EXHIBIT 4.8
WARRANT AGREEMENT
By and Among
ZYDECO ENERGY, INC.
and
BREAN MURRAY & CO., INC.
and
GAINES, BERLAND INC.
Dated as of _____ __,1997
EXHIBIT 4.8
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of _____ __,1997 by and among ZYDECO ENERGY,
INC., a Delaware corporation (the "Company"), and BREAN MURRAY & CO., INC. and
GAINES, BERLAND INC. (the "Underwriters") (the Company and the Representatives
are referred to collectively herein as the "Parties").
The Company proposes to issue to the Underwriters warrants as
hereinafter described (the "Warrants") to purchase up to an aggregate of 320,000
shares of the Company's Common Stock, $0.01 par value per share (the "Common
Stock"), subject to adjustment as provided in Section 8 hereof (such 320,000
shares, as adjusted, being hereinafter referred to as the "Shares"), each
Warrant entitling the holder ("Holder") thereof to purchase one share of Common
Stock. All capitalized terms used herein and not otherwise defined herein shall
have the same meanings as in that certain underwriting agreement, of even date
herewith, by and between the Company and the Underwriters (the "Underwriting
Agreement").
NOW, THEREFORE, in consideration of the following promises and mutual
agreements and for other good and valuable consideration, the Parties agree as
follows:
1. Issuance of Warrants; Form of Warrant. On the Closing Date the
Company will issue, sell and deliver the Warrants to the Representatives or
their bona fide officers for an aggregate price of $100. The Warrants shall be
issued to the Underwriters or such designees in the amounts set forth on
Schedule I attached hereto. The form of the Warrant and of the form of election
to purchase Shares to be attached thereto shall be substantially as set forth on
Exhibit A attached hereto. The Warrants shall be executed on behalf of the
Company by the manual or facsimile signature of the present or any future
President or any Vice President of the Company, under its corporate seal,
affixed or in facsimile, and attested by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company.
2. Registration. The Warrants shall be numbered and shall be registered
in a warrant register maintained by the Company or its designated agent (the
"Warrant Register"). The Company or its designated agent shall be entitled to
treat the registered holder of any Warrant on the Warrant Register as the owner
in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Warrant on the part of any other
person, and shall not be liable for any registration or transfer of Warrants
which are registered or are to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a fiduciary or
nominee is committing a breach of trust in requesting such registration or
transfer, or with such knowledge of such facts that its participation therein
amounts to bad faith. The Warrants shall be registered initially in the name of
the Underwriters in such denominations as the Underwriters may request in
writing from the Company; provided, however, that the Underwriters may designate
that all or a portion of the Warrants be issued in varying amounts directly to
their bona fide officers and not to the Underwriters. Such designation will only
be made by the Underwriters if it determines that
such issuances would not violate the interpretation of the Board of Governors of
the National Association of Securities Dealers, Inc. (the "NASD"), relating to
the review of corporate financing arrangements.
3. Transfer of Warrants. The Warrants will not be sold, transferred,
assigned or hypothecated, in part or in whole, prior to the first anniversary of
the effective date of the Registration Statement, and thereafter only to bona
fide officers, directors, shareholders, employees or registered representatives
of the Representatives upon written request to the Company delivered in
accordance with Section 12 and upon delivery of the Warrant Certificate duly
endorsed by the Holder or by its duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment or authority to
transfer. In all cases of transfer by an attorney, the original power of
attorney, duly approved, or an official copy thereof, duly certified, shall be
deposited with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited with the
Company in its discretion. Upon any registration of transfer, the Company shall
deliver a new Warrant or Warrants to the persons entitled thereto. Any of the
Warrants may be exchanged at the option of its Holder for other Warrants of
different denominations, of like tenor and representing in the aggregate the
right to purchase a like number of shares of Common Stock upon surrender to the
Company or its duly authorized agent. The Company may require payment of a sum
sufficient to cover all taxes and other governmental charges that may be imposed
in connection with any voluntary transfer, exchange or other disposition of the
Warrants. However, the Company shall have no obligation to cause Warrants to be
transferred on its books to any person, if such transfer would violate the
Securities Act of 1933, as amended (the "Act"), or applicable state securities
laws.
