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THE SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I)
SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD
PURSUANT TO RULE 144 WITHOUT RESTRICTION, OR (III) THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH
TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933 OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES
LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY THE SECURITIES
ALL FUELS & ENERGY COMPANY
SERIES A WARRANT
For VALUE RECEIVED, Lee Bear I, LLC (“Warrantholder”), is entitled to purchase, subject
to the provisions of this Warrant, from All Fuels & Energy Company, a Delaware corporation
(“Company”), at any time from and after the Company effects the Reverse Split (as defined in the
Purchase Agreement) (the “Initial Exercise Date”) and not later than 5:00 P.M., Eastern time, on
August 15, 2015 (the “Expiration Date”), at an exercise price per share equal to $0.25 (the exercise
price in effect being herein called the “Warrant Price”), 36,761,904.76 shares (“Warrant Shares”)
of the Company’s Common Stock (“Common Stock”). The number of Warrant Shares purchasable
upon exercise of this Warrant and the Warrant Price shall be subject to adjustment from time to time
as described herein.
This Warrant is issued by the Company pursuant to that certain Securities Purchase
Agreement dated August 15, 2011, among the Company and the Warrantholder (the “Purchase
Agreement”).
Section 1. Registration. The Company shall maintain books for the transfer and
registration of the Warrant. Upon the initial issuance of this Warrant, the Company shall issue
and register the Warrant in the name of the Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be transferred only
pursuant to a registration statement filed under the Securities Act of 1933, as amended (the
“Securities Act”), or an exemption from such registration. Subject to such restrictions, the
Company shall transfer this Warrant from time to time upon the books to be maintained by the
Company for that purpose, upon surrender hereof for transfer, properly endorsed or accompanied
by appropriate instructions for transfer and such other documents as may be reasonably required
by the Company, including, if required by the Company, an opinion of its counsel to the effect
that such transfer is exempt from the registration requirements of the Securities Act, to establish
that such transfer is being made in accordance with the terms hereof, and a new Warrant shall be
issued to the transferee and the surrendered Warrant shall be canceled by the Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof, the Warrantholder may
exercise this Warrant, in whole or in part, at any time after the Initial Exercise Date and prior to
the Expiration Date upon surrender of the Warrant, together with delivery of a duly executed
Warrant exercise form, in the form attached hereto as Appendix A (the “Exercise Agreement”)
and payment by cash, certified check, wire transfer of funds, or by cashless exercise (as provided
below) of the aggregate Warrant Price for that number of Warrant Shares then being purchased,
to the Company during normal business hours on any business day at the Company’s principal
executive offices (or such other office or agency of the Company as it may designate by notice to
the Warrantholder). Upon a determination by Warrantholder to avail itself of the cashless
exercise provision, the Company shall issue to the Warrantholder such number of fully paid,
validly issued and nonassessable shares of Common Stock as is computed using the following
formula:
X = Y (A - B)
A
where
X = the number of shares of Common Stock to which the Warrantholder is entitled upon such
cashless exercise;
Y = the total number of shares of Common Stock covered by this Warrant for which the
Warrantholder has surrendered purchase rights at such time for cashless exercise (including both
shares to be issued to the Warrantholder and shares as to which the purchase rights are to be
canceled as payment therefor);
A = the “Market Price” of one share of Common Stock as of the date the net issue election is
made; and
B = the Warrant Price in effect under this Warrant at the time the net issue election is made.
The Warrant Shares so purchased shall be deemed to be issued to the Warrantholder or the
Warrantholder’s designee, as the record owner of such shares, as of the close of business on the
date on which this Warrant shall have been surrendered (or the date evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company has been provided to
the Company), the Warrant Price shall have been paid and the completed Exercise Agreement
shall have been delivered. Certificates for the Warrant Shares so purchased shall be delivered to
the Warrantholder within a reasonable time, not exceeding three (3) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the Warrantholder and shall be registered in the name of
the Warrantholder or such other name as shall be designated by the Warrantholder, as specified
in the Exercise Agreement. If this Warrant shall have been exercised only in part, then, unless
this Warrant has expired, the Company shall, at its expense, at the time of delivery of such
certificates, deliver to the Warrantholder a new Warrant representing the right to purchase the
number of shares with respect to which this Warrant shall not then have been exercised. As used
herein, “business day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business. Each exercise hereof shall constitute
the re-affirmation by the Warrantholder that the representations and warranties contained in
Section 5 of the Purchase Agreement are true and correct in all material respects with respect to
the Warrantholder as of the time of such exercise. Notwithstanding the foregoing, to effect the
exercise of the Warrant hereunder, the Warrantholder shall not be required to physically
surrender this Warrant to the Company unless the entire Warrant is exercised. The
Warrantholder and the Company shall maintain records showing the amount exercised and the
dates of such exercise. The Warrantholder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provision of the paragraph, following exercise of a
portion of the Warrant, the number of Warrant Shares of this Warrant may be less than the
amount stated on the face hereof.
