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Exhibit 4.5
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS SPECIFIED IN SECTION 15 HEREOF. NEITHER THE RIGHTS REPRESENTED BY THIS
WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE THEREOF HAVE BEEN
REGISTERED FOR OFFER OR SALE UNDER THE SECURITIES ACT OF 1933. SUCH RIGHTS
AND SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN PART EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 15 HEREOF.
BANGOR HYDRO-ELECTRIC COMPANY
Warrant to Purchase Common Stock
BANGOR HYDRO-ELECTRIC COMPANY, a Maine corporation (the "Company"), hereby
certifies that, for value received, PERC Management Company Limited Partnership,
a Maine limited partnership, is entitled, subject to the terms set forth below,
to purchase from the Company upon surrender of this Warrant, at any time or
times on or after June 26, 1998 but not after 4:00 P.M., Eastern Prevailing
Time, on the Expiration Date, June 26, 2008, seven hundred twelve thousand eight
hundred and fifty-seven (712,857) fully paid nonassessable shares (the "Warrant
Shares") of Common Stock, $5.00 par value, of the Company (as adjusted from time
to time as provided in this Warrant) at an initial purchase price of $7.00 per
share in lawful money of the United States.
DEFINITIONS
SECTION 1. (a) Definitions. The following words and terms as used in this
Warrant shall have the following meanings:
"Affiliate" shall mean, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.
"Business Day" shall mean, except as otherwise provided in the definition
of "Market Price", a day other than a Saturday, a Sunday or a day on which
banking institutions in Maine are authorized or obligated by law or required by
executive order to be closed.
"Change of Control" shall mean (i) any merger, consolidation, arrangement
or reorganization of the Company with any Person whereby, after such
transaction, holders of Shares of Common Stock prior to the transaction, do not
continue to own, directly or indirectly, at least a majority, determined on a
fully-diluted basis, of the shares of the Voting Stock of the Company or the
surviving or resulting corporation, or (ii) any sale, lease or exchange of 50%
or more of the assets of the Company and its Subsidiaries, taken as a whole, to
any Person.
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"Commission" shall mean the United States Securities and Exchange
Commission or the principal United States agency administering the United States
securities laws.
"Common Stock" shall mean with reference to the Common Stock for which
Warrants are exercisable, only Common Stock of the class existing on the date
hereof and any stock into which such Common Stock may thereafter have been
changed, and, when otherwise used herein, shall include also stock of the
Company of any other class, whether now or hereafter authorized, which ranks, or
is entitled to a participation, as to assets or dividends, substantially on a
parity with such existing Common Stock or other class of stock into which such
Common Stock have been changed.
"Convertible Securities" shall mean any securities issued by the Company
that are convertible into or exchangeable for, directly or indirectly, shares of
Common Stock.
"Expiration Date" shall mean June 26, 2008.
"Holder" shall mean the Person in whose name the Warrant set forth herein
is registered on the books of the Company maintained for such purpose.
"Majority Holders" shall mean the holders of Warrants exercisable for 50%
or more of the aggregate number of shares of Common Stock then purchasable upon
exercise of all Warrants.
"Market Price" shall mean (a) the higher of (i) the highest closing sale
price of the Common Stock on any domestic exchange on which the Common Stock may
be listed for the Business Day immediately preceding, or the last Business Day
that the Common Stock traded on such exchange prior to, the date as to which
"Market Price" is being determined and (ii) the average of the closing prices of
the Common Stock sales on all domestic exchanges on which the Common Stock may
at the time be listed or, if there shall have been no sales on any such exchange
on any day, the average of the reported bid prices on all such exchanges at the
end of such day or, if on any day the Common Stock shall not be so listed, the
average of the representative bid prices quoted in the NASDAQ as of 3:30 P.M.,
New York prevailing time, or if on any day the Common Stock shall not be quoted
in the NASDAQ, the average of the high and low bid prices on such day in the
domestic over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of 10 consecutive Business Days (or other such period as shall be
specified herein) prior to the date as of which "Market Price" is being
determined; provided, however, that if the Common Stock is listed on any
domestic exchange or the NASDAQ the term "Business Day" as used in this
definition shall mean any day on which such exchange or the NASDAQ is open for
trading or (b) in the event the Common Stock is not Publicly Traded, the fair
market value of the Common Stock as determined in good faith by the Board of
Directors of the Company; provided, however, that such determination may be
challenged by any Holders and any dispute arising therefrom shall be resolved by
an investment bank of recognized standing selected by the Company and reasonably
satisfactory to such Holders whose
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determination of the fair market value of the Common Stock shall be final and
binding on the parties; and the fees and expenses incurred by such investment
bank in connection with its determination shall, in the case it determines that
the fair market value of the Common Stock is (i) 90% or more of such
determination of the Board of Directors, be borne by such Holders, and (ii) less
than 90% of such determination of the Board of Directors, be borne by the
Company.