4. Term of Warrants; Exercise of Warrants.
(a) Term of Warrants. Each Warrant entitles the registered owner
thereof to purchase one Share at a purchase price of $____ per Share (as
adjusted from time to time pursuant to the provisions hereof, the "Exercise
Price") at any time from the first anniversary of the effective date of the
Registration Statement until 5:00 p.m., New York City time, on _______ __,
2002 (the "Warrant Expiration Date").
(b) Exercise of Warrants. The Exercise Price and the Shares issuable
upon exercise of Warrants are subject to adjustment upon the occurrence of
certain events, pursuant to the provisions of Section 8 of this Agreement.
Subject to the provisions of this Agreement, and in addition to the right
to surrender warrants without any cash payment as set forth in subsection
(c) below, each Holder shall have the right, which may be exercised as set
forth in such Warrants, to purchase from the Company (and the Company shall
issue and sell to such Holder) the number of fully paid and nonassessable
Shares specified in such Warrants, upon surrender to the Company, or its
duly authorized agent, of such Warrants, with the form of election to
purchase attached thereto duly completed and signed, with signatures
guaranteed by an eligible guarantor institution participating in an
approved signature guarantee medallion program and upon payment to
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the Company of the Exercise Price, as adjusted in accordance with the
provisions of Section 8 of this Agreement, for the number of Shares in
respect of which such Warrants are then exercised. No adjustment shall be
made for any dividends on any Shares issuable upon exercise of a Warrant.
Upon each surrender of Warrants and payment of the Exercise Price, the
Company shall issue and cause to be delivered with all reasonable dispatch,
but in no event later than three trading days following such surrender, to
or upon the written order of the Holder of such Warrants and in such name
or names as such Holder may designate, a certificate or certificates for
the number of full Shares so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 9 of this Agreement, in respect
of any fractional Shares otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become a
holder of record of such Shares as of the date of the surrender of Warrants
and payment of the Exercise Price as aforesaid; provided, however, that if,
at the date of surrender of such Warrants, the transfer books for the
Common Stock or other class of securities issuable upon the exercise of
such Warrants shall be closed, the certificates for the Shares shall be
issuable as of the date on which such books shall next be opened (whether
before, on or after the Warrant Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such Shares;
provided, further, however, that the transfer books of record, unless
otherwise required by law, shall not be closed at any one time for a period
longer than twenty (20) days. The rights of purchase represented by the
Warrants shall be exercisable, at the election of the Holder(s) thereof,
either in full or from time to time in part and, in the event that any
Warrant is exercised in respect of less than all of the Shares issuable
upon such exercise at any time prior to the Warrant Expiration Date, a new
Warrant or Warrants will be issued for the remaining number of Shares
specified in the Warrant so surrendered.
(c) Payment of Exercise Price. Payment of the Exercise Price may be
made in cash or by certified check or official bank check payable to the
order of the Company. In addition and in lieu of any cash payment, the
Holder of the Warrants shall have the right at any time and from time to
time to exercise the Warrants in full or in part by surrendering the
Warrant in exchange for the number of Shares equal to the product of (x)
the number of shares as to which the Warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Market Price
(as defined below) of the Shares less the Exercise Price and the
denominator of which is such Market Price. Solely for the purposes of this
paragraph, "Market Price" shall be the average last reported sale price of
the Common Stock as calculated over the five (5) trading day period
preceding the date on which the Election to Purchase is surrendered to the
Company.
5. Payment of Taxes. The Company will pay all documentary stamp taxes,
if any, attributable to the issuance of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any taxes
payable in respect of any transfer involved in the issue or delivery of any
certificates for Shares in a name other than that of the Holder of Warrants in
respect of which such Shares are issued.
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6. Mutilated or Missing Warrants. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest, but only
upon receipt of evidence reasonably satisfactory to the Company of such
mutilation, loss, theft or destruction of such Warrant and indemnity, if
requested, reasonably satisfactory to the Company. An applicant for such
substitute Warrants shall also comply with such other reasonable regulations and
pay such other reasonable charges and expenses as the Company may prescribe.