Section 4. Compliance with the Securities Act of 1933. Except as provided in the
Purchase Agreement, the Company may cause the legend set forth on the first page of this
Warrant to be set forth on each Warrant, and a similar legend on any security issued or issuable
upon exercise of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp taxes
attributable to the initial issuance of Warrant Shares issuable upon the exercise of the Warrant;
provided, however, that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance or delivery of any certificates for
Warrant Shares in a name other than that of the Warrantholder in respect of which such shares
are issued, and in such case, the Company shall not be required to issue or deliver any certificate
for Warrant Shares or any Warrant until the person requesting the same has paid to the Company
the amount of such tax or has established to the Company’s reasonable satisfaction that such tax
has been paid. The Warrantholder shall be responsible for income taxes due under federal, state
or other law, if any such tax is due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be mutilated,
lost, stolen, or destroyed, the Company shall issue in exchange and substitution of and upon
surrender and cancellation of the mutilated Warrant, or in lieu of and substitution for the Warrant
lost, stolen or destroyed, a new Warrant of like tenor and for the purchase of a like number of
Warrant Shares, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction of the Warrant, and with respect to a lost, stolen or destroyed
Warrant, reasonable indemnity or bond with respect thereto, if requested by the Company.
Section 7. Reservation of Common Stock. At any time when this Warrant is
exercisable, the Company shall at all applicable times keep reserved until issued (if necessary) as
contemplated by this Section 7, out of the authorized and unissued shares of Common Stock,
sufficient shares to provide for the exercise of the rights of purchase represented by this Warrant.
The Company agrees that all Warrant Shares issued upon due exercise of the Warrant shall be, at
the time of delivery of the certificates for such Warrant Shares, duly authorized, validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this Section 8, the
Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to
adjustment from time to time as set forth hereinafter.
(a) If the Company shall, at any time or from time to time while this Warrant
is outstanding, pay a dividend or make a distribution on its Common Stock in shares of Common
Stock, subdivide its outstanding shares of Common Stock into a greater number of shares or
combine its outstanding shares of Common Stock into a smaller number of shares or issue by
reclassification of its outstanding shares of Common Stock any shares of its capital stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then (i) the Warrant Price in effect immediately prior to
the date on which such change shall become effective shall be adjusted by multiplying such
Warrant Price by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such change and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after giving effect to such change
and (ii) the number of Warrant Shares purchasable upon exercise of this Warrant shall be
adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior to the date on which such change shall become effective by a fraction, the
numerator of which is shall be the Warrant Price in effect immediately prior to the date on which
such change shall become effective and the denominator of which shall be the Warrant Price in
effect immediately after giving effect to such change, calculated in accordance with clause (i)
above. Such adjustments shall be made successively whenever any event listed above shall
occur. Additional adjustments in the Exercise Price shall be made pursuant to section 8(d) in the
event of the payment of a dividend or distribution on its Common Stock in shares of Common
Stock.
(b) If any capital reorganization, reclassification of the capital stock of the
Company, consolidation or merger of the Company with another corporation in which the
Company is not the survivor, or sale, transfer or other disposition of all or substantially all of the
Company’s assets to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger, sale, transfer or other disposition, lawful
and adequate provision shall be made whereby each Warrantholder shall thereafter have the right
to purchase and receive upon the basis and upon the terms and conditions herein specified and in
lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, such
shares of stock, securities or assets as would have been issuable or payable with respect to or in
exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of the Warrant, had such reorganization, reclassification,
consolidation, merger, sale, transfer or other disposition not taken place, and in any such case
appropriate provision shall be made with respect to the rights and interests of each Warrantholder
to the end that the provisions hereof (including, without limitation, provision for adjustment of
the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in
relation to any shares of stock, securities or assets thereafter deliverable upon the exercise hereof.
The Company shall not effect any such consolidation, merger, sale, transfer or other disposition
unless prior to or simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger, or the corporation
purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder
appearing on the books of the Company, such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the
other obligations under this Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales, transfers or other
dispositions.
(c) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing corporation) of evidences
of indebtedness or assets (other than cash dividends or cash distributions payable out of
consolidated earnings or earned surplus or dividends or distributions referred to in Section 8(a)),
or subscription rights or warrants, the Warrant Price to be in effect after such payment date shall
be determined by multiplying the Warrant Price in effect immediately prior to such payment date
by a fraction, the numerator of which shall be the total number of shares of Common Stock
outstanding multiplied by the Market Price (as defined below) per share of Common Stock
immediately prior to such payment date, less the fair market value (as determined by the
Company’s Board of Directors in good faith) of said assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, and the denominator of which shall be the
total number of shares of Common Stock outstanding multiplied by such Market Price per share
of Common Stock immediately prior to such payment date. “Market Price” as of a particular
date (the “Valuation Date”) shall mean the following: (a) if the Common Stock is then listed on a
national stock exchange, the closing sale price of one share of Common Stock on such exchange
on the last trading day prior to the Valuation Date; (b) if the Common Stock is then quoted on
The Nasdaq Stock Market, Inc. (“Nasdaq”), the National Association of Securities Dealers, Inc.
OTC Bulletin Board (the “Bulletin Board”) or such similar quotation system or association, the
closing sale price of one share of Common Stock on Nasdaq, the Bulletin Board or such other
quotation system or association on the last trading day prior to the Valuation Date or, if no such
closing sale price is available, the average of the high bid and the low asked price quoted thereon
on the last trading day prior to the Valuation Date; or (c) if the Common Stock is not then listed
on a national stock exchange or quoted on Nasdaq, the Bulletin Board or such other quotation
system or association, the fair market value of one share of Common Stock as of the Valuation
Date, as determined in good faith by the Board of Directors of the Company and the
Warrantholder. If the Common Stock is not then listed on a national securities exchange,
Nasdaq, the Bulletin Board or such other quotation system or association, the Board of Directors
of the Company shall respond promptly, in writing, to an inquiry by the Warrantholder prior to
the exercise hereunder as to the fair market value of a share of Common Stock as determined by
the Board of Directors of the Company. In the event that the Board of Directors of the Company
and the Warrantholder are unable to agree upon the fair market value in respect of subpart (c) of
this paragraph, the Company and the Warrantholder shall jointly select an appraiser, who is
experienced in such matters. The decision of such appraiser shall be final and conclusive, and
the cost of such appraiser shall be borne equally by the Company and the Warrantholder. Such
adjustment shall be made successively whenever such a payment date is fixed.
(d) An adjustment to the Warrant Price shall become effective immediately
after the payment date in the case of each dividend or distribution and immediately after the
effective date of each other event which requires an adjustment.
(e) In the event that, as a result of an adjustment made pursuant to this Section
8, the Warrantholder shall become entitled to receive any shares of capital stock of the Company
other than shares of Common Stock, the number of such other shares so receivable upon exercise
of this Warrant shall be subject thereafter to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the Warrant Shares
contained in this Warrant.
(f) To the extent permitted by applicable law and the listing requirements of
any stock market or exchange on which the Common Stock is then listed, the Company from
time to time may decrease the Warrant Price by any amount for any period of time if the period is
at least twenty (20) days, the decrease is irrevocable during the period and the Board shall have
made a determination that such decrease would be in the best interests of the Company, which
determination shall be conclusive. Whenever the Warrant Price is decreased pursuant to the
preceding sentence, the Company shall provide written notice thereof to the Warrantholder at
least five (5) days prior to the date the decreased Warrant Price takes effect, and such notice shall
state the decreased Warrant Price and the period during which it will be in effect.
Notwithstanding the foregoing, the Company shall treat all holders of the Company Warrants
equally.
Section 9. Fractional Interest. The Company shall not be required to issue fractions
of Warrant Shares upon the exercise of this Warrant. If any fractional share of Common Stock
would, except for the provisions of the first sentence of this Section 9, be deliverable upon such
exercise, the Company, in lieu of delivering such fractional share, shall pay to the exercising
Warrantholder an amount in cash equal to the Market Price of such fractional share of Common
Stock on the date of exercise.
Section 10. Benefits. Nothing in this Warrant shall be construed to give any person,
firm or corporation (other than the Company and the Warrantholder) any legal or equitable right,
remedy or claim, it being agreed that this Warrant shall be for the sole and exclusive benefit of
the Company and the Warrantholder.
Section 11. Notices to Warrantholder. Upon the happening of any event requiring an
adjustment of the Warrant Price, the Company shall promptly give written notice thereof to the
Warrantholder at the address appearing in the records of the Company, stating the adjusted
Warrant Price and the adjusted number of Warrant Shares resulting from such event and setting
forth in reasonable detail the method of calculation and the facts upon which such calculation is
based. Failure to give such notice to the Warrantholder or any defect therein shall not affect the
legality or validity of the subject adjustment.
Section 12. Identity of Transfer Agent. The Transfer Agent for the Common Stock is
Pacific Stock Transfer Company. Upon the appointment of any subsequent transfer agent for the
Common Stock or other shares of the Company’s capital stock issuable upon the exercise of the
rights of purchase represented by the Warrant, the Company will mail to the Warrantholder a
statement setting forth the name and address of such transfer agent.
Section 13. Notices. Unless otherwise provided, any notice required or permitted
under this Warrant shall be given in writing and shall be deemed effectively given and received
as hereinafter described (i) if given by personal delivery, then such notice shall be deemed
received upon such delivery, (ii) if given by telex or facsimile, then such notice shall be deemed
received upon receipt of confirmation of complete transmittal, (iii) if given by certified mail
return receipt requested, then such notice shall be deemed received upon the day such return
receipt is signed, and (iv) if given by an internationally recognized overnight air courier, then
such notice shall be deemed given one business day after delivery to such carrier. Copies of such
notices shall also be transmitted by email to the email address provided for on the signature page
of the Purchase Agreement. All notices shall be addressed as follows: if to the Warrantholder, at
its address as set forth on the signature page of the Purchase Agreement (copied to the counsel
for Investor) and, if to the Company, at the address as follows, or at such other address as the
Warrantholder or the Company may designate by ten days’ advance written notice to the other:
If to the Company:
All Fuels and Energy Company
6165 N.W. 86th Street
Johnston, Iowa 50131
Section 15. Successors. All the covenants and provisions hereof by or for the benefit
of the Warrantholder shall bind and inure to the benefit of its respective successors and assigns
hereunder.
Section 16. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Warrant shall be governed by, and construed in accordance with, the internal laws of the State of
Texas, without reference to the choice of law provisions thereof. The Company and, by
accepting this Warrant, the Warrantholder, each irrevocably submits to the exclusive jurisdiction
of the courts of the State of Texas located in Harris County and the United States District Court
for the Southern District of Texas for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Warrant and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving of notices
under this Warrant. The Company and, by accepting this Warrant, the Warrantholder, each
irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding
and to the laying of venue in such court. The Company and, by accepting this Warrant, the
Warrantholder, each irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an inconvenient forum.
EACH OF THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE
WARRANTHOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY
IN ANY LITIGATION WITH RESPECT TO THIS WARRANT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
Section 17. No Rights as Stockholder. Prior to the exercise of this Warrant, the
Warrantholder shall not have or exercise any rights as a stockholder of the Company by virtue of
its ownership of this Warrant.
Section 18. Amendment; Waiver. Any term of this Warrant may be amended or
waived (including the adjustment provisions included in Section 8 of this Warrant) upon the
written consent of the Company and the Warrantholder.
Section 19. Section Headings. The section headings in this Warrant are for the
convenience of the Company and the Warrantholder and in no way alter, modify, amend, limit or
restrict the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, as of the
15th day of August 2011.
ALL FUELS & ENERGY COMPANY.
By: /s/ DEAN E. SUKOWATEY
Name: Dean E Sukowatey
Title: Pres/CEO
------------------------------
APPENDIX A
ARKANOVA ENERGY CORP.
WARRANT EXERCISE FORM
To Arkanova Energy Corp.:
The undersigned hereby irrevocably elects to exercise the right of purchase represented by
the within Warrant (“Warrant”) for, and to purchase thereunder by the payment of the Warrant
Price and surrender of the Warrant, _______________ shares of Common Stock (“Warrant
Shares”) provided for therein, and requests that certificates for the Warrant Shares be issued as
follows:
_______________________________
Name
________________________________
Address
________________________________
________________________________
Federal Tax ID or Social Security No.
and delivered by (certified mail to the above address, or
(electronically (provide DWAC Instructions:___________________), or
(other (specify): __________________________________________).
and, if the number of Warrant Shares shall not be all the Warrant Shares purchasable upon
exercise of the Warrant, that a new Warrant for the balance of the Warrant Shares purchasable
upon exercise of this Warrant be registered in the name of the undersigned Warrantholder or the
undersigned’s Assignee as below indicated and delivered to the address stated below.
Dated: ___________________, ____
Note: The signature must correspond with Signature:______________________________
the name of the Warrantholder as written
on the first page of the Warrant in every ______________________________
particular, without alteration or enlargement Name (please print)
or any change whatever, unless the Warrant
has been assigned. ______________________________
______________________________
Address
______________________________
Federal Identification or
Social Security No.
APPENDIX B
ARKANOVA ENERGY CORP.
NET ISSUE ELECTION NOTICE
To: Arkanova Energy Corp.
Date:[_________________________]
The undersigned hereby elects under Section 3 of this Warrant to surrender the right to purchase
[____________] shares of Common Stock pursuant to this Warrant and hereby requests the
issuance of [_____________] shares of Common Stock. The certificate(s) for the shares issuable
upon such net issue election shall be issued in the name of the undersigned or as otherwise
indicated below.
_________________________________________
Signature
_________________________________________
Name for Registration
_________________________________________
Mailing Address