EXHIBIT 4(b)
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT AS SPECIFIED IN SECTION 15 HEREOF. NEITHER THE RIGHTS
REPRESENTED BY THIS WARRANT NOR THE SHARES ISSUABLE UPON THE
EXERCISE THEREOF HAVE BEEN REGISTERED FOR OFFER OR SALE UNDER THE
SECURITIES ACT OF 1933. SUCH RIGHTS AND SHARES MAY NOT BE SOLD OR
OFFERED FOR SALE IN WHOLE OR IN PART EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 15 HEREOF.
BANGOR HYDRO-ELECTRIC COMPANY
WARRANT TO PURCHASE COMMON STOCK
---------------------------------
BANGOR HYDRO-ELECTRIC COMPANY, a Maine corporation (the "Company"),
hereby certifies that, for value received, PERC Management Company Limited
Partnership, a Maine limited partnership, is entitled, subject to the terms
set forth below, to purchase from the Company upon surrender of this Warrant,
at any time or times on or after JUNE 26, 1998 but not after 4:00 P.M.,
Eastern Prevailing Time, on the Expiration Date, JUNE 26, 2008, seven hundred
twelve thousand eight hundred and fifty-seven (712,857) fully paid
nonassessable shares (the "Warrant Shares") of Common Stock, $5.00 par value,
of the Company (as adjusted from time to time as provided in this Warrant) at
an initial purchase price of $7.00 per share in lawful money of the United
States.
DEFINITIONS
-----------
SECTION 1. (a) DEFINITIONS. The following words and terms as used in
this Warrant shall have the following meanings:
"AFFILIATE" shall mean, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.
"BUSINESS DAY" shall mean, except as otherwise provided in the
definition of "Market Price", a day other than a Saturday, a Sunday or a day
on which banking institutions in Maine are authorized or obligated by law or
required by executive order to be closed.
"CHANGE OF CONTROL" shall mean (i) any merger, consolidation,
arrangement or reorganization of the Company with any Person whereby, after
such transaction, holders of Shares of Common Stock prior to the transaction,
do not continue to own, directly or indirectly, at least a majority,
determined on a fully-diluted basis, of the shares of the Voting Stock of the
Company or the surviving or resulting corporation, or (ii) any sale, lease or
exchange of 50% or more of the assets of the Company and its Subsidiaries,
taken as a whole, to any Person.
"COMMISSION" shall mean the United States Securities and Exchange
Commission or the principal United States agency administering the United
States securities laws.
"COMMON STOCK" shall mean with reference to the Common Stock for which
Warrants are exercisable, only Common Stock of the class existing on the date
hereof and any stock into which such Common Stock may thereafter have been
changed, and, when otherwise used herein, shall include also stock of the
Company of any other class, whether now or hereafter authorized, which ranks,
or is entitled to a participation, as to assets or dividends, substantially
on a parity with such existing Common Stock or other class of stock into
which such Common Stock have been changed.
"CONVERTIBLE SECURITIES" shall mean any securities issued by the Company
that are convertible into or exchangeable for, directly or indirectly, shares
of Common Stock.
"EXPIRATION DATE" shall mean JUNE 26, 2008.
"HOLDER" shall mean the Person in whose name the Warrant set forth
herein is registered on the books of the Company maintained for such purpose.
"MAJORITY HOLDERS" shall mean the holders of Warrants exercisable for
50% or more of the aggregate number of shares of Common Stock then
purchasable upon exercise of all Warrants.
