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EXHIBIT 4.9
HS RESOURCES, INC.
DEBT WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of __________, is by and
between HS Resources, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), and ________________, as Warrant Agent (herein called
the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture") dated as of
______________ between the Company and __________________, providing for the
issuance from time to time of its unsecured [Senior] [Senior Subordinated]
[Subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Senior Subordinated] [Subordinated] Debt Securities"), to be issued
in one or more series as provided in the [Senior] [Senior Subordinated]
[Subordinated] Indenture; [if Warrant Securities are not under same Indenture
as Debt Securities to which they are attached -- and an Indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture," the Senior, Senior
Subordinated and Subordinated Indentures being referred to collectively as the
"Indentures") dated as of _________________ between the Company and
__________________ , as trustee (the "[Senior] [Senior Subordinated]
[Subordinated] Trustee," (the Senior, Senior Subordinated and Subordinated
Trustees being referred to collectively, as the "Trustees"), providing for the
issuance from time to time of its [Senior] [Senior Subordinated]
[Subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Senior Subordinated] [Subordinated] Debt Securities," the [Senior]
[Senior Subordinated] and [Subordinated] Debt Securities being referred to
collectively as the "Debt Securities"), to be issued in one or more series as
provided in the [_______________] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities -- [title of Debt Securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through
- ----------
* Complete or modify the provisions of this Warrant Agreement as appropriate
to reflect the terms of the Warrants, Warrant Securities and Offered
Securities. Monetary amounts may be in U.S. dollars or in foreign currency
or European Currency Units ("ECU").
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exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein
called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after ____________ (the "Detachable Date")] [and shall not
be separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of _____________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities, and each Warrant Certificate included in such a unit shall
evidence Warrants for each $[_____________] in principal amount of Offered
Securities included in such unit.)
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered) [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
______________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of
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this Agreement, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, and by its Secretary
or one of its Assistant Secretaries under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificate so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such
information as to
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holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding _____________ aggregate principal amount of Warrant Securities
(except as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase up to __________ principal amount of Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.03(c).
SECTION 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine as appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or _______________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be
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entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
___________, through and including _____________, the exercise price of each
Warrant will be ___________ [plus [accrued amortization of the original issue
discount] [accrued interest] from _________________.] (In each case, the
original issue discount will be amortized at a _____% annual rate, computed on
an annual basis using the "interest" method and using a 360-day year consisting
of twelve 30-day months]. Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price." [The original issue
discount for each ________ principal amount of Warrant Securities is
__________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_________] and at or before 5 P.M., [New York City] time, on
_________ [or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to their addresses
as set forth in the record books of the Warrant Agent] (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., [New York City] time, on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [applicable currency,] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
[immediately available] [next-day] funds the Warrant Price for each Warrant
Security purchased upon exercise, to the Warrant Agent at its corporate trust
office [or at _______], provided that such exercise is subject to receipt
within five (5) business days of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the
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Warrant Certificate properly completed and duly executed [including any
applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar
denominated funds -- or in such other account designated by the Company] and
shall advise the Company by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company and the [Trustee under the Indenture
relating to the Warrant Securities] of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonably
require.
(c) As promptly as reasonably practicable after the exercise
of any Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such
holder is entitled, in [fully registered form, registered in such name or names
as may be directed by such holder] [bearer form, provided the holder has
furnished to the Warrant Agent all certifications required by applicable U.S.
Treasury regulations for the delivery of bearer securities and only if the
Company has no reason to know that the certifications are false.] If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate evidencing the
number of such Warrants remaining unexercised. [Unless otherwise instructed by
the Company, Warrant Securities in bearer form shall be delivered to or upon
the order of the holder of such Warrant Certificate only outside the United
States and its possessions.]
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(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE II
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the [Indenture relating to the
Warrant Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the mutilated, lost,
stolen or
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destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of his Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or
Lease. If at any time there shall be a merger, consolidation, conveyance,
transfer or lease of assets subject to Section ____ of the [Indenture relating
to the Warrant Securities], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect, subject to such Indenture, as if it had been
named herein and in the Warrant as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and shall execute and
deliver Warrant Securities in its own name or in the name of the company
pursuant to such Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Warrants had been issued at the date of
the execution hereof. In any case of any such consolidation, merger,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as may be
appropriate.
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The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease complies with the provisions of this Section 3.04 and such
Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[If Offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to
any Detachable Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or _______], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [or the transfer thereof may be registered in whole or
in part]; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. [The
Warrant Agent shall keep, at its corporate trust office [and at _____], books
in which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [_______] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange [or registration or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or registration of transfer], an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the
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person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange [or registration of
transfer] that will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or registration of
transfer] of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered for such exchange
[or registration of transfer].
SECTION 4.02 Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [if registered Warrants -- and prior to due presentment of a
Warrant Certificate for registration of transfer,] [t][T]he Company, the
Warrant Agent and all other persons may treat the holder of a Warrant
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange [, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
______________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth; and ___________ hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees) reasonably
incurred without negligence or bad faith by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses of defending against
any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with nationally
recognized counsel satisfactory to it, and the written advice of such counsel
shall be full and complete
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authorization and protection in respect of any action reasonably taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of Holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under
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any duty or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to the
Company pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of its
covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall be not less than three (3) months after the date on which such
notice is given, unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the intended date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
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applicable Federal or state bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Warrant Agent or its property or affairs, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have been entered
in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be
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qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided;
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_________________________, Attention: ______________ and any communication from
the Warrant Agent to the Company with respect to this Agreement shall be
addressed to HS Resources, Inc., One Maritime Plaza, Fifteenth Floor, San
Francisco, CA 94111, Attention: Chief Financial Officer; with a copy to
HS Resources, Inc., 1999 Broadway, Suite 3600, Denver, CO 80202,
Attention: General Counsel; (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of [New York].
