EXHIBIT 3.3
Dated 199_
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(1) ALLIANCE RESOURCES PLC
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(2) SOCIETY NATIONAL BANK
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WARRANT AGREEMENT
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ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 0171-638-1111
Fax: 0171-972-7990
ASC/A90200030
CONTENTS
CLAUSE PAGE
1. DEFINITIONS................................................... 1
2. APPOINTMENT OF WARRANT AGENT.................................. 2
3. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES................. 3
4. FORM AND EXECUTION OF WARRANT CERTIFICATES.................... 3
5. EXERCISE OF WARRANTS.......................................... 4
6. RESERVATION OF SHARES AND PAYMENT OF TAXES.................... 5
7. REGISTRATION OF TRANSFER OF WARRANT CERTIFICATES.............. 5
8. LOSS OR MUTILATION............................................ 6
9. ADJUSTMENT OF EXERCISE PRICE AND SHARES....................... 6
10. EXTENSION OF WARRANT EXERCISE PERIOD.......................... 9
11. PURCHASE OR REDEMPTION OF WARRANTS BY THE COMPANY............. 9
12. DUTIES, COMPENSATION AND TERMINATION OF WARRANT AGENT......... 10
13. MODIFICATION OF AGREEMENT..................................... 11
14. NOTICES....................................................... 12
15. PERSONS BENEFITING............................................ 12
16. FURTHER INSTRUMENTS........................................... 13
17. SEVERABILITY.................................................. 13
18. WAIVER........................................................ 13
19. GENERAL PROVISIONS............................................ 13
WARRANT AGREEMENT
THIS AGREEMENT dated as of _____ __, ____ between Alliance Resources Plc, a
company incorporated under the laws of England and Wales (the "COMPANY") and
Society National Bank, a national banking association organised and existing
under the laws of the United States (the "WARRANT AGENT").
RECITALS
(A) The Company has determined by a resolution of its Board of Directors (being
duly empowered and authorised by the Memorandum and Articles of Association
of the Company to issue up to __________ warrants (the "Warrants") each
entitling the holder thereof, on specified subscription dates, to subscribe
for ordinary shares of 40p each in the capital of the Company ("Common
Shares", and such shares being the "Warrant Shares") and has determined to
constitute the same in the manner hereinafter appearing.
(B) The Warrants have been created in connection with the merger of a
subsidiary of the Company and LaTex Resources Inc pursuant to an Agreement
and Plan of Merger dated 12th August 1996 (the "Merger Agreement").
(C) The particulars subject to which the Warrants are created are set out in
this Agreement.
(D) The Company desires to provide for the issuance of warrant certificates
(the "WARRANT CERTIFICATES") representing the Warrants, upon completion of
the Merger Agreement.
(E) The Company desires the Warrant Agent to act on behalf of the Company, and
the Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer and exchange of Warrant Certificates and exercise of
the Warrants.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
hereinafter set forth and for the purpose of defining the terms and provisions
of the Warrant Certificates and the Warrants and the respective rights and
obligations thereunder of the Company, the registered holders of the Warrant
Certificates and the Warrant Agent, the parties hereto agree as follows:-
1. DEFINITIONS
As used herein:-
1.1 "COMMON SHARES" means shares of the Company of any class, whether now
or hereafter authorised, which have the right to participate in the
distribution of earnings and assets of the Company without limit as to
amount or percentage, which as of the date hereof consist of the
Company's Ordinary shares of 40p each;
"CORPORATE OFFICE" means the place of business of the Warrant Agent
located in Dallas, Texas, or its successor (for the mailing address of
the Warrant Agent, see clause [13] hereof);
"EFFECTIVE DATE" means the date on which the Merger Agreement is
completed;
"EXERCISE PERIOD" means the period commencing on the Effective Date
and ending on the Expiration Date;
"EXERCISE PRICE" means a purchase price of __________ per Common Share
(the "WARRANT EXERCISE PRICE");
"EXPIRATION DATE" means 5.00 p.m. Central Standard or Daylight Time on
19 November 1997;
"REGISTERED HOLDER" means the person in whose name any Warrant
Certificate shall be registered on the books maintained by the Warrant
Agent pursuant to this agreement;
"SUBSIDIARY" means any corporation of which shares having ordinary
voting power to elect a majority of the board of directors of such
corporation (regardless of whether the shares of any other class or
classes of such corporation shall have or may have voting power by
reason of the happening of any contingency) are at the time directly
or indirectly owned by the Company or one or more subsidiaries of the
Company;
"TRANSFER AGENT" means the Company's transfer agent, Society National
Bank, or its successor;
"WARRANT" or "WARRANTS" means and includes up to __________ Warrants,
each to purchase 1 Common Share;
"WARRANT SHARES" means and includes up to __________ Common Shares and
any additional Common Shares or other property which may hereafter be
issuable or deliverable on exercise of the Warrants pursuant to clause
9 of this agreement.
2. APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth hereafter in this
agreement, and the Warrant Agent hereby accepts such appointment and agrees
to perform the duties and obligations required of it, as such duties and
obligations are set forth herein.
3. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES
3.1 Each Warrant shall initially entitle the Registered Holder of the Warrant
Certificate representing such Warrant to purchase one Common Share on
exercise thereof, subject to modification and adjustment as hereinafter
provided in clause 9. Warrant Certificates representing up to an aggregate
of __________ Warrants of the Company shall be executed by the proper
officers of the Company and delivered to the Transfer Agent of the
Company's Common Shares for countersignature at the closing of the proposed
public offering. The
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Warrant Certificates will be issued and delivered by the Warrant Agent on
written order of the Company signed by its president and attested by its
secretary or assistant secretary. The Warrant Agent shall deliver Warrant
Certificates in required whole number denominations to the persons entitled
thereto in connection with any transfer or exchange permitted under this
agreement.
3.2 Except as provided in clause 9 hereof, the Warrant Shares shall be issued
only on or after the Exercise Date (hereinafter defined) on exercise of the
Warrants or on transfer or exchange of the Warrant Shares.
4. FORM AND EXECUTION OF WARRANT CERTIFICATES
4.1 The Warrant Certificates shall be substantially in the form attached as
exhibit "A" and may have such letters, numbers or other marks of
identification and such legends, summaries or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this agreement. The Warrant
Certificates shall be dated as of the date of issuance, whether on initial
issuance, transfer, exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
4.2 Warrant Certificates shall be executed on behalf of the Company by its
president and secretary, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the
Company's seal. Warrant Certificates shall be manually countersigned by
the Warrant Agent and shall not be valid for any purpose unless so
countersigned. In the event any officer of the Company who executed the
Warrant Certificates shall cease to be an officer of the Company before the
date of issuance of the Warrant Certificates or before countersignature and
delivery by the Warrant Agent, such Warrant Certificates may be
countersigned, issued and delivered by the Warrant Agent with the same
force and effect as though the person who signed such Warrant Certificates
had not ceased to be an officer of the Company.
5. EXERCISE OF WARRANTS
5.1 The Warrants shall be exercisable during the Exercise Period, beginning on
the Effective Date and continuing until the Expiration Date. A Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of the surrender for exercise (the "EXERCISE DATE") of
the Warrant Certificate. The exercise form shall be executed by the
Registered Holder thereof or his attorney duly authorised in writing and
shall be delivered together with payment to the Warrant Agent, in cash or
by official bank or certified cheque, of an amount in lawful money of the
United States of America. Such payment shall be in an amount equal to the
Exercise Price per Warrant as hereinabove defined.
5.2 The person entitled to receive the number of Warrant Shares deliverable on
such exercise shall be treated for all purposes as the holder of such
Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares issuable on exercise of a Warrant. If more than one Warrant
shall be exercised at one time by the same Registered Holder, the number of
full
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shares which shall be issuable on exercise thereof shall be computed on the
basis of the aggregate number of full shares issuable on such exercise.
