EXHIBIT 3.4
DATED 1997
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ALLIANCE RESOURCES PLC
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WARRANT INSTRUMENT
relating to the issue of Warrants entitling
the Warrantholder to subscribe for
Ordinary Shares of 40p each in
Alliance Resources PLC
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ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 0171-638-1111
Fax: 0171-972-7990
ASC/PDG/A90200030
THIS WARRANT INSTRUMENT is entered into by way of deed poll this day
of __________ 1997 by Alliance Resources Plc a company registered in England and
Wales with number 2532955 whose registered office is at Kingsbury House, 15-17
King Street, London, SW1Y 6QU ("the Company").
WHEREAS:-
(1) 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 each entitling the
holder thereof, on specified subscription dates, to subscribe for ordinary
shares of 40 pence each in the capital of the Company ("Ordinary Shares")
and has determined to constitute the same in the manner hereinafter
appearing.
(2) The Warrants have been created in connection with the merger of the Company
with LaTex Resources Inc. pursuant to an Agreement and Plan of Merger (the
"Merger Agreement") dated 12th August 1996, details of such merger being
set out in the listing particulars relating to the Company dated __________
1997.
(3) The particulars subject to which the Warrants are created are set out in
the Schedule hereto.
NOW THIS WARRANT INSTRUMENT WITNESSES AND THE COMPANY HEREBY AGREES AND DECLARES
AS FOLLOWS:-
I. INTERPRETATION
In this Warrant Instrument, unless the context otherwise requires, the
expressions defined in the particulars of Warrants set out in the Schedule
hereto shall have the meanings thereby given.
II. WARRANTS
A. The Warrants shall be constituted as follows:-
(a) __________ Series "A" Warrants entitling the holders to subscribe for
Ordinary Shares at a fixed price of __________ pence (subject to the
provisions of the Schedule hereto) at any time prior to __________;
(b) __________ Series "B" Warrants entitling the holders to subscribe for
Ordinary Shares at a fixed price of __________ pence (subject to the
provisions of the Schedule hereto) at any time prior to __________;
(c) __________ Series "C" Warrants entitling the holders to subscribe for
Ordinary Shares at a fixed price of __________ pence (subject to the
provisions of the Schedule hereto) at any time prior to __________;
(d) __________ Series "D" Warrants entitling the holders to subscribe for
Ordinary Shares at a fixed price of __________ pence (subject to the
provisions of the Schedule hereto) at any time prior to __________;
and
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(c) __________ Series "E" Warrants entitling the holders to subscribe for
Ordinary Shares at a fixed price of __________ pence (subject to the
provisions of the Schedule hereto) at any time prior to __________,
each of the relative final dates for exercise of a Warrant being, in
respect of the Warrants to which it relates, the "Expiry Date" and each of
the relative prices payable upon exercise of a Warrant being, in respect of
the Warrants to which it relates, the "Subscription Price".
B. The Warrants shall only be issued at such time or times as may be required
from time to time to satisfy the Company's obligations pursuant to the
Merger Agreement to issue up to __________ Series "A" Warrants, __________
Series "B" Warrants, __________ Series "C" Warrants, __________ Series "D"
Warrants and __________ Series "E" Warrants and shall rank pari passu in
all respects and without discrimination or preference.
III. CERTIFICATES
Every Warrant holder shall be entitled to receive one certificate for each
Series of the Warrant(s) held by him but joint holders shall be entitled to
only one certificate in respect of the Warrants held jointly by them which
certificates shall be delivered to the joint holder whose name stands first
in the Register. Every certificate shall be under the securities seal of
the Company which shall be affixed in such manner as shall be permitted by
the Articles of Association of the Company. The Company shall comply with
the terms and conditions of the Schedule hereto and the Warrants shall be
held subject to such terms and conditions all of which terms shall be
deemed to be incorporated in this Warrant Instrument and shall be binding
on the Company and the Warrant holders and all persons claiming through or
under them respectively.