7. Reservation of Shares, etc. The Company has reserved, and shall at
all times keep reserved, out of the authorized and unissued Common Stock, a
number of shares of Common Stock sufficient to provide for the exercise of the
rights of purchase represented by the outstanding Warrants. Continental Stock
Transfer & Trust Company, transfer agent for the Common Stock (the "Transfer
Agent"), and any subsequent transfer agent for the Company's securities issuable
upon the exercise of the Warrants will be irrevocably authorized and directed at
all times until the Warrant Expiration Date to reserve such number of authorized
and unissued shares as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with the Transfer Agent and with every
subsequent transfer agent for any shares of the Company's securities issuable
upon the exercise of the Warrants. The Company will supply the Transfer Agent or
any subsequent transfer agent with duly executed certificates for such purpose
and will itself provide or make available any cash distributable as provided in
Section 9 of this Agreement. All Warrants surrendered in the exercise of the
rights thereby evidenced shall be cancelled, and such cancelled Warrants shall
constitute sufficient evidence of the number of Shares that have been issued
upon the exercise of such Warrants. No shares of Common Stock shall be subject
to reservation in respect of unexercised Warrants after the Warrant Expiration
Date.
8. Adjustments of Exercise Price and Number of Shares. The Exercise
Price and the number and kind of securities issuable upon exercise of each
Warrant shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) If the Company (i) declares a dividend on its Common Stock in shares
of Common Stock or makes a distribution in shares of Common Stock, (ii)
subdivides its outstanding shares of Common Stock, (iii) combines its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock or (iv) issues by reclassification of its shares of Common
Stock other securities of the Company (including any such reclassification
in connection with a consolidation or merger in which the Company is the
surviving entity), the number of Shares purchasable upon exercise of each
Warrant immediately prior thereto shall be adjusted so that the Holder of
each Warrant shall be entitled to receive the kind and number of Shares or
other securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had such Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. An adjustment made
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pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to immediately after the record
date, if any, for such event.
(b) If the Company issues rights, options or warrants to all holders of
its shares of Common Stock, without any charge to such holders, entitling
them (for a period expiring within 45 days after the record date mentioned
below in this paragraph (b)) to subscribe for or to purchase shares of
Common Stock at a price per share lower than the then current market price
per share of Common Stock at the record date mentioned below (as defined in
paragraph (d) below), the number of Shares thereafter purchasable upon
exercise of each Warrant shall be determined by multiplying the number of
Shares theretofore purchasable upon exercise of each Warrant by a fraction,
of which the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding on
such record date plus the number of shares which the aggregate offering
price of the total number of shares of Common Stock so offered would
purchase at the then current market price per share of Common Stock. Such
adjustment shall be made whenever such rights, options or warrants are
issued, and shall become effective retroactively to immediately after the
record date for the determination of shareholders entitled to receive such
rights, options or warrants.
(c) If the Company distributes to all holders of its shares of Common
Stock shares of stock other than Common Stock or evidences of its
indebtedness or assets (excluding cash dividends payable out of capital
surplus and dividends or distributions referred to in paragraph (a) above)
or rights, options or warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock
(excluding those referred to in paragraph (b) above), then in each case the
number of Shares thereafter issuable upon the exercise of each Warrant
shall be determined by multiplying the number of Shares theretofore
issuable upon the exercise of each Warrant, by a fraction, of which the
numerator shall be the current market price per share of Common Stock (as
defined in paragraph (d) below) on the record date mentioned below in this
paragraph (c), and of which the denominator shall be the current market
price per share of Common Stock on such record date, less the then fair
value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the
shares of stock other than Common Stock or assets or evidences of
indebtedness so distributed or of such subscription rights, options or
warrants, or of such convertible or exchangeable securities applicable to
one share of Common Stock. Such adjustment shall be made whenever any such
distribution is made, and shall become effective on the date of
distribution retroactive to immediately after the record date for the
determination of shareholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs (b) and (c) of
this Section 8, the current market price per share of Common Stock at any
date shall be the average of the daily closing prices for fifteen (15)
consecutive trading days commencing
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twenty (20) trading days before the date of such computation. The closing
price for each day shall be the last reported sale price regular way or, in
case no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in either case on
the principal national securities exchange on which the shares are listed
or admitted to trading, or if they are not listed or admitted to trading on
any national securities exchange, but are traded in the over-the-counter
market, the closing sale price of the Common Stock or, in case no sale is
publicly reported, the average of the representative closing bid and asked
quotations for the Common Stock, on the NASDAQ system or any comparable
system, or if the Common Stock is not listed on the NASDAQ system or a
comparable system, the closing sale price of the Common Stock or, in case
no sale is publicly reported, the average of the closing bid and asked
prices as furnished by two members of the NASD selected from time to time
by the Company for that purpose.