"Person" shall mean an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"Public Offering" shall mean a firm underwritten offering of Common Stock
registered under the Securities Act of 1933 on Form S-1, S-2 or S-3 (or any
successor form) and offered generally to the public.
"Publicly Traded" shall mean, with respect to any securities, listed on a
nationally recognized U.S. securities exchange or admitted for trading on the
NASDAQ.
"Rule 144" shall mean the rule of such number promulgated by the
Commission under the Securities Act and any successor rule thereto.
"Voting Stock" shall mean, as applied to the stock (or the equivalent
thereof) of any Person, stock (or such equivalent) of any class or classes,
however designated, having ordinary voting power for the election of at least a
majority of the board of directors (or other governing body) of such Person,
other than stock (or such equivalent) having such power only by reason of the
happening of a contingency.
"Warrant Exercise Price" shall mean initially $7.00 per share and shall be
adjusted and readjusted from time to time as provided in this Warrant.
"Warrants" shall mean collectively the rights granted by this Warrant and
the rights granted by Warrants issued on June 26, 1998 to Municipal Review
Committee, Inc. and Energy National Inc.
(b) Other Definitional Provisions. (i) Except as otherwise specified
herein, all references herein (A) to any Person other than the Company shall be
deemed to include such Person's successors and assigns, (B) to the Company shall
be deemed to include the Company's successors and (C) to any applicable law
defined or referred to herein shall be deemed references to such applicable law
as the same may have been or may be amended or supplemented from time to time.
(ii) When used in this Warrant, the words "herein", "hereof" and
"hereunder", and words of similar import, shall refer to this Warrant as a whole
and not to any provision of this Warrant, and the words "Section", "Schedule"
and "Exhibit" shall refer to Sections of, and Schedules and Exhibits to, this
Warrant unless otherwise specified.
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(iii) Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
SECTION 2. Exercise of Warrant. Subject to the terms and conditions
hereof, this Warrant may be exercised, in whole or in part, at any time during
normal business hours on or after the opening of business on June 26, 1998 and
prior to 4:00 P.M., Eastern Prevailing Time, on the Expiration Date. The rights
represented by this Warrant may be exercised by the Holder, in whole or in part
(except that this Warrant shall not be exercisable as to a fractional share), by
(i) delivery of a written notice, in the form of the Subscription Notice
attached as Exhibit A, of the Holder's election to exercise this Warrant, which
notice shall specify the number of Warrant Shares to be purchased, (ii) payment
to the Company of an amount equal to the Warrant Exercise Price multiplied by
the number of Warrant Shares as to which the Warrant is being exercised in cash
or by certified or official bank check, for the number of Warrant Shares as to
which this Warrant shall have been exercised, (iii) the surrender of this
Warrant, properly endorsed, at the principal office of the Company at 33 State
Street, Bangor, Maine (or at such other agency or office of the Company as the
Company may designate by notice to the Holder) and (iv) if the Warrant Shares
issuable upon the exercise of the rights represented by this Warrant have not
been registered under the Securities Act, delivery to the Company by the Holder
of a letter in the form of Exhibit B hereto [unless in the opinion of counsel to
the Holder reasonably acceptable to the Company (delivered to the Company)
delivery of such letter is not required]. If such Warrant Shares are to be
issued in any name other than that of the Holder or its nominee, such issuance
shall be deemed a transfer and the provisions of Section 15 shall be applicable.