5.3 As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be issued
and delivered to the person or persons entitled to receive the same, a
certificate or certificates for the number of Warrant Shares deliverable on
such exercise. No adjustment shall be made in respect of cash dividends on
Warrant Shares deliverable on exercise of any Warrant. The Warrent Agent
shall promptly notify the Company in writing of any exercise of any Warrant
and of the number of Warrant Shares delivered and shall cause payment of an
amount in cash equal to the Exercise Price to be made promptly to the order
of the Company. The parties contemplate such payments will be made by the
Warrant Agent to the Company on a weekly basis and will consist of
collected funds only. The Warrant Agent shall hold any proceeds collected
and not yet paid to the Company in a federally-insured escrow account at a
commercial bank selected by agreement of the Company and the Warrant Agent,
at all times relevant hereto. Following a determination by the Warrant
Agent that collected funds have been received, the Warrant Agent shall
cause share certificates to be issued representing the number of Warrants
exercised by the holder.
5.4 Expenses incurred by the Warrant Agent hereunder, including administrative
costs, costs of maintaining records and other expenses, shall be paid by
the Company according to the standard fees imposed by the Warrant Agent for
such services.
5.5 A detailed accounting statement setting forth the number of Warrants
exercised, the net amount of exercised funds and all expenses incurred by
the Warrant Agent shall be transmitted to the Company on payment of each
exercise amount. Such accounting statement shall serve as an interim
accounting for the Company during the Exercise Period. The Warrant Agent
shall render to the Company a complete accounting setting forth the number
of Warrants exercised, the identity of persons exercising such Warrants,
the number of shares issued, the amounts to be distributed to the Company
and all other expenses incurred by the Warrant Agent, at the completion of
the Exercise Period. [COPIES OF ALL OF THE ABOVE SHALL BE TRANSMITTED
PROMPTLY TO CHELSEA STREET SECURITIES, INC., 222 WEST LAS COLINAS
BOULEVARD, SUITE 2000, IRVING, TEXAS 75039.]
6. RESERVATION OF SHARES AND PAYMENT OF TAXES
6.1 The Company covenants that it will at all times keep available for issue
sufficient authorised but unissued Common Shares as shall then be issuable
on exercise of all outstanding Warrants. The Company covenants that all
Warrant Shares, when issued, shall be duly and validly issued, fully paid
and non-assessable, and free from all taxes, liens and charges with respect
to the issue thereof.
6.2 If any Warrant Shares require registration with or approval of any
government authority under any federal or state law before such shares may
be validly issued or delivered, the Company covenants it will in good faith
and as expeditiously as possible endeavour to secure such registration or
approval, as the case may be.
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6.3 The Warrant holder shall pay all documentary stamp or similar taxes and
other government charges that may be imposed with respect to the issuance
of the Warrants, or the issuance, transfer or delivery of any Warrant
Shares on exercise of the Warrants. In the event the Warrant Shares are to
be delivered in a name other than the name of the Registered Holder of the
Warrant Certificate, no such delivery shall be made unless the person
requesting the same has paid to the Warrant Agent the amount of any such
taxes or charges incident thereto.
6.4 The Warrant Agent is hereby irrevocably authorised to requisition
certificates for Warrant Shares from the Company's Transfer Agent as
required from time to time. The Company has, contemporaneously with the
execution of this agreement, authorised the Transfer Agent to comply with
all such requisitions. The Company will file with the Warrant Agent a
statement setting forth the name and address of its Transfer Agent for
Common Shares issuable on exercise of the Warrants and of each successor
Transfer Agent, if any.
7. REGISTRATION OF TRANSFER OF WARRANT CERTIFICATES
7.1 The Warrant Certificates may not be transferred in whole or in part except
as authorised in this agreement. Warrant Certificates to be exchanged
shall be surrendered to the Warrant Agent at its corporate office. The
Company shall execute, and the Warrant Agent shall countersign, issue and
deliver in exchange therefor, the Warrant Certificate or Certificates which
the holder making the transfer shall be entitled to receive.