(e) No adjustment in the number of Shares purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of at
least one percent (1%) in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment but not later
than three years after the happening of the specified event or events. All
calculations shall be made to the nearest one thousandth of a share.
(f) Whenever the number of Shares purchasable upon exercise of each
Warrant is adjusted, as herein provided, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to
such adjustment by a fraction, of which the numerator shall be the number
of Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of
Shares so purchasable immediately thereafter.
(g) For the purpose of this Section 8, the term "shares of Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from no par value to par
value, or from par value to no par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) above, the Holders become
entitled to purchase any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Exercise Price of such
shares shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
the Shares contained in paragraphs (a) through (f), inclusive, and
paragraphs (h) through (m), inclusive, of this Section 8, and the
provisions of Sections 4, 5, 7 and 10, with respect to the Shares, shall
apply on like terms to any such other shares.
(h) Upon the expiration of any rights, options, warrants or conversion
rights or exchange privileges, if any thereof have not been exercised, the
Exercise Price and the
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number of shares of Common Stock purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be
such as it would have been had it originally been adjusted (or had the
original adjustment not been required, as the case may be) as if (i) the
only shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion rights or exchange privileges and (ii) such shares
of Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance,
sale or grant of all of such rights, options, warrants or conversion rights
or exchange privileges whether or not exercised; provided, however, that no
such readjustment shall have the effect of decreasing the number of shares
issuable upon the exercise of each Warrant or increasing the Exercise Price
by an amount in excess of the amount of the adjustment initially made in
respect of the issuance, sale or grant of such rights, options, warrants or
conversion rights or exchange privileges.
(i) The Company may, at its option at any time during the term of the
Warrants, reduce the then current Exercise Price for all Warrants to any
amount deemed appropriate by the Board of Directors of the Company. Such
reduction may be for all or any portion of the remaining term of the
Warrants; provided, that the expiration of the reduction may not be less
than 30 days following the mailing of the notice required by paragraph (j)
below.
(j) Whenever the number of Shares issuable upon the exercise of each
Warrant or the Exercise Price of such Shares is adjusted, as herein
provided, the Company shall promptly mail by first class mail, postage
prepaid, to each Holder notice certified by its Chief Financial Officer of
such adjustment or adjustments. Such notice shall set forth the number of
Shares issuable upon the exercise of each Warrant and the Exercise Price of
such Shares after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by which
such adjustment was made. Such certificate shall be conclusive as to the
correctness of such adjustment and each Holder shall have the right to
inspect such certificate during reasonable business hours.
(k) Except as provided in this Section 8, no adjustment in respect of
any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(l) If the Company consolidates with or merges into another corporation
or if the Company sells or conveys all or substantially all its property to
another corporation, the Company or such successor or purchasing
corporation (or an affiliate of such successor or purchasing corporation),
as the case may be, agrees that each Holder shall have the right thereafter
upon payment of the Exercise Price in effect immediately prior to such
action to purchase upon exercise of each Warrant the kind and amount of
shares and other securities and property (including cash) which such Holder
would have owned or been entitled to receive after the happening of the
consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The
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provisions of this paragraph (l) shall apply to successive consolidations,
mergers, sales or conveyances.
(m) Notwithstanding any adjustment in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants pursuant to
this Agreement, certificates for Warrants issued prior or subsequent to
such adjustment may continue to express the same price and number and kind
of Shares as are initially issuable pursuant to this Agreement.
9. Fractional Interests. The Company shall not be required to issue
fractions of Shares on the exercise of Warrants. If more than one Warrant is
presented for exercise in full at the same time by the same Holder, the number
of Shares issuable upon the exercise thereof shall be computed on the basis of
the aggregate number of Shares issuable on exercise of the Warrants so
presented. If any fraction of a Share would, except for the provisions of this
Section 9, be issuable on the exercise of any Warrant (or specified portions
thereof), the Company shall purchase such fraction for an amount in cash equal
to the same fraction of the current market price per share of Common Stock
(determined as provided in Section 8(d) of this Agreement) on the date of
exercise.