In the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the Warrant Shares so purchased, registered in
the name of, or as directed by, the Holder, shall be delivered to, or as
directed by, Holder within a reasonable time, not exceeding five days, after
such rights shall have been so exercised. Unless the rights represented by this
Warrant shall have expired or have been fully exercised, the Company shall issue
a new Warrant identical in all respects to the Warrant exercised except (A) it
shall represent rights to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under the Warrant exercised, less the number
of Warrant Shares with respect to which such Warrant was exercised and (B) the
Warrant Exercise Price thereof shall be the Warrant Exercise Price of the
Warrant exercised. The Person in whose name any certificate for Warrant Shares
is issued upon exercise of this Warrant shall for all purposes be deemed to have
become the holder of record of such Warrant Shares immediately prior to the
close of business on the date on which the Warrant was surrendered and payment
of the amount due in respect of such exercise was made, irrespective of the date
of delivery of such share certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company are
properly closed, such Person shall be deemed to have become the holder of such
Warrant Shares at the opening of business on the next succeeding date on which
the stock transfer books are open.
SECTION 3. Covenants as to Common Stock. The Company covenants and agrees
that all Warrant Shares that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable. The Company further
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covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights then represented by this Warrant and that the par value
of said shares will at all times be less than the applicable Warrant Exercise
Price.
SECTION 4. Adjustment of Warrant Exercise Price and Adjustment of Number
of Shares. The number of shares and Warrant Exercise Price of Common Stock
issuable upon exercise of this Warrant shall be subject to adjustment on a
weighted average basis to prevent dilution, (a) in the event that the Company
issues additional Common Stock at less than the Market Price as of the date of
issue (other than pursuant to this Warrant), or rights, warrants, or options to
acquire Common Stock at less than the Market Price as of the date of issue
(other than shares reserved for issuance to employees or directors); (b) in the
event that the Company issues securities convertible into or exchangeable for
Common Stock at less than the equivalent Market Price of the Common Stock as of
the date of issue; (c) in the event that the Company declares any cash
distributions other than from current earnings; or (d) upon stock splits, stock
dividends, divisions, combinations, reorganizations, reclassifications, or any
other event which is similar in effect to any of the events described in
subsections (a) through (d) hereof.
SECTION 5. Reorganizations. (a) Reorganization or Reclassification. In
case of any capital reorganization or of any reclassification of the Capital
Stock of the Company (other than a change in par value or from par value to no
par value or from no par value to par value), this Warrant shall, upon such
capital reorganization or reclassification, entitle the Holder to purchase the
kind and number of shares of stock or other securities or cash, assets or other
property of the Company to which the Holder would have been entitled if the
holder had held the Common Stock issuable upon the exercise hereof immediately
prior to such capital reorganization or reclassification.
(b) Change of Control. In case of any Change of Control, this Warrant
shall entitle the holder, immediately and at all times thereafter until the
Expiration Date, to exercise this Warrant and to receive the kind and number of
shares of stock or other securities or cash, assets or other property of the
Person resulting from or surviving such Change of Control to which the holder
would have been entitled if the holder had held the Common Stock issuable upon
the exercise hereof immediately prior to such Change of Control. The Company
shall not effect any such Change of Control unless, prior to or simultaneously
with the consummation thereof, the successor Person (if other than the Company)
resulting from such Change of Control or the corporation purchasing such assets
shall assume by written instrument executed and mailed or delivered to the
holder the obligation to deliver to the holder such shares of stock, securities,
cash, assets or other property as, in accordance with the foregoing provisions,
such Holder may be entitled to receive upon the exercise of this Warrant.
(c) Applicable Provisions. In case of either paragraph (a) or (b) of this
Section 5, appropriate provision shall be made with respect to the rights and
interests of the holder to the end that the provisions hereof (including without
limitation provisions for adjustment of the
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Warrant Exercise Price and of the number of shares purchasable upon the exercise
of this Warrant) shall thereafter be applicable, as nearly as may be in relation
to any shares of stock, securities or assets thereafter deliverable upon the
exercise of the rights represented hereby.