"MARKET PRICE" shall mean (a) the higher of (i) the highest closing
sale price of the Common Stock on any domestic exchange on which the Common
Stock may be listed for the Business Day immediately preceding, or the last
Business Day that the Common Stock traded on such exchange prior to, the date
as to which "Market Price" is being determined and (ii) the average of the
closing prices of the Common Stock sales on all domestic exchanges on which
the Common Stock may at the time be listed or, if there shall have been no
sales on any such exchange on any day, the average of the reported bid prices
on all such exchanges at the end of such day or, if on any day the Common
Stock shall not be so listed, the average of the representative bid prices
quoted in the NASDAQ as of 3:30 P.M., New York prevailing time, or if on any
day the Common Stock shall not be quoted in the NASDAQ, the average of the
high and low bid 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
consecutive Business Days (or other such period as shall be specified herein)
prior to the date as of which "Market Price" is being determined; provided,
however, that if the Common Stock is listed on any domestic exchange or the
NASDAQ the term "Business Day" as used in this definition shall mean any day
on which such exchange or the NASDAQ is open for trading or (b) in the event
the Common Stock is not Publicly Traded, the fair market value of the Common
Stock as determined in good faith by the Board of Directors of the Company;
provided, however, that such determination may be challenged by any Holders
and any dispute arising therefrom shall be resolved by an investment bank of
recognized standing selected by the Company and reasonably satisfactory to
such Holders whose determination of the fair market value of the Common Stock
shall be final and binding on the parties; and the fees and expenses incurred
by such investment bank in connection with its determination shall, in the
case it determines that the fair market value of the Common Stock is (i) 90%
or more of such determination of the Board of Directors, be borne by such
Holders, and (ii) less than 90% of such determination of the Board of
Directors, be borne by the Company.
"PERSON" shall mean an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision thereof) or other
entity of any kind.
"PUBLIC OFFERING" shall mean a firm underwritten offering of Common
Stock registered under the Securities Act of 1933 on Form S-1, S-2 or S-3 (or
any successor form) and offered generally to the public.
"PUBLICLY TRADED" shall mean, with respect to any securities, listed on
a nationally recognized U.S. securities exchange or admitted for trading on
the NASDAQ.
"RULE 144" shall mean the rule of such number promulgated by the
Commission under the Securities Act and any successor rule thereto.
"VOTING STOCK" shall mean, as applied to the stock (or the equivalent
thereof) of any Person, stock (or such equivalent) of any class or classes,
however designated, having ordinary voting power for the election of at least
a majority of the board of directors (or other governing body) of such
Person, other than stock (or such equivalent) having such power only by
reason of the happening of a contingency.
"WARRANT EXERCISE PRICE" shall mean initially $7.00 per share and shall
be adjusted and readjusted from time to time as provided in this Warrant.
"WARRANTS" shall mean collectively the rights granted by this Warrant
and the rights granted by Warrants issued on JUNE 26, 1998 to Municipal
Review Committee, Inc. and Energy National Inc.
(b) OTHER DEFINITIONAL PROVISIONS. (i) Except as otherwise specified
herein, all references herein (A) to any Person other than the Company shall
be deemed to include such Person's successors and assigns, (B) to the Company
shall be deemed to include the Company's successors and (C) to any applicable
law defined or referred to herein shall be deemed references to such
applicable law as the same may have been or may be amended or supplemented
from time to time.
(ii) When used in this Warrant, the words "herein", "hereof" and
"hereunder", and words of similar import, shall refer to this Warrant as a
whole and not to any provision of this Warrant, and the words "Section",
"Schedule" and "Exhibit" shall refer to Sections of, and Schedules and
Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
SECTION 2. EXERCISE OF WARRANT. Subject to the terms and conditions
hereof, this Warrant may be exercised, in whole or in part, at any time
during normal business hours on or after the opening of business on JUNE 26,
1998 and prior to 4:00 P.M., Eastern Prevailing Time, on the Expiration Date.