10. Registration Rights.
(a) Demand Registration Rights. The Company covenants and agrees with
the Underwriters and any other or subsequent Holders of the Registrable
Securities (as defined in paragraph (f) of this Section 10) that, subject
to the availability of audited financial statements complying with
Regulation S-X under the Act, upon written request of the then Holder(s) of
at least a majority of the Warrants or the Registrable Securities, or both,
which were originally issued to the Underwriters or their designees, made
at any time within the period commencing one year and ending five years
after the Effective Date, the Company will file as promptly as practicable
and, in any event, within 60 days after receipt of such written request, at
its expense (other than the fees of counsel and sales commissions for such
Holders), no more than once, a new registration statement under the Act,
registering or qualifying the Registrable Securities for sale. Within
fifteen (15) days after receiving any such notice, the Company shall give
notice to the other Holders of the Registrable Securities advising that the
Company is proceeding with such registration statement and offering to
include the Registrable Securities of such Holders. The Company shall not
be obligated to any other such Holder unless that other Holder accepts such
offer by notice in writing to the Company within ten (10) days thereafter.
The Company will use its best efforts, through its officers, directors,
auditors and counsel in all matters necessary or advisable, to file and
cause such registration statement to become effective as promptly as
practicable (but in no event within 90 days of the initial filing of such
registration statement) and for a period of 24 months thereafter to reflect
in the registration statement financial statements which are prepared in
accordance with Section 10(a)(3) of the Act and any facts or events arising
that, individually, or in the aggregate, represent a fundamental or
material change in the information set forth in the registration statement
to enable any Holders of the Warrants to exercise such Warrants and sell
Shares, or to enable any holders of Shares to sell such Shares,
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during that nine-month period. If any registration pursuant to this
paragraph (a) is an underwritten offering, the Holders of a majority of the
Registrable Securities to be included in such registration shall be
entitled to select the underwriter or managing underwriter (in the case of
a syndicated offering) of such offering, subject to the Company's approval
which shall not be unreasonably withheld.
(b) Piggyback Registration Rights. The Company covenants and agrees with
the Underwriters and any other Holders or subsequent Holders of the
Registrable Securities that if, at any time within the period commencing
one year and ending five years after the Effective Date, it proposes to
file a registration statement with respect to any class of equity or
equity-related security (other than in connection with an offering to the
Company's employees or in connection with an acquisition, merger or similar
transaction) under the Act in a primary registration on behalf of the
Company and/or in a secondary registration on behalf of holders of such
securities and the registration form to be used may be used for
registration of the Registrable Securities, the Company will give prompt
written notice (which, in the case of a registration statement or
notification pursuant to the exercise of demand registration rights other
than those provided in Section 10(a) of this Agreement, shall be within ten
(10) business days after the Company's receipt of notice of such exercise
and, in any event, at least 30 days prior to such filing) to the Holders of
Registrable Securities (regardless of whether some of the Holders have
theretofore availed themselves of the right provided in Section 10(a) of
this Agreement) at the addresses appearing on the records of the Company of
its intention to file a registration statement and will offer to include in
such registration statement any of the Registrable Securities subject to
paragraphs (i) and (ii) of this paragraph (b), such number of Registrable
Securities with respect to which the Company has received written requests
for inclusion therein within ten (10) days after the giving of notice by
the Company. All registrations requested pursuant to this paragraph (b) are
referred to herein as "Piggyback Registrations". All Piggyback
Registrations pursuant to this paragraph (b) will be made solely at the
Company's expense (other than as provided in Section 10(d) hereof). This
paragraph is not applicable to a registration statement filed by the
Company with the Commission on Forms S-4 or S-8 or any successor forms.
(i) Priority on Primary Registrations. If a Piggyback
Registration includes an underwritten primary registration for the Company,
and the underwriter(s) for such offering determine in good faith and advise
the Company in writing that in their opinion the number of Registrable
Securities requested to be included in such registration exceeds the number
that can be sold in such offering without materially adversely affecting
the distribution of such securities by the Company, the Company will
include in such registration (A) first, the securities that the Company
proposes to sell and (B) second, the Registrable Securities requested to be
included in such registration, apportioned pro rata among the Holders of
Registrable Securities, provided, however, the Company will use its best
efforts to include not less than 20% of the Registrable Securities, and (C)
third, securities of the holders of other securities requesting
registration.