SECTION 6. Notice of Warrant Exercise Price. The Company shall annually
give a notice to the Holder, which notice shall state the Warrant Exercise Price
in effect and the increase or decrease, if any, in the number of shares
purchasable at the Warrant Exercise Price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
SECTION 7. Computation of Adjustments. Upon each computation of an
adjustment to the Warrant Exercise Price and the number of shares that may be
subscribed for and purchased upon exercise of this Warrant, the Warrant Exercise
Price shall be computed to the nearest cent (i.e., fractions of 0.5 of a cent or
greater, shall be rounded to the next highest cent) and the number of shares
that may be subscribed for and purchased upon exercise of this Warrant shall be
calculated to the nearest whole share (i.e., fractions of less than one half of
a share shall be disregarded and fractions of one half of a share or greater
shall be treated as being a whole share). No such adjustment shall be made,
however, if the change in the Warrant Exercise Price would be less than $0.01
per share, but any such lesser adjustment shall be made (i) at the time and
together with the next subsequent adjustment which, together with any
adjustments carried forward, shall amount to $0.01 per share or more, or (ii) if
earlier, upon the third anniversary of the event for which such adjustment is
required.
SECTION 8. Notice of Certain Events. In case at any time:
(a) the Company shall make any distribution in respect of its Common Stock
(other than the payment of a cash dividend from current earnings);
(b) the Company shall propose to register any of its Common Stock under
the Securities Act in connection with a public offering of such Common Stock
(other than with respect to a registration statement filed on Form S-8 or other
such similar form then in effect under the Securities Act);
(c) the Company shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other rights;
(d) there shall be any capital reorganization, or reclassification of the
capital stock, of the Company, or Change of Control; or
(e) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, in any one or more of said cases, the Company shall give notice to the
Holder of the date on which (i) the books of the Company shall close or a record
shall be taken for such distribution or
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subscription rights or (ii) such reorganization, reclassification, Change of
Control, dissolution, liquidation or winding up shall take place, as the case
may be. Such notice shall be given not less than twenty-one (21) days prior to
the record date or the date on which the transfer books of the Company are to be
closed in respect thereto in the case of an action specified in clause (i) and
at least forty-five (45) days prior to the action in question in the case of an
action specified in clause (ii).
SECTION 9. No Change in Warrant Terms on Adjustment. Irrespective of any
adjustment in the Warrant Exercise Price or the number of shares of Common Stock
issuable upon exercise hereof, this Warrant, whether theretofore or thereafter
issued or reissued, may continue to express the same price and number of shares
as are stated herein and the Warrant Exercise Price and such number of shares
specified herein shall be deemed to have been so adjusted.
SECTION 10. Limitation on Right to Exercise Warrants. Notwithstanding the
rights to exercise the Warrant granted herein, other than as provided in Section
5, the Holder may exercise this Warrant only to the following extent: (a) 25% of
the Warrants initially granted hereunder may be exercised on or after March 26,
1999; (b) 50% of the Warrants initially granted hereunder may be exercised on or
after March 26, 2000; (c) 75% of the Warrants initially granted hereunder may be
exercised on or after March 26, 2001; (d) 100% of the Warrants initially granted
hereunder may be exercised on or after March 26, 2002.
SECTION 11. Registration Rights. (a) Required Registration. Upon written
request by Majority Holders, the Company shall use its best efforts to register
and to maintain in effect for a period of one year, pursuant to the Securities
Act of 1933, the Common Stock for which Warrants are exercisable or have been
exercised. The Company's Board of Directors may, upon determining that there is
a valid business reason for doing so, delay filing a Registration Statement for
up to 120 days after receipt of the written request. Upon receipt of such
written request, the Company shall notify all holders of Warrants that such a
request has been made and shall provide all holders reasonable opportunity to
include Common Stock in the registration. If on the date of such written request
the Company has filed or notifies the Majority Holders it intends to file a
Registration Statement pursuant to the Securities Act of 1933 within 120 days,
the requirements of this subsection will be met by the inclusion of Common Stock
within the Registration Statement filed or to be filed. Upon filing a
Registration Statement pursuant to this subsection, the Company shall have no
obligation to file additional Registration Statements at the request of Majority
Holders for a period of one year.
