 50 percent of the securities underlying the warrant
may request registration of such securities under the
Securities Act at any time after March 31, 1998.
Item 7. Material to be Filed as Exhibits
Warrant to purchase common stock of Gothic Energy
Corporation issued to Amoco Corporation on January 23, 1998.
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
February 5, 1998 AMOCO CORPORATION
By: P. J. Clayton
Name: P. J. Clayton
Title: Assistant Corporate Secretary
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Exhibit 1
THE SECURITIES REPRESENTED BY THIS WARRANT AND THE COMMON STOCK
ISSUABLE THEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER APPLICABLE SECURITIES LAWS AND, ACCORDINGLY, THE SECURITIES
REPRESENTED BY THIS WARRANT MAY NOT BE RESOLD, PLEDGED, OR
OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
STATE OR OTHER APPLICABLE SECURITIES LAWS.
WARRANT
to Purchase Common Stock of
GOTHIC ENERGY CORPORATION
Expiring on November 24, 2002
Date of Issuance: January 23,1998
Certificate No. W-AMO-1
This Warrant to purchase Common Stock (the "Warrant")
certifies that for value received, Amoco Corporation, an Indiana
corporation, or its registered assigns (the "Holder"), is
entitled to subscribe for and purchase from the Company (as
hereinafter defined), in whole or in part, 1,500,000 duly
authorized, validly issued, fully paid and non-assessable shares
of Common Stock (as hereinafter defined) at the Exercise Price
(as hereinafter defined), subject, however, to the provisions and
upon the terms and conditions hereinafter set forth. The number
of shares of Common Stock purchasable hereunder and the Exercise
Price therefor are subject to adjustment as hereinafter set
forth. This Warrant and all rights hereunder shall expire at
5:00PM, Tulsa, Oklahoma time, on November 24, 2002.
As used herein, the following terms shall have the meanings
set forth below:
"Company" shall mean Gothic Energy Corporation, an Oklahoma
corporation, and shall also include any successor thereto with
respect to the obligations hereunder, by merger, consolidation or
otherwise.
"Common Stock" shall mean and include the Company's Common
Stock, par value $0.01 per share, authorized on the date of the
original issue of this Warrant and shall also include (i) in case
of any reorganization, reclassification, consolidation, merger,
share exchange or sale, transfer or other disposition of assets
of the character referred to in Section 3.4 hereof, the stock or
securities provided for in such Section 3.4, and (ii) any other
shares of common stock of the Company into which such shares of
Common Stock may be converted.
"Common Stock Deemed Outstanding" means at any given time,
the number of shares of Common Stock actually outstanding at such
time, plus the number of shares of Common Stock deemed to be
outstanding pursuant to paragraphs 3.2.1 and 3.2.2 hereof
regardless of whether the Options or Convertible Securities are
actually exercisable at such time.
"Convertible Securities" means any stock or securities
(directly or indirectly) convertible into or exchangeable for
Common Stock.
"Exercise Price" shall mean the initial purchase price of
$3.00 per share of Common Stock payable upon exercise of the
Warrant. The Exercise Price shall be adjusted from time to time
pursuant to the provisions hereof.
"Market Price" means as to any security the average of the
closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be
listed, or, if there have been no sales on any such exchange on
any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day, or, if on any day
such security is not so listed, the average of the representative
bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, on such day, or, if on any day such security is
not quoted in the NASDAQ System, the average of the highest bid
and lowest asked prices on such day in the domestic over-the-
counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such
case averaged over a period of 10 days consisting of the day as
of which "Market Price" is being determined and the 9 consecutive
business days prior to such day; provided that if such security
is listed on any domestic securities exchange the term "business
days" as used in this sentence means business days on which such
exchange is open for trading. If at any time such security is
not listed on any domestic securities exchange or quoted in the
NASDAQ System or the domestic over-the-counter market, the
"Market Price" shall be the fair value thereof determined jointly
by the Company and the Registered Holders of Warrants
representing a majority of the Warrant Shares purchasable upon
exercise of all the Warrants then outstanding; provided, that if
such parties are unable to reach agreement within a reasonable
period of time, such fair value shall be determined by an
appraiser jointly selected by the Company and the Registered
Holders of Warrants representing a majority of the Warrant Shares
purchasable upon exercise of all the Warrants then outstanding.
The determination of such appraiser shall be final and binding on
the Company and the Registered Holders of the Warrants, and the
fees and expenses of such appraiser shall be paid jointly by the
Company and the Registered Holders.
"Options" means any rights or options to subscribe for or
purchase Common Stock or Convertible Securities.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as
amended.
"Warrant" shall mean this Warrant Certificate, and any one
or more Warrant Certificates into which this Warrant may be
exchanged or converted ("Warrants"), representing the right to
purchase up to 1,500,000 Warrant Shares, or such greater or
lesser amounts as may result pursuant to the adjustments provided
for herein.
"Warrant Shares" shall mean the shares of Common Stock or
other securities purchased or purchasable by the holder hereof
upon the exercise of the Warrants, taking into account all
adjustments provided for herein.
ARTICLE I
EXERCISE OF WARRANTS
1.1 Exercise Period.
The Warrant represented hereby may be exercised by the
Holder hereof, in whole or in part, at any time and from time to
time on or after the date hereof until 5:00PM, Tulsa, Oklahoma
time, on November 24, 2002.
1.2 Method of Exercise.
To exercise the Warrants, the Holder hereof shall
deliver to the Company, at the Warrant Office designated in
Section 2.1 hereof, (i) a written notice in the form of the
Subscription Notice attached as Exhibit I hereto, stating therein
the election of such holder to exercise the Warrant in the manner
provided in the Subscription Notice; (ii) payment in full of the
Exercise Price in cash or by bank check or wire transfer for all
Warrant Shares purchased hereunder, or a written notice (a
"Cashless Exercise" notice) to the Company that such Holder is
exercising the Warrant (or a portion thereof) by authorizing the
Company to withhold from issuance a number of Warrant Shares
issuable upon such exercise of the Warrant which, when multiplied
by the Market Price for such shares, is equal to the Exercise
Price for the total number of Warrant Shares to which such
exercise relates (and such withheld shares shall no longer be
issuable under this Warrant); (iii) if this Warrant is not
registered in the name of the Holder, an Assignment or
Assignments in the form set forth in Exhibit II hereto evidencing
the assignment of this Warrant to the current Holder; and (iv)
this Warrant. The Warrants shall be deemed to be exercised on
the date of receipt by the Company of the Subscription Notice,
accompanied by payment for the Warrant Shares (or the Cashless
Exercise notice) and surrender of this Warrant, as aforesaid, and
such date is referred to herein as the "Exercise Date". Upon
such exercise, the Company shall, as promptly as practicable and
in any event within five (5) business days, issue and deliver to
such holder a certificate or certificates for the full number of
the Warrant Shares purchased by such holder hereunder, and shall,
unless the Warrant has expired, deliver to the holder hereof
(within such five (5) day period) a new Warrant representing the
right to purchase the number of Warrant Shares, if any, with
respect to which the Warrant shall not have been previously
exercised, but in all other respects identical to this Warrant.