(ii) Priority on Secondary Registrations. If a Piggyback
Registration consists only of an underwritten secondary registration for
holders of securities of the
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Company (other than pursuant to Section 10(a)), and the underwriter(s) for
such offering advise the Company in writing that in their opinion the
number of Registrable Securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially adversely affecting the distribution of such securities by the
Company, the Company will include in such registration (A) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in
such registration, pro rata among all such holders on the basis of the
number of shares requested to be included by each such holder, provided,
however, the Company will use its best efforts to include not less than 20%
of the Registrable Securities, and (B) second, other securities requested
to be included in such registration.
Notwithstanding the foregoing, if any such underwriter determines in
good faith and advises the Company in writing that the distribution of the
Registrable Securities requested to be included in the registration concurrently
with the securities being registered by the Company would materially adversely
affect the distribution of such securities by the Company, then the Holders of
such Registrable Securities shall delay their offering and sale for such period
ending on the earliest of (1) 90 days following the effective date of the
Company's registration statement, (2) the day upon which the underwriting
syndicate, if any, for such offering has been disbanded or, (3) such date as the
Company, managing underwriter and Holders of Registrable Securities otherwise
agree. If such a delay occurs, the Company shall file such supplements, post-
effective amendments and take any other steps necessary to permit such Holders
to make their proposed offering and sale for a period of 180 days immediately
following the end of such delay. If any party disapproves of the terms of any
such underwriting, it may elect to withdraw therefrom by written notice to the
Company, the underwriter, and the Underwriters. However, the Company shall not
be required to file a registration statement to include Shares pursuant to
Section 10(a) or this Section 10(b) if counsel, reasonably satisfactory to the
Company, renders an opinion to the Company that the Shares proposed to be
disposed of may be transferred pursuant to the provisions of Rule 144 under the
Act or otherwise without registration under the Act.
(c) Other Registration Rights. In addition to the rights above provided,
the Company will cooperate with the then Holders of the Registrable Securities
in preparing and signing any registration statement, in addition to the
registration statements discussed above, required in order to sell or transfer
the Registrable Securities and will supply all information required therefor,
but such additional registration statement, shall be at the then Holders' cost
and expense; provided, however, that if the Company elects to register or
qualify additional shares of Common Stock, the cost and expense of such
registration statement will be pro rated between the Company and the Holders of
the Registrable Securities according to the aggregate sales price of the
securities being issued. However, the Company will not be required to file a
registration statement pursuant to this paragraph (c), (i) at a time when the
audited financial statements required to be included therein are not available,
which time shall be limited to the period commencing 45 days after the end of
the Company's last fiscal year and ending 90 days after the end of such fiscal
year, or (ii) within 90 days after completion of a public offering by the
Company of any of its Common Stock or equity-related securities or (iii) if it
would adversely impact the
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Company in its capital raising plans or otherwise (in which latter case
filing may be delayed no longer than 120 days).
(d) Action to be Taken by the Company. In connection with the registration of
Registrable Securities in accordance with paragraphs (a), (b) or (c) of this
Section 10, the Company agrees to:
(i) Bear the expenses of any registration or qualification under
paragraphs (a) or (b) of this Section 10, including, but not limited to,
legal, accounting and printing fees; provided, however, that in no event
shall the Company be obligated to pay (A) any fees and disbursements of
special counsel for Holders of Registrable Securities, or (B) any
underwriters' discount or commission in respect of such Registrable
Securities, (C) any stock transfer taxes attributable to the sale of the
Registrable Securities, or (D) upon the exercise of any demand registration
right provided for in paragraph (a) of this Section 10, the cost of any
liability or similar insurance required by an underwriter, to the extent
that such costs are attributable solely to the offering of such Registrable
Securities, payment of which shall, in each case, be the sole
responsibility of the Holders of the Registrable Securities; and
(ii) Use its best efforts to register or qualify the Registrable
Securities for offer or sale under state securities or Blue Sky laws of
such jurisdictions in which the Underwriters or such Holders shall
reasonably request, provided, however, that no qualification shall be
required in any jurisdiction where, as a result thereof, the Company would
be subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction to which it is not then
subject, and to do all other acts necessary or advisable to enable the
holders to consummate the proposed sale, transfer or other disposition of
such securities in any jurisdiction.