(b) Incidental Registration. If the Company proposes to register any of
its common stock pursuant to the Securities Act of 1933 in connection with a
public distribution of that stock, other than pursuant to a merger or
acquisition for stock or pursuant to an employee benefits, option or
compensation plan (unless such plans in the aggregate provide for the issuance
of more than 10% of the Company's then outstanding common stock), it shall give
notice to all holders of Warrants and give them reasonable opportunity to
participate in the registration.
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(c) Tag-Along Rights. If the Company shall propose to issue and if any
single entity shall propose to acquire securities of the Company having voting
power equal to or more than the voting power of the then outstanding shares of
the Company, the Company may not accept the offer of such entity unless such
entity shall simultaneously make an offer to purchase this warrant, or all of
the shares underlying this warrant and all other warrants of this class of
warrant, or all of the shares underlying such warrants, which is accepted by at
least one of the holders of this class of warrants. Such purchase must be
simultaneous with the purchase of the securities to be issued by the Company to
such entity.
(d) Costs of Registration. All costs of registration shall be paid by the
Company.
SECTION 12. Options at the Time of Exercise. (a) Company's Option to Pay
Cash in Lieu of Issuing Common Stock. Upon the exercise of this Warrant, the
Company may elect, at its option, to give the Holder immediate notice and to pay
the Holder within ten (10) business days a sum of cash in lieu of Issuing Common
Stock as provided in Section 2. The amount of cash payable pursuant to this
subsection shall be calculated by subtracting the Warrant Exercise Price from
the Market Price on the date of exercise and multiplying the result by the
number of shares of Common Stock as to which exercise is being made. At the time
of making any payment pursuant to this Section, the Company shall repay to the
Holder any amounts paid in connection with the exercise of the Warrant pursuant
to Section 2. The Company may exercise this option only if in doing so it does
not violate any material covenants contained in any of its financing agreements
that have not been waived.
(b) Cashless Exercise. At the time of exercise of this Warrant, the Holder
may elect to exercise the option provided in this subsection in lieu of making
the cash payment required by Section 2. Upon written notice of its desire to
exercise this option given at the same time and in the same manner as the notice
specified in Section 2, the Holder shall be entitled to the issuance of Warrant
Shares (in lieu of the Warrant Shares otherwise issuable pursuant to Section 2),
the number of which shall be calculated as follows: the product of (x) the
number of shares as to which the Warrant is being exercised and (y) a fraction,
the numerator of which is the Market Price of the Common Stock minus the Warrant
Exercise Price and the denominator of which is the Market Price of the Common
Stock.
SECTION 13. Warrant Holder Not Deemed a Shareholder. Except as provided in
Section 8, no Holder, as such, shall be entitled to vote or receive dividends or
be deemed the holder of shares of the Company for any purpose, nor shall
anything contained in this Warrant be construed to confer upon the Holder, as
such, any of the rights of a shareholder of the Company or any right to vote,
give or withhold consent to any corporate action (whether any reorganization,
issue or reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance of record to the Holder of the
Warrant Shares which it is then entitled to receive upon the due exercise of
this Warrant.
SECTION 14. No Limitation on Corporate Action; No Avoidance of Terms.
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(a) No provisions of this Warrant and no right or option granted or
conferred hereunder shall in any way limit, affect or abridge the exercise by
the Company of any of its corporate rights or powers to recapitalize, amend its
charter, reorganize, consolidate or merge with or into another corporation, or
to transfer all or any part of its property or assets, or the exercise of any
other of its corporate rights and powers.
(b) The Company shall not by any action, including, without limitation,
amending its articles of incorporation or through any reorganization, transfer
of assets, consolidation, merger or arrangement, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of the
Holder against impairment. Without limiting the generality of the foregoing, the
Company will take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant.
SECTION 15. Transfer; Opinions of Counsel; Restrictive Legends.
(a) Prior to any sale, transfer or other disposition of this Warrant or
the Warrant Shares, the Holder thereof will give seven (7) days' notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer and shall be
accompanied by an opinion of counsel for the Holder reasonably satisfactory to
the Company, addressed to the Company and reasonably satisfactory in form and
substance to it stating that, in the opinion of such counsel, such transfer is a
transaction exempt from registration under the Securities Act.
(b) If such sale, transfer or other disposition may, in the opinion of
such counsel, be effected without registration under the Securities Act, the
holder shall thereupon be entitled to transfer this Warrant and the Warrant
Shares in accordance with the terms of the notice delivered by the Holder to the
Company. If, in the opinion of such counsel, such transfer may not be effected
without registration under the Securities Act, the Holder shall not be entitled
to so transfer this Warrant or the Warrant Shares unless (i) the Company elects
to file a registration statement relating to such proposed transfer and such
registration statement has become effective under the Securities Act or (ii) the
provisions of Section 11 apply.
(c) Notwithstanding the provisions of this Section 15, the Holder may at
any time transfer this Warrant or the Warrant Shares to an Affiliate or an
Associate (as such term is defined in Section 12b-2 of the Securities Exchange
Act of 1934, as amended) of the Holder.
(d)(i) Except as otherwise provided in this Section 15, each certificate
for Warrant Shares initially issued upon the exercise of this Warrant, and each
certificate for Warrant Shares issued to any subsequent transferee of any such
certificate, shall be stamped or otherwise imprinted with a legend stating that
the shares represented by such certificate have not been
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registered under the Securities Act of 1933 and may not be transferred except in
accordance with the provisions of the Securities Act of 1933 and Section 15 of
this Warrant.
(ii) Except as otherwise provided in this Section 15, each Warrant shall
be stamped or otherwise imprinted with a legend stating that neither the rights
represented by the Warrant nor the shares issuable upon the exercise thereof
have been registered under the Securities Act of 1933 and that such rights and
shares may not be transferred except in accordance with the provisions of the
Securities Act of 1933 and Section 15 of this Warrant.
(e) Termination of Restrictions. The restrictions imposed by Section 15(a)
and the legend requirements of Section 15(d) shall terminate as to any
particular Warrant or Warrant Share (i) when and so long as such security shall
have been effectively registered under the Securities Act of 1933 and disposed
of in a public sale or distribution pursuant thereto, (ii) when such security
shall have been disposed of in accordance with Rule 144 or (iii) when the
Company shall have received opinions of counsel reasonably satisfactory to it,
which opinions shall be satisfactory in substance and form to the Company, to
the effect that such restrictions on transfer pursuant to the Securities Act of
1933 no longer apply. Whenever said restrictions and legend requirements shall
terminate as to this Warrant, as hereinabove provided, the Holder shall be
entitled to receive from the Company, at the expense of the Company, a new
Warrant bearing a legend in place of the restrictive legend described in Section
15(d) stating that the restrictions on transferability of the Warrant have been
terminated. Whenever the restrictions imposed by this Section 15 shall terminate
as to any Warrant Share, as hereinabove provided, the holder thereof shall be
entitled to receive from the Company, at the Company's expense, a new
certificate representing such Common Stock not bearing the restrictive legend
described in Section 15(d).
SECTION 16. Exchange of Warrant. This Warrant is exchangeable upon the
surrender hereof by the Holder at the office or agency of the Company, for new
Warrants of like tenor representing in the aggregate the right to subscribe for
and purchase the number of shares which may be subscribed for and purchased
hereunder from time to time after giving effect to all the provisions hereof,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares as shall be designated by the Holder hereof at the time of
such surrender.
SECTION 17. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant
is lost, stolen, mutilated or destroyed, the Company shall, upon receipt by it
of indemnity satisfactory to it, issue a new Warrant of like denomination and
tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new
Warrant shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall
be at any time enforceable by anyone.
SECTION 18. Division and Combination. Subject to Section 15, this Warrant
may be divided or combined with other Warrants upon presentation hereof at the
office or agency of the Company, together with a written notice specifying the
names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance
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with Section 15, as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. The Company shall prepare, issue and deliver at its own
expense the new Warrant or Warrants under each of Section 15 and this Section
18.
SECTION 19. Maintenance of Books. The Company agrees to maintain, at its
office or agency, books for the registration and the registration of transfer of
the Warrants.