IV. APPOINTMENT OF WARRANT AGENT
The Company may in its absolute discretion by Resolution of its Board of
Directors (being duly empowered and authorised by the Memorandum and Articles of
Association of the Company) appoint as agent of the Company such person or
persons as it thinks fit to act in connection with the issue, registration,
transfer and exchange or otherwise of warrants (the "Warrant Agent"). The
Company agrees that the Warrant Agent shall perform the duties and obligations
required of it in accordance with the terms and conditions of the Schedule
hereto and any other terms that the Company sees fit and to undertake all
responsibilities hereby vested for the time being in the Company.
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IN WITNESS whereof the Company has executed this Warrant Instrument as a deed
the day and year first above written.
Executed as a deed by )
Alliance Resources Plc )
acting by two of its directors/ )
one of its directors and )
its secretary )
Director
Director/Secretary
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SCHEDULE
1. Subscription Rights
(a) A registered holder (a "holder") of a Warrant shall have the right,
exercisable in accordance with paragraph 1(c) below, to subscribe
("the subscription rights") in cash on any date prior to the Expiry
Date in respect of such Warrant, on the following terms: for each
Warrant specified in the Warrant certificate one Ordinary Share at the
Subscription Price in respect of such Warrant payable in full on
subscription. The number and/or the nominal value of Ordinary Shares
to be subscribed and the subscription price are subject to adjustment
pursuant to paragraph 2 below. The subscription rights will not be
exercisable in respect of a fraction of an Ordinary Share. Failure to
exercise a Warrant prior to 5:00 p.m. on the relative Expiry Date will
mean that the Warrant shall become void and all rights attaching to
such Warrant shall cease.
(b) The number of Warrants to which each registered holder of Warrants
shall be entitled shall be evidenced by a Warrant certificate issued
by the Company. Warrant certificates shall be dated as at the date of
issue, whether on initial issue, transfer, exchange of or in lieu of
mutilated, lost, stolen or destroyed Warrant certificates. Warrants
shall be deemed to have been exercised immediately prior to the close
of business on the date of the surrender for exercise of the Warrant
certificate.
(c) In order to exercise the subscription rights in respect of any
Warrants, the registered Warrant holder must, having completed the
notice of subscription on his Warrant certificate, lodge it at the
office of the Registrars of the Company accompanied by a remittance
for the total subscription price of the Ordinary Shares in respect of
which the subscription rights are being exercised. Once lodged, a
notice of subscription shall be irrevocable save with the consent of
the Directors.
(d) Ordinary Shares issued pursuant to the exercise of subscription rights
will be allotted not later than 28 days after, and with effect from,
the date on which the relative duly completed subscription notice
shall be lodged with the Registrars of the Company (the "subscription
date") and Ordinary Share certificates in respect of such Ordinary
Shares will be issued free of charge and dispatched (at the risk of
the persons entitled thereto) not later than 28 days after the
relevant subscription date to the first named person in whose name the
Warrants are registered at the relevant subscription date on (subject
as provided by law) to such other persons as may be named in the form
of nomination upon the reverse of the Warrant certificate. In the
event that not all of the Warrants evidenced by a Warrant certificate
are exercised, the Company shall at the same time issue for no payment
a fresh Warrant certificate in the name of the Warrant holder for any
balance of the subscription rights remaining exercisable.
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(e) Ordinary Shares allotted pursuant to the exercise of subscription
rights will not rank for any dividends or other distributions
declared, made or paid in respect of any financial year of the Company
prior to the financial year in which the relevant subscription date
falls, nor shall they rank for any dividends or other distributions
declared, made or paid on a date (or by reference to a record date)
prior to the relevant subscription date but, subject thereto, will
rank pari passu in all other respects with the Ordinary Shares in
issue at the relevant subscription date including ranking in full for
all dividends and other distributions in respect of the financial year
in which the relevant subscription date occurs provided that on any
allotment failing to be made pursuant to paragraph 3(c) or 3(d) below,
the Ordinary Shares so to be allotted shall not rank for any dividends
or other distributions declared, made or paid by reference to a record
date prior to the date of allotment.