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
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"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery
of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
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IN WITNESS WHEREOF HS Resources, Inc. and ______________ have
caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
HS RESOURCES, INC.
By: ____________________________
Title:
Attest:
_________________________
Title:
[Warrant Agent]
By: ____________________________
Title:
Attest:
_________________________
Title:
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EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Offered Prior to ___________ this
Securities with Warrants Warrant Certificate cannot
that are not immediately be transferred or exchanged
detachable. unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants Prior to ___________,
are not immediately Warrants evidenced by this
exercisable. Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HS RESOURCES, INC.
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M. [NEW YORK CITY TIME] ON _____________.
No. __________ __________ Warrants
This certifies that [the bearer is the] [_________________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such owner [If Offered Securities with
Warrants that are not immediately detachable --, subject to [bearer]
[registered] owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined to purchase, at any time [after 5 P.M., [New York City]
time, on _________ and] on or before 5 P.M., [New York City] time, _________
principal amount of [Title of Warrant Securities] (the "Warrant Securities"),
of HS Resources, Inc. (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: [during the period
from _____________, through and including ___________] the exercise price of
each Warrant will be ________ plus [accrued amortization of the original issue
discount] [accrued interest] from __________; [during the
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period from ____________, through and including ____________, the exercise
price of each Warrant will be _____________ plus [accrued amortization of the
original issued discount[ [accrued interest] from __________;] [in each case,
the original issue discount will be amortized at a __________% annual rate,
computed on an annual basis using the "interest" method and using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each _________ principal amount of Warrant Securities is
_________.] The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in [immediately available)
[next-day] funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent") [or ________], which is, on the date hereof, at the address on
the reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable -- , prior to
___________ (the "Detachable Date"), the [bearer] [registered owner] of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] [the bearer of this
Warrant Certificate] [the person in whose name at the time of this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of __________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of
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___________ (the "Warrant Agreement") between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant Agreement,
to all of which terms and provisions the holder of this Warrant Certificate
consents by acceptance hereof. Copies of the Warrant Agreement are on file at
the above-mentioned office of the Warrant Agent [and at ____________].
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to _____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered securities with
Warrants that are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ___________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants are immediately detachable or Warrants
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
_______________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
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This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of __________________
HS RESOURCES, INC.
By: ____________________________
Authorized Officer
By: ____________________________
Authorized Officer
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By: ______________________
Authorized Signature
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[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
In exercise the Warrants evidenced hereby, the holder must pay
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. _________ [or __________], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the
information required below, including any applicable certifications if the
Warrant Securities are issuable in bearer form, and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five (5) business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
_________ principal amount of the [Title of Warrant Securities] (the "Warrant
Securities") of HS Resources, Inc. and represents that he has
tendered payment for such Warrant Securities in [Dollars] [applicable currency]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in [immediately available) [next-day]
funds to the order of HS Resources, Inc., c/o [insert name and address of
Warrant Agent], in the amount of __________ in accordance with the terms
hereof. The undersigned requests that said principal amount of Warrant
Securities be in [bearer] [fully registered] form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below. [However, unless otherwise
designated by the Company, Warrant Securities in bearer form shall be delivered
to or upon the order of the holder of such Warrant Certificate only outside the
United States and its possessions.]
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the
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remaining Warrants hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated: ___________________ Name ____________________________
__________________________ Address _________________________
(Insert Social Security or
Other Identifying Number of Holder) _________________________
(Signature ______________________
[If registered Warrant -- If registered Warrant --
Signature Guaranteed Signature must conform in all
____________________ respects to name of holder as
specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York or Pacific Stock Exchange]
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
By mail at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
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[IF REGISTERED WARRANT]
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
__________________________ __________________________________
(Please print name) (Please insert social
security or other
identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
___________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York or
Pacific Stock Exchange.)
Signature Guaranteed:
_________________________
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CERTIFICATIONS AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer [Warrant] Security upon
exercise of Warrant]
CERTIFICATE
HS RESOURCES, INC.
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: HS Resources, Inc.
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the [Warrant] Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ____________.
The undersigned hereby certifies that as of the date hereof,
the [Warrant] Securities which are to be delivered to the undersigned in bearer
form upon the exercise by the undersigned of such Warrant Certificate (i) are
owned by persons that are not United States Persons, as defined below; (ii) are
owned by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations
through foreign branches of United States financial institutions and who hold
the obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides
a certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a
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person within the United States or its possessions. The undersigned undertakes
to advise you by tested telex followed by written confirmation if the statement
in the immediately preceding sentence is not correct on the date of delivery of
the above-captioned [Warrant] Securities in bearer form.
We understand that this certificate is required in connection
with United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
"United States Person" shall mean a citizen or resident of the United States of
America (including the District of Columbia), a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof or an estate or trust that is subject to
United States Federal income taxation regardless of the source of its income.
Date: _______________________
[Name of Person Entitled to
Receive Warrant Security
Described Herein]
______________________________
(Authorized Signatory)
Name: ________________________
Title:
_______________
Subject to change in accordance with changes in
applicable tax laws and regulations.
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[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
HS RESOURCES, INC.
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: HS Resources, Inc.
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ________________.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. We undertake to advise you by tested telex
followed by written confirmation if the statement in the immediately preceding
sentence is not correct on the date of delivery of the above-captioned
Securities in bearer form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to
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any interested party in any administrative or legal proceedings with respect to
the matters covered by this certificate.
Date: _____________________
[Name of Person Entitled to
Delivery of Warrant Securities
Described Herein]
______________________________
(Authorized Signatory)
Name: ________________________
Title: _______________________
_______________
Subject to change in accordance with changes in applicable tax laws and
regulations.
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