The rights represented by this Warrant may be exercised by the Holder, in
whole or in part (except that this Warrant shall not be exercisable as to a
fractional share), by (i) delivery of a written notice, in the form of the
Subscription Notice attached as Exhibit A, of the Holder's election to
exercise this Warrant, which notice shall specify the number of Warrant
Shares to be purchased, (ii) payment to the Company of an amount equal to the
Warrant Exercise Price multiplied by the number of Warrant Shares as to which
the Warrant is being exercised in cash or by certified or official bank
check, for the number of Warrant Shares as to which this Warrant shall have
been exercised, (iii) the surrender of this Warrant, properly endorsed, at
the principal office of the Company at 33 State Street, Bangor, Maine (or at
such other agency or office of the Company as the Company may designate by
notice to the Holder) and (iv) if the Warrant Shares issuable upon the
exercise of the rights represented by this Warrant have not been registered
under the Securities Act, delivery to the Company by the Holder of a letter
in the form of Exhibit B hereto [unless in the opinion of counsel to the
Holder reasonably acceptable to the Company (delivered to the Company)
delivery of such letter is not required]. If such Warrant Shares are to be
issued in any name other than that of the Holder or its nominee, such
issuance shall be deemed a transfer and the provisions of Section 15 shall be
applicable. In the event of any exercise of the rights represented by this
Warrant, a certificate or certificates for the Warrant Shares so purchased,
registered in the name of, or as directed by, the Holder, shall be delivered
to, or as directed by, Holder within a reasonable time, not exceeding five
days, after such rights shall have been so exercised. Unless the rights
represented by this Warrant shall have expired or have been fully exercised,
the Company shall issue a new Warrant identical in all respects to the
Warrant exercised except (A) it shall represent rights to purchase the number
of Warrant Shares purchasable immediately prior to such exercise under the
Warrant exercised, less the number of Warrant Shares with respect to which
such Warrant was exercised and (B) the Warrant Exercise Price thereof shall
be the Warrant Exercise Price of the Warrant exercised. The Person in whose
name any certificate for Warrant Shares is issued upon exercise of this
Warrant shall for all purposes be deemed to have become the holder of record
of such Warrant Shares immediately prior to the close of business on the date
on which the Warrant was surrendered and payment of the amount due in respect
of such exercise was made, irrespective of the date of delivery of such share
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are properly closed, such Person
shall be deemed to have become the holder of such Warrant Shares at the
opening of business on the next succeeding date on which the stock transfer
books are open.
SECTION 3. COVENANTS AS TO COMMON STOCK. The Company covenants and
agrees that all Warrant Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued,
fully paid and nonassessable. The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock to provide for the exercise of
the rights then represented by this Warrant and that the par value of said
shares will at all times be less than the applicable Warrant Exercise Price.
SECTION 4. ADJUSTMENT OF WARRANT EXERCISE PRICE AND ADJUSTMENT OF
NUMBER OF SHARES. The number of shares and Warrant Exercise Price of Common
Stock issuable upon exercise of this Warrant shall be subject to adjustment
on a weighted average basis to prevent dilution, (a) in the event that the
Company issues additional Common Stock at less than the Market Price as of
the date of issue (other than pursuant to this Warrant), or rights, warrants,
or options to acquire Common Stock at less than the Market Price as of the
date of issue (other than shares reserved for issuance to employees or
directors); (b) in the event that the Company issues securities convertible
into or exchangeable for Common Stock at less than the equivalent Market
Price of the Common Stock as of the date of issue; (c) in the event that the
Company declares any cash distributions other than from current earnings; or
(d) upon stock splits, stock dividends, divisions, combinations,
reorganizations, reclassifications, or any other event which is similar in
effect to any of the events described in subsections (a) through (d) hereof.
SECTION 5. REORGANIZATIONS. (a) REORGANIZATION OR RECLASSIFICATION.
In case of any capital reorganization or of any reclassification of the
Capital Stock of the Company (other than a change in par value or from par
value to no par value or from no par value to par value), this Warrant shall,
upon such capital reorganization or reclassification, entitle the Holder to
purchase the kind and number of shares of stock or other securities or cash,
assets or other property of the Company to which the Holder would have been
entitled if the holder had held the Common Stock issuable upon the exercise
hereof immediately prior to such capital reorganization or reclassification.
(b) CHANGE OF CONTROL. In case of any Change of Control, this Warrant
shall entitle the holder, immediately and at all times thereafter until the
Expiration Date, to exercise this Warrant and to receive the kind and number
of shares of stock or other securities or cash, assets or other property of
the Person resulting from or surviving such Change of Control to which the
holder would have been entitled if the holder had held the Common Stock
issuable upon the exercise hereof immediately prior to such Change of
Control. The Company shall not effect any such Change of Control unless,
prior to or simultaneously with the consummation thereof, the successor
Person (if other than the Company) resulting from such Change of Control or
the corporation purchasing such assets shall assume by written instrument
executed and mailed or delivered to the holder the obligation to deliver to
the holder such shares of stock, securities, cash, assets or other property
as, in accordance with the foregoing provisions, such Holder may be entitled
to receive upon the exercise of this Warrant.