(f) Application will be made to the London Stock Exchange for the Ordinary
Shares allotted pursuant to any exercise of subscription rights to be
admitted to the Official List and the Company will use all reasonable
endeavors to obtain the admission thereof not later than 28 days after
the relevant subscription date. To the extent not then exercised all
subscription rights in respect of any Series of Warrants shall lapse
at 5:00 pm on the Expiry Date in respect of such Warrants.
(g) The Company shall be entitled in its absolute discretion to impose
such conditions, restrictions, limitation, prohibitions and other
requirements as it may from time to time think fit for the purpose of
complying with relevant laws of the United States and/or Canada.
2. Adjustment of Subscription Price
(a) If, on a date (or by reference to a record date) on or before the
relative Expiry Date in respect of a Warrant, the Company shall allow
any Ordinary Shares fully paid by way of capitalisation of profits or
reserves to holders of Ordinary Shares on the register on a date (or
by reference to a record date) before the relative Expiry Date or upon
any consolidation on sub-division of the Ordinary Shares before such
Expiry Date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of the subscription rights in
respect of that Warrants will be increased or, as the case may be,
reduced in due proportion and the subscription price per Ordinary
Share will be adjusted accordingly. On an such capitalisation,
consolidation or sub-division the Company will procure that the
auditors for the time being of the Company will verify the correctness
of the appropriate adjustment and, within 28 days of such adjustments,
notice will be sent to each Warrant holder of the adjusted number of
Ordinary Shares to which the Warrant holder is entitled to subscribe
in consequence thereof, fractional entitlements being ignored, such
notice being accompanied by a new Warrant certificate in respect of
such adjusted number of Ordinary Shares.
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(b) If, on a date (or by reference to a record date) on or before the
relative Expiry Date, the Company makes any offer or invitation
(whether by rights issue, rights offer or otherwise but not being an
offer to which paragraph 3(c) below applies or an offer of shares in
lieu of a cash dividend payment) to the holders of Ordinary Shares in
their capacity as such, or any offer or invitation (not being an offer
to which paragraph 3(d) below applies) is made to such holders
otherwise than by the Company, then the Company shall, as far as it is
able, procure that at the same time the same offer or invitation is
made to the then Warrant holders as if their subscription rights had
been exercisable and had been exercised on the date immediately
preceding the date (or record date) of such offer or invitation on the
terms (subject to any adjustment pursuant to paragraph 2(a) above) on
which the same could have been exercised on the basis then applicable
provided that, if the Directors shall so resolve, in the case of any
offer or invitation made by the Company, the Company shall not be
required to procure that the same offer or invitation is made to the
Warrant holders but the subscription price and/or the number of
Ordinary Shares to be subscribed on any subsequent exercise of the
subscription rights shall be adjusted accordingly. The Company will
procure that the auditors for the time being of the Company will
certify in writing the appropriateness of the adjustments and, within
28 days notice will be sent to each Warrant holder together with a new
Warrant certificate in respect of the adjusted number of Ordinary
Shares to which that Warrant holder is entitled to subscribe in
consequence thereof, fractional entitlements being ignored.
(c) No adjustment shall be made to the subscription price of a Series of
Warrants pursuant to paragraph 2(a) or (b) if such adjustment would
(taken together with the amount of any adjustment carried forward
under the provisions of this paragraph 2(c)) be less than 1 per cent
of the relative subscription price then in force and on any adjustment
the adjusted subscription price will be rounded down to the nearest
0.5p. Any adjustment not so made and any amount by which the
subscription price is rounded down will be carried forward and taken
into account in any subsequent adjustment.
