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NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE EXERCISEABLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE
FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
MAVERICK OIL AND GAS, INC.
FORM OF
WARRANT TO PURCHASE
COMMON STOCK
Warrant No.:
Number of Shares of Common Stock:
Date of Issuance: July 30, 2007 (“
Issuance Date ”)
MAVERICK OIL AND GAS, INC., a Nevada corporation
(the “ Company
”), hereby certifies that, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, _________________________ the
registered holder hereof or its permitted assigns (the
“ Holder ”), is entitled, subject to the terms set forth below, to
purchase from the Company, at the Exercise Price (as defined below)
then in effect, upon surrender of this Warrant to Purchase Common
Stock (including any Warrants to Purchase Common Stock issued in
exchange, transfer or replacement hereof, the “
Warrant ”), at
any time or times on or after the Issuance Date, but not after
11:59 p.m., New York Time, on the Expiration Date (as defined
below), _______________, subject to adjustment as provided herein,
duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (as defined below) (the “ Warrant Shares
”). Except as otherwise defined herein,
capitalized terms in this Warrant shall have the meanings set forth
in Section 16. This Warrant is one of the Warrants to Purchase
Common Stock (the “ SPA
Warrants ”) issued pursuant to
Section 1 of that certain Securities Exchange Agreement, dated
as of July 30, 2007 (the “ Exchange Date ”), by and among
the Company and the investors (the “ Buyers ”) referred to therein
(the “ Securities Exchange
Agreement ”), in exchange for the
Outstanding Warrants (as defined in the Securities Exchange
Agreement) held by the Holder.
(a) Mechanics
of Exercise . Subject to the terms and
conditions hereof (including, without limitation, the limitations
set forth in Section 1(f)), this Warrant may be exercised by the
Holder on any day on or after the Issuance Date, in whole or in
part, by (i) delivery of a written notice, in the form
attached hereto as Exhibit A
(the “ Exercise
Notice ”),
of the Holder’s election to exercise this
Warrant and (ii) (A) payment to the Company of an amount equal
to the applicable Exercise Price multiplied by the number of
Warrant Shares as to which this Warrant is being exercised (the
“ Aggregate Exercise
Price ”) in cash or wire transfer
of immediately available funds or (B) by notifying the Company that
this Warrant is being exercised pursuant to a Cashless Exercise (as
defined in Section 1(d)). The Holder shall not be required to
deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice with
respect to less than all of the Warrant Shares shall have the same
effect as cancellation of the original Warrant and issuance of a
new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. On or before the first Business Day following
the date on which the Company has received each of the Exercise
Notice and the Aggregate Exercise Price (or notice of a Cashless
Exercise) (the “ Exercise Delivery
Documents ”), the Company shall
transmit by facsimile an acknowledgment of confirmation of receipt
of the Exercise Delivery Documents to the Holder and the
Company’s transfer agent (the “ Transfer Agent ”). On or before
the third Business Day following the date on which the Company has
received all of the Exercise Delivery Documents (the “
Share Delivery Date ”), the Company shall (X) provided that the Transfer Agent is
participating in The Depository Trust Company (“
DTC ”) Fast
Automated Securities Transfer Program, upon the request of the
Holder, credit such aggregate number of shares of Common Stock to
which the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system, or (Y) if
the Transfer Agent is not participating in the DTC Fast Automated
Securities Transfer Program, issue and dispatch by overnight
courier to the address as specified in the Exercise Notice, a
certificate, registered in the Company’s share register in
the name of the Holder or its designee, for the number of shares of
Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Notice and Aggregate
Exercise Price referred to in clause (ii)(A) above or notification
to the Company of a Cashless Exercise referred to in Section 1(d),
the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date of
delivery of the certificates evidencing such Warrant Shares. If
this Warrant is submitted in connection with any exercise pursuant
to this Section 1(a) and the number of Warrant Shares represented
by this Warrant submitted for exercise is greater than the number
of Warrant Shares being acquired upon an exercise, then the Company
shall as soon as practicable and in no event later than three
Business Days after any exercise and at its own expense, issue a
new Warrant (in accordance with Section 7(d)) representing the
right to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant, less the
number of Warrant Shares with respect to which this Warrant is
exercised. No fractional shares of Common Stock are to be issued
upon the exercise of this Warrant, but rather the number of shares
of Common Stock to be issued shall be rounded up to the nearest
whole number. The Company shall pay any and all taxes which may be
payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant.
(b) Exercise
Price . For purposes of this Warrant,
“ Exercise Price
” means $0.01, subject to adjustment as
provided herein.
(c) Company’s Failure to Timely Deliver Securities
. If the Company shall fail for any reason or for no
reason to issue to the Holder within three (3) Business Days of
receipt of the Exercise Delivery Documents, a certificate for the
number of shares of Common
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Stock to which the Holder is entitled and register
such shares of Common Stock on the Company’s share register
or to credit the Holder’s balance account with DTC for such
number of shares of Common Stock to which the Holder is entitled
upon the Holder’s exercise of this Warrant, and if on or
after such Business Day the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such exercise that the Holder anticipated receiving
from the Company (a “Buy-In” ), then the
Company shall, within three (3) Business Days after the
Holder’s request and in the Holder’s discretion, either
(i) pay cash to the Holder in an amount equal to the Holder’s
total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased (the “Buy-In Price” ), at
which point the Company’s obligation to deliver such
certificate (and to issue such shares of Common Stock) shall
terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such shares of
Common Stock and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (A) such
number of shares of Common Stock, times (B) the Closing Bid Price
on the date of exercise.
(d) Cashless
Exercise . Notwithstanding anything contained herein to the contrary, if a
Registration Statement (as defined in the Registration Rights
Agreement) covering the Warrant Shares that are the subject of the
Exercise Notice (the “ Unavailable
Warrant Shares ”) is not available
for the resale of such Unavailable Warrant Shares, the Holder may,
in its sole discretion, exercise this Warrant in whole or in part
and, in lieu of making the cash payment otherwise contemplated to
be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such
exercise the “Net Number” of shares of Common Stock
determined according to the following formula (a “
Cashless Exercise ”):
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Net Number = (A x B) - (A x
C)
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B
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For purposes of the foregoing formula:
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A =
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the total number of Warrant Shares with respect to
which this Warrant is then being exercised.
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B =
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the Closing Sale Price of the shares of Common Stock
(as reported by Bloomberg) on the date immediately preceding the
date of the Exercise Notice.
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C =
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the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
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(e) Disputes . In the case of a dispute
as to the determination of the Exercise Price or the arithmetic
calculation of the Warrant Shares, the Company shall promptly issue
to the Holder the number of Warrant Shares that are not disputed
and resolve such dispute in accordance with Section 13.
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(f) Limitations on Exercises; Beneficial Ownership
. The Company shall not effect the exercise of this
Warrant, and the Holder shall not have the right to exercise this
Warrant, to the extent that after giving effect to such exercise,
such Person (together with such Person’s affiliates) would
beneficially own (directly or indirectly through Warrant Shares or
otherwise) in excess of 4.99% (the “ Maximum Percentage ”) of the
shares of Common Stock outstanding immediately after giving effect
to such exercise. For purposes of the foregoing sentence, the
aggregate number of shares of Common Stock beneficially owned
(directly or indirectly through Warrant Shares or otherwise) by
such Person and its affiliates shall include the number of shares
of Common Stock issuable upon exercise of this Warrant with respect
to which the determination of such sentence is being made, but
shall exclude shares of Common Stock which would be issuable upon
(i) exercise of the remaining, unexercised portion of this Warrant
beneficially owned by such Person and its affiliates and (ii)
exercise or conversion of the unexercised or unconverted portion of
any other securities of the Company beneficially owned by such
Person and its affiliates (including, without limitation, any
convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this subsection, beneficial ownership
shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding shares of Common
Stock, the Holder may rely on the number of outstanding shares of
Common Stock as reflected in (1) the Company’s most recent
Form 10-K, Form 10-Q, Current Report on Form 8-K or other
public filing with the Securities and Exchange Commission, as the
case may be, (2) a more recent public announcement by the Company
or (3) any other notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock outstanding. For
any reason at any time, upon the written or oral request of the
Holder, the Company shall within one Business Day confirm orally
and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including the
SPA Securities and the SPA Warrants, by the Holder and its
affiliates since the date as of which such number of outstanding
shares of Common Stock was reported.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES . The Exercise Price and the
number of Warrant Shares shall be adjusted from time to time as
follows:
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(a)
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[ Intentionally
omitted .]
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(b) Adjustment
upon Subdivision or Combination of shares of Common
Stock . If the Company at any time on or
after the Exchange Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares
will be proportionately increased. Except as set forth in the
following sentence, if the Company at any time on or after the
Exchange Date combines (by combination, reverse stock split or
otherwise) one or more classes of its outstanding shares of Common
Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately
decreased. Notwithstanding
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the foregoing, the Exercise Price will not be
proportionately increased in connection with the Reverse Stock
Split, as defined in and contemplated by Section 4(q) of the
Securities Exchange Agreement. Any adjustment under this Section
2(b) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(c) Other
Events . If any event occurs of the type
contemplated by the provisions of this Section 2 but not expressly
provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or
other rights with equity features), then the Company’s Board
of Directors will make an appropriate adjustment in the Exercise
Price and the number of Warrant Shares so as to protect the rights
of the Holder; provided
that no such adjustment pursuant to this Section
2(c) will increase the Exercise Price or decrease the number of
Warrant Shares as otherwise determined pursuant to this Section
2.
3. RIGHTS UPON DISTRIBUTION OF ASSETS .
If the Company shall declare or make any dividend or other
distribution of its assets (or rights to acquire its assets) to
holders of shares of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash,
stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a
“ Distribution
”), at any time after the issuance of this
Warrant, then, in each such case:
(a) any Exercise Price in effect
immediately prior to the close of business on the record date fixed
for the determination of hol
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