7.2 The Warrant Agent shall keep transfer books at its corporate office in
which it shall register Warrant Certificates and the transfer thereof. On
due presentment for transfer of any Warrant Certificates at such office,
the Company shall execute, and the Warrant Agent shall issue and deliver to
the transferee or transferees, a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
7.3 The Warrants will not be listed or traded on a securities exchange.
8. LOSS OR MUTILATION
On receipt by the Company and the Warrant Agent of evidence satisfactory as
to the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate, the Company shall execute, and the Warrant Agent shall
countersign and deliver in lieu thereof, a new Warrant Certificate
representing an equal aggregate number of Warrants. In the case of loss,
theft or destruction of any Warrant Certificate, the individual requesting
issuance of a new Warrant Certificate shall be required to indemnify the
Company and Warrant Agent in an amount satisfactory to each of them. In
the event a Warrant Certificate is mutilated, such certificate shall be
surrendered and cancelled by the Warrant Agent prior to delivery of a new
Warrant Certificate. Applicants for a substitute Warrant Certificate shall
also comply with such other regulations and pay such other reasonable
charges as the Company may prescribe.
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9. ADJUSTMENT OF EXERCISE PRICE AND SHARES
9.1 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall issue any of its Common Shares as a stock
dividend or shall subdivide the number of outstanding Common Shares into a
greater number of shares, then, in either of such events, the Exercise
Price in effect at the time of such action shall be reduced proportionately
and the number of Common Shares purchasable pursuant to the Warrants shall
be increased proportionately. Conversely, in the event the Company shall
reduce the number of its outstanding Common Shares by combining such shares
into a smaller number of shares, then, in such event, the Exercise Price in
effect at the time of such action shall be increased proportionately and
the number of Common Shares at that time purchasable pursuant to the
Warrants shall be decreased proportionately. Such stock dividend paid or
distributed on the Common Shares in shares of any other class of the
Company or securities convertible into Common Shares shall be treated as a
dividend paid or distributed in Common Shares to the extent Common Shares
are issuable on the payment or conversion thereof.
9.2 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall be recapitalised by reclassifying its
outstanding Common Shares into shares with a different par value, or by
changing its outstanding Common Shares to shares without par value or in
the event of any other material change of the capital structure of the
Company or of any successor corporation by reason of any reclassification,
recapitalisation or conveyance, prompt, proportionate, equitable, lawful
and adequate provision shall be made whereby any holder of the Warrants
shall thereafter have the right to purchase, on the basis and the terms and
conditions specified in this agreement, in lieu of the Common Shares of the
Company theretofore purchasable on the exercise of any Warrant, such
securities or assets as may be issued or payable with respect to or in
exchange for the number of Common Shares of the Company theretofore
purchasable on exercise of the Warrants had such reclassification,
recapitalisation or conveyance not taken place; and in any such event, the
rights of any holder of a Warrant to any adjustment in the number of Common
Shares purchasable on exercise of such Warrant, as set forth above, shall
continue and be preserved in respect of any stock, securities or assets
which the holder becomes entitled to purchase; provided, however, that a
merger, acquisition of a going business or a portion thereof (whether for
cash, stock, notes, other securities, or a combination of cash and
securities), exchange of stock for stock, exchange of stock for assets, or
like transaction involving the Company will not be considered a "MATERIAL
CHANGE" for purposes of this clause 9.2, and no adjustment shall be made
under this clause 9 by reason of any such merger, acquisition, exchange of
stock for stock, exchange of stock for assets, or like transaction.
9.3 In the event the Company, at any time while the Warrants shall remain
unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as
part of the terms of such sale, dissolution, liquidation or winding up
such that the holder of a Warrant may thereafter receive, on exercise of
such Warrant, in lieu of each Common Share of the Company which such holder
would have been entitled to receive upon exercise of such Warrant, the same
kind and amount of any stock, securities
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or assets as may be issuable, distributable or payable on any such sale,
dissolution, liquidation or winding up with respect to each Common Share of
the Company; provided, however, that in the event of any such sale,
dissolution, liquidation or winding up, the right to exercise the Warrants
shall terminate on a date fixed by the Company, such date to be not earlier
than 5.00 p.m., Central Time, on the 30th day next succeeding the date on
which notice of such termination of the right to exercise the Warrants has
been given by mail to the holders thereof at such addresses as may appear
on the books of the Company.
