EXHIBIT 3.4
DATED 1997
--------------------------------------------------------
ALLIANCE RESOURCES PLC
_____________________________________
WARRANT INSTRUMENT
relating to the issue of Warrants entitling
the Warrantholder to subscribe for
Ordinary Shares of 40p each in
Alliance Resources PLC
_____________________________________
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 2,026,468 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 (other than the Series "G" 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 (the "Listing
Particulars").
(3) The Series "G" Warrants have been created in connection with the ORRI
Acquisition (as defined in the Listing Particulars").
(4) 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) 96,729 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 16 November 1997;
(b) 68,785 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 25 January 1998;
(c) 343,924 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 31 March 2001;
(d) 30,953 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 31 October 2001; and
(e) 275,139 Series "F" 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 16 December 2002;
(f) 1,210,938 Series "G" Warrants entitling the holders to subscribe for
Ordinary Share at a fixed price of (Pounds)1 (subject to the
provisions of the Schedule hereto) at any prior to the tenth
anniversary of the date of issue,
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 or in connection with the ORRI Acquisition to issue up to
96,729 Series "B" Warrants, 68,785 Series "C" Warrants, 343,924 Series "D"
Warrants, 30,953 Series "E" Warrants, 275,139 Series "F" Warrants and
1,210,938 Series "G" 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
-2-
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.
-3-
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
-4-
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 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 14 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 despatched (at the risk of
the persons entitled thereto) not later than 14 days after the
relevant subscription date to the first named person in whose name the
Warrants are registered at the relevant subscription date or (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.
(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
-5-
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 falling 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
endeavours 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 5.00pm on the Expiry Date in respect of such Warrants.
(g) The Company shall be entitled to impose such conditions and
restrictions on transfer as it may from time to time determine are
reasonably necessary for the purpose of complying with relevant
securities laws of the United States.
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 allot
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 or 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 Warrant 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 any 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 adjustments 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.
(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
-6-
subscription rights had been exercisable and had been exercised on the
day 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 of each Series) 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;
(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 such 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 (or 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
-7-
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);
(e) 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
(f) the Company shall not (except with the sanction of an extraordinary
resolution of the Warrant holders of each series) 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 of each Series affected by such alteration or
abrogation. Such alteration or abrogation approved as aforesaid shall be
effected by deed poll executed by the Company and expressed to be
supplemental to this
-8-
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 on the open
market or otherwise. Any Warrants so purchased shall be cancelled
immediately and shall not be available for re-issue.
6. TRANSFER
6.1 The Warrants will be registered and transferable in whole or in part by
instrument of transfer in 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.
6.2 Notwithstanding any other provision contained herein, for so long as any
Regulated Entity, holds any Series "G" Warrants which, upon exercise, would
result in such Regulated Entity holding more than 5% of the outstanding
Ordinary Shares, such Regulated Entity may only transfer the Series "G"
Warrants under the following circumstances; (i) in a widely distributed
public offering; (ii) in a transfer pursuant to Rule 144 under the United
States of America ("U.S.") Securities Act of 1933, as amended, or any
similar rule then in force; (iii) in a transfer where the Ordinary Shares
underlying the Warrants being transferred represent two per cent or less of
the outstanding Ordinary Shares (not including the transfer from the
Regulated Entity); (v) in a transfer to the Company; (vi) in a transfer to
an affiliate or such holder or any other Regulated Entity; or (vii) in any
method of transfer permitted by the Board of Governors of the Federal
Reserve System of the U.S.
Once such Regulated Entity holds Warrants and Ordinary Shares which, after
exercise of the Warrants, would constitute 5.0% or less of the outstanding
Ordinary Shares, the foregoing restrictions on transfer shall cease to
apply.
"Regulated Entity" means (i) any entity that is a "bank holding company"
(as defined in Section 2(a) of the U.S. Bank Holding Company Act of 1956,
as amended, (the "BHC Act")) or any non-bank subsidiary of such an entity
or (ii) any entity that, pursuant to Section 8(a) of the U.S. International
Banking Act of 1978, as amended, is subject to the provisions of the BHC
Act or any non-bnak subsidiary of such an entity.
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
-9-
the Warrants represented thereby or of the Ordinary 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
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 by it
in reliance on any 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 an "extraordinary resolution" of a
series of warrantholders means a resolution proposed at a meeting of
the Warrant holders in question duly convened and held and passed by a
majority consisting of not less than three-fourths of the votes cast,
-10-
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 each series of
the Warrants formed a separate 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 of the relevant series (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 of that series,
(iii) every Warrant holder 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 such 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.
9. GOVERNING LAW
The above terms and conditions shall be construed in accordance with and be
governed by the laws of England.
-11-