3. Other provisions
So long as any subscription rights remain exercisable:
(a) the Company shall keep available for issue sufficient authorised but
unissued share capital to satisfy in full (without the need for the
passing of any resolution by shareholders) all subscription rights
remaining exercisable;
(b) the Company shall not (except with the sanction of an extraordinary
resolution of the Warrant holders) issue any Ordinary Shares credited
as fully paid by way of capitalisation of profits or reserves nor make
any such offer as is referred to in paragraph 2(b) above if as a
result the Company would on any subsequent exercise of the
subscription rights be obliged to issue Ordinary Shares at a discount;
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(c) if at any time an offer or invitation is made by the Company to the
holders of the Ordinary Shares for the purchase by the Company of any
of its Ordinary Shares, the Company shall simultaneously give notice
thereof to the Warrant holders and each Warrant holder shall be
entitled at any time while such offer or invitation is open for
acceptance to exercise his subscription rights as if they were then
exercisable so as to take effect as if he had exercised his rights
immediately prior to the date (on record date) of such offer or
invitation;
(d) if at any time an offer is made to all holders of Ordinary Shares (or
all holders of Ordinary Shares other than the offeror and/or any
company controlled by the offeror and/or persons acting in concert
with the offeror) to acquire the whole or any part of the issued share
capital of the Company and the Company becomes aware that as a result
of such offer the right to cast a majority of the votes which may
ordinarily be cast on a poll at a general meeting of the Company has
or will become vested in the offeror and/or such persons or companies
as aforesaid, the Company shall give notice to the Warrant holders of
such vesting within 14 days of its becoming so aware, and each such
Warrant holder shall be entitled, at any time within the period of 60
days immediately following the date of such notice, to exercise his
subscription rights as if they were exercisable on the last day of the
said 60 day period on the basis (subject to any adjustment pursuant to
paragraph 2 above) then applicable. Upon the expiry of such period,
all Warrants shall lapse. Publication of a scheme of arrangement under
the Companies Act 1985 (as from time to time amended or re-enacted)
providing for the acquisition by any person of the whole or any part
of the issued share capital of the Company shall be deemed to be the
making of an offer for the purposes of this paragraph 3(d);
(c) if the Company commences liquidation, whether voluntary or compulsory
(except for the purpose of reconstruction, amalgamation or unitisation
on terms sanctioned by an extraordinary resolution of the holders of
the Warrants), it shall forthwith give notice thereof to all holders
of Warrants; thereupon each holder of a Warrant will (if in such
winding-up there shall be a surplus available for distribution amongst
the holders of the Ordinary Shares (including for this purpose the
Ordinary Shares which would arise on the exercise of all the
outstanding subscription rights) which taking into account the amounts
payable on the exercise of the subscription rights, exceeds in respect
of each Ordinary Share a sum equal to the subscription price) be
treated as if immediately before the date of such order or resolution
his subscription rights had been exercisable and had been exercised in
full and shall accordingly be entitled to receive out of the assets
available on liquidation pari passu with the holders of the Ordinary
Shares such a sum as he would have received had he been the holder of
the Ordinary Shares to which he would have become entitled by virtue
of such subscription after deducting a sum per share equal to the
subscription price; subject to the foregoing, all subscription rights
shall lapse on liquidation of the Company; and
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(f) the Company shall not (except with the sanction of an extraordinary
resolution of the Warrant holders) make any allotment of fully paid
Ordinary Shares by way of capitalisation of profits or reserves unless
at the date of such allotment the Directors have authority to grant
the additional rights to subscribe to which the Warrant holders will
by virtue of paragraph 2(a) above be entitled in consequence of such
capitalisation.
4. Modification of Rights and Warrant Instrument
All or any of the rights for the time being attached to the Warrants may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the sanction of an extraordinary resolution of the
holders of the Warrants. Such alteration or abrogation approved as
aforesaid shall be effected by deed poll executed by the Company and
expressed to be supplemental to this Warrant Instrument. Modifications to
this Warrant Instrument which are of a formal, minor or technical nature,
or made to correct a manifest error, or any modifications which the
Directors consider appropriate may be effected by deed poll executed by the
Company and expressed to be supplemental to this Warrant Instrument and
notice of such alteration or abrogation or modification shall be given by
the Company to the Warrant holders.
5. Purchase by the Company
The Company shall be entitled at any time to purchase Warrants. Any
Warrants so purchased shall be cancelled and shall not be available for
re-issue.