9.4 In the event, prior to the expiration of the Warrants by exercise or by
their terms, the Company shall take a record of the holders of its Common
Shares for the purpose of entitling them to purchase its Common Shares at a
price per share more than ten per cent. below the then current market price
per share (as defined below) of its Common Shares at the date of taking
such record, then (a) the number of Common Shares purchasable pursuant to
the Warrants shall be redetermined as follows: the number of Common Shares
purchasable pursuant to a Warrant immediately prior to such adjustment
(taking in account fractional interests to the nearest 1,000th of a share)
shall be multiplied by a fraction, the numerator of which shall be the
number of Common Shares of the Company then outstanding (excluding the
Common Shares then owned by the Company) immediately prior to the taking of
such record, plus the number of additional shares offered for purchase, and
the denominator of which shall be the number of Common Shares of the
Company outstanding (excluding the Common Shares owned by the Company)
immediately prior to the taking of such record, plus the number of shares
which the aggregate offering price of the total number of additional shares
so offered would purchase at such current market price; and (b) the
Exercise Price per Common Share purchasable pursuant to a Warrant shall be
redetermined as follows: the Exercise Price in effect immediately prior to
the taking of such record shall be multiplied by a fraction, the numerator
of which is the number of Common Shares purchasable immediately prior to
the taking of such record, and the denominator of which is the number of
Common Shares purchasable immediately after the taking of such record as
determined pursuant to clause 9.4(a) above; provided, however (c) that any
adjustment in the number of shares issuable as set forth above shall be
effective only to the extent sufficient Common Shares have been registered
through a Registration Statement filed with the Securities and Exchange
Commission, and (d) that any adjustment in the Exercise Price does not
cause the Company to receive proceeds in excess of the amount authorised by
any such Registration Statement. For the purpose hereof, the current
market price per Common Share of the Company at any date shall be deemed to
be the average of the middle market price as derived from the London Stock
Exchange Daily Official List for 30 consecutive business days commencing 15
business days prior to the record date.
9.5 On exercise of the Warrants by the holders, the Company shall not be
required to deliver fractions of Common Shares; provided, however, that
prompt, proportionate, equitable, lawful and adequate adjustment in the
Exercise Price payable shall be made in respect of any such fraction of one
Common Share on the basis of the Exercise Price per share.
9.6 In the event, prior to expiration of the Warrants by exercise or by their
terms, the Company shall determine to take a record of the holders of its
Common Shares for the
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purpose of determining shareholders entitled to receive any stock dividend,
distribution or other right which will cause any change or adjustment in
the number, amount, price or nature of the Common Shares or other stock,
securities or assets deliverable on exercise of the Warrants pursuant to
the foregoing provisions, the Company shall give to the Registered Holders
of the Warrants at the addresses as may appear on the books of the Company
at least 15 days' prior written notice to the effect that it intends to
take such a record. Such notice shall specify the date as of which such
record is to be taken; the purpose for which such record is to be taken;
and the number, amount, price and nature of the Common Shares or other
stock, securities or assets which will be deliverable on exercise of the
Warrants after the action for which such record will be taken has been
completed. Without limiting the obligation of the Company to provide notice
to the Registered Holders of the Warrant Certificates of any corporate
action hereunder, the failure of the Company to give notice shall not
invalidate such corporate action of the Company.
9.7 The Warrant shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Common Shares, unless the
Warrant is exercised and the Common Shares purchased prior to the record
date fixed by the board of directors of the Company for the determination
of holders of Common Shares entitled to such dividend or other right.
9.8 No adjustment of the Exercise Price shall be made as a result of or in
connection with (a) the establishment of one or more employee stock option
plans for employees of the Company, or the modification, renewal or
extension of any such plan, or the issuance of Common Shares on exercise of
any options pursuant to any such plan, (b) the issuance of individual
warrants or options to purchase Common Shares, the issuance of Common
Shares upon exercise of such warrants or options, or the issuance of Common
Shares in connection with compensation arrangements for directors,
officers, employees or agents of the Company or any Subsidiary, and the
like, or (c) the issuance of Common Shares in connection with a merger,
acquisition of a going business or a portion thereof (whether for cash,
stock, notes, other securities, or a combination of cash and securities),
exchange of stock for stock, exchange of stock for assets, or like
transaction.
10. EXTENSION OF WARRANT EXERCISE PERIOD
The Warrant Exercise Period may be extended one or more times, and from
time to time, in the sole discretion of the Company and the Warrant Agent.