(e) Action to be Taken by the Holders. In connection with the registration of
Registrable Securities in accordance with paragraphs (a), (b) or (c) of this
Section 10, the Company's obligation shall be conditioned as to each such public
offering upon a timely receipt by the Company in writing of:
(i) Information as to the terms of such public offering furnished
by or on behalf of each Holder intending to make a public offering of his
or its Registrable Securities; and
(ii) Such other information as the Company may reasonably require
from such Holders, or any underwriter for any of them, for inclusion in
such Registration Statement.
(f) For purposes of this Section 10, (i) the term "Holder" shall include
holders of Shares, and (ii) the term "Registrable Securities" shall mean the
Shares, if issued.
11. Notices to Holders.
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(a) Nothing in this Agreement or in any Warrants shall be construed as
conferring upon the Holders the right to vote or to receive dividends or to
consent or to receive notice as shareholders in respect of the meetings of
shareholders or the election of directors of the Company or any other matter, or
any rights whatsoever as shareholders of the Company; provided, however, that in
the event that a meeting of shareholders shall be called to consider and take
action on a proposal for the voluntary dissolution of the Company, other than in
connection with a consolidation, merger or sale of all, or substantially all, of
its property, assets, business and good will as an entirety, the Company shall
cause a notice thereof to be sent by first-class mail, postage prepaid, at least
twenty (20) days prior to the date fixed as a record date or the date of closing
the transfer books in relation to such meeting, to each registered Holder of
Warrants at such Holder's address appearing on the Warrant Register; but failure
to mail or to receive such notice or any defect therein or in the mailing
thereof shall not affect the validity of any action taken in connection with
such voluntary dissolution.
(b) If the Company intends to make any distribution on its Common Stock
(or other securities which may be issuable in lieu thereof upon the exercise of
Warrants), including, without limitation, any such distribution to be made in
connection with a consolidation or merger in which the Company is the surviving
entity, or to issue subscription rights or warrants to holders of its Common
Stock, the Company shall cause a notice of its intention to make such
distribution to be sent by first-class mail, postage prepaid, at least twenty
(20) days prior to the date fixed as a record date or the date of closing the
transfer books in relation to such distribution, to each registered Holder of
Warrants at such Holder's address appearing on the Warrant Register, but failure
to mail or to receive such notice or any defect therein or in the mailing
thereof shall not affect the validity of any action taken in connection with
such distribution.
12. Notices. Any notice pursuant to this Agreement to be given by the
Holder of any Warrant or the holder of any Share to the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed as follows or to such other address as the Company may designate by
notice given in accordance with this Section 12, to the Holders of Warrants or
the holders of Shares:
Zydeco Energy, Inc.
1710 Two Allen Center
1200 Smith Street
Houston, Texas 77002
Attention: W. Kyle Willis
Notices or demands authorized by this Agreement to be given or made by
the Company to or on the Holder of any Warrant or the holder of any Share shall
be sufficiently given or made (except as otherwise provided in this Agreement)
if sent by first-class mail, postage prepaid, addressed to such Holder or such
holder of Shares at the address of such Holder or such holder of Shares as shown
on the Warrant Register or the books of the Company, as the case may be.
-12-
13. Governing Law. This Agreement and each Warrant issued hereunder
shall be governed by and construed in accordance with the substantive laws of
the State of New York. The Company hereby agrees to accept service of process by
notice given to it pursuant to the provisions of Section 12.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute one and the same instrument.
-13-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day, month and year first above written.
ZYDECO ENERGY, INC.
By:_____________________________
Its: ________________________
BREAN MURRAY & CO., INC.
GAINES, BERLAND INC.
By: Brean Murray & Co. Inc.
By:_____________________________
Its:_________________________
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SCHEDULE I
Name of Number of
Underwriter Warrants
- ----------- ---------
Brean Murray & Co., Inc.
Gaines, Berland Inc.
---------
Total 320,000
-15-
No. ____ _____ Warrants
VOID AFTER 5:00 P.M. NEW YORK CITY TIME
ON ________ __, 2002
ZYDECO ENERGY, INC.