6. Transfer
Each Warrant will be registered and transferable by instrument of transfer
to any usual or common form or in any other form which may be approved by
the Directors except that no transfer of a right to subscribe for a
fraction of an Ordinary Share shall be effected. Save insofar as the same
would be inconsistent with this Warrant Instrument, the provisions of the
Articles of Association of the Company relating to the registration
transfer and transmission of shares shall apply mutatis mutandis to the
Warrants.
7. Indemnification of Warrant Agent
(a) The Warrant Agent shall act as agent of the Company. The Warrant Agent
shall not, by issuing and delivering Warrant Certificates or by any
other act be deemed to make any representations as to the validity or
value of the Warrant Certificates or the Warrants represented thereby
or of the Ordinary Shares or other property delivered on exercise on
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 Subscription Price or to
determine whether any fact exists which may require any such
adjustments.
(b) The Warrant Agent shall not (i) be liable for any statement or fact
contained in this instrument or for any action taken or omitted b it
in reliance on any
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Warrant Certificate or other document or instrument believed by it in
good faith to be valid and to have been signed or presented by the
proper party or parties, (ii) be responsible for any failure on the
part of the Company to comply with any of its covenants and
obligations contained in this instrument or in the Warrant
Certificates, or (iii) be liable for any act or omission in connection
with this Agreement except for its own negligence or wilful
misconduct.
(c) The Warrant Agent may at any time seek legal advice of any solicitors
(who may be solicitors to 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, instrument, request,
direction, order or demand.
(d) Any notice, statement, instruction, request, direction, order or
demand of the Company shall be sufficiently evidenced by an instrument
signed by any Director or its 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.
(e) 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 fees, for any action taken or omitted
by the Warrant Agent in the execution of its duties and powers
excepting losses, expenses and liabilities arising as a result of the
Warrant Agent's negligence or wilful misconduct.
8. General
(a) The Company will concurrently with the issue of the same to holders of
Ordinary Shares send to each holder of a Warrant (or, in the case of
joint holders, to the first named) a copy of each published annual
report and accounts of the Company and unaudited interim report of the
Company together with all documents required by law to be annexed
thereto, and copies of every statement, notice or circular issued to
holders of Ordinary Shares.
(b) For the purposes of this Warrant Instrument, "business day" means a
day (excluding Saturdays and public holidays) on which banks in
England are open for business and "extraordinary resolution" means a
resolution proposed at a meeting of the Warrant holders duly convened
and held and passed by a majority consisting of not less than three-
fourths of the votes cast, whether on a show of hands or on a poll.
All the provisions of the Articles of Association for the time being
of the Company as to General Meetings shall apply mutatis mutandis as
though the warrants formed one class of Ordinary Shares forming part
of the capital of the Company but so that (i) the period of notice
shall be 21 days at least, (ii) the necessary quorum shall be Warrant
holders (present in person or by proxy) entitled to subscribe for one-
third in nominal amount of the Ordinary Shares attributable to the
then outstanding Warrants, (iii) every Warrant holder
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present in person at any such meeting shall be entitled on a show of
hands to one vote and every Warrant holder present in person or by
proxy shall be entitled on a poll to one vote for every Ordinary Share
for which he is entitled to subscribe, (iv) any Warrant holder present
in person or by proxy may demand or join in demanding a poll, and (v)
if at any adjourned meeting a quorum as defined above is not present,
a Warrant holder who is then present in person or by proxy shall be a
quorum.
(c) The invalidity of any undertaking, or any part of any undertaking, in
paragraph 3 shall not affect the validity of any other part of that
paragraph. If any event occurs which, but for any rule of law, would
be a breach of paragraph 3, the Company shall pay to the Warrant
holders such sum as the auditors of the Company shall determine to be
equal to the loss in value of the Warrants resulting from such event.
(d) Any determination or adjustment made pursuant to these terms and
conditions by the auditors of the Company shall be made by them as
experts and not arbitrators and shall be final and binding on the
Company and all Warrant holders.
8. Governing law
The above terms and conditions shall be construed in accordance with and be
governed by the laws of England.
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