Any such extension shall be evidenced by a written modification of this
Warrant Agreement executed by the Company and the Warrant Agent. Within
fifteen days of the execution of any such written modification of this
Warrant Agreement, the Company shall file with the Securities and the
Exchange Commission a Post-effective Amendment to the Registration
Statement registering the Common Shares underlying the Warrants.
11. PURCHASE OR REDEMPTION OF WARRANTS BY THE COMPANY
11.1 The Warrants are redeemable upon 30 days' notice to their holders for
$.01 per Warrant. Notice of any such redemption will be mailed by the
Company to the Registered Holders
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of the Warrants at the addresses as may appear on the books of the Company.
Unless, prior to the expiration of such 30-day notice period, a Registered
Holder exercises his right to purchase the Shares of Common Stock covered
by his Warrants, such Registered Holder will forfeit his right to do so,
and will be entitled only to the redemption price of such Warrants, if
redeemed.
11.2 In the event the Company shall purchase, redeem, or otherwise acquire
Warrants, the same shall thereupon be delivered to the Warrant Agent and be
cancelled and retired by the Warrant Agent.
12. DUTIES, COMPENSATION AND TERMINATION OF WARRANT AGENT
12.1 The Warrant Agent shall act hereunder as agent and in a ministerial
capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and delivering
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to the validity, value or authorisation of the Warrant
Certificates or the Warrants represented thereby or of the Common Shares or
other property delivered on exercise of any Warrant. The Warrant Agent
shall not be under any duty or responsibility to any holder of the Warrant
Certificates to make or cause to be made any adjustment of the Exercise
Price or to determine whether any fact exists which may require any such
adjustments.
12.2 The Warrant Agent shall not (a) be liable for any recital or statement of
fact contained herein or for any action taken or omitted by it in reliance
on any Warrant Certificate or other document or instrument believed by it
in good faith to be genuine and to have been signed or presented by the
proper party or parties, (b) be responsible for any failure on the part of
the Company to comply with any of its covenants and obligations contained
in this agreement or in the Warrant Certificates, or (c) be liable for any
act or omission in connection with this agreement except for its own
negligence or wilful misconduct.
12.3 The Warrant Agent may at any time consult with counsel satisfactory to it
(who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith in
accordance with such notice, statement, instruction, request, direction,
order or demand.
12.4 Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by
its president and attested by its secretary or assistant secretary. The
Warrant Agent shall not be liable for any action taken or omitted by it in
accordance with such notice, statement, instruction, request, direction,
order or demand.
12.5 The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its
reasonable expenses. The Company further agrees to indemnify the Warrant
Agent against any and all losses, expenses and liabilities, including
judgments, costs and counsel fees, for any action taken or omitted by the
Warrant Agent in the execution of its duties and powers hereunder,
excepting losses,
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expenses and liabilities arising as a result of the Warrant Agent's
negligence or wilful misconduct.
12.6 The Warrant Agent may resign its duties or the Company may terminate the
Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of
the Warrant Agent's own negligence or wilful misconduct) on 30 days' prior
written notice to the other party. At least 15 days prior to the date such
resignation is to become effective, the Warrant Agent shall cause a copy of
such notice of resignation to be mailed to the Registered Holder of each
Warrant Certificate. On such resignation or termination, the Company shall
appoint a new Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been notified in
writing of the resignation by the Warrant Agent, then the Registered Holder
of any Warrant Certificate may apply to any court of competent jurisdiction
for the appointment of a new Warrant Agent. Any new Warrant Agent, whether
appointed by the Company or by such court, shall be a bank or trust company
having a capital and surplus, as shown by its last published report to its
shareholders, of not less than $1,000,000.
12.7 After acceptance in writing of an appointment of a new Warrant Agent is
received by the Company, such new Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; provided, however, if it shall be
necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the
Company and shall be legally and validly executed. The Company shall file
a notice of appointment of a new Warrant Agent with the resigning Warrant
Agent and shall forthwith cause a copy of such notice to be mailed to the
Registered Holder of each Warrant Certificate.