(c) APPLICABLE PROVISIONS. In case of either paragraph (a) or (b) of
this Section 5, appropriate provision shall be made with respect to the
rights and interests of the holder to the end that the provisions hereof
(including without limitation provisions for adjustment of the Warrant
Exercise Price and of the number of shares purchasable upon the exercise of
this Warrant) shall thereafter be applicable, as nearly as may be in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise of the rights represented hereby.
SECTION 6. NOTICE OF WARRANT EXERCISE PRICE. The Company shall
annually give a notice to the Holder, which notice shall state the Warrant
Exercise Price in effect and the increase or decrease, if any, in the number
of shares purchasable at the Warrant Exercise Price upon the exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
SECTION 7. COMPUTATION OF ADJUSTMENTS. Upon each computation of an
adjustment to the Warrant Exercise Price and the number of shares that may be
subscribed for and purchased upon exercise of this Warrant, the Warrant
Exercise Price shall be computed to the nearest cent (i.e., fractions of 0.5
of a cent or greater, shall be rounded to the next highest cent) and the
number of shares that may be subscribed for and purchased upon exercise of
this Warrant shall be calculated to the nearest whole share (i.e., fractions
of less than one half of a share shall be disregarded and fractions of one
half of a share or greater shall be treated as being a whole share). No such
adjustment shall be made, however, if the change in the Warrant Exercise
Price would be less than $0.01 per share, but any such lesser adjustment
shall be made (i) at the time and together with the next subsequent
adjustment which, together with any adjustments carried forward, shall amount
to $0.01 per share or more, or (ii) if earlier, upon the third anniversary of
the event for which such adjustment is required.
SECTION 8. NOTICE OF CERTAIN EVENTS. In case at any time:
(a) the Company shall make any distribution in respect of its Common
Stock (other than the payment of a cash dividend from current earnings);
(b) the Company shall propose to register any of its Common Stock under
the Securities Act in connection with a public offering of such Common Stock
(other than with respect to a registration statement filed on Form S-8 or
other such similar form then in effect under the Securities Act);
(c) the Company shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other rights;
(d) there shall be any capital reorganization, or reclassification of
the capital stock, of the Company, or Change of Control; or
(e) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give notice to the
Holder of the date on which (i) the books of the Company shall close or a
record shall be taken for such distribution or subscription rights or (ii)
such reorganization, reclassification, Change of Control, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall be given not less than twenty-one (21) days prior to the record date or
the date on which the transfer books of the Company are to be closed in
respect thereto in the case of an action specified in clause (i) and at least
forty-five (45) days prior to the action in question in the case of an action
specified in clause (ii).
SECTION 9. NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective of
any adjustment in the Warrant Exercise Price or the number of shares of
Common Stock issuable upon exercise hereof, this Warrant, whether theretofore
or thereafter issued or reissued, may continue to express the same price and
number of shares as are stated herein and the Warrant Exercise Price and such
number of shares specified herein shall be deemed to have been so adjusted.
SECTION 10. LIMITATION ON RIGHT TO EXERCISE WARRANTS. Notwithstanding
the rights to exercise the Warrant granted herein, other than as provided in
Section 5, the Holder may exercise this Warrant only to the following extent:
(a) 25% of the Warrants initially granted hereunder may be exercised on or
after MARCH 26, 1999; (b) 50% of the Warrants initially granted hereunder may
be exercised on or after MARCH 26, 2000; (c) 75% of the Warrants initially
granted hereunder may be exercised on or after MARCH 26, 2001; (d) 100% of
the Warrants initially granted hereunder may be exercised on or after MARCH
26, 2002.
SECTION 11. REGISTRATION RIGHTS. (a) REQUIRED REGISTRATION. Upon
written request by Majority Holders, the Company shall use its best efforts
to register and to maintain in effect for a period of one year, pursuant to
the Securities Act of 1933, the Common Stock for which Warrants are
exercisable or have been exercised. The Company's Board of Directors may,
upon determining that there is a valid business reason for doing so, delay
filing a Registration Statement for up to 120 days after receipt of the
written request. Upon receipt of such written request, the Company shall
notify all holders of Warrants that such a request has been made and shall
provide all holders reasonable opportunity to include Common Stock in the
registration. If on the date of such written request the Company has filed
or notifies the Majority Holders it intends to file a Registration Statement
pursuant to the Securities Act of 1933 within 120 days, the requirements of
this subsection will be met by the inclusion of Common Stock within the
Registration Statement filed or to be filed. Upon filing a Registration
Statement pursuant to this subsection, the Company shall have no obligation
to file additional Registration Statements at the request of Majority Holders
for a period of one year.
(b) INCIDENTAL REGISTRATION. If the Company proposes to register any
of its common stock pursuant to the Securities Act of 1933 in connection with
a public distribution of that stock, other than pursuant to a merger or
acquisition for stock or pursuant to an employee benefits, option or
compensation plan (unless such plans in the aggregate provide for the
issuance of more than 10% of the Company's then outstanding common stock), it
shall give notice to all holders of Warrants and give them reasonable
opportunity to participate in the registration.
(c) TAG-ALONG RIGHTS. If the Company shall propose to issue and if any
single entity shall propose to acquire securities of the Company having
voting power equal to or more than the voting power of the then outstanding
shares of the Company, the Company may not accept the offer of such entity
unless such entity shall simultaneously make an offer to purchase this
warrant, or all of the shares underlying this warrant and all other warrants
of this class of warrant, or all of the shares underlying such warrants,
which is accepted by at least one of the holders of this class of warrants.
Such purchase must be simultaneous with the purchase of the securities to be
issued by the Company to such entity.
(d) COSTS OF REGISTRATION. All costs of registration shall be paid by
the Company.
SECTION 12. OPTIONS AT THE TIME OF EXERCISE. (a) COMPANY'S OPTION TO
PAY CASH IN LIEU OF ISSUING COMMON STOCK. Upon the exercise of this Warrant,
the Company may elect, at its option, to give the Holder immediate notice and
to pay the Holder within ten (10) business days a sum of cash in lieu of
Issuing Common Stock as provided in Section 2. The amount of cash payable
pursuant to this subsection shall be calculated by subtracting the Warrant
Exercise Price from the Market Price on the date of exercise and multiplying
the result by the number of shares of Common Stock as to which exercise is
being made. At the time of making any payment pursuant to this Section, the
Company shall repay to the Holder any amounts paid in connection with the
exercise of the Warrant pursuant to Section 2. The Company may exercise this
option only if in doing so it does not violate any material covenants
contained in any of its financing agreements that have not been waived.
(b) CASHLESS EXERCISE. At the time of exercise of this Warrant, the
Holder may elect to exercise the option provided in this subsection in lieu
of making the cash payment required by Section 2. Upon written notice of its
desire to exercise this option given at the same time and in the same manner
as the notice specified in Section 2, the Holder shall be entitled to the
issuance of Warrant Shares (in lieu of the Warrant Shares otherwise issuable
pursuant to Section 2), the number of which shall be calculated as follows:
the product of (x) the number of shares as to which the Warrant is being
exercised and (y) a fraction, the numerator of which is the Market Price of
the Common Stock minus the Warrant Exercise Price and the denominator of
which is the Market Price of the Common Stock.
SECTION 13. WARRANT HOLDER NOT DEEMED A SHAREHOLDER. Except as
provided in Section 8, no Holder, as such, shall be entitled to vote or
receive dividends or be deemed the holder of shares of the Company for any
purpose, nor shall anything contained in this Warrant be construed to confer
upon the Holder, as such, any of the rights of a shareholder of the Company
or any right to vote, give or withhold consent to any corporate action
(whether any reorganization, issue or reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise, prior to the issuance
of record to the Holder of the Warrant Shares which it is then entitled to
receive upon the due exercise of this Warrant.
SECTION 14. NO LIMITATION ON CORPORATE ACTION; NO AVOIDANCE OF TERMS.
(a) No provisions of this Warrant and no right or option granted or
conferred hereunder shall in any way limit, affect or abridge the exercise by
the Company of any of its corporate rights or powers to recapitalize, amend
its charter, reorganize, consolidate or merge with or into another
corporation, or to transfer all or any part of its property or assets, or the
exercise of any other of its corporate rights and powers.
(b) The Company shall not by any action, including, without limitation,
amending its articles of incorporation or through any reorganization,
transfer of assets, consolidation, merger or arrangement, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will
at all times in good faith assist in the carrying out of all such terms and
in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will take all such action as may be
necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock upon the exercise
of this Warrant.