Warrant Certificate
THIS CERTIFIES THAT for value received ________________, or registered
assigns, is the owner of the number of Warrants set forth above, each of which
entitles the owner thereof to purchase at any time from ________ __, 1998, until
5:00 p.m., New York City time on ________ __, 2002 (the "Warrant Expiration
Date"), one fully paid and nonassessable share of common stock, $0.01 par value
per share (the "Common Stock"), of ZYDECO ENERGY, INC., a Delaware corporation
(the "Company"), at the purchase price of $____ per share (as adjusted from time
to pursuant to the Warrant Agreement referenced below, the "Exercise Price")
upon presentation and surrender of this Warrant Certificate with the Form of
Election to Purchase duly executed, as provided in the Warrant Agreement
together with payment of the aggregate Exercise Price for the shares of Common
Stock being purchased (defined below). The number of Warrants evidenced by this
Warrant Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Exercise Price per share set forth
above, are the number and Exercise Price as of the date of original issuance of
the Warrants, based on the shares of Common Stock of the Company as constituted
at such date. As provided in the Warrant Agreement referred to below, the
Exercise Price and the number or kind of shares which may be purchased upon the
exercise of the Warrants evidenced by this Warrant Certificate are, upon the
happening of certain events, subject to modification and adjustment.
This Warrant Certificate is subject to, and entitled to the benefits of,
all of the terms, provisions and conditions of an agreement dated as of ________
__, 1997 (the "Warrant Agreement") by and among the Company and Brean Murray &
Co., Inc. and Gaines, Berland Inc., which Warrant Agreement is hereby
incorporated herein by reference and made a part hereof and to which Warrant
Agreement reference is hereby made for a full description of the rights,
limitations of rights, duties and immunities hereunder of the Company and the
holders of the Warrant Certificates. Copies of the Warrant Agreement are on
file at the principal office of the Company.
This Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the holder to purchase a
1
like aggregate number of shares of Common Stock as the Warrants evidenced by the
Warrant Certificate or Warrant Certificates surrendered entitled such holder to
purchase. If this Warrant Certificate shall be exercised in part, the holder
hereof shall be entitled to receive upon surrender hereof another Warrant
Certificate or Warrant Certificates for the number of whole Warrants not
exercised.
No fractional shares of Common Stock will be issued upon the exercise of
any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote, receive
dividends, subscription rights or be deemed the holder of Common Stock or any
other securities of the Company which may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue of stock, reclassification of stock, change of
par value or change of stock to no par value, consolidation, merger, conveyance,
or otherwise) or, except as provided in the Warrant Agreement, to receive notice
of meetings, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised and the Shares shall have become deliverable as
provided in the Warrant Agreement.
If this Warrant shall be surrendered for exercise within any period
during which the transfer books for the Company's Common Stock or other class of
stock purchasable upon the exercise of this Warrant are closed for any purpose,
the Company shall not be required to make delivery of certificates for shares
purchasable upon such exercise until the date of the reopening of said transfer
books, provided, however, that such books shall not be closed for longer than a
20-day period.
2
IN WITNESS WHEREOF, ZYDECO ENERGY, INC. has caused the signature (or
facsimile signature) of its President and its Secretary to be printed hereon and
its corporate seal (or facsimile) to be printed hereon.
Dated ________ __, 1997
ZYDECO ENERGY, INC.
By:_____________________________
Its: ____________________________
Attest:
_________________________
3
FORM OF
ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificates.)
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers
unto this Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
____________________, to transfer the within Warrant Certificate on the books of
the within-named Company, with full power of substitution.
Dated: ______________________, ____
___________________________________
Signature
Signature Guaranteed:
NOTICE
The signature of the foregoing Assignment must correspond to the name as
written upon the face of this Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever.
FORM OF
ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate).
TO: ZYDECO ENERGY, INC.
The undersigned hereby irrevocably elects to exercise Warrants
represented by this Warrant Certificate to purchase ______ shares of Common
Stock issuable upon the exercise of such Warrants and requests that certificates
for such shares be issued in the name of:
Please insert social security, tax identification or other
identifying number
___________________________
___________________________
___________________________
(Please print name and address)
If such number of Warrants is not all the Warrants evidenced by this Warrant
Certificate, a new Warrant Certificate for the balance remaining of such
Warrants shall be registered in the name of and delivered to:
Please insert social security, tax identification or other identifying number
_____________________________
_____________________________
_____________________________
(Please print name and address)
Dated: _______________, ____
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate)
Signature Guaranteed: