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EXHIBIT 10(u)
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES
THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN
PROVIDED.
NOT EXERCISABLE PRIOR TO SEPTEMBER 14, 1994. VOID AFTER 5:00 P.M. EASTERN
TIME, SEPTEMBER 14, 1998.
PURCHASE OPTION
For the Purchase of 97,500 Shares of Common Stock
OF
AMERICAN NATURAL ENERGY CORPORATION
(An Oklahoma Corporation)
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $0.001 per share duly
paid by or on behalf of GAINES, BERLAND, INC. (the "Holder"), as registered
owner of this Purchase Option, to American Natural Energy Corporation (the
"Company"), Holder is entitled, at any time or from time to time at or after
September 14, 1994, and at or before 5:00 p.m., Eastern Time, September 14,
1998, but not thereafter, to subscribe for, purchase and receive, in whole or
in part, up to 97,500 shares (the "Shares") of common stock of the Company,
$0.01 par value, (the "Common Stock"). If September 14, 1998, is a day on which
banking institutions are authorized by law to close, then this Purchase Option
may be exercised on the next succeeding day which is not such a day in
accordance with the terms herein. During the period ending September 14, 1998,
the Company agrees not to take any action that would terminate the Purchase
Option. This Purchase Option is initially exercisable at $5.70 per Share so
purchased; provided, however, that upon the occurrence of any of the events
specified in Section 6 hereof, the rights granted by this Purchase Option,
including the exercise price per Share and the number of Shares to be received
upon such exercise, shall be adjusted as therein specified. The term "Exercise
Price" shall mean the initial exercise price or the adjusted exercise price,
depending on the context, of a Share.
2. Exercise.
2.1 Exercise Form. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed and delivered
to the Company, together with this Purchase Option and payment of the Exercise
Price for the Shares being
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purchased. If the subscription rights represented hereby shall not be exercised
at or before 5:00 p.m., Eastern time, on September 14, 1998, this Purchase
Option shall become and be void without further force or effect, and all rights
represented hereby shall cease and expire.
2.2 Legend. Each certificate for securities purchased under this
Purchase Option shall bear a legend as follows unless such securities have been
registered under the Act.
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act"). The
securities may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration
statement under the Act, or pursuant to an exemption from
registration under the Act."
2.3 Conversion Right.
2.3.1 Determination of Amount. In lieu of the payment of
the Exercise Price, the Holder shall have the right (but not the obligation),
to require the Company to convert this Purchase Option, in whole or in part,
into Shares ("Conversion Right") as provided for in this Section. Upon exercise
of the Conversion Right, the Company shall deliver to the Holder (without
payment by the Holder of any of the Exercise Price) that number of Shares equal
to the quotient obtained by dividing (x) the "Value" (as defined below) of the
portion of the Purchase Option being converted at the time the Conversion Right
is exercised by (y) the Market Price (as defined in Section 6.2.6) immediately
prior to the exercise of the Conversion Right. The "Value" of the portion of
the Purchase Option being converted shall mean the difference between (i) the
Exercise Price and (ii) the Market Price, multiplied by the number of Shares
being converted.
2.3.2 Exercise of Conversion Right. The Conversion Right
may be exercised by the Holder on any business day between (i) September 14,
1994 and (ii) September 14, 1998 by delivering the Purchase Option with a duly
executed exercise form attached hereto with the conversion section completed to
the Company, exercising the Conversion Right and specifying the total number of
Shares the Holder will purchase pursuant to such conversion.
3. Transfer.
3.1 General Restrictions. The registered Holder of this Purchase
Option, by its acceptance hereof, agrees that it will not sell, transfer or
assign or hypothecate this Purchase Option prior to September 14, 1994, to
anyone other than (i) an officer or partner of such Holder, (ii) an officer or
partner of Gaines,
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Berland Inc. ("Underwriter") or any other underwriter or Selected Dealer in
connection with the Company's public offering of shares of Common Stock
underwritten by the Underwriter, or ( iii ) any underwriter or Selected Dealer.
On and after September 14, 1994, transfers to others may be made. In order to
make any permitted assignment, the Holder must deliver to the Company the
assignment form attached hereto duly executed and completed, together with the
Purchase Option and payment of all transfer taxes, if any, payable in
connection therewith. The Company shall immediately transfer this Purchase
Option on the books of the Company and shall execute and deliver a new Purchase
Option or Purchase Options of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Shares purchasable
hereunder or such portion of such number as shall be contemplated by any such
assignment.
3.2 Restrictions Imposed by the Act. The securities shall not be
transferred unless and until (i) the Company has received the opinion of
counsel for the Holder that the securities may be sold pursuant to an exemption
from registration under the Securities Act of 1933, as amended (the "Act"), the
availability of which is established to the reasonable satisfaction of the
Company, or (ii) a registration statement relating to such securities has been
filed by the Company and declared effective by the Securities and Exchange
Commission.
4. New Purchase Options to be Issued.
4.1 Partial Exercise or Transfer. Subject to the restrictions in
Section 3 hereof, this Purchase Option may be exercised or assigned in whole or
in part. In the event of the exercise or assignment hereof in part only, upon
surrender of this Purchase Option for cancellation, together with the duly
executed exercise or assignment form and funds sufficient to pay any transfer
tax, the Company shall cause to be delivered to the Holder without charge a new
Purchase Option of like tenor to this Purchase Option in the name of the Holder
evidencing the right of the Holder to purchase the number of Shares purchasable
hereunder as to which this Purchase Option has not been exercised or assigned.
4.2 Lost Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Purchase Option and of reasonably satisfactory indemnification, the Company
shall execute and deliver a new Purchase Option of like tenor and date. Any
such new Purchase Option executed and delivered as a result of such loss,
theft, mutilation or destruction shall constitute an additional contractual
obligation on the part of the Company.
5. Registration Rights.
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5.1 Demand Registration.
5.1.1 Grant of Right. The Company, upon written demand
("Initial Demand Notice") of the Holder(s) of at least 51% of the Purchase
Options and/or the underlying Shares ("Majority Holders"), agrees to register
on one occasion, all or any portion of the Purchase Options requested by the
Majority Holders in the Initial Demand Notice and all of the securities
underlying such Purchase Options, including the Shares (collectively the
"Registerable Securities"). On such occasion, the Company will file a
Registration Statement covering the Registrable Securities within sixty days
after receipt of the Initial Demand Notice and use its best efforts to have
such registration statement declared effective promptly thereafter. The demand
for registration may be made at any time during a period of four years
beginning one year from the Effective Date. The Company covenants and agrees to
give written notice of its receipt of any Initial Demand Notice by any
Holder(s) to all other registered Holders of the purchase Options and/or the
Registerable Securities within ten days from the date of the receipt of any
such Initial Demand Notice.
5.1.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. The Company agrees to use its prompt best efforts to
cause the filing required herein to become effective and to qualify or register
the Registrable Securities in such States as are reasonably requested by the
Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a State in which such registration would
cause (i) the Company to be obligated to do business in such State, or (ii) the
principal stockholders of the Company to be obligated to escrow their shares of
capital stock of the Company. The Company shall cause any registration
statement filed pursuant to the demand rights granted under Section 5.1.1 to
remain effective for a period of at least nine consecutive months from the
effective date of such registration statement.
5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. In addition to the demand right of
registration, the Holders of the Purchase Options shall have the right, for a
period of six years beginning one year from the Effective Date, to include the
Registrable Securities as part of any other registration of securities filed by
the Company (other than in connection with a transaction contemplated by Rule
145 (as promulgated under the Act or pursuant to Form S-8 or equivalent form).
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5.2.2 Terms. The Company shall bear all fees and expenses
attendant to registering the Registrable Securities, but the Holders shall pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. In the event of such a proposed registration, the
Company shall furnish the then Holders of outstanding Registrable Securities
with not less than thirty days written notice prior to the proposed date of
filing of such registration statement. Such notice to the Holders shall
continue to be given for each registration statement filed by the Company until
such time as all of the Registrable Securities have been registered and sold.
The holders of the Registrable Securities shall exercise the "piggy-back"
rights provided for herein by giving written notice, within twenty days of the
receipt of the Company's notice of its intention to file a registration
statement. The Company shall cause any registration statement filed pursuant to
the above "piggyback" rights to remain effective for at least nine months from
the date that the Holders of the Registrable Securities are first given the
opportunity to sell all of such securities.
5.3 General Terms.
5.3.1 Indemnification. The Company shall indemnify the
Holder(s) of the Registrable Securities to be sold pursuant to any registration
statement hereunder and each person, if any, who controls such Holders within
the meaning of Section 15 of the Act or Section 20(a) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim,
damage, expense or liability (including all reasonable attorneys' fees and
other expenses reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which any of them may become subject under the
Act, the Exchange Act or otherwise, arising from such registration statement
but only to the same extent and with the same effect as the provisions pursuant
to which the Company has agreed to indemnify the Underwriter contained in
Section 5 of the Underwriting Agreement. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company
against all loss, claim, damage, expense or liability (including all reasonable
attorneys' fees and other expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, in
writing, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in Section 5 of the
Underwriting Agreement pursuant to which the Underwriter has agreed to
indemnify the Company.
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5.3.2 Exercise of Purchase Options. Nothing contained in
this Purchase Option shall be construed as requiring the Holder(s) to exercise
their Purchase Options prior to or after the initial filing of any registration
statement or the effectiveness thereof.
5.3.3 Exclusivity. The Company shall not permit the
inclusion of any securities other than the Registerable Securities be included
in any registration statement filed pursuant to Section 5.1 hereof without the
prior written consent of the Majority Holders of the Registrable Securities.
5.3.4 Documents Delivered to Holders. The Company shall
furnish to each Holder participating in any of the foregoing offerings and to
each underwriter of any such offering, if any, a signed counterpart, addressed
to such Holder or underwriter, of (i) an opinion of counsel to the Company,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the
date of the closing under any underwriting agreement related thereto), and (ii)
a "cold comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a letter
dated the date of the closing under the underwriting agreement) signed by the
independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings of securities. The Company shall also deliver promptly to each
Holder participating in the offering requesting the correspondence and
memoranda described below and to the managing underwriter copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and permit each Holder and underwriter to
do such investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as it deems
reasonably necessary to comply with applicable securities laws or rules of the
National Association of Securities Dealers, Inc. ("NASD"). Such investigation
shall include access to books, records and properties and opportunities to
discuss the business of the Company with its officers and independent auditors,
all to such reasonable extent and at such reasonable times and as often as any
such Holder shall reasonably request.
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5.3.5 Underwriting Agreement. The Company shall enter into
an underwriting agreement with the managing underwriter(s) selected by any
Holders whose Registerable Securities are being registered pursuant to this
Section 5. Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and shall
contain such representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type used by the
managing underwriter. The Holders shall be parties to any underwriting
agreement relating to an underwritten sale of their Registrable Securities and
may, at their option, require that any or all the representations, warranties
and covenants of the Company to or for the benefit of such underwriters shall
also be made to and for the benefit of such Holders. Such Holders shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters except as they may relate to such Holders and their
intended methods of distribution.
6. Adjustments to Exercise Price and Number of Securities.
6.1 Computation of Adjusted Exercise Price. Except as hereinafter
provided, in case the Company shall at any time after the date hereof issue or
sell any shares of Common Stock (other than the issuances or sales referred to
in Section 6.8 hereof), including shares held in the Company's treasury and
shares of Common Stock issued upon the exercise of any options, rights or
warrants to subscribe for shares of Common Stock and shares of Common Stock
issued upon the direct or indirect conversion or exchange of securities for
shares of Common Stock, for a consideration per share less than either the
Exercise Price or the Market Price (as hereinafter defined) in effect
immediately prior to the issuance or sale of such shares, or without
consideration, then forthwith upon such issuance or sale, the Exercise Price
shall (until another such issuance or sale) be reduced to the price (calculated
to the nearest full cent) equal to the quotient derived by dividing (i) an
amount equal to the sum of (X) the number of shares of Common Stock outstanding
immediately prior to such issuance or sale multiplied by the lesser of the
Exercise Price in effect immediately prior to such issuance or sale or the
Market Price in effect on the date immediately prior to such issuance or sale,
plus (Y) the aggregate of the amount of all consideration, if any, received by
the Company upon such issuance or sale, by (ii) the number of shares of Common
Stock outstanding immediately after such issuance or sale; provided, however,
that in no event shall the Exercise Price be adjusted pursuant to this
computation to an amount in excess of the Exercise Price in effect immediately
prior to such computation, except in the case of a combination of outstanding
shares of Common Stock, as provided by Section 6.4 hereof.
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6.2 General Rules for Computation of Adjustments. For the purposes
of any computation to be made in accordance with Section 6.1, the following
provisions shall be applicable:
6.2.1 Cash Consideration. In case of the issuance or sale
of shares of Common Stock for a consideration part or all of which shall be
cash, the amount of the cash consideration therefor shall be deemed to be the
amount of cash received by the Company for such shares (or, if shares of Common
Stock are offered by the Company for subscription, the subscription price, or,
if either of such securities shall be sold to underwriters or dealers for
public offering without a subscription offering, the initial public offering
price), before deducting therefrom any compensation paid or discount allowed in
the sale, underwriting or purchase thereof by underwriters or dealers or others
performing similar services, or any expenses incurred in connection therewith.
6.2.2 Other Than Cash Consideration. In case of the
issuance or sale (otherwise than as a dividend or other distribution on any
stock of the Company) of shares of Common Stock for a consideration part or all
of which shall be other than cash, the amount of the consideration therefor
other than cash shall be deemed to be the value of such consideration as
determined in good faith by the Board of Directors of the Company.
6.2.3 Share Dividends. Shares of Common Stock issuable by
way of dividend or other distribution on any stock of the Company shall be
deemed to have been issued immediately after the opening of business on the day
following the record date for the determination of stockholders entitled to
receive such dividend or other distribution and shall be deemed to have been
issued without consideration.
6.2.4 Reclassification. The reclassification of securities
of the Company other than shares of Common Stock into securities including
shares of Common Stock shall be deemed to involve the issuance of such shares
of Common Stock for a consideration other than cash immediately prior to the
close of business on the date fixed for the determination of security holders
entitled to receive such shares, and the value of the consideration allocable
to such shares of Common Stock shall be determined as provided in Section
6.2.2.
6.2.5 Outstanding Shares. The number of shares of Common
Stock at any one time outstanding shall include the aggregate number of shares
issued or issuable (subject to readjustment upon the actual issuance thereof)
upon the exercise of any and all outstanding options, rights, warrants to
purchase shares of Common Stock and upon the conversion or exchange of any and
all outstanding securities convertible or exchangeable into shares of Common
Stock.
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6.2.6 Market Price. As used herein, the term "Market Price"
at any date shall be deemed to be the last reported sale price, or, in case no
such reported sale takes place on such day, the average of the last reported
sale prices for the last three trading days, in either case as officially
reported by the principal securities exchange on which the Common Stock is
listed or admitted to trading or, if the Common Stock is not listed or admitted
to trading on any national securities exchange or if any such exchange on which
the Common Stock is listed is not its principal trading market, then as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or similar organization. If any of the Common Stock
is no longer listed or admitted to trading on any exchange or quoted on NASDAQ,
the Market Price shall be determined in good faith by resolution of the Board
of Directors of the Company, based on the best information available to it.
6.3 Options, Rights, Warrants and Convertible and Exchangeable
Securities. In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for shares of Common Stock, or issue
any securities convertible into or exchangeable for shares of Common Stock, for
a consideration per share less than either the Exercise Price or the Market
Price in effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, or without
consideration, the Exercise Price in effect immediately prior to the issuance
of such options, rights or warrants, or such convertible or exchangeable
securities, as the case may be, shall be reduced to a price determined by
making a computation in accordance with the provisions of Section 6.1 hereof,
provided that:
(i) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable under such options, rights or warrants
shall be deemed to be issued and outstanding at the time such options, rights
or warrants were issued, and for a consideration equal to the minimum purchase
price per share provided for in such options, rights or warrants at the time of
issuance, plus the consideration, if any, received by the Company for the
issuance of such options, rights or warrants.
(ii) The aggregate maximum number of shares of Common
Stock issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities, and for a consideration equal to the consideration received
by the Company for the issuance of such securities, plus the minimum
consideration, if any, receivable by the Company upon the conversion or
exchange thereof.
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(iii) If any change shall occur in the exercise price per
share provided for in any of the options, rights or warrants referred to in
clause (i) of Section 6.3, or in the price per share at which the securities
referred to in clause (ii) of Section 6.3 are convertible or exchangeable, such
options, rights or warrants or conversion or exchange rights, as the case may
be, shall be deemed to have expired or terminated on the date when such price
change became effective in respect of shares not theretofore issued pursuant to
the exercise or conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the
conversion or exchange of such convertible or exchangeable securities.
6.4 Subdivision and Combination. In case the Company shall at any
time subdivide or combine the outstanding shares of Common Stock, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision
or increased in the case of combination.
6.5 Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 6, the number of
Shares issuable upon the exercise of this Purchase Option shall be adjusted to
the nearest full number by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Shares issuable upon exercise of this
Purchase Option immediately prior to such adjustment and dividing the product
so obtained by the adjusted Exercise Price.
6.6 Definition of Common Stock. For the purpose of this Purchase
Option, the term "Common Stock" shall mean (i) the class of stock designated as
Common Stock in the Certificate of Incorporation of the Company as may be
amended as of the date hereof, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par
value to par value. In the event that the Company shall after the date hereof
issue securities with greater or superior voting rights than the shares of
Common Stock outstanding as of the date hereof, the Holder, at its option, may
receive upon exercise of any Purchase Option either shares of Common Stock or a
like number of such securities with greater or superior voting rights.
6.7 Merger or Consolidation. Incase of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
the Holder a supplemental Purchase Option providing that the holder of each
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Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Option) to receive,
upon exercise of such Purchase Option, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger,
by a holder of the number of shares of Common Stock of the Company for which
such Purchase Option might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental Purchase Option
shall provide for adjustments which shall be identical to the adjustments
provided in Section 6. The above provision of this Section shall similarly
apply to successive consolidations or mergers.
6.8 No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made:
(i) Upon the issuance or sale of the shares of Common
Stock issuable upon the exercise of (1) the Purchase Options or (2) the options
outstanding on the date hereof and described in the prospectus relating to the
Company's public offering of Common Stock; or
(ii) Upon the issuance or sale of shares of Common Stock
upon the exercise of options, rights or warrants, or upon the conversion or
exchange of convertible or exchangeable securities, in any case where the
Exercise Price was adjusted at the time of issuance of such options, rights or
warrants, or convertible or exchangeable securities, as contemplated by
Section 6.3 hereof, or
(iii) Except in the case of events referred to in Sections
6.2.3, 6.2.4, 6.4 and 6.7, if the amount of said adjustment shall be less than
$0.2375 per Share for any single event or series of related events.
6.9 [Intentionally omitted.]
6.10 [Intentionally omitted.]
6.11 Dividends and Other Distributions. In the event that the
Company shall at any time prior to the exercise of all Purchase Options declare
a dividend (other than a dividend consisting solely of shares of Common Stock)
or otherwise distribute to its stockholders any assets, property, rights,
evidences of indebtedness, securities (other than shares of Common Stock),
whether issued by the Company or by another, or any other thing of value, the
Holders of the unexercised Purchase Options shall thereafter be entitled, in
addition to the shares of Common Stock or other securities and property
receivable upon the exercise thereof, to receive, upon the exercise of such
Purchase Options, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of
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such dividend or distribution as if the Purchase Options had been exercised
immediately prior to such dividend or distribution. At the time of any such
dividend or distribution, the Company shall make appropriate reserves to ensure
the timely performance of the provisions of this Section 6.11.
6.12 Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Purchase Option, nor shall it be required to issue
scrip or pay cash in lieu of any fractional interests, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and
keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon exercise of the Purchase Options, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Purchase Options and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be duly and validly issued, fully paid and non-assessable and not subject
to preemptive rights of any stockholder. As long as the purchase Options shall
be outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon exercise of the Purchase Options to be listed
(subject to official notice of issuance) on all securities exchanges (or, if
applicable on NASDAQ) on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted.
8. Certain Notice Requirements.
8.1 Holder's Right to Receive Notice. Nothing herein shall be
construed as conferring upon the Holders the right to vote or consent or to
receive notice as a stockholder for the election of directors or any other
matter, or as having any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Purchase Options and their
exercise, any of the events described in Section 8.2 shall occur, then, in one
or more of said events, the Company shall give written notice of such event at
least fifteen days prior to the date fixed as a record date or the date of
closing the transfer books for the determination of the stockholders entitled
to such dividend, distribution, conversion or exchange of securities or
subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notice shall specify such record date or
the date of the closing of the transfer books, as the case may be.
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8.2 Events Requiring Notice. The Company shall be required to give
the notice described in this Section 8 upon one or more of the following
events: (i) if the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company, or (ii)
the Company shall offer to all the holders of its Common Stock any additional
shares of capital stock of the Company or securities convertible into or
exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor, or (iii) a dissolution, liquidation or
winding up of the Company (other than in connection with a consolidation or
merger) or a sale of all or substantially all of its property, assets and
business shall be proposed.
8.3 Notice of Change in Exercise Price. The Company shall,
promptly after an event requiring a change in the Exercise Price pursuant to
Section 6 hereof, send notice to the Holders of such event and change ("Price
Notice"). The Price Notice shall describe the event causing the change and the
method of calculating same and shall be certified as being true and accurate by
the Company's President and Chief Financial Officer.
8.4 Transmittal of Notices. All notices, requests, consents and
other communications under this Purchase Option shall be in writing and shall
be deemed to have been duly made when hand delivered, or mailed by express mail
or private courier service: (i) If to the registered Holder of the Purchase
Option, to the address of such Holder as shown on the books of the Company, or
(ii) if to the Company, to following address or to such other address as the
Company may designate by notice to the Holders:
5727 South Lewis, Suite 700
Tulsa, Oklahoma 74105
9. Miscellaneous.
9.1 Amendments. The Company and the Underwriter may from time to
time supplement or amend this Purchase Option without the approval of any of
the Holders in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard to matters
or questions arising hereunder which the Company and the Underwriter may deem
necessary or desirable and which the Company and the Underwriter deem shall not
adversely affect the interest of the Holders. All other modifications or
amendments shall require the written consent of
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signed by the party against whom enforcement of the modification or amendment
is sought.
9.2 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in anyway limit or affect
the meaning or interpretation of any of the terms or provisions of this
Purchase Option.
9.3 Entire Agreement. This Purchase Option (together with the
other agreements and documents being delivered pursuant to or in connection
with this Purchase Option) constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof.
9.4 Binding Effect. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company and their
permitted assignees, respective successors, legal representatives and assigns,
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Purchase
Option or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction. This Purchase
Option shall be governed by and construed and enforced in accordance with the
law of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of, or relating in any way to this Purchase Option shall be brought and
enforced in the courts of the State of New York or of the United States of
America for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be served upon the Company may be
served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 8 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover form the other party(ies) all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
9.6 Waiver, Etc. The failure of the Company or the Holder to at
any time enforce any of the provisions of this Purchase Option shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Purchase Option or any provision hereof or the
right of the Company or any
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Holder to thereafter enforce each and every provision of this Purchase Option.
No waiver of any breach, non-compliance or nonfulfillment of any of the
provisions of this purchase Option shall be effective unless set forth in a
written instrument executed by the party or parties against whom or which
enforcement of such waiver is sought, and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver
of any other or subsequent breach, non-compliance or non-fulfillment.
9.7 Execution in Counterparts. This Purchase Option may be
executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.
IN WITNESS WHEREOF, the Company has caused this Purchase Option to be
signed by its duly authorized officer as of the 21st day of September 1993.
AMERICAN NATURAL ENERGY CORPORATION
By /s/ Michael K. Paulk
Name Michael K. Paulk
Title: President
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Form to be used to exercise or convert Purchase Option:
AMERICAN NATURAL ENERGY CORPORATION
5727 South Lewis, Suite 700
Tulsa, Oklahoma 74105
Date: , 19
The Undersigned hereby elects irrevocably to exercise the within
Purchase Option and to purchase Shares of Common Stock of American
Natural Energy Corporation and hereby makes payment of $ (at the
rate of $ per Share) in payment of the Exercise Price pursuant
thereto. Please issue the Shares as to which this Purchase Option is
exercised in accordance with the instructions given below.
or
The Undersigned hereby elects irrevocably to convert of the Shares
purchasable under the within Purchase Option into Shares of American
Natural Energy Corporation (based on "Market Price" of $ ). Please
issue the Shares in accordance with the instructions given below.
Signature______________________________________
Signature Guaranteed___________________________
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name_____________________________________________________________________
(Print in Block Letters )
Address__________________________________________________________________
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.
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Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the
within Purchase Option):
FOR VALUE RECEIVED, _________________________________________________
does hereby sell, assign and transfer unto ___________________________________
the right to purchase _____________ Shares of Common Stock of American Natural
Energy Corporation ("Company") evidenced by the within Purchase Option and does
hereby authorize the Company to transfer such right on the books of the
Company.
Dated: _________________, 199__
________________________________
Signature
________________________________
Signature Guaranteed
NOTICE: THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
BANK, OTHER THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING
MEMBERSHIP ON A REGISTERED NATIONAL SECURITIES EXCHANGE.