SECTION 15. TRANSFER; OPINIONS OF COUNSEL; RESTRICTIVE LEGENDS.
(a) Prior to any sale, transfer or other disposition of this Warrant or
the Warrant Shares, the Holder thereof will give seven (7) days' notice to
the Company of its intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer and shall be
accompanied by an opinion of counsel for the Holder reasonably satisfactory
to the Company, addressed to the Company and reasonably satisfactory in form
and substance to it stating that, in the opinion of such counsel, such
transfer is a transaction exempt from registration under the Securities Act.
(b) If such sale, transfer or other disposition may, in the opinion of
such counsel, be effected without registration under the Securities Act, the
holder shall thereupon be entitled to transfer this Warrant and the Warrant
Shares in accordance with the terms of the notice delivered by the Holder to
the Company. If, in the opinion of such counsel, such transfer may not be
effected without registration under the Securities Act, the Holder shall not
be entitled to so transfer this Warrant or the Warrant Shares unless (i) the
Company elects to file a registration statement relating to such proposed
transfer and such registration statement has become effective under the
Securities Act or (ii) the provisions of Section 11 apply.
(c) Notwithstanding the provisions of this Section 15, the Holder may
at any time transfer this Warrant or the Warrant Shares to an Affiliate or an
Associate (as such term is defined in Section 12b-2 of the Securities
Exchange Act of 1934, as amended) of the Holder.
(d)(i) Except as otherwise provided in this Section 15, each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant, and each certificate for Warrant Shares issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise imprinted
with a legend stating that the shares represented by such certificate have
not been registered under the Securities Act of 1933 and may not be
transferred except in accordance with the provisions of the Securities Act of
1933 and Section 15 of this Warrant.
(ii) Except as otherwise provided in this Section 15, each Warrant
shall be stamped or otherwise imprinted with a legend stating that neither
the rights represented by the Warrant nor the shares issuable upon the
exercise thereof have been registered under the Securities Act of 1933 and
that such rights and shares may not be transferred except in accordance with
the provisions of the Securities Act of 1933 and Section 15 of this Warrant.
(e) TERMINATION OF RESTRICTIONS. The restrictions imposed by Section
15(a) and the legend requirements of Section 15(d) shall terminate as to any
particular Warrant or Warrant Share (i) when and so long as such security
shall have been effectively registered under the Securities Act of 1933 and
disposed of in a public sale or distribution pursuant thereto, (ii) when such
security shall have been disposed of in accordance with Rule 144 or (iii)
when the Company shall have received opinions of counsel reasonably
satisfactory to it, which opinions shall be satisfactory in substance and
form to the Company, to the effect that such restrictions on transfer
pursuant to the Securities Act of 1933 no longer apply. Whenever said
restrictions and legend requirements shall terminate as to this Warrant, as
hereinabove provided, the Holder shall be entitled to receive from the
Company, at the expense of the Company, a new Warrant bearing a legend in
place of the restrictive legend described in Section 15(d) stating that the
restrictions on transferability of the Warrant have been terminated.
Whenever the restrictions imposed by this Section 15 shall terminate as to
any Warrant Share, as hereinabove provided, the holder thereof shall be
entitled to receive from the Company, at the Company's expense, a new
certificate representing such Common Stock not bearing the restrictive legend
described in Section 15(d).
SECTION 16. EXCHANGE OF WARRANT. This Warrant is exchangeable upon the
surrender hereof by the Holder at the office or agency of the Company, for
new Warrants of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for
and purchased hereunder from time to time after giving effect to all the
provisions hereof, each of such new Warrants to represent the right to
subscribe for and purchase such number of shares as shall be designated by
the Holder hereof at the time of such surrender.
SECTION 17. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall, upon
receipt by it of indemnity satisfactory to it, issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
SECTION 18. DIVISION AND COMBINATION. Subject to Section 15, this
Warrant may be divided or combined with other Warrants upon presentation
hereof at the office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be
issued, signed by the Holder or its agent or attorney. Subject to compliance
with Section 15, as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants
in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice. The Company shall prepare, issue and deliver at
its own expense the new Warrant or Warrants under each of Section 15 and this
Section 18.
SECTION 19. MAINTENANCE OF BOOKS. The Company agrees to maintain, at
its office or agency, books for the registration and the registration of
transfer of the Warrants.
SECTION 20. [Intentionally Omitted.]
SECTION 21. NOTICE. All notices and other communications under this
Warrant shall (a) be in writing, (b) be (i) sent by registered or certified
mail, postage prepaid, return receipt requested or (ii) delivered by hand,
(c) be given at the following respective addresses and to the attention of
the following Persons:
(i) if to the Company, to it at:
Bangor Hydro-Electric Company
33 State Street
P.O. Box 932
Bangor, Maine 04402-0932
Attention: President
(ii) if to the initial Holder, to it at:
PERC Management Company Limited Partnership
c/o KTI, Inc.
7000 Boulevard East
Guttenberg, NJ 07093
Attention: President
or to such other address or to the attention of such other person as the
party to whom such information pertains may hereafter specify for the purpose
in a notice to the other specifically captioned "Notice of Change of Address"
and (d) be effective or deeded delivered or furnished (i) if given by mail,
on the fifth Business Day after such communication is deposited in the mail,
addressed as above provided and (ii) if given by hand delivery, when left
with an employee of the addressee at the address of the addressee addressed
as above provided, except that notices of a change of address shall not be
deemed furnished until received.
SECTION 22. MISCELLANEOUS. This Warrant and any term hereof may not be
changed, waived, discharged, or terminated except by an instrument in writing
signed by the party or holder hereof against which enforcement of such
change, waiver, discharge or termination is sought. The headings in this
Warrant are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
SECTION 23. DATE. The date of this Warrant is JUNE 26, 1998. This
Warrant, in all events, shall be wholly void and of no effect after the close
of business on the Expiration Date, except that notwithstanding any other
provisions hereof, the provisions of Sections 11 and 15 shall continue in
full force and effect after such date as to any Warrant Shares or other
securities issued upon the exercise of this Warrant.
SECTION 24. GOVERNING LAW. This Warrant shall be construed in
accordance with and governed by the laws of the State of Maine, excluding
those applicable to choice of law.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officers as of this JUNE 26, 1998.
BANGOR HYDRO-ELECTRIC COMPANY
By:
Its: Vice President - Finance & Law
Exhibit A
to Warrant
SUBSCRIPTION NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO EXERCISE THIS WARRANT
BANGOR HYDRO-ELECTRIC COMPANY
The undersigned hereby exercises the right to purchase Warrant Shares
covered by this Warrant according to the conditions thereof and herewith
makes payment of $ , the aggregate Warrant
Exercise Price of such Warrant Shares, in full.
[NAME OF HOLDER]
By:
Title:
Number of
Warrant Shares Being
Purchased
Dated: , 19[20]
Exhibit B
to Warrant
Attention:
Re: Exercise of Warrant, dated
Dear Sirs:
In connection with the undersigned's purchase of Common Stock of Bangor
Hydro-Electric Company upon exercise of a warrant therefor, the undersigned
confirms and agrees as follows:
1. As the purchaser of the shares of Common Stock in a private
placement not registered under the Securities Act of 1933, as amended
(the "Act"), the undersigned is purchasing such shares for its own
account for investment and (subject to the disposition of its property
being at all times within its control) not with a view to any resale,
distribution or other disposition thereof, and the undersigned is
proceeding on the assumption that it must bear the economic risk of the
investment for an indefinite period, since the shares of Common Stock
may not be sold except as provided in paragraph 2 below.
2. The undersigned agrees that, if in the future the undersigned
should decide to dispose of the shares of Common Stock (such disposition
not being presently foreseen or contemplated), the undersigned will not
offer, sell, transfer or exchange such shares of Common Stock, except
under conditions that would not violated the Act or any applicable
securities laws.
3. The undersigned is purchasing the shares of Common Stock
pursuant to an exemption from the registration requirements of the Act
and from registration or qualification requirements under applicable
state securities laws.
If administrative or legal proceedings are commenced or threatened in
connection with which this notice is or would be relevant, the undersigned
irrevocably authorizes Bangor Hydro-Electric Company to produce this notice
or a copy thereof to any interested party in such proceedings.
Date:
[NAME OF HOLDER]
By:
Title: