Exhibit 4.3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this
“Agreement”) is made and entered into as of
,
between BETA OIL & GAS, INC., a Nevada corporation (the
“Company”) and
,
(“Holder”).
R
E C I
T A L S
WHEREAS, the Company proposes to
issue to
Holder
warrants (the “Warrants”), each such Warrant entitling
the holder thereof to purchase one share of Common Stock, $0.001
par value, of the Company (the “Shares” or the
“Common Stock”); and
WHEREAS, the Warrants which are the
subject of this Agreement will be issued by the Company to Holder
as part of consideration payable to Holder in connection with an
investment by the Holder pursuant to the concurrent private
offering of the Company (the “Offering”).
NOW, THEREFORE, in consideration of
the premises and the mutual agreements herein set forth, the
parties hereto agree as follows:
A
G R E
E M E N T
1.
Warrant Certificates
. The warrant certificates to
be delivered pursuant to this Agreement (the “Warrant
Certificates”) shall be in the form set forth in Exhibit A,
attached hereto and made a part hereof, with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Warrant Agreement.
2.
Right to Exercise
Warrants . Each
Warrant may be exercised from the date of this Agreement until
11:59 P.M. (Tulsa time) on the date that is five years after the
date of this Agreement (the “Expiration Date”).
Each Warrant not exercised on or before the Expiration Date shall
expire.
Each Warrant shall entitle its
holder to purchase from the Company one share of Common Stock at an
exercise price of $
per share, subject to adjustment as set forth below
(“Exercise Price”).
The Company shall not be required to
issue fractional shares of capital stock upon the exercise of this
Warrant or to deliver Warrant Certificates which evidence
fractional shares of capital stock. In the event that a
fraction of an Exercisable Share would, except for the provisions
of this paragraph 2, be issuable upon the exercise of this Warrant,
the Company shall pay to the Holder exercising the Warrant an
amount in cash equal to such fraction multiplied by the current
market value of the Exercise Share. For purposes of this
paragraph 2, the current market value shall be determined as
follows:
(a)
if the Exercise Shares are traded in
the over-the-counter market and not on any national securities
exchange and not in the NASDAQ Reporting System, the average of the
mean
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between the last bid and asked prices per share,
as reported by the National Quotation Bureau, Inc., or an
equivalent generally accepted reporting service, for the last
business day prior to the date on which this Warrant is exercised,
or, if not so reported, the average of the closing bid and asked
prices for an Exercise Share as furnished to the Company by any
member of the National Association of Securities Dealers, Inc.,
selected by the Company for that purpose.
(b)
if the Exercise Shares are listed or
traded on a national securities exchange or in the NASDAQ Reporting
System, the closing price on the principal national securities
exchange on which they are so listed or traded or in the NASDAQ
Reporting System, as the case may be, on the last business day
prior to the date of the exercise of this Warrant. The
closing price referred to in this Clause (b) shall be the last
reported sales price or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked
prices, in either case on the national securities exchange on which
the Exercise Shares are then listed on in the NASDAQ Reporting
System; or
(c)
if no such closing price or closing
bid and asked prices are available, as determined in any reasonable
manner as may be prescribed by the Board of Directors of the
Company.
3.
Mutilated or Missing Warrant
Certificates . In
case any of the Warrant Certificates shall be mutilated, lost,
stolen or destroyed prior to its expiration date, the Company shall
issue and deliver, in exchange and substitution for and upon
cancellation of the mutilated Warrant Certificate, or in lieu of
and in substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing
an equivalent right or interest.
4.
Reservation of Shares
. The Company will at all
times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued Shares or its
authorized and issued Shares held in its treasury for the purpose
of enabling it to satisfy its obligation to issue Shares upon
exercise of Warrants, the full number of Shares deliverable upon
the exercise of all outstanding Warrants.
The Company covenants that all
Shares which may be issued upon exercise of Warrants will be
validly issued, fully paid and nonassessable outstanding Shares of
the Company.
5.
Rights of Holder.
The Holder shall not,
by virtue of anything contained in this Warrant Agreement or
otherwise, prior to exercise of this Warrant, be entitled to any
right whatsoever, either in law or equity, of a stockholder of the
Company, including without limitation, the right to receive
dividends or to vote or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or the
election of directors of the Company of any other
matter.
6.
Investment Intent
. Holder represents and
warrants to the Company that Holder is acquiring the Warrants for
investment and with no present intention of distributing or
reselling any of the Warrants.
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