SECTION 20. [Intentionally Omitted.]
SECTION 21. Notice. All notices and other communications under this
Warrant shall (a) be in writing, (b) be (i) sent by registered or certified
mail, postage prepaid, return receipt requested or (ii) delivered by hand, (c)
be given at the following respective addresses and to the attention of the
following Persons:
(i) if to the Company, to it at:
Bangor Hydro-Electric Company
33 State Street
P.O. Box 932
Bangor, Maine 04402-0932
Attention: President
(ii) if to the initial Holder, to it at:
PERC Management Company Limited Partnership
c/o KTI, Inc.
7000 Boulevard East
Guttenberg, NJ 07093
Attention: President
or to such other address or to the attention of such other person as the party
to whom such information pertains may hereafter specify for the purpose in a
notice to the other specifically captioned "Notice of Change of Address" and (d)
be effective or deeded delivered or furnished (i) if given by mail, on the fifth
Business Day after such communication is deposited in the mail, addressed as
above provided and (ii) if given by hand delivery, when left with an employee of
the addressee at the address of the addressee addressed as above provided,
except that notices of a change of address shall not be deemed furnished until
received.
SECTION 22. Miscellaneous. This Warrant and any term hereof may not be
changed, waived, discharged, or terminated except by an instrument in writing
signed by the party or
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holder hereof against which enforcement of such change, waiver, discharge or
termination is sought. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 23. Date. The date of this Warrant is June 26, 1998. This Warrant,
in all events, shall be wholly void and of no effect after the close of business
on the Expiration Date, except that notwithstanding any other provisions hereof,
the provisions of Sections 11 and 15 shall continue in full force and effect
after such date as to any Warrant Shares or other securities issued upon the
exercise of this Warrant.
SECTION 24. Governing Law. This Warrant shall be construed in accordance
with and governed by the laws of the State of Maine, excluding those applicable
to choice of law.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officers as of this June 26, 1998.
BANGOR HYDRO-ELECTRIC COMPANY
By: /s/ Frederick S. Samp
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Its: Vice President - Finance & Law
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Exhibit A
to Warrant
SUBSCRIPTION NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO EXERCISE THIS WARRANT
BANGOR HYDRO-ELECTRIC COMPANY
The undersigned hereby exercises the right to purchase Warrant Shares
covered by this Warrant according to the conditions thereof and herewith makes
payment of $____________, the aggregate Warrant Exercise Price of such Warrant
Shares, in full.
[NAME OF HOLDER]
By:
Title:
Number of
Warrant Shares Being
Purchased
Dated:__________________________, 19[20]
14
Exhibit B
to Warrant
Attention:
Re: Exercise of Warrant, dated
Dear Sirs:
In connection with the undersigned's purchase of Common Stock of Bangor
Hydro-Electric Company upon exercise of a warrant therefor, the undersigned
confirms and agrees as follows:
1. As the purchaser of the shares of Common Stock in a private
placement not registered under the Securities Act of 1933, as amended (the
"Act"), the undersigned is purchasing such shares for its own account for
investment and (subject to the disposition of its property being at all
times within its control) not with a view to any resale, distribution or
other disposition thereof, and the undersigned is proceeding on the
assumption that it must bear the economic risk of the investment for an
indefinite period, since the shares of Common Stock may not be sold except
as provided in paragraph 2 below.
2. The undersigned agrees that, if in the future the undersigned
should decide to dispose of the shares of Common Stock (such disposition
not being presently foreseen or contemplated), the undersigned will not
offer, sell, transfer or exchange such shares of Common Stock, except
under conditions that would not violated the Act or any applicable
securities laws.
3. The undersigned is purchasing the shares of Common Stock pursuant
to an exemption from the registration requirements of the Act and from
registration or qualification requirements under applicable state
securities laws.
If administrative or legal proceedings are commenced or threatened in
connection with which this notice is or would be relevant, the undersigned
irrevocably authorizes Bangor Hydro-Electric Company to produce this notice or a
copy thereof to any interested party in such proceedings.
Date:
[NAME OF HOLDER]
By:
Title: