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Exhibit 10.19
[FORM OF WARRANT CERTIFICATE]
VOID AFTER 5:00 P.M.
EASTERN TIME ON OCTOBER 28, 2009
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN DEFINITIVE
FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. THE DEPOSITORY
TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) SHALL ACT AS THE
DEPOSITORY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE WARRANT
AGENT. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)]
NEITHER THE WARRANT REPRESENTED HEREBY OR THE WARRANT SHARES ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH BELOW. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS WARRANT OR THE
WARRANT SHARES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE
TRANSFER OF THIS WARRANT OR THE
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(1) This paragraph is to be included only if the Warrant is in global form.
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WARRANT SHARES WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS
WARRANT OR THE WARRANT SHARES EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE COMPANY OR THE SELLER A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS WARRANT OR THE WARRANT SHARES, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (E) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS WARRANT, THE WARRANT
SHARES OR ANY INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR PURCHASING PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE WARRANT SHARES ARE SUBJECT TO THE RESTRICTIONS CONTAINED IN AN INVESTOR
AGREEMENT (THE "INVESTOR AGREEMENT") DATED AS OF OCTOBER 26, 1999 AMONG THE
COMPANY AND THE STOCKHOLDERS AND PURCHASERS NAMED THEREIN. EACH HOLDER OF THIS
WARRANT MUST BECOME A PARTY TO THE INVESTOR AGREEMENT AT OR PRIOR TO EXERCISE OF
THIS WARRANT. IN ADDITION, THE WARRANT SHARES ARE SUBJECT TO CERTAIN PROVISIONS
OF A STOCKHOLDERS AGREEMENT DATED AUGUST 12, 1996 AMONG CERTAIN STOCKHOLDERS OF
THE COMPANY, WHICH PROVISIONS ARE REFERENCED IN SUCH INVESTOR AGREEMENT. HOLDERS
OF WARRANTS HAVE THE BENEFIT OF CERTAIN PREEMPTIVE OR PURCHASE RIGHTS SET FORTH
IN THE STOCKHOLDERS AGREEMENT AND REFERENCED HEREIN. A COPY OF SUCH STOCKHOLDERS
AGREEMENT IS ON FILE AT THE OFFICE OF THE SECRETARY OF THE COMPANY. THE FORM OF
INVESTOR AGREEMENT IS ATTACHED HERETO AS EXHIBIT 2.
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Right to Purchase 3,047 Shares of
Common Stock
Date: October 28, 1999
ANKER COAL GROUP, INC.
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, _______________ or its
registered assigns, is entitled to purchase from Anker Coal Group, Inc., a
Delaware corporation (the "Company"), at any time or from time to time during
the period specified in Section 2 hereof, 3,047 fully paid and nonassessable
shares of the Company's common stock (the "Common Stock"), at an initial
exercise price of $0.01 per share (the "Exercise Price"), subject to adjustment
as contained in Section 4 hereof. This Warrant Certificate is issued pursuant to
the Warrant Agreement, dated as of October 26, 1999 (the "Warrant Agreement") by
and between the Company and The Bank of New York, as Warrant Agent (the "Warrant
Agent"). All capitalized terms not otherwise defined herein shall have the
meanings given to those terms in the Warrant Agreement. This Warrant is being
sold pursuant to that certain Exchange and Purchase Agreement dated October 26,
1999 between the Company and the purchasers named therein (the "Purchase
Agreement"). The number of shares of Common Stock purchasable hereunder and the
Exercise Price are subject to adjustment as provided in Section 4 hereof. The
term "Warrants" means this Warrants and the other warrants of the Company issued
pursuant to the terms of the Purchase Agreement. The term "Warrant Shares" means
the shares of Common Stock purchasable under the Warrants.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Mechanics of Exercise. Subject to the provisions hereof, this
Warrant may be exercised as follows:
(a) Manner of Exercise. This Warrant may be exercised by the
holder hereof (the "Holder"), in whole or in part, by the surrender of this
Warrant (or evidence of loss, theft, destruction or mutilation thereof in
accordance with Section 7(c) hereof), together with (i) a completed Exercise
Agreement ("Exercise Agreement") in the form attached hereto as Exhibit 1, and
(ii) completed Accession Agreements ("Accession Agreements") in the forms
attached as Exhibits A and B to the Investor Agreement (the "Investor
Agreement") attached hereto as Exhibit 2 to the Company at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the Holder), and upon payment to the Company in cash,
by certified or official bank check or by wire transfer for the account of the
Company, of the Exercise Price for the Warrant Shares specified in the Exercise
Agreement. The Warrant Shares so purchased shall be deemed to be issued to the
Holder or Holder's designees, as the record owner of such shares, as of the date
on which this Warrant shall have been surrendered, the completed Exercise
Agreement and Accession Agreements shall have been delivered, and payment shall
have been made for such shares as set forth above.
(b) Issuance of Certificates. Subject to Section 1(c) hereof,
certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise Agreement, shall be delivered to the
Holder within a reasonable time, not exceeding ten (10)
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business days until the Company has completed an initial public offering and
thereafter not exceeding three (3) business days, after this Warrant shall have
been so exercised (the "Delivery Period"). The certificates so delivered shall
be in such denominations as may be reasonably requested by the Holder and shall
be registered in the name of Holder or such other name as shall be designated by
such Holder. If this Warrant shall have been exercised only in part, then,
unless this Warrant has expired, the Company shall, at its expense, at the time
of delivery of such certificates, deliver to the Holder a new Warrant
representing the number of shares with respect to which this Warrant shall not
then have been exercised.
(c) Exercise Disputes. In the case of any dispute with respect
to an exercise, the Company shall promptly issue such number of shares of Common
Stock as are not disputed in accordance with this Section. If such dispute
involves the calculation of the Exercise Price, the Company shall submit the
disputed calculations to a nationally recognized independent accounting firm
(selected by the Company) via facsimile within three (3) business days of
receipt of the Exercise Agreement. The accounting firm shall audit the
calculations and notify the Company and the exercising Holder of the results no
later than two (2) business days from the date it receives the disputed
calculations. The accounting firm's calculation shall be deemed conclusive,
absent manifest error. The Company shall then issue the appropriate number of
shares of Common Stock in accordance with this Section.
(d) Fractional Shares. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant, but the Company shall pay a
cash adjustment in respect of any fractional share which would otherwise be
issuable in an amount equal to the same fraction of the Exercise Price of a
share of Common Stock (as determined for exercise of this Warrant into whole
shares of Common Stock); provided that in the event that sufficient funds are
not legally available for the payment of such cash adjustment any fractional
shares of Common Stock shall be rounded up to the next whole number.
(e) Buy-In. If (i) the Company fails for any reason (other
than Holder's failure to pay to the Company the Exercise Price, or deliver the
Exercise Agreement and Accession Agreements (unless previously delivered)), to
deliver during the Delivery Period shares of Common Stock to Holder upon an
exercise of this Warrant and (ii) after the applicable Delivery Period with
respect to such an exercise, Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to make delivery upon a sale by Holder of the
shares of Common Stock (the "Sold Shares") which Holder was entitled to receive
upon such exercise (a "Buy-in"), the Company shall pay Holder (in addition to
any other remedies available to Holder) the amount by which (x) Holder's total
purchase price (including brokerage commission, if any) for the shares of Common
Stock so purchased exceeds the Exercise Price. Holder shall provide the Company
written notification indicating any amounts payable to Holder pursuant to this
subsection.
2. Period of Exercise. This Warrant is exercisable at any time or from
time to time on or after the date hereof and before 5:00 P.M., Eastern Time on
the tenth (10th) anniversary of the date hereof (the "Exercise Period").
3. Certain Agreements of the Company. The Company hereby covenants and
agrees as follows:
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(a) Shares to be Fully Paid. All Warrant Shares issued
hereunder will, upon issuance in accordance with the terms of this Warrant, be
validly issued, fully paid, and non-assessable and free from all liens, claims
and encumbrances. Holders of Warrant Shares shall be subject to the restrictions
set forth in the Investor Agreement. Holders of Warrant Shares shall also become
parties to and may exercise all the rights reflected in the Common Stock
Registration Rights Agreement dated as of October 26, 1999 among the Company and
the purchasers named therein (the "Common Stock Registration Rights Agreement").
Holders shall become parties to the Investor Agreement and the Common Stock
Registration Rights Agreement by executing and delivering the Accession
Agreements. Holders of Warrants shall also have the special rights set forth in
Section 4(g) hereof.
(b) Reservation of Shares. During the Exercise Period, the
Company shall at all times have authorized, and reserved for the purpose of
issuance upon exercise of this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise of this Warrant.
(c) Certain Actions Prohibited. The Company will not, by
amendment of its charter or through any reorganization, transfer of assets,
consolidation, merger, 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 to be observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such actions as may reasonably be requested by the Holder
of this Warrant in order to protect the exercise privilege of the Holder of this
Warrant, consistent with the tenor and purpose of this Warrant. Without limiting
the generality of the foregoing, the Company will take all such actions 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.
(d) Restrictions on Merger and Sale of Assets and Stock. Until
the earlier of an initial public offering of the Company's Common Stock or
October 30, 2002, the Company shall not (i) consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or a majority of its
properties or assets in one or more related transactions, to another
corporation, person or entity except (x) in accordance with the terms of the
Indenture and (y) upon the affirmative written vote or consent of the holders of
at least 85% of the outstanding Common Stock as of the Record Date; or (ii) in
one transaction or in a series of related transactions, sell, transfer or
otherwise dispose of more than 50% of the Company's outstanding Common Stock
except upon the affirmative written vote or consent of at least 85% of the
holders of the outstanding Common Stock as of the Record Date. The Company shall
give at least 30 days' prior written notice to all Holders prior to the Record
Date.
For purposes of this Warrant, "Record Date" shall mean the
date fixed for a stockholder vote pursuant to the terms of the Company's
certificate of incorporation and by-laws.
4. Antidilution Provisions. During the Exercise Period, the Exercise
Price and the number of Warrant Shares purchasable hereunder shall be subject to
adjustment from time to time as provided in this Section 4.
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(a) Adjustment of Exercise Price and Number of Shares upon
Issuance of Common Stock. Except as otherwise provided in Section 4(c) and 4(e)
hereof, if and whenever after the initial issuance of this Warrant, the Company
issues or sells, or in accordance with Section 4(b) hereof is deemed to have
issued or sold, any shares of Common Stock for no consideration or for a
consideration per share less than the Market Price (as herein defined) on the
date of issuance (a "Dilutive Issuance"), then effective immediately upon the
Dilutive Issuance, the Exercise Price will be adjusted in accordance with the
following formula:
E' = (E) (O + P/M) / (CSDO)
where:
E' = the adjusted Exercise Price
E = the then current Exercise Price;
M = the then current Market Price;
O = the number of shares of Common Stock
outstanding immediately prior to the
Dilutive Issuance;
P = the aggregate consideration, calculated as
set forth in Section 4(b) hereof, received
by the Company upon such Dilutive Issuance;
and
CSDO = the total number of shares of Common Stock
Deemed Outstanding (as herein defined)
immediately after the Dilutive Issuance.
(b) Effect on Exercise Price of Certain Events. For purposes
of determining the adjusted Exercise Price under Section 4(a) hereof, the
following will be applicable:
(i) Issuance of Rights or Options. If the
Company in any manner issues or grants any warrants, rights or options, whether
or not immediately exercisable, to subscribe for or to purchase Common Stock or
other securities exercisable, convertible into or exchangeable for Common Stock
("Convertible Securities"), but not to include the grant or exercise of any
stock or options which may hereafter be granted or exercised under any employee
or Director benefit plan of the Company now existing or to be implemented in the
future ("Employee Options"), so long as the issuance of such stock or options is
approved by a majority of the non-employee members of the Board of Directors of
the Company or a majority of the members of a committee of non-employee
directors established for such purpose (such warrants, rights and options to
purchase Common Stock or Convertible Securities are hereinafter referred to as
"Options"), and the price per share for which Common Stock is issuable upon the
exercise of such Options is less than the Market Price on the date of issuance
("Below Market Options"), then the maximum total number of shares of Common
Stock issuable upon the exercise of all such Below
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Market Options (assuming full exercise, conversion or exchange of Convertible
Securities, if applicable) will, as of the date of the issuance or grant of such
Below Market Options, be deemed to be outstanding and to have been issued and
sold by the Company for such price per share. For purposes of the preceding
sentence, the price per share for which Common Stock is issuable upon the
exercise of such Below Market Options is determined by dividing (i) the total
amount, if any, received or receivable by the Company as consideration for the
issuance or granting of such Below Market Options, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
exercise of all such Below Market Options, plus, in the case of Convertible
Securities issuable upon the exercise of such Below Market Options, the minimum
aggregate amount of additional consideration payable upon the exercise,
conversion or exchange thereof at the time such Convertible Securities first
become exercisable, convertible or exchangeable, by (ii) the maximum total
number of shares of Common Stock issuable upon the exercise of all such Below
Market Options (assuming full conversion of Convertible Securities, if
applicable). No further adjustment to the Exercise Price will be made upon the
actual issuance of such Common Stock upon the exercise of such Below Market
Options or upon the exercise, conversion or exchange of Convertible Securities
issuable upon exercise of such Below Market Options.
(ii) Issuance of Convertible Securities.
(A) If the Company in any manner issues or
sells any Convertible Securities, whether or not immediately convertible (other
than where the same are issuable upon the exercise of Options or Employee
Options) and the price per share for which Common Stock is issuable upon such
exercise, conversion or exchange (as determined pursuant to Section 4(b)(ii)(B)
if applicable) is less than the Market Price on the date of issuance, then the
maximum total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of all such Convertible Securities will, as of the date
of the issuance of such Convertible Securities, be deemed to be outstanding and
to have been issued and sold by the Company for such price per share. For the
purposes of the preceding sentence, the price per share for which Common Stock
is issuable upon such exercise, conversion or exchange is determined by dividing
(i) the total amount, if any, received or receivable by the Company as
consideration for the issuance or sale of all such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the exercise, conversion or exchange thereof at the time such
Convertible Securities first become exercisable, convertible or exchangeable, by
(ii) the maximum total number of shares of Common Stock issuable upon the
exercise, conversion or exchange of all such Convertible Securities. No further
adjustment to the Exercise Price will be made upon the actual issuances of such
Common Stock upon exercise, conversion or exchange of such Convertible
Securities.
(B) If the Company in any manner issues or
sells any Convertible Securities with a fluctuating conversion or exercise price
or exchange ratio (a "Variable Rate Convertible Security"), then the price per
share for which Common Stock is issuable upon such exercise, conversion or
exchange for purposes of the calculation contemplated by Section 4(b)(ii)(A)
shall be deemed to be the lowest price per share which would be applicable
assuming that (1) all holding period and other conditions to any discounts
contained in such Convertible Security have been satisfied, and (2) the Market
Price on the date of issuance of such Convertible Security was 100% of the
Market Price on such date (the "Assumed Variable Market Price").
(iii) Change in Option Price or Conversion
Rate. Except for the grant or exercise of any Employee Options, so long as the
issuance of such stock or options is approved by a majority of the non-employee
members of the Board of Directors of the Company or a majority of the members of
a committee of non-employee directors established for such purpose, if there is
a change at any time in (i) the amount of additional consideration payable to
the Company upon the exercise of any Options; (ii) the amount of additional
consideration, if any, payable to the Company upon the exercise, conversion or
exchange or any Convertible Securities; or (iii) the rate at which
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any Convertible Securities are convertible into or exchangeable for Common Stock
(other than under or by reason of provisions designed to protect against
dilution), the Exercise Price in effect at the time of such change will be
readjusted to the Exercise Price which would have been in effect at such time
had such Options or Convertible Securities still outstanding provided for such
changed additional consideration or changed conversion rate, as the case may be,
at the time initially granted, issued or sold.
(iv) Treatment of Expired Options and
Unexercised Convertible Securities. If, in any case, the total number of shares
of Common Stock issuable upon exercise of any Options or upon exercise,
conversion or exchange of any Convertible Securities is not, in fact, issued and
the rights to exercise such option or to exercise, convert or exchange such
Convertible Securities shall have expired or terminated, the Exercise Price then
in effect will be readjusted to the Exercise Price which would have been in
effect at the time of such expiration or termination had such Options or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been issued.
(v) Calculation of Consideration Received.
If any Common Stock, Options or Convertible Securities are issued, granted or
sold for cash, the consideration received therefor for purposes of this Warrant
will be the amount received by the Company therefor, before deduction of
reasonable commissions, underwriting discounts or allowances or other reasonable
expenses paid or incurred by the Company in connection with such issuance, grant
or sale. In case any Common Stock, Options or Convertible Securities are issued
or sold for a consideration part or all of which shall be other than cash, the
amount of the consideration other than cash received by the Company will be the
fair market value of such consideration except where such consideration consists
of freely-tradeable securities, in which case the amount of consideration
received by the Company will be the Market Price thereof as of the date of
receipt. In case any Common Stock, Options or Convertible Securities are issued
in connection with any merger or consolidation in which the Company is the
surviving corporation, the amount of consideration therefor will be deemed to be
the fair market value of such portion of the net assets and business of the
non-surviving corporation as is attributable to such Common Stock, Options or
Convertible Securities, as the case may be. The fair market value of any
consideration other than cash or securities will be determined in the good faith
reasonable business judgment of the Board of Directors.
(c) Subdivision and Combination. In case the Company shall (i)
pay a dividend in Common Stock or make a distribution in Common Stock, (ii)
subdivide its outstanding Common Stock into a greater number of shares, or (iii)
combine its outstanding Common Stock into a smaller number of shares (including
a recapitalization in connection with a consolidation or merger in which the
Company is the continuing corporation), then (x) the Exercise Price on the
record date of such division or the effective date of such action shall be
adjusted by multiplying such Exercise Price by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately before
such event and the denominator of which is the number of share of Common Stock
outstanding immediately after such event and (y) the number of shares of Common
Stock for which this Warrant may be exercised immediately before such event
shall be adjusted by multiplying such number by a fraction, the numerator of
which is the Exercise Price immediately before such event and the denominator of
which is the Exercise Price immediately after such event.
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(d) Adjustment in Number of Shares. Except as provided in
Section 4(c), upon each adjustment of the Exercise Price pursuant to the
provisions of this Section 4, the number of shares of Common Stock issuable upon
exercise of this Warrant shall be adjusted by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Common Stock issuable upon exercise of this Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted Exercise
Price.
(e) Major Transactions. In case the Company shall be a party
to any transaction (including, without limitation, a merger, consolidation, sale
of all or substantially all of the Company's assets, liquidation or
recapitalization of the Common Stock) in which the previously outstanding Common
Stock shall be changed into or, pursuant to the operation of law or the terms of
the transaction to which the Company is a party, exchanged for different
securities of the Company or common stock or other securities of another Company
or interests in a non-corporate entity or other property (including cash) or any
combination of any of the foregoing, then, as a condition of the consummation of
such transaction, lawful and adequate provision shall be made so that each
Holder shall be entitled, upon exercise of this Warrant, to receive the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, that such Holder would have received in such
transaction if it had exercised this Warrant immediately prior to consummation
of such transaction (and assuming such holder had exercised any cash election
rights previously granted in connection with such transaction). The above
provisions of this paragraph shall similarly apply to successive transactions of
the kind specified herein.
(f) Distribution of Assets. In case the Company shall declare
or make any distribution of its assets (or rights to acquire its assets) to
holders of Common Stock as a partial liquidating dividend, by way of return of
capital or otherwise (including any dividend or distribution to the Company's
shareholders of cash or shares (or rights to acquire shares) of capital stock of
a subsidiary) (a "Distribution"), at any time after the initial issuance of this
Warrant, then the Holder shall be entitled upon exercise of this Warrant for the
purchase of any or all of the shares of Common Stock subject hereto, to receive
the amount of such assets (or rights) which would have been payable to the
Holder had such Holder been the holder of such shares of Common Stock on the
record date for the determination of shareholders entitled to such Distribution.
(g) Other Adjustments.
(i) Class A Preferred Stock. In the event
that the Company's Class A Preferred Stock, $2,500 par value per share, shall be
converted into Common Stock ("Class A Conversion"), this Warrant shall
thereafter become exercisable for additional fully paid and nonassessable shares
of Common Stock in an amount equal to the Applicable Percentage (as defined
below) of the aggregate number of shares into which such Class A Preferred Stock
shall be converted at an exercise price (the "Class A Special Exercise Price")
equal to the implied conversion price per share of Common Stock at which the
Class A Preferred Stock shall be so converted. The "Applicable Percentage" means
the product of 30% multiplied by the ratio of the number of Warrant Shares
purchasable hereunder immediately prior to such adjustment over the total number
of Warrant Shares (including outstanding Warrant Shares) immediately prior to
such adjustment. The Class A Special Exercise Price shall be payable in cash or
by delivery by the Holder of the Company's 14.25% Second Priority Senior Secured
Notes due 2007 (PIK through April 1, 2000) ("Secured Notes"). Secured Notes
delivered upon exercise of Warrants as
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provided in this paragraph shall be applied to the Class A Special Exercise
Price at the principal amount thereof, plus any accrued and unpaid interest and
Liquidated Damages thereon. This paragraph shall apply equally and to the same
extent to any similar or replacement securities of the Company issued to any
holder of the Company's Class A Preferred Stock in a manner which gives effect
to the intent and purposes of this paragraph.
(ii) Class B Preferred Stock. In the event
that the Company's Class B Preferred Stock, $1,000 par value per share, shall be
redeemed at a redemption price payable by the Company in shares of Common Stock,
this Warrant shall thereafter become exercisable for additional fully paid and
nonassessable shares of Common Stock in an amount equal to the Applicable
Percentage of the aggregate number of shares for which such Class B Preferred
Stock shall be redeemed at an exercise price (the "Class B Special Exercise
Price") equal to the redemption price per share of Common Stock at which the
Class B Preferred Stock shall be so redeemed. The Class B Special Exercise Price
shall be payable in cash or by delivery by the Holder of the Company's Secured
Notes. Secured Notes delivered upon exercise of Warrants as provided in this
paragraph shall be applied to the Class B Special Exercise Price at the
principal amount thereof, plus any accrued and unpaid interest and Liquidated
Damages thereon. This paragraph shall apply equally and to the same extent to
any similar or replacement securities of the Company issued to any holder of the
Company's Class B Preferred Stock in a manner which gives effect to the intent
and purposes of this paragraph.
(iii) Funds Warrant. In the event that the Warrant
dated August 12, 1996 (the "Funds Warrant"), issued by the Company to each of
American Oil & Gas Investors, Limited Partnership, AmGO II, Limited Partnership,
First Reserve Fund V, Limited Partnership, First Reserve Fund V-2, Limited
Partnership, First Reserve Fund VI, Limited Partnership and First Reserve Fund
VII, Limited Partnership (collectively, the "Funds") becomes exercisable upon a
Class A Conversion, this Warrant shall thereafter become exercisable for
additional fully paid and nonassessable shares of Common Stock in an amount
equal to the Applicable Percentage of the aggregate number of shares for which
such Funds Warrant shall be exercised at an exercise price (the "Funds Special
Exercise Price") of $.01 per share of Common Stock. The Funds Special Exercise
Price shall be payable in cash or by delivery by the Holder of the Company's
Secured Notes. Secured Notes delivered upon exercise of Warrants as provided in
this paragraph shall be applied to the Funds Special Exercise Price at the
principal amount thereof, plus any accrued and unpaid interest and Liquidated
Damages thereon. This paragraph shall apply equally and to the same extent to
any similar or replacement securities of the Company issued to any holder of the
Funds Warrant in a manner which gives effect to the intent and purposes of this
paragraph.
(iv) Special Purchase Rights. Each Holder shall have
the same rights to purchase New Equity Securities (as defined in the
Stockholders Agreement) on the same terms as any Stockholder or holder of
Warrant Shares except that each Holder's and each Stockholder's Anti-Dilution
Ratio shall be determined as if all Warrant Shares issuable upon exercise of
Warrants were outstanding immediately prior to the delivery of each New Equity
Notice and as if each Holder held the number of Warrant Shares issuable upon
exercise of said Holder's Warrants and any other shares of Common Stock
otherwise held by such Holder. In the event the Holder elects to purchase any
portion of such Holder's Anti-Dilution Portion of the New Equity Securities,
such Holder shall not be entitled to any other adjustment of the Exercise Price
or of the number of Warrants held by such
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11
Holder in connection with such issuance of New Equity Securities.
(h) Notices of Adjustment. Upon the occurrence of any event
which requires any adjustment of the Exercise Price, then, and in each such
case, the Company shall give notice thereof to the Holder, which notice shall
state the Exercise Price resulting from such adjustment and the increase or
decrease in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(i) Exceptions to Adjustment of Exercise Price. No adjustment
to the Exercise Price will be made (i) upon the grant or exercise of any
Employee Options, so long as the issuance of such stock or options is approved
by a majority of the non-employee members of the Board of Directors of the
Company or a majority of the members of a committee of non-employee directors
established for such purpose; (ii) upon the exercise of the options to purchase
shares of Common Stock under the Employment Agreement dated as of May 1, 1999
between William D. Kilgore, Anker Energy Corporation and the Company as in
effect on the date hereof; (iii) upon the issuance of the Common Shares (as
defined in the Purchase Agreement) or Warrants in accordance with terms of the
Purchase Agreement; or (iv) upon the exercise of the Warrants.
(j) No Fractional Shares. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant, but the Company shall pay a
cash adjustment in respect of any fractional share which would otherwise be
issuable in an amount equal to the same fraction of the Market Price of a share
of Common Stock; provided that in the event that sufficient funds are not
legally available for the payment of such cash adjustment any fractional shares
of Common Stock shall be rounded up to the next whole number.
(k) Other Notices. In case at any time:
(i) the Company shall declare any dividend upon the
Common Stock payable in shares of stock of any class or make any other
distribution to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro
rata to the holders of the Common Stock any additional shares of stock of any
class or other rights;
(iii) there shall be any capital reorganization of
the Company, or reclassification of the Common Stock, or consolidation or merger
of the Company with or into, or sale of all or substantially all of its assets
to, another corporation or entity; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in each such case, the Company shall give to the Holder (a) notice of the
date on which the books of the Company shall close or a record shall be taken
for determining the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining the holders of
Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such
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12
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, notice of the date (or, if not then known, a
reasonable approximation thereof by the Company) when the same shall take place.
Such notice shall also specify the date on which the holders of Common Stock
shall be entitled to receive such dividend, distribution, or subscription rights
or to exchange their Common Stock for stock or other securities or property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, or winding-up, as the case may be. Such notice
shall be given at least 30 days prior to the record date or the date on which
the Company's books are closed in respect thereto, but in no event earlier than
public announcement of such proposed transaction or event. Failure to give any
such notice or any defect therein shall not affect the validity of the
proceedings referred to in clauses (i), (ii), (iii) and (iv) above.
(l) Certain Definitions.
(i) "Common Stock Deemed Outstanding" shall mean the
number of shares of Common Stock actually outstanding (not including shares of
Common Stock held in the treasury of the Company), plus (x) in case of any
adjustment required by Section 4(a) resulting from the issuance of any Options,
the maximum total number of shares of Common Stock issuable upon the exercise of
the Options for which the adjustment is required (including any Common Stock
issuable upon the conversion of Convertible Securities issuable upon the
exercise of such Options), and (y) in the case of any adjustment required by
Section 4(a) resulting from the issuance of any Convertible Securities, the
maximum total number of shares of Common Stock issuable upon the exercise,
conversion or exchange of the Convertible Securities for which the adjustment is
required, as of the date of issuance of such Convertible Securities, if any.
(ii) "Market Price," as of any date, (i) means the
average of the Closing Bid Prices for the shares of Common Stock as reported to
The Nasdaq National Market for the ten (10) trading days immediately preceding
such date, or (ii) if The Nasdaq National Market is not the principal trading
market for the Common Stock, the average of the last reported bid prices on the
principal trading market for the Common Stock during the same period, or, if
there is no bid price for such period, the average of the last reported sales
price on each trading day for such period, or (iii) if market value cannot be
calculated as of such date on any of the foregoing bases, the Market Price shall
be the average fair market value as reasonably determined by an investment
banking firm selected by the Company and reasonably acceptable to the Holders of
a majority in interest of the Warrants, with the costs of the appraisal to be
borne by the Company. The manner of determining the Market Price of the Common
Stock set forth in the foregoing definition shall apply with respect to any
other security in respect of which a determination as to market value must be
made hereunder.
(iii) "Common Stock," for purposes of this Section 4,
includes the Common Stock and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation, provided
that the shares purchasable pursuant to this Warrant shall include only Common
Stock in respect of which this Warrant is exercisable, or shares resulting from
any subdivision or combination of such Common Stock, or in the case of any
reorganization, reclassification, consolidation, merger, or sale of the
character referred to in Section 4(e) hereof, the stock or other securities or
property provided for in such Section.
- 12 -
13
5. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the Holder for any
issuance tax or other costs in respect thereof, provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
the Holder.
6. No Rights or Liabilities as a Shareholder. This Warrant shall not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company. No provision of this Warrant, in the absence of affirmative action by
the Holder to purchase Warrant Shares, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of the
Holder for the Exercise Price or as a shareholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
7. Transfer, Exchange, Redemption and Replacement of Warrant.
(a) Restriction on Transfer. This Warrant may be transferred
and exchanged as provided in Section 6 of the Warrant Agreement. If this Warrant
is in global form, unless and until it is exchanged for Definitive Warrants, it
may not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of a successor Depository. DTC shall act as
the Depository until a successor shall be appointed by the Company and the
Warrant Agent. If this Warrant is a Definitive Warrant, this Warrant and the
rights granted to the Holder are transferable, in whole or in part, upon
surrender of this Warrant, together with a properly executed assignment in the
Form of Assignment attached hereto as Exhibit 3, at the office or agency of the
Warrant Agent referred to in Section 7(e) below, provided, however, that any
transfer or assignment shall be subject to Section 7(f) below, and the
applicable provisions of the Warrant Agreement, the Purchase Agreement and the
Investor Agreement. Until due presentment for registration of transfer on the
books of the Company, the Company may treat the registered holder hereof as the
owner and holder hereof for all purposes, and the Company shall not be affected
by any notice to the contrary. Notwithstanding anything to the contrary
contained herein, the registration rights set forth in the Common Stock
Registration Rights Agreement are assignable only in accordance with the
provisions of the Common Stock Registration Rights Agreement.
(b) Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Section 7(e) below, for new Warrants, in
the form hereof, of different denominations representing in the aggregate the
right to purchase the number of shares of Common Stock which may be purchased
hereunder, each of such new Warrants to represent the right to purchase such
number of shares as shall be designated by the Holder at the time of such
surrender.
(c) Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant or, in the case of any such loss, theft, or
destruction, upon delivery, of an indemnity agreement reasonably satisfactory in
form and amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its expense, will
execute and deliver, in lieu thereof, a new Warrant, in the form hereof, in such
denominations as Holder may request.
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14
(d) Cancellation; Payment of Expenses. Upon the surrender of
this Warrant in connection with any transfer, exchange, or replacement as
provided in this Section 7, this Warrant shall be promptly canceled by the
Company. The Company shall pay all issuance taxes (other than securities
transfer taxes) and charges payable in connection with the preparation,
execution, and delivery of Warrants pursuant to this Section 7.
(e) Warrant Register. The Warrant Agent (as defined below), on
behalf of the Company, shall maintain in accordance with the terms of the
Warrant Agreement (as defined below), at its corporate trust office in New York
City, New York, a register for this Warrant, in which the Warrant Agent shall
record the name and address of the person in whose name this Warrant has been
issued, as well as the name and address of each transferee and each prior owner
of this Warrant.
(f) Purchaser Restrictions. The Holder agrees that, in
connection with the resale of the Warrant or the Warrant Shares, (A) it will
offer to sell the Warrant or the Warrant Shares only to, and will solicit offers
to buy the Warrant or the Warrant Shares only from (1) QIBs who in purchasing
such Warrant or the Warrant Shares will be deemed to have represented and agreed
that they are purchasing the Warrant or the Warrant Shares for their own
accounts or accounts with respect to which they exercise sole investment
discretion and that they or such accounts are QIBs, (2) Institutional Accredited
Investors (as hereinafter defined), or (3) purchasers pursuant to Regulation S
and (B) it will take reasonable steps to inform persons acquiring the Warrant or
the Warrant Shares from it or its affiliates that neither the Warrant nor the
Warrant Shares will have been registered under the Securities Act and therefore
may be resold, pledged or otherwise transferred within the time period referred
to in Rule 144(k) under the Securities Act as in effect on the date of the
transfer of this Warrant or the Warrant Shares, only (I)(v) inside the United
States to a person who the holder reasonably believes is a QIB purchasing for
its own account or for the account of a QIB in a transaction meeting the
requirements of Rule 144A, (w) inside the United States to an Institutional
"Accredited Investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
that, prior to such transfer, furnished to the Company a signed letter
containing certain representations and agreements relating to the restrictions
on transfer of this Warrant or the Warrant Shares (x) in a transaction meeting
the requirements of Rule 144 under the Securities Act, (y) outside the United
States in an offshore transaction meeting the requirements of Rule 903 or 904
under the Securities Act or (z) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel if the Company so requests), (II) to the Company or any of its
Subsidiaries, (III) pursuant to an effective registration statement under the
Securities Act and, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction and
(C) that the Holder will, and each subsequent holder is required to, notify any
purchaser from it of the Warrant or the Warrant Shares of the resale
restrictions set forth in (B) above. If the proposed transferee is an
Institutional Accredited Investor purchasing pursuant to clause B(I)(w) above,
the Holder must, prior to such transfer, furnish to the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
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15
(g) No Transfers to Persons Engaged in Competition. The Holder
agrees that it shall not transfer this Warrant to any person or entity which, to
the knowledge of the Holder, is engaged in Competition with the Company. For
this purpose, "Competition" shall mean engaging in any business in the states of
West Virginia, Maryland, Pennsylvania, Virginia or Kentucky involving the
purchase for resale, sale, operation or maintenance for resale of coal, coal
reserves, coal inventories, coal mines, coal mining operations, coal processing
operations, processing or disposing of ash produced from the consumption of
coal; the conduct or performance of coal mining, coal loading, coal processing
or contract coal mining or coal processing; the employment of independent
contractors in connection with any of the foregoing; or the conduct of coal
trading; or the holding of any equity investment constituting a controlling
equity interest in any entity or business which at the time such transfer is
proposed to be made is engaged in Competition.
(h) Restrictions on Sale of Stock. Each Holder agrees that,
until the earlier of an initial public offering of the Company's Common Stock or
October 30, 2002, it will not either singly or together with any other Holder,
in one transaction or in a series of related transactions, sell, transfer or
otherwise dispose of more than 50% of the Company's outstanding Common Stock
except upon the affirmative written vote or consent of the holders of at least
85% of the outstanding Common Stock as of the Record Date. Such Holder or
Holders shall give at least 30 days' prior written notice to all Holders prior
to the Record Date.
8. Registration Rights. The initial holder of this Warrant (and certain
assignees thereof) is entitled to the benefit of such registration rights in
respect of the Warrant Shares as are set forth in the Common Stock Registration
Rights Agreement.
9. Notices. Any notice herein required or permitted to be given shall
be in writing and may be personally served or delivered by courier or by
confirmed telecopy, and shall be deemed delivered at the time and date of
receipt (which shall include telephone line facsimile transmission). The
addresses for such communications shall be:
If to the Company:
Anker Coal Group, Inc.
2708 Cranberry Square
Morgantown, West Virginia 26508
Telecopy: (304) 594-1685
Attention: P. Bruce Sparks, President
With a copy to:
Klett Lieber Rooney & Schorling, a Professional
Corporation
One Oxford Centre
40th Floor
Pittsburgh, Pennsylvania 15219-6498
Telecopy: (412) 392-2128
Attention: Craig S. Heryford
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16
and if to the Holder, at such address as Holder shall have provided in writing
to the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 9.
10. Governing Law; Jurisdiction. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York. The Company
irrevocably consents to the jurisdiction of the United States Federal courts
located in the State of New York and the state courts located in the City of New
York in the State of New York in any suit or proceeding based on or arising
under this Warrant and irrevocably agrees that all claims in respect of such
suit or proceeding may be determined in such courts. The Company irrevocably
waives the defense of an inconvenient forum to the maintenance of such suit or
proceeding. The Company agrees that a final nonappealable judgment in any such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
11. Warrant Agent. The Company has, pursuant to the Warrant Agreement,
appointed the Warrant Agent to act as agent for the purpose of issuing Warrant
Shares on the exercise of the Warrants, exchanging Warrants, and replacing
Warrants, or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, shall be made at such office by such agent.
12. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may only
be amended by an instrument in writing signed by the Company and the Holder.
(b) Descriptive Headings. The descriptive headings of the
several Sections of this Warrant are inserted for purposes of reference only,
and shall not affect the meaning or construction of any of the provisions
hereof.
(c) Assignability. This Warrant shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of Holder
and its successors and assigns. The Holder shall notify the Company upon the
assignment of this Warrant.
* * *
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17
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
ANKER COAL GROUP, INC.
By: ________________________________
Name: P. Bruce Sparks
Title: President
Countersigned:
THE BANK OF NEW YORK,
as Warrant Agent
By: _______________________
Authorized Signature
- 17 -
18
Exhibit 1
FORM OF EXERCISE AGREEMENT
(To be Executed by the Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably exercises the right to purchase
____________ of the shares of common stock of Anker Coal Group, Inc., a Delaware
corporation (the "Company"), evidenced by the attached Warrant, and herewith
makes payment of the Exercise Price and/or the Special Exercise Price, as
applicable, with respect to such shares in full in accordance with the
conditions and provisions of said Warrant.
(i) The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any Common Stock obtained on exercise of the Warrant, except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any state securities laws.
(ii) The undersigned requests that stock certificates for such shares
be issued, and a Warrant representing any unexercised portion hereof be issued,
pursuant to the Warrant in the name of the Holder (or such other person or
persons indicated below) and delivered to the undersigned (or designee(s)) at
the address (or address(es)) set forth below.
(iii) The undersigned hereby (A) delivers an executed copy of the
attached Accession Agreement, or (B) certifies under penalties of perjury that
it is already a party to the Investor Agreement or has previously executed and
delivered to the Company an Accession Agreement.
Date:
Signature of Holder
Name of Holder (Print)
Address:
19
Exhibit 2
FORM OF INVESTOR AGREEMENT
(Holder must be a party in order to Exercise the Warrant)
20
Exhibit 3
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all rights of the undersigned under the within Warrant, with respect
to the number of shares of Common Stock covered thereby set forth hereinbelow,
to:
Name of Assignee Address No. of Shares
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, and hereby irrevocably constitutes and appoints ______________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Date:____________, _____,
In the presence of
________________________
Name:______________________________________
Signature:_________________________________
Title of Signing Officer or
Agent (if any):
___________________________________________
Address:___________________________________
___________________________________
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant.
Signature Guarantee:_______________________