As permitted by applicable law, the Person in whose name the
certificates for Common Stock are to be issued shall be deemed to
have become a holder of record of such Common Stock on the
Exercise Date and shall be entitled to all of the benefits of
such holder on the Exercise Date, including without limitation,
the right to receive dividends and other distributions for which
the record date falls on or after the Exercise Date and the right
to exercise voting rights.
1.3 Expenses and Taxes. The Company shall pay all expenses
and taxes (including, without limitation, all documentary, stamp,
transfer or other transactional taxes), other than income taxes
payable by the Holder, attributable to the preparation, issuance
or delivery of the Warrant and of the issuance of the Warrant
Shares.
1.4 Reservation of Shares. The Company shall reserve at
all times so long as the Warrant remains outstanding, free from
preemptive rights, out of its authorized but unissued shares of
Common Stock, solely for the purpose of effecting the exercise of
the Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the Warrant. The Company shall take
all such actions as may be necessary to assure that all such
Warrant Shares may be so issued without violation of any
applicable law or governmental regulation or any requirements of
any domestic securities exchange or automated quotation system
upon which shares of Common Stock may be listed or quoted (except
for official notice of issuance, which shall be immediately
delivered by the Company upon each such issuance). The Company
shall take all such actions as may be necessary to assure that
all such Warrant Shares shall be authorized, approved for and
listed on any national securities exchange or quotation system on
which the Company's Common Stock is listed or quoted. The
Company shall not take any action which would cause the number of
authorized but unissued shares of Common Stock to be less than
the number of such shares required to be reserved hereunder for
issuance upon exercise of the Warrant.
1.5 Valid Issuance. All Warrant Shares that may be issued
upon any exercise of the Warrant will, upon issuance by the
Company, be duly and validly issued, fully paid and non-
assessable and free from all taxes, liens and charges with
respect to the issuance thereof and, without limiting the
generality of the foregoing, the Company shall take no action or
fail to take any action which will cause a contrary result
(including, without limitation, any action that would cause the
Exercise Price then in effect to be less than the par value, if
any, of the Common Stock).
1.6 Purchase Agreement. The Warrant represented hereby is
part of a duly authorized issuance and sale of warrants to
purchase Common Stock pursuant to that certain Agreement of
Purchase and Sale dated November 24, 1997 (the "Agreement"),
between the Company and Amoco Production Company, a wholly-owned
indirect subsidiary of Amoco ("Amoco Production"). The Warrant
is issued in partial consideration for Amoco Production's sale of
certain properties to the Company.
1.7 Acknowledgment of Rights. At the time of the exercise
of the Warrants in accordance with the terms hereof and upon the
written request of the Holder hereof, the Company will
acknowledge in writing its continuing obligation to afford to
such Holder any rights (including, without limitation, any right
to registration of the Warrant Shares) to which such Holder shall
continue to be entitled after such exercise in accordance with
the provisions of this Warrant; provided, however, that if the
holder hereof shall fail to make any such request, such failure
shall not affect the continuing obligation of the Company to
afford to such Holder any such rights.
1.8 No Fractional Shares. The Company shall not be
required to issue fractional shares of Common Stock (or other
securities) on the exercise of this Warrant. If more than one
Warrant shall be presented for exercise at the same time by the
same Holder, the number of full Warrant Shares which shall be
issuable upon such exercise shall be computed on the basis of the
aggregate number of whole 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 1.8, be issuable
on the exercise of this Warrant, the Company shall pay an amount
in cash calculated by it to be equal to the Market Price of one
such share at the time of such exercise multiplied by such
fraction computed to the nearest whole cent.
1.9 Assistance and Cooperation. The Company shall not
close its books against the transfer of this Warrant or of any
Warrant Share in any manner which interferes with the timely
exercise of this Warrant. The Company shall assist and cooperate
with any Holder required to make any governmental filings or
obtain any governmental approvals prior to or in connection with
any exercise of this Warrant (including, without limitation,
making any filings required to be made by the Company).
1.10 Delayed Exercise. Notwithstanding any other provision
hereof, if an exercise of any portion of this Warrant is to be
made in connection with a registered public offering or the sale
of the Company, the exercise of any portion of this Warrant may,
at the election of the Holder hereof, be conditioned upon the
consummation of the public offering or sale of the Company in
which case such exercise shall not be deemed to be effective
until the consummation of such transaction.
ARTICLE II
TRANSFER
2.1 Warrant Office. The Company shall maintain an office
for certain purposes specified herein (the "Warrant Office"),
which office shall initially be the Company's offices at 5727
South Lewis Avenue, Suite 8700, Tulsa, Oklahoma 74105, and may
subsequently be such other office of the Company or of any
transfer agent of the Common Stock in the continental United
States as to which written notice has previously been given to
the holder hereof. The Company shall maintain, at the Warrant
Office, a register for the Warrants in which the Company shall
record the name and address of the Person in whose name this
Warrant has been issued, as well as the name and address of each
permitted assignee of the rights of the registered owner hereof.
2.2 Ownership of Warrants. The Company may deem and treat
the Person in whose name the Warrant is registered as the Holder
and owner hereof (notwithstanding any notations of ownership or
writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary
until presentation of this Warrant for registration of transfer
as provided in this Article II. Notwithstanding the foregoing,
the Warrants represented hereby, if otherwise properly assigned
in compliance with this Article II (i.e., but for registration of
the transfer at the Warrant Office), may be exercised by an
assignee for the purchase of Warrant Shares without having a new
Warrant issued.
2.3 Restrictions on Transferability of Warrant. Subject to
the transfer conditions referred to herein, this Warrant and all
rights hereunder (including, but not limited to, Registration
Rights under Article VII) are transferable, in whole or in part,
without charge to the Holder, upon surrender of this Warrant with
a properly executed Assignment (in the form of Exhibit II hereto)
at the Warrant Office of the Company. The Company agrees to
maintain at the Warrant Office books for the registration and
transfer of the Warrants. The Company shall, from time to time,
register the transfer of the Warrants in such books upon
surrender of any such Warrant at the Warrant Office accompanied
by a properly executed Assignment and written instructions for
transfer satisfactory to the Company. Upon any such transfer and
upon payment by the holder or its transferee of any applicable
transfer taxes, a new Warrant shall be issued to the transferee
and the surrendered Warrant shall be cancelled by the Company.
The Company shall pay all taxes (other than securities transfer
taxes or income taxes) and all other expenses and charges payable
in connection with the transfer of the Warrants pursuant to this
Section 2.3. Prior to any transfer as provided herein, the
transferor shall provide written notice to the Company.
2.4 Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof, by the Holder
at the Warrant Office of the Company, for new Warrants of like
tenor representing in the aggregate the purchase rights
hereunder, and each of such new Warrants shall represent such
portion of such rights as is designated by the Holder at the time
of such surrender. The date the Company initially issues this
Warrant shall be deemed to be the "Date of Issuance" hereof
regardless of the number of times new certificates representing
the unexpired and unexercised rights formerly represented by this
Warrant shall be issued. All Warrants representing portions of
the rights hereunder are referred to herein as the "Warrants."
2.5 Compliance with Securities Laws. Subject to Article
VII hereof, and notwithstanding any other provisions contained in
this Warrant, the Holder hereof understands and agrees that the
following restrictions and limitations shall be applicable to all
Warrant Shares and to all resales or other transfers thereof
pursuant to the Securities Act:
2.5.1 The holder hereof agrees that the Warrant and
Warrant Shares shall not be sold or otherwise transferred unless
the Warrant or Warrant Shares are registered under the Securities
Act and applicable state securities or blue sky laws or are sold
in a transaction that is exempt therefrom.
2.5.2 A legend in substantially the following form
will be placed on the certificate(s) evidencing the Warrant
Shares:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE OR OTHER
APPLICABLE SECURITIES LAWS AND, ACCORDINGLY,
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE RESOLD, PLEDGED, OR
OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER, OR IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER,
THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
STATE OR OTHER APPLICABLE SECURITIES LAWS."
2.5.3 Stop transfer instructions will be imposed
with respect to the Warrant Shares so as to restrict resale or
other transfer thereof not in accordance with this Section 2.5.
ARTICLE III
ANTI-DILUTION
3. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this
Warrant, the Exercise Price shall be subject to adjustment from
time to time as provided in this Section 3, and the number of
shares of Common Stock (i.e., Warrant Shares) obtainable upon
exercise of this Warrant shall be subject to adjustment from time
to time as provided in this Article III.
3.1 Adjustment of Exercise Price and Number of Shares upon
Issuance of Common Stock.
3.1.1 If and whenever on or after the Date of
Issuance of this Warrant the Company issues or sells, or in
accordance with paragraph 3.2 is deemed to have issued or sold,
any shares of Common Stock for a consideration per share less
than the Exercise Price in effect immediately prior to such time,
then immediately upon such issue or sale the Exercise Price shall
be reduced to the new Exercise Price determined by dividing:
(A) the sum of (x) the product derived by
multiplying the Exercise Price in effect immediately prior to
such issue or sale times the number of shares of Common Stock
Deemed Outstanding immediately prior to such issue or sale, plus
(y) the consideration, if any, received by the Company upon such
issue or sale, by
(B) the number of shares of Common Stock Deemed
Outstanding immediately after such issue or sale.
3.1.2 Upon each such adjustment of the Exercise
Price hereunder, the number of shares of Common Stock acquirable
upon exercise of this Warrant shall be adjusted to the number of
shares determined by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of
Common Stock acquirable upon exercise of this Warrant immediately
prior to such adjustment and dividing the product thereof by the
Exercise Price resulting from such adjustment.
3.2 Effect on Exercise Price of Certain Events. For
purposes of determining the adjusted Exercise Price upon
paragraph 3.1, the following shall be applicable:
3.2.1 Issuance of Rights or Options. If the
Company in any manner grants or sells any Options and the price
per share for which Common Stock is issuable upon the exercise of
such Options, or upon conversion or exchange of any Convertible
Securities issuable upon exercise of such Options, is less than
the Exercise Price in effect immediately prior to the time of the
granting or sale of such Options, then the total maximum number
of shares of Common Stock issuable upon the exercise of such
Options, or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise
of such Options, shall be deemed to be outstanding and to have
been issued and sold by the Company at the time of the granting
or sale of such Options for such price per share. For purposes
of this paragraph, the "price per share for which Common Stock is
issuable upon exercise of such Options or upon conversion or
exchange of such Convertible Securities" is determined by
dividing (A) the total amount, if any, received or receivable by
the Company as consideration for the granting or sale of such
Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all
such Options, plus in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
issuance or sale of such Convertible Securities and the
conversion or exchange thereof, by (B) the total maximum number
of shares of Common Stock issuable upon exercise of such Options
or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options. No
further adjustment of the Exercise Price shall be made upon the
actual issuance of such Common Stock or of such Convertible
Securities upon the exercise of such Options or upon the actual
issuance of such Common Stock upon conversion or exchange of such
Convertible Securities.
3.2.2 Issuance of Convertible Securities. If the
Company in any manner issues or sells any Convertible Securities
and the price per share for which Common Stock is issuable upon
conversion or exchange thereof is less than the Exercise Price in
effect immediately prior to the time of such issue or sale, then
the maximum number of shares of Common Stock issuable upon
conversion or exchange of such Convertible Securities shall be
deemed to be outstanding and to have been issued and sold by the
Company at the time of the issue or sale of such Convertible
Securities for such price per share. For the purposes of this
paragraph, the "price per share for which Common Stock is
issuable upon conversion or exchange thereof" is determined by
dividing (A) the total amount received or receivable by the
Company as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (B) the total maximum number
of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities. No further
adjustment of the Exercise Price shall be made upon the actual
issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and if any such issue or sale of such
Convertible Securities is made upon exercise of any Options for
which adjustments of the Exercise Price had been or are to be
made pursuant to other provisions of this paragraph 3.2, no
further adjustment of the Exercise Price shall be made by reason
of such issue or sale.
3.2.3 Change in Option Price or Conversion Rate.
If the purchase price provided for in any Options, the additional
consideration, if any, payable upon the issue, conversion or
exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable for
Common Stock changes at any time, the Exercise Price in effect at
the time of such change shall be adjusted immediately to the
Exercise Price which would have been in effect at such time had
such Options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
changed conversion rate, as the case may be, at the time
initially granted, issued or sold and the number of shares of
Common Stock issuable hereunder shall be correspondingly
adjusted. For purposes of this paragraph 3.2, if the terms of
any Option or Convertible Security which was outstanding as of
the date of issuance of this Warrant are changed in the manner
described in the immediately preceding sentence, then such Option
or Convertible Security and the Common Stock deemed issuable upon
exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such change; provided that no such
change shall at any time cause the Exercise Price hereunder to be
increased.
3.2.4 Treatment of Expired Options and Unexercised
Convertible Securities. Upon the expiration of any Option or the
termination of any right to convert or exchange any Convertible
Securities without the exercise of such Option or right, the
Exercise Price then in effect and the number of shares of Common
Stock acquirable hereunder shall be adjusted immediately to the
Exercise Price and the number of shares which would have been in
effect at the time of such expiration or termination had such
Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been
issued. For purposes of this paragraph 3.2, the expiration or
termination of any Option or Convertible Security which was
outstanding as of the date of issuance of this Warrant shall not
cause the Exercise Price hereunder to be adjusted unless, and
only to the extent that, a change in the terms of such Option or
Convertible Security caused it to be deemed to have been issued
after the date of issuance of this Warrant.
3.2.5 Calculation of Consideration Received. If
any Common Stock, Options or Convertible Securities are issued or
sold or deemed to have been issued or sold for cash, the
consideration received therefor shall be deemed to be the amount
received by the Company therefor. In case any Common Stock,
Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of the consideration
other than cash received by the Company shall be the fair value
of such consideration, except where such consideration consists
of securities, in which case the amount of consideration received
by the Company shall be the Market Price thereof as of the date
of receipt. In case any Common Stock, Options or Convertible
Securities are issued to the owners of the non-surviving entity
in connection with any merger in which the Company is the
surviving entity the amount of consideration therefor shall be
deemed to be the fair value of such portion of the net assets and
business of the non-surviving entity as is attributable to such
Common Stock, Options or Convertible Securities, as the case may
be. The fair value of any consideration other than cash or
securities shall be determined at the reasonable discretion of
the board of directors of the Company consistent with the value
assigned for Generally Accepted Accounting Principles purposes.
3.2.6 Integrated Transactions. In case any Option
is issued in connection with the issue or sale of other
securities of the Company, together comprising one integrated
transaction in which no specific consideration is allocated to
such Options by the parties thereto, the Options shall be deemed
to have been issued for consideration determined at the
reasonable discretion of the board of directors of the Company
consistent with the value assigned for Generally Accepted
Accounting Principles purposes.
3.2.7 Treasury Shares. The number of shares of
Common Stock outstanding at any given time does not include
shares owned or held by or for the account of the Company or any
Subsidiary, and the disposition of any shares so owned or held
shall be considered an issue or sale of Common Stock.
3.2.8 Record Date. If the Company takes a record
of the holders of Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in Common
Stock, Options or in Convertible Securities or (B) to subscribe
for or purchase Common Stock, Options or Convertible Securities,
then such record date shall be deemed to be the date of the issue
or sale of the shares of Common Stock deemed to have been issued
or sold upon the declaration of such dividend or the making of
such other distribution or the date of the granting of such right
of subscription or purchase, as the case may be.
3.3 Stock Splits and Reverse Splits. In the event that the
Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares (by stock split,
stock dividend, recapitalization or otherwise), the Exercise
Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Shares
purchasable pursuant to this Warrant immediately prior to such
subdivision shall be proportionately increased. Conversely, in
the event that the outstanding shares of Common Stock shall at
any time be combined into a smaller number of shares (by reverse
stock split or otherwise), the Exercise Price in effect
immediately prior to such combination shall be proportionately
increased and the number of Warrant Shares purchasable upon the
exercise of this Warrant immediately prior to such combination
shall be proportionately reduced.
3.4 Reorganizations and Asset Sales. If any capital
recapitalization, reorganization or reclassification of the
capital stock of the Company, or any consolidation, merger or
share exchange of the Company with another Person, or the sale,
transfer or other disposition of all or substantially all of its
assets to another Person shall be effected in such a way that a
holder of Common Stock of the Company shall be entitled to
receive capital stock, securities or assets with respect to or in
exchange for their shares, then the following provisions shall
apply:
3.4.1 As a condition of such recapitalization,
reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer or other disposition (except as
otherwise provided below in this Section 3.2), lawful and
adequate provisions (in form and substance satisfactory to the
Holders of Warrants representing a majority of the Warrant Shares
obtainable upon exercise of all of the Warrants then outstanding)
shall be made whereby the holder of Warrants shall thereafter
have the right to purchase and receive upon the terms and
conditions specified in this Warrant and in lieu of or addition
to (as the case may be) the Warrant Shares immediately
theretofore receivable upon the exercise of the rights
represented hereby, such shares of capital stock, securities or
assets as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to
the number of Warrant Shares immediately theretofore so
receivable had such recapitalization, reorganization,
reclassification, consolidation, merger, share exchange or sale
not taken place, and in any such case appropriate provision (in
form and substance satisfactory to the Holders of Warrants
representing a majority of the Warrant Shares obtainable upon
exercise of all of the Warrants then outstanding) shall be made
with respect to the rights and interests of such Holder(s) to the
end that the provisions hereof (including, without limitation, in
the case of any such consolidation, merger or sale in which the
successor entity or purchasing entity is other than the Company,
an immediate adjustment of the Exercise Price to the value for
the Common Stock reflected by the terms of such consolidation,
merger or sale, and a corresponding immediate adjustment in the
number of shares of Common Stock acquirable and receivable upon
exercise of the Warrants, if the value so reflected is less than
the Exercise Price in effect immediately prior to such
consolidation, merger or sale) shall thereafter be applicable, as
nearly as possible, in relation to any shares of capital stock,
securities or assets thereafter deliverable upon the exercise of
Warrants.
3.4.2 The Company shall not effect any such
consolidation, merger, share exchange, sale, transfer or other
disposition unless prior to or simultaneously with the
consummation thereof the successor Person (if other than the
Company) resulting from such consolidation, share exchange or
merger or the Person purchasing or otherwise acquiring such
assets shall have assumed by written instrument executed and
mailed or delivered to each of the Holders hereof at the last
address of such holder appearing on the books of the Company, (i)
the obligation to deliver to such holder such shares of capital
stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to receive, and (ii) all
other liabilities and obligations of the Company hereunder. As a
condition to any consolidation, share exchange or merger, such
successor Person must assume the Company's obligations hereunder
by written instrument and issue a new warrant revised to reflect
the modifications in this Warrant effected pursuant to this
Section 3.4.
3.5 Certain Events. If any event occurs of the type
contemplated by the provisions of this Article III but not
expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom
stock rights or other rights with equity features), then the
Company's board of directors shall make an appropriate adjustment
in the Exercise Price and the number of shares of Common Stock
obtainable upon exercise of this Warrant so as to protect the
rights of the holders of the Warrants; provided that no such
adjustment shall increase the Exercise Price or decrease the
number of shares of Common Stock obtainable as otherwise
determined pursuant to this Article III.
3.6 Notice of Adjustment. Whenever the Exercise Price or
the number of Warrant Shares issuable upon the exercise of the
Warrants shall be adjusted as herein provided, or the rights of
the holder hereof shall change by reason of other events
specified herein, the Company shall compute the adjusted Exercise
Price and the adjusted number of Warrant Shares in accordance
with the provisions hereof and shall prepare an Officer's
Certificate setting forth the adjusted Exercise Price and the
adjusted number of Warrant Shares issuable upon the exercise of
the Warrants or specifying the other shares of stock, securities
or assets receivable as a result of such change in rights, and
showing in reasonable detail the facts and calculations upon
which such adjustments or other changes are based. The Company
shall promptly cause to be mailed to the holder hereof copies of
such Officer's Certificate together with a notice stating that
the Exercise Price and the number of Warrant Shares purchasable
upon exercise of the Warrants have been adjusted and setting
forth the adjusted Exercise Price and the adjusted number of
Warrant Shares purchasable upon the exercise of the Warrants.
3.7 Notices to Holders. In case at any time the Company
proposes:
(i) to declare any dividend upon its Common Stock
payable in capital stock or make any dividend or other
distribution (including cash dividends) to the holders of its
Common Stock;
(ii) to offer for subscription pro rata to all of the
holders of its Common Stock any additional shares of capital
stock of any class or other rights;
(iii) to effect any capital reorganization, or
reclassification of the capital stock of the Company, or
consolidation, merger or share exchange of the Company with
another Person, or sale, transfer or other disposition of all or
substantially all of its assets; or
(iv) to effect a voluntary or involuntary dissolution,
liquidation or winding up of the Company,
then, in any one or more of such cases, the Company shall give
the holder hereof (a) at least 20 days' (but not more than 90
days') prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to
vote in respect of such issuance, recapitalization,
reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer, disposition, dissolution, liquidation
or winding up, and (b) in the case of any such issuance,
recapitalization, reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 20
days' (but not more than 90 days') prior written notice of the
date when the same shall take place. Such notice in accordance
with the foregoing clause (a) shall also specify, in the case of
any such dividend, distribution or subscription rights, the date
on which the holders of Common Stock shall be entitled thereto,
and such notice in accordance with the foregoing clause (b) shall
also specify the date on which the holders of Common Stock shall
be entitled to exchange their Common Stock, as the case may be,
for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer, disposition, dissolution, liquidation
or winding up, as the case may be.
3.8 Exceptions to Anti-Dilution Adjustment.
Notwithstanding anything to the contrary contained in this
Warrant, there shall be no adjustment in the Exercise Price or
the number of shares of Common Stock (i.e., Warrant Shares)
obtainable upon exercise of this Warrant as a consequence of the
issuance by the Company of any shares of Common Stock upon
exercise or conversion of (i) any option, warrant, convertible
security or other right to acquire shares of Common Stock of the
Company outstanding or in effect as of the date of issuance of
this Warrant, and (ii) any options, stock purchase or other
rights to acquire Common Stock of the Company on exercise of
options granted or that may be granted under the Company's 1989
Incentive Plan, 1996 Omnibus Incentive Plan, or 1996 Non-Employee
Option Plan.
ARTICLE IV
Liquidating Dividends
If the Company declares or pays a dividend upon the Common
Stock payable otherwise than in cash out of earnings or earned
surplus (determined in accordance with generally accepted
accounting principles, consistently applied) except for a stock
dividend payable in shares of Common Stock (a "Liquidating
Dividend"), then the Company shall pay to the Holder of this
Warrant at the time of payment thereof the Liquidating Dividend
which would have been paid to such Holder on the Common Stock had
this Warrant been fully exercise immediately prior to the date on
which a record is taken for such Liquidating Dividend, or, if no
record is taken, the date as of which the record holders of
Common Stock entitled to such dividends are to be determined.
ARTICLE V
Purchase Rights
If at any time the Company grants, issues or sells any
Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record
holders of any class of Common Stock (the "Purchase Rights"),
then the Holder of this Warrant shall be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which such holder could have acquired if such
holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant immediately before the
date on which a record is taken for the grant, issuance or sale
of such Purchase Rights, or, if no such record is taken, the date
as of which the record holders of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.
ARTICLE VI
Information Rights
6.1 Financial Statements and Other Information. The Company
shall deliver to each Holder (so long as such Person holds any
Warrants), within ten days after transmission thereof, copies of
all notices and reports which the Company is required to file (or
would be required to file as a publicly listed company) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the NASD By-Laws and Listing Agreement (or other applicable
exchange rules) and all reports, press releases and
correspondence sent to stockholders of the Company and shall
notify each Holder of each other filing by the Company with the
Securities and Exchange Commission.
6.2 Rule 144 and 144A Reporting Information. With a view
to making available the benefits of certain rules and regulations
of the SEC which may at times permit the sale of the Warrant or
Warrant Shares to the public or other persons without
registration, the Company shall use its reasonable best efforts
to:
6.2.1 make and keep public information available,
as contemplated by Rule 144 under the Securities Act;
6.2.2 file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
6.2.3 furnish to each holder of Warrant Shares
promptly upon request (A) a written statement by the Company as
to its compliance with the reporting requirements of such Rule
144 of the Securities Act and the Exchange Act, (B) copies of all
SEC filings made by the Company within the previous one (1) year
period and any press releases issued by the Company since the
date of the last such filing, and (C) copies of all Rule 144A
information with respect to the Company.
ARTICLE VII
Registration Rights
7.1 Demand Registrations.
7.1.1 Registration of Immediate Offering. At any
time after March 31, 1998, the holders of at least 50% of the
Registrable Securities (hereinafter the "Majority Holders") may
request registration by the Company under the Securities Act of
the resale by such holders of all or any portion of their
Registrable Securities (an "Immediate Offering Registration"). A
request for an Immediate Offering Registration shall specify the
approximate number of Registrable Securities requested to be
registered by the requesting holders and the anticipated per
share price range for such offering. Within 10 days after
receipt of such request, the Company shall give written notice of
such requested registration to all other holders of Registrable
Securities and shall include in such registration all Registrable
Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after delivery of
the Company's notice.
7.1.2 Registration of Delayed or Continuous
Offering. At any time after March 31, 1998, the Majority Holders
may request registration by the Company under the Securities Act
of all or any portion of their Registrable Securities for resale
in a delayed or continuous offering to the extent permitted by
Rule 415 (or any successor rule thereto) under the Securities Act
(a "Shelf Registration"). A registration statement for a Shelf
Registration shall provide for resale by the holders in the
manner or manners designated in writing to the Company by them
(including, without limitation, one or more underwritten
offerings). Within 10 days after the receipt of such request,
the Company shall give similar written notice of such requested
registration to all other holders of Registrable Securities and
shall include in such registration all Registrable Securities
with respect to which the Company has received written requests
for inclusion therein within 15 days after delivery of the
Company's notice.
7.1.3 Number of Demand Registrations. The Majority
Holders shall be entitled to request two (2) Immediate Offering
Registrations; provided, a registration shall not count as one of
the permitted Immediate Offering Registrations (A) until it has
become effective, and (B) unless the Holders of Registrable
Securities requesting such registration are able to register and
sell at least 80% of the Registrable Securities requested to be
included in such registration. In addition, the Majority Holders
shall be entitled to one (1) Shelf Registration; provided, a
registration shall not count as the permitted Shelf Registration
until it has become effective. For purposes of this Warrant, an
Immediate Offering Registration and a Shelf Registration shall
each constitute and be referred to as "Demand Registration."
7.1.4 Priority on Demand Registrations. The
Company shall not include in any Demand Registration any
securities which are not Registrable Securities without the prior
written consent of the Holders of at least 75% of the Registrable
Securities initially requesting such registration. If a Demand
Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion
the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering
exceeds the number of shares, if any, which can be sold in an
orderly manner in such offering within a price range acceptable
to the Majority Holders initially requesting registration, the
Company shall include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number
of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold in an orderly manner
within the price range of such offering, pro rata (i) first,
among the respective Majority Holders requesting registration,
and (ii) second, among the remaining respective holders of
Registrable Securities, in each case on the basis of the amount
of shares requested for inclusion by each such holder. Then,
after the inclusion of all such Shares, the Company shall include
any other securities requested for inclusion.
7.1.5 Selection of Underwriters. The Majority
Holders initially requesting registration in any Demand
Registration hereunder shall have the right to select the
investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which shall not be unreasonably
withheld.
7.1.6 Other Registration Rights. Except as
provided in this Agreement, the Company shall not grant to any
Persons the right to request the Company to register any equity
securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, on a basis
pari passu or senior to the Holders' rights granted in Section
7.1 or 7.2 hereof, without the prior written consent of all the
holders of the Warrant Shares underlying all Warrants then
outstanding (or the Holders of such Warrants representing the
right to purchase such Warrant Shares).
7.2 Piggyback Registrations.
7.2.1 Right to Piggyback. At any time after March
31, 1998, whenever the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a
registration on Form S-8) and the registration form to be used
may be used for the registration of Registrable Securities (a
"Piggyback Registration"), the Company shall give prompt written
notice (in any event within five (5) business days after its
receipt of notice of any exercise of demand registration rights
other than under this Agreement) to all holders of Warrants or
Registrable Securities of its intention to effect such a
registration and shall include in such registration all
Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days
after the receipt of the Company's notice.
7.2.2 Priority on Primary Registrations. If a
Piggyback Registration is an underwritten primary registration on
behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a
price range acceptable to the Company, the Company shall include
in such registration, subject, however, to the terms of any other
agreement entered into prior to the date hereof to which the
Company shall be a party, (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, subject to pro
rata cut back among the holders thereof, and (iii) third, other
securities requested to be included in such registration.
7.2.3 Priority on Secondary Registrations. If a
Piggyback Registration is an underwritten secondary registration
on behalf of holders of the Company's securities, and the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the
holders initially requesting such registration, the Company shall
include in such registration, subject, however, to the terms of
any other agreement entered into prior to the date hereof to
which the Company shall be a party, (i) first, the securities
requested to be included therein by the holders requesting such
registration, (ii) second, the Registrable Securities requested
to be included in such registration, pro rata among the holders
of such securities on the basis of the number of securities so
requested to be included therein, and (iii), third, other
securities requested to be included in such registration.
7.2.4 Right of Holder to Withdraw. A Holder who
has given notice to the Company under paragraph 7.2.1 requesting
inclusion of any Registrable Securities in a Piggyback
Registration shall, on five (5) business days notice to the
Company or secondary sellers, have the right to withdraw its
Registrable Securities from the Piggyback Registration.
7.2.5 Right of Company to Withdraw. The Company
shall, on five business days notice to all holders who have given
notice to the Company under paragraph 7.2.1 requesting inclusion
of their Registrable Securities in a Piggyback Registration have
the right to withdraw any registration statement filed pursuant
to this Section 7.2 for a Piggyback Registration at any time
prior to the effective date thereof.
7.3 Maintaining Effectiveness of Registration Statement.
7.3.1 The Company shall use its reasonable best
efforts to keep any registration statement prepared and filed
pursuant to this Article VII continuously effective under the
Securities Act from the initial effectiveness thereof until the
earliest to occur of (i) the date when all Registrable Securities
registered thereunder have been sold in the manner set forth and
as contemplated in the registration statement, or (ii) the date
when counsel to the Company or other counsel of such Holders'
choosing shall render an opinion addressed to the Holders whose
Registrable Securities are registered thereunder, to the effect
that all remaining Registrable Securities are freely transferable
in the open market without limitations as to volume and manner of
sale, and without being required to file any forms or reports
with the Securities and Exchange Commission (the "SEC") under the
Securities Act or the rules and regulations thereunder of the
Company (such period being referred to as the "Effectiveness
Period").
7.3.2 If the registration statement filed pursuant
to this Article VII ceases to be effective for any reason at any
time during the Effectiveness Period, the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend
such registration statement in a manner reasonable expected to
obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional registration statement covering
all of the Registrable Securities originally registered. If an
additional registration statement is filed, the Company shall use
its reasonable best efforts to cause such registration statement
to be declared effective as soon as practicable after such filing
and to keep such registration statement continuously effective
for the remainder of the Effectiveness Period.
7.4 Expenses of Registration. All Registration Expenses
shall be borne by the Company. Unless otherwise stated herein,
all Selling Expenses relating to securities registered on behalf
of the Holder shall be borne by the Holder. The Company shall
pay all Registration Expenses in connection with any registration
initiated under this Article whether or not it has become
effective and whether or not such registration has counted as one
of the permitted registrations.
7.5 Registration Procedures. In the case of each registra
tion, qualification or compliance effected by the Company
pursuant hereto, the Company will keep the Holder advised in
writing as to the initiation of each registration, qualification
and compliance and as to the completion thereof. At its expense,
the Company will:
7.5.1 Prepare and file with the Commission a
registration statement with respect to such securities and use
its commercially reasonable efforts to cause such registration
statement to become and remain effective until the distribution
described in such registration statement has been completed;
7.5.2 Notify each Holder of Registrable Securities
of the effectiveness of each registration statement filed
hereunder and prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for the period of time set forth
in paragraph 7.3, as applicable, and to comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during
such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement.
7.5.3 Furnish to each Holder such number of copies
of the registration statement, each supplement and amendment
thereto, and the prospectus included therein, including a
preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the public sale of the
shares by such Holder, and promptly furnish to each Holder notice
of any stop-order or similar notice issued by the Commission or
any state agency charged with the regulation of securities, and
notice of any Nasdaq or securities exchange listing.
7.5.4 Use its reasonable best efforts to register
or qualify such Registrable Securities under the securities or
blue sky laws of such jurisdictions as any seller reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller.
7.5.5 Use its best efforts to cause the Warrant
Shares to be listed on the Nasdaq SmallCap Market and each
Securities Exchange on which the Common Stock is approved for
listing.
7.5.6 Notify each seller of such Registrable
Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the
existence of facts or the happening of any event (without
necessarily identifying such facts or event to such sellers) as a
result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading, and, at the request of any such seller, the Company
shall prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading.
7.5.7 Enter into such customary agreements
(including underwriting agreements in customary form) and take
all such other actions as the holders of a majority of the
Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities in any underwritten
offering of Registrable Securities.
7.5.8 Make available for reasonable inspection by
any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by
any such seller or underwriter, such financial and other records,
corporate documents and properties of the Company as are
customarily made available to such persons on a confidential
basis by the issuer in connection with a registered public
offering of securities similar to the Registrable Securities, and
cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement.
7.5.9 Otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's
first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder.
7.6 Indemnification.
7.6.1 To the extent permitted by law, the Company
will indemnify the Holder, each of its officers and directors and
partners, and each person controlling the Holder within the
meaning of the Securities Act, with respect to which
registration, qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of
the Securities Act, against all expenses, claims, losses, damages
or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced
or threatened, to the extent such expenses, claims, losses,
damages or liabilities arise out of or are based on any untrue
statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering
circular or other similar document, or any amendment or
supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, or any
violation by the Company of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification
or compliance, and the Company will reimburse Holder, each of its
officers and directors and partners, and each person controlling
Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action; provided,
however, that the indemnity contained herein shall not apply to
amounts paid in settlement of any claim, loss, damage, liability
or expense if settlement is effected without the consent of the
Company (which consent shall not unreasonably be withheld);
provided, further, that the Company will not be liable in any
such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission,
made in reliance upon and in conformity with written information
furnished to the Company by the Holders or such controlling
person specifically for use therein. Notwithstanding the
foregoing, insofar as the foregoing indemnity relates to any such
untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in the preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement becomes effec
tive or in the final prospectus filed with the Commission
pursuant to the applicable rules of the Commission or in any
supplement or addendum thereto, the indemnity agreement herein
shall not inure to the benefit of any underwriter if a copy of
the final prospectus filed pursuant to such rules, together with
all supplements and addenda thereto, was not furnished to the
person or entity asserting the loss, liability, claim or damage
at or prior to the time such furnishing is required by the
Securities Act.
7.6.2 To the extent permitted by law, each Holder
will, if securities held by the Holder are included in the
securities as to which such registration, qualification or
compliance is being effected pursuant to terms hereof, severally
but not jointly, indemnify the Company, each of its directors and
officers, each person who controls the Company or such
underwriter within the meaning of the Securities Act, and each
other person selling the Company's securities covered by such
registration statement, each of such person's officers and
directors and each person controlling such persons within the
meaning of the Securities Act, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or
any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by Holder of
any rule or regulation promulgated under the Securities Act
applicable to Holder and relating to action or inaction required
of Holder in connection with any such registration, qualification
or compliance, and will reimburse the Company, such other
persons, such directors, officers, persons, or control persons
for any legal or other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information
furnished to the Company by such Holder specifically for use
therein; provided, however, that the indemnity contained herein
shall not apply to amounts paid in settlement of any claim, loss,
damage, liability or expense if settlement is effected without
the consent of such Holder (which consent shall not be
unreasonably withheld). Notwithstanding the foregoing, the
liability of such Holder under this subsection (b) shall be
limited in an amount equal to the net proceeds from the sale of
the shares sold by such Holder, unless such liability arises out
of or is based on willful conduct by such Holder. In addition,
insofar as the foregoing indemnity relates to any such untrue
statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at
the time the registration statement becomes effective or in the
final prospectus filed pursuant to applicable rules of the
Commission or in any supplement or addendum thereto, the
indemnity agreement herein shall not inure to the benefit of the
Company if a copy of the final prospectus filed pursuant to such
rules, together with all supplements and addenda thereto, was not
furnished to the person or entity asserting the loss, liability,
claim or damage at or prior to the time such furnishing is
required by the Securities Act.
7.6.3 Notwithstanding the foregoing paragraphs
7.6.1 and 7.6.2 of this Section, each party entitled to
indemnification under this Section (the "Indemnified Party")
shall give notice to the party required to provide indemnifica
tion (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, and provided
further that the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give
such notice is materially prejudicial to an Indemnifying Party's
ability to defend such action and provided further, that the
Indemnifying Party shall not assume the defense for matters as to
which there is a conflict of interest or as to which the
Indemnifying Party is asserting separate or different defenses,
which defenses are inconsistent with the defenses of the
Indemnified Party (in which case the Indemnifying Party shall pay
for one separate counsel for those Indemnified Parties with whom
such conflict exists). No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to
such claim or litigation. No Indemnified Party shall consent to
entry of any judgment or enter into any settlement without the
consent of each Indemnifying Party. The failure of an
Indemnifying Party to give notice to the Indemnified Party of its
election to assume and control the defense of any action for
which notice has been given to the Indemnifying Party in
accordance with this paragraph within 30 days after receipt of
such notice shall constitute an election by the Indemnifying
Party not to assume and control the defense of such action. An
Indemnifying Party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties
indemnified by such Indemnifying Party with respect to such
claim, unless in the reasonable judgment of any Indemnified Party
a conflict of interest may exist between such Indemnified Party
and any other of such Indemnified Parties or the Indemnifying
Party with respect to such claim, in which event the Indemnifying
Party shall be obligated to pay the fees and expenses of one
separate counsel for such Indemnified Parties.
7.6.4 If the indemnification provided for in this
Section is unavailable to an Indemnified Party in respect of any
losses, claims, damages or liabilities referred to therein, then
each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand,
and each respective shareholder offering securities in the
offering (the "Selling Security Holder"), on the other, from the
offering of the Company's securities, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and each Selling
Security Holder, on the other, in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on
the one hand, and each Selling Security Holder, on the other,
shall be the net proceeds from the offering (before deducting
expenses) received by the Company, on the one hand, and each
Selling Security Holder, on the other. The relative fault of the
Company, on the one hand, and each Selling Security Holder, on
the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or
by such Selling Security Holder and the parties' relevant intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Selling
Security Holder agree that it would not be just and equitable if
contribution pursuant to this Section were based solely upon the
number of entities from whom contribution was requested or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this Section.
Notwithstanding the provisions of this Section, no Selling
Security Holder shall be required to contribute any amount or
make any other payments under this Agreement which in the
aggregate exceed the proceeds received by such Selling Security
Holder. No person guilty of fraudulent misrepresentation (within
the meaning of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6.5 The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party or
any officer, director or controlling person of such Indemnified
Party and shall survive the transfer of securities.
7.7 Certain Information.
7.7.1 The Holder agrees, with respect to any
Registrable Securities included in any registration, to furnish
to the Company such information regarding Holder, the Registrable
Securities and the distribution proposed by the Holder as the
Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to herein.
7.7.2 The failure of the Holder to furnish the
information requested pursuant to this Section shall not affect
the obligation of the Company to any other selling security
holders who furnish such information unless, in the reasonable
opinion of counsel to the Company, such failure impairs or may
impair the legality of the Registration Statement or the
underlying offering.
7.8 Covenant to Remain Public. The Company covenants that,
so long as the Warrant or any Registrable Securities (so long as
such securities remain Registrable Securities) remains issued and
outstanding, the Company shall take all action necessary to keep
its shares registered under Section 12(b) or 12(g) of the
Exchange Act, and listed and traded on the Nasdaq SmallCap Market
or other national exchange or quotation system. In the event
that such registration is suspended or the Common Stock is
delisted, the Company shall use its best efforts to promptly
reinstate such shares.
7.9 Definitions Contained in Article VII. As used in this
Article, the following terms shall have the meanings set forth
below:
7.9.1 "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time
administering the Securities Act.
7.9.2 "Holder" shall mean the Holder of any
Warrants or holder of any Warrant Shares issued upon exercise of
any Warrants and any transferees.
7.9.3 "Registrable Securities" shall mean (i) the
Warrant Shares; and (ii) any Common Stock issued or issuable at
any time or from time to time in respect of the Warrant Shares
upon a stock split, stock dividend, recapitalization or other
similar event involving the Company until such Common Stock is
sold pursuant to a Registration Statement or under Rule 144(k)
(or successor Rule) under the Securities Act.
7.9.4 The terms "register", "registered", and
"registration" refer to a registration effected by preparing and
filing a registration statement in compliance with the Securities
Act, and the declaration or ordering by the Commission of the
effectiveness of such registration statement.
7.9.5 "Registration Expenses" shall mean all
expenses, other than Selling Expenses (as defined below),
incurred by the Company in complying with this Article,
including, without limitation, all registration, qualification
and filing fees, exchange listing fees, printing expenses, escrow
fees, fees and disbursements of counsel for the Company and all
auditors, blue sky fees and expenses, the expense of any special
audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
7.9.6 "Selling Expenses" shall mean all
underwriting discounts, selling commissions and stock transfer
taxes applicable to the sale of Warrant Shares registered by the
Holder and, except as set forth above, all fees and disbursements
of counsel for the Holder.
ARTICLE VIII
MISCELLANEOUS
8.1 Entire Agreement. This Warrant and the Purchase
Agreement contains the entire agreement between the holder hereof
and the Company with respect to the Warrant Shares purchasable
upon exercise hereof and supersedes all prior arrangements or
understandings with respect thereto.
8.2 Governing Law. This Warrant shall be governed by and
construed in accordance with the laws (other than the laws of
conflicts) of the State of Oklahoma.
8.3 Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the
Company may take any action herein prohibited, or omit to perform
any act herein required to be performed by it, only if the
Company has obtained the written consent of the Holders of
Warrants representing a majority of the Warrant Shares obtainable
upon exercise of the Warrants; provided that no such action may
change the Exercise Price of the Warrants, the number of shares
or class of stock obtainable upon exercise of each Warrant or the
Registration Rights set forth in Article VII herein.
Notwithstanding the foregoing, the Company may, at its option,
reduce the Exercise Price of the Warrants, increase the number of
shares of stock obtainable upon exercise of each Warrant, or
extend the Term of the Warrant for such period as it may
determine.
8.4 Illegality. In the event that any one or more of the
provisions contained in this Warrant shall be determined to be
invalid, illegal or unenforceable in any respect for any reason,
the validity, legality and enforceability of any such provision
in any other respect and the remaining provisions of this Warrant
shall not, at the election of the party for whom the benefit of
the provision exists, be in any way impaired.
8.5 Copy of Warrant. A copy of this Warrant shall be filed
among the records of the Company.
8.6 Notice. Any notice or other document required or
permitted to be given or delivered to the Holder hereof shall be
in writing and delivered at, or sent by certified or registered
mail to such holder at, the last address shown on the books of
the Company maintained at the Warrant Office for the registration
of this Warrant or at any more recent address of which the holder
hereof shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to
the Company, other than such notice or documents required to be
delivered to the Warrant Office, shall be delivered at, or sent
by certified or registered mail to, the offices of the Company at
5727 South Lewis Avenue, Suite 700, Tulsa, Oklahoma 74105, or
such other address within the continental United States of
America as shall have been furnished by the Company to the Holder
of this Warrant.
8.7 Limitation of Liability; Not Stockholders. No
provision of this Warrant shall be construed as conferring upon
the Holder hereof the right to vote, consent, receive dividends
or receive notices (other than as herein expressly provided,
including, but not limited to, the notice of an upcoming dividend
record date), in respect of meetings of stockholders for the
election of directors of the Company or any other matter
whatsoever as a stockholder of the Company. No provision hereof,
in the absence of affirmative action by the holder hereof to
purchase shares of Common Stock, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise
to any liability of such Holder for the purchase price of any
shares of Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors
of the Company.
8.8 Exchange, Loss, Destruction, etc. of Warrant. Upon
receipt of evidence satisfactory to the Company of the loss,
theft, mutilation or destruction of this Warrant, and in the case
of any such loss, theft or destruction upon delivery of a bond of
indemnity or such other security in such form and amount as shall
be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of this Warrant,
the Company will make and deliver a new warrant of like tenor, in
lieu of such lost, stolen, destroyed or mutilated Warrant. Any
warrant issued under the provisions of this Section 8.8 in lieu
of any Warrant alleged to be lost, destroyed or stolen, or in
lieu of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company. This Warrant
shall be promptly canceled by the Company upon the surrender
hereof in connection with any exchange or replacement. The
Company shall pay all taxes (other than securities transfer taxes
or income taxes) and all other expenses and charges payable in
connection with the preparation, execution and delivery of
warrants pursuant to this Section 8.8.
8.9 Headings. The Article and Section and other headings
herein are for convenience only and are not a part of this
Warrant and shall not affect the interpretation thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed in its name.
Gothic Energy Corporation
Dated: January 23, 1998 By: /s/ Michael Paulk
Name: Michael Paulk
Title: President
Exhibit I
SUBSCRIPTION NOTICE
The undersigned, the holder of the attached Warrant
(Certificate No. W-__________), hereby elects to subscribe to
exercise purchase rights represented thereby and to purchase
thereunder, __________ shares of the Common Stock covered by such
Warrant, and herewith makes payment in full for such shares
pursuant to Section 1.1 of such Warrant, and requests (a) that
certificates for such shares (and any other securities or other
property issuable upon such exercise) be issued in the name of,
and delivered to _________________________ and (b) if such shares
shall not include all of the shares issuable as provided in such
Warrant, that a new warrant of like tenor and date for the
balance of the shares of Common Stock issuable thereunder be
delivered to the undersigned.
Dated:
__________________________________________
__________________________________________
Address
__________________________________________
City, State, Zip Code
Exhibit II
ASSIGNMENT
For value received, _________________________, hereby sells,
assigns, and transfers unto _________________________ the within
Warrant, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint
_________________________ attorney, to transfer such Warrant on
the books of the Company, with full power of substitution.
Dated:
__________________________________________