12.8 Any corporation into which the Warrant Agent or any new Warrant Agent may
be converted or merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new Warrant Agent shall be a party, or
any corporation succeeding to the corporate trust business of the Warrant
Agent shall be a successor Warrant Agent under this agreement, provided
that such corporation is eligible for appointment as a successor to the
Warrant Agent. Any such successor Warrant Agent shall promptly cause
notice of its succession as Warrant Agent to be mailed to the Company and
to the Registered Holder of each Warrant Certificate. No further action
shall be required for establishment and authorisation of such successor
Warrant Agent.
12.9 The Warrant Agent, its officers or directors and its subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the
Company and otherwise deal with the Company in the same manner and to the
same extent and with like effect as though it were not the Warrant Agent.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company.
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13. MODIFICATION OF AGREEMENT
The Warrant Agent and the Company may by supplemental agreement make any
changes or corrections in this agreement they shall deem appropriate to
cure any ambiguity or to correct any defective or inconsistent provision or
mistake or error herein contained. Additionally, the parties may make any
changes or corrections deemed necessary which shall not adversely affect
the interests of the holders of Warrant Certificates; provided, however,
this agreement shall not otherwise be modified, supplemented or altered in
any respect, except with the consent in writing of the Registered Holders
of Warrant Certificates representing not less than 66 2/3 per cent. of the
Warrants outstanding; provided, however, that no change in the number or
nature of the Warrant Shares purchasable on exercise of a Warrant, or the
Exercise Price or the Exercise Period thereof shall be made without the
consent, in writing, of the Registered Holder of the Warrant Certificate
representing such Warrant, other than such changes as are specifically
prescribed by this agreement.
14. NOTICES
All notices, demands, elections, opinions or requests (however
characterised or described) required or authorised hereunder shall be
deemed given sufficiently in writing and set by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to:-
in the case of the Company: Alliance Resources plc
Kingsbury House
15-17 King Street
London SW1Y 6QU
and, in the case of the Warrant Agent: Society National Bank
P. O. Box 2320
Dallas, Texas 75221-2320
and, if to the Registered Holder of a Warrant Certificate, at the address
of such holder as set forth on the books maintained by the Warrant Agent.
15. PERSONS BENEFITING
This agreement shall be binding upon and inure to the benefit of the
Company, the Warrant Agent and their respective successors and assigns, and
the holders from time to time of the Warrant Certificates. Nothing in this
agreement is intended to or shall be construed to confer on any other
person any right, remedy or claim or to impose on any other person any
duty, liability or obligation except that the parties agree that Argent
Securities, Inc. is relying on each party to properly perform its duties
and obligations under this agreement.
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16. FURTHER INSTRUMENTS
The parties shall execute and deliver any and all such other instruments
and shall take any and all such other actions as may be reasonable or
necessary to carry out the intention of this agreement.
17. SEVERABILITY
If any provision of this agreement shall be held, declared or pronounced
void, voidable, invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or otherwise, such
holding, declaration or pronouncement shall not adversely affect any other
provision of this agreement, which shall otherwise remain in full force and
effect and be enforced in accordance with its terms, and the effect of such
holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
18. WAIVER
All the rights and remedies of either party under this agreement are
cumulative and not exclusive of any other rights and remedies as provided
by law. No delay or failure on the part of either party in the exercise of
any right or remedy arising from a breach of this agreement shall operate
as a waiver of any subsequent right or remedy arising from a subsequent
breach of this agreement. The consent of any party where required
hereunder to any act or occurrence shall not be deemed to be a consent to
any other act or occurrence.
19. GENERAL PROVISIONS
This agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of Texas. Except as otherwise expressly
stated herein, time is of the essence in performing hereunder. This
agreement embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings relating to
the subject matter hereof, and this agreement may not be modified or
amended or any term or provision hereof waived or discharged except in
writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. The headings of this
agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning thereof. This agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
IN WITNESS whereof this agreement has been executed on the date first above
written.
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Signed by )
)
for and on behalf of ALLIANCE RESOURCES PLC
in the presence of:- )
Signed by )
)
for and on behalf of SOCIETY NATIONAL )
BANK in the presence of:- )
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