1
NOTE PURCHASE AGREEMENT
FOR
12% SERIES B SENIOR SECURED NOTES
OF
SEVEN SEAS PETROLEUM INC.,
A CAYMAN ISLANDS EXEMPTED COMPANY LIMITED BY SHARES
JULY 23, 2001
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TABLE OF CONTENTS
Page
1. Purchase; Authorization ............................. 1
2. Closing ............................................. 2
3. Company's Representations and Warranties ............ 2
3.1 Organization and Standing ..................... 2
3.2 Subsidiaries .................................. 2
3.3 Corporate Power ............................... 2
3.4 Investments ................................... 3
3.5 Minute Books .................................. 3
3.6 Capitalization ................................ 3
3.7 Subsidiary Capitalization ..................... 4
3.8 No Violation .................................. 4
3.9 Validity ...................................... 4
3.10 SEC Documents ................................. 5
3.11 Financial Statements .......................... 5
3.12 Absence of Undisclosed Liabilities ............ 5
3.13 Absence of Certain Changes .................... 5
3.14 Contracts, Leases, and Other Agreements ....... 6
3.15 ERISA ......................................... 6
3.16 Arrangements with Related Parties ............. 7
3.17 Taxes ......................................... 7
3.18 Insurance ..................................... 8
3.19 Litigation .................................... 8
3.20 Consents ...................................... 8
3.21 Title to Properties; Liens and Encumbrances ... 8
3.22 Compliance with Law and Other Instruments ..... 9
3.23 Reserve Information ........................... 9
3.24 Solicitation .................................. 9
3.25 Registration Requirements ..................... 9
3.26 Acknowledgment ................................ 9
4. Purchaser's Representations and Warranties .......... 10
4.1 Authorization; Power .......................... 10
4.2 Investment Representations .................... 10
4.2.1 Economic Risk .................... 10
4.2.2 Acquisition for Own Account ...... 10
4.2.3 Protection ....................... 10
4.2.4 Company Information .............. 10
4.2.5 Residence ........................ 11
5. Purchasers' Conditions .............................. 11
5.1 Representations and Warranties Correct ........ 11
5.2 Performance ................................... 11
5.3 Legal Opinion ................................. 11
5.4 Consents, Permits and Waivers ................. 11
5.5 Adverse Effects ............................... 11
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5.6 Purchase of the Senior Note ................... 11
6. Company's Conditions ................................ 11
6.1 Representations and Warranties True ........... 11
6.2 Performance of Obligations .................... 11
6.3 Payment ....................................... 12
6.4 Consents, Permits and Waivers ................. 12
6.5 Fairness Opinion .............................. 12
7. Payment or Exchange of Notes ........................ 12
8. Agent Appointment; Jurisdiction ..................... 12
9. Effectiveness of Agreement and Termination .......... 13
10. Several Obligations ................................. 13
11. Miscellaneous ....................................... 14
11.1 Fees and Expenses ............................. 14
11.2 Consent to Amendments; Waivers ................ 14
11.3 Successors and Assigns ........................ 14
11.4 Severability .................................. 14
11.5 Descriptive Headings .......................... 14
11.6 Notices ....................................... 14
11.7 Governing Law ................................. 15
11.8 Exhibits and Schedules ........................ 15
11.9 Final Agreement ............................... 15
11.10 Execution in Counterparts ..................... 15
11.11 Separate Signature Pages ...................... 15
11.12 Waiver of Jury Trial, Punitive Damages, Etc. .. 15
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SEVEN SEAS PETROLEUM INC.
NOTE PURCHASE AGREEMENT
(12% SERIES B SENIOR SECURED NOTES)
THIS AGREEMENT is entered into effective July 23, 2001,
between
SEVEN SEAS PETROLEUM INC., a Cayman Islands exempted company limited by
shares (the "Company"), and each of the persons and entities listed on Schedule
1 (the "Purchasers").
RECITALS
A. In order to raise additional funds to implement the Company's
business plan, the Company desires issue the Company's 12% Series B Senior
Secured Notes due on the earlier of consummation of the Rights Offering (as
hereinafter defined) or November 7, 2004 in the amount of TWENTY-TWO MILLION
FIVE HUNDRED THOUSAND DOLLARS ($22,500,000.00) (the "Notes").
B. Simultaneous with the issuance of the Notes and also in order
to raise additional funds to implement the Company's business plan, the Company
intends to issue the Company's 12% Senior Secured Note due 2004 in the amount of
TWENTY-TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($22,500,000.00) (the "Senior
Note") coupled with detachable Warrants (the "CEC Warrants") to purchase in the
aggregate TWELVE MILLION SIX HUNDRED TWELVE THOUSAND ONE HUNDRED FORTY
(12,612,140) shares of the Company's ordinary shares, par value $0.001 per share
(the "Common Stock") to Chesapeake Energy Corporation, an
Oklahoma corporation.
C. The Purchasers desire to purchase from the Company and the
Company desires to issue and sell to the Purchasers, the Notes in the amounts
set forth in Schedule 1 for each Purchaser, for an aggregate purchase price of
Twenty-Two Million Five Hundred Thousand Dollars ($22,500,000.00) for all of the
Notes, such purchase being subject to: (a) the consummation of the sale and
issuance of the Senior Note, and (b) the agreement of the Company that, to the
extent the Notes are not paid in full upon consummation of the Rights Offering,
such unpaid Notes will be exchanged for the Company's 12% Series A Senior
Secured Notes due 2004 and warrants offered pursuant to the Rights Offering
("Series A Notes and Series A Warrants").
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Purchase; Authorization. Subject to the terms and conditions
set forth herein, the Company hereby agrees to issue and sell to the Purchasers,
and the Purchasers agree to purchase from the Company, in the respective amounts
set forth in Schedule 1, all of the Notes in the principal amount of Twenty-Two
Million Five Hundred Thousand Dollars ($22,500,000.00) for an aggregate purchase
price of $22,500,000. Prior to the Closing (as hereinafter defined), the Company
will duly authorize the issuance of the Notes to the Purchasers.
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2. Closing. The consummation of the purchase and sale of the
Notes (the "Closing") will be held at the offices of McAfee & ▇▇▇▇ A
Professional Corporation, Tenth Floor, Two Leadership Square, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the earlier of: (a) the
date all of the conditions precedent set forth in paragraph 5 of this Agreement
have been performed or waived, or (b) July 23, 2001, at 10:00 a.m. local time,
or at such other time, date and place as may be agreed to by the Company and the
Purchasers (the "Closing Date"). At the Closing, the Company will deliver the
Notes to the Purchasers in substantially the form attached as Exhibit A
evidencing the Notes. Each Purchaser will deliver to the Company in immediately
available funds the purchase price for the Notes to be acquired by such
Purchaser.
3. Company's Representations and Warranties. As an inducement to
the Purchasers to enter into and perform this Agreement, the Company hereby
represents and warrants to the Purchasers as follows:
3.1 Organization and Standing. The Company is an exempted
company limited by shares duly organized, validly existing and in good standing
under the laws of the Cayman Islands and continue in the Cayman Islands with all
of the legal and contractual rights and interests the Company held as a Yukon,
Canada corporation. The Company has the requisite power and authority to own all
of the Company's properties, to conduct the Company's business as presently
being conducted and to conduct the Company's business as it is proposed to be
conducted. The Company is duly qualified to do business in those jurisdictions
listed in Schedule 3.1. The Company does not have any material properties or
operations elsewhere and the Company is not subject to any material liability or
disability in conducting business by reason of any failure to obtain any
qualification to do business in any other jurisdiction.
3.2 Subsidiaries. Except for the subsidiaries set forth on
Schedule 3.2 (the "Subsidiaries"), the Company does not directly or indirectly
or through any entity or person own or control more than fifty percent (50%) of
the voting power or capital of any Corporation, association, partnership,
limited liability company or other business entity. Each Subsidiary is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization listed on Schedule 3.2 and has the requisite
power and authority to own all of the Subsidiary's properties, to conduct the
Subsidiary's business as presently being conducted and to conduct the
Subsidiary's business as it is proposed to be conducted. Each Subsidiary is duly
qualified to do business in those jurisdictions listed in Schedule 3.2. No
Subsidiary has any operations elsewhere and no Subsidiary is subject to any
material liability or disability in conducting business by reason of failure to
obtain any qualification to do any business in any other jurisdiction.
3.3 Corporate Power. The Company has all requisite power and
authority to: (a) enter into this Agreement and each of the agreements and
instruments to be executed in connection herewith, (b) issue and sell the Notes;
and (c) carry out and perform its obligations under the terms of this Agreement
and any other documents to be executed in connection herewith including, without
limitation, that certain Pledge and Security Agreement, that certain Deed of
Mortgage over Shares (or Change over Shares (as applicable)) and other
collateral documents, each dated on or about the Closing Date between the
Company and Chesapeake Energy Corporation, as collateral agent, at Exhibit B
attached hereto (collectively, the "Pledge Agreement"), that certain trust
indenture of even date herewith between the Company and U.S.
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Trust Company of Texas, N.A., as Trustee, attached hereto as Exhibit C (and
together with the other documents and instruments required thereby, the
"Indenture"), and the Collateral Sharing and Agency Agreement attached hereto as
Exhibit D between Chesapeake Energy Corporation and the trustee for the
Indenture (the "Collateral Sharing Agreement and, together with the Pledge
Agreement, the Indenture and any and all other documents and instruments
executed and delivered in connection therewith, the "Related Agreements"). The
Company has taken all actions necessary to authorize the execution, delivery and
performance of this Agreement and the Related Agreements, the consummation of
the transactions contemplated hereby and thereby and the issuance and delivery
of the Notes. This Agreement and the Related Agreements are valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally.
3.4 Investments. The Company does not own of record or
beneficially any Investment (as defined in the Indenture) other than Investments
of the type permitted by the Indenture.
3.5 Minute Books. The minute books of the Company contain a
complete and correct summary in all material respects of all meetings of the
Company's Board of Directors (the "Board") and the Company's shareholders since
the inception of the Company. The minute books of each Active Subsidiary contain
a complete and correct summary in all material respects of all meetings of the
board of directors of such Active Subsidiary and such Active Subsidiary's
shareholders since the inception of such Active Subsidiary. The originals or
true and correct copies of such minute books have been made available to the
Purchasers.
3.6 Capitalization. As of the Closing, the Company's
authorized capital stock will consist of 200,000,000 shares, par value $0.001,
of which 150,000,000 are designated as ordinary shares and 50,000,000 are shares
which may be designated by the Board of Directors. After consummation of the
transactions contemplated by this Agreement, the only shares of capital stock
issued and outstanding will be 37,836,420 shares of fully paid and
non-assessable Common Stock, there will be no shares of any other class of
capital stock or equity issued or outstanding and the only shares of Common
Stock reserved for issuance or committed to be issued will be (a) shares
issuable upon the exercise of stock options under the Corporation's 1995, 1996
and 1997 stock option plans under which options to purchase 4,686,934 shares
have been granted at exercise prices reflected in Schedule "3.6" attached hereto
as a part hereof and 669,954 shares are available for option grants, (b)
12,612,140 shares issuable upon the exercise of the CEC Warrants, and (c)
12,612,140 shares issuable upon the exercise of warrants (the "RO Warrant
Shares") to be issued in connection with the Rights Offering (the "RO
Warrants"). As of the Closing, there will be no declared but unpaid dividends or
undeclared dividend arrearage on any shares of capital stock of the Company. In
addition, as of the Closing, except as set forth in this paragraph, there will
not exist any stock appreciation rights, phantom stock plans, preemptive rights,
conversion rights, options, warrants or agreements granted, issued by or binding
on the Company for the purchase or acquisition of any shares of its capital
stock other than those issued, reserved or committed to be issued pursuant to
this Agreement, the Related Agreements and pursuant to that certain rights
offering to be made to the Common Stock holders of the Company pursuant to which
the shareholders of the Company will be granted the right to purchase an
approximate pro rata share of the Company's Series A Senior Secured Notes due
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2004 in the aggregate principal amount of Twenty-Two Million Five Hundred
Thousand Dollars ($22,500,000.00) (the "Series A Notes") coupled with detachable
warrants (the "Rights Offering") with the proceeds to be used to refinance the
Notes. All outstanding securities of the Company were issued in compliance with
all Cayman Islands and United States federal and state securities laws.
3.7 Subsidiary Capitalization. Each Subsidiary's authorized,
issued and outstanding capital stock or other equity interests, as the case may
be, is as set forth on Schedule 3.7. The issued and outstanding shares of
capital stock or other equity interests, as the case may be, of each Subsidiary
are owned of record and beneficially by the person or entity and in the amounts
set forth on Schedule 3.7 and are directly or indirectly owned one hundred
percent (100%) by the Company legally and beneficially. As of the Closing, there
will be no declared but unpaid dividends or undeclared dividend arrearage on any
shares of capital stock or other equity interests, as the case may be, of any of
the Subsidiaries. As of the Closing there will not exist any stock appreciation
rights, phantom stock plans, preemptive rights, conversion rights, options,
warrants or agreements granted, issued by or binding on any Subsidiary for the
purchase or acquisition of any shares of such Subsidiary's capital stock or
other equity interests, as the case may be.
3.8 No Violation. The execution, delivery, consummation and
performance of this Agreement and the Related Agreements and the transactions
contemplated hereby and thereby will not (with or without notice, the passage of
time or both): (a) conflict with or result in a breach of any provision of the
Memorandum of Association or Articles of Association of the Company or the
charter documents of any Subsidiary; (b) result in a default, give any third
party the right to exercise any termination, cancellation, acceleration or any
other remedy, or require any consent or approval under the terms, conditions or
provisions of any note, bond, mortgage, indenture, loan, hedging arrangement,
license, agreement, lease or other instrument or obligation which is binding on
the Company, any Subsidiary or any of their assets and is material to the
Company and the Subsidiaries, taken as a whole; (c) violate any law, judgment,
order, writ, injunction, decree, statute, rule or regulation of any court,
administrative agency, bureau, board, commission, office, authority, department
or other governmental entity applicable to the Company, any Subsidiary or any of
their assets that would have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and the
Subsidiaries, taken as a whole (a "Material Adverse Effect"); or (d) cause the
Common Stock to be delisted from the American Stock Exchange ("AMEX"). Neither
the Company nor any of the Subsidiaries has violated any foreign, federal, state
or local law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants, any provisions of the Employee Retirement Income Security Act
of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act or
the rules or regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
3.9 Validity. The Notes have been duly authorized and, when
issued against payment therefore on the Closing Date, will have been validly
executed and delivered by the Company. This Agreement and the Related Agreements
have been duly authorized and, on the Closing Date, will have been validly
executed and delivered by the Company. The Notes, this Agreement and the Related
Agreements will be valid and binding obligations and agreements of
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the Company enforceable against the Company in accordance with their respective
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally.
3.10 SEC Documents. The Purchasers have had, or will have
available to them, a true, correct and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by the Company with
the SEC since December 31, 1997 and prior to the date of this Agreement Closing
Date (the "SEC Documents"), which are all the documents (other than preliminary
material) that the Company was required, to file with the SEC since December 31,
1997. Except as set forth in Schedule 3.10, as of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, and
the rules and regulations of the SEC thereunder applicable to such SEC
Documents, and none of the SEC Documents contained as of their respective dates
any untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.11 Financial Statements. The financial statements of the
Company included in the SEC Documents (the "Financial Statements") have been
prepared in accordance with the applicable published rules and regulations of
the SEC with respect thereto and in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited statements, as permitted by Rule 10-01 of
Regulation S-X of the SEC) and fairly present in all material respects, in
accordance with applicable requirements of GAAP (in the case of unaudited
statements, subject to normal, recurring adjustments), the consolidated
financial position of the Company and the Subsidiaries as of their respective
dates and the consolidated results of operations and the consolidated cash flows
of the Company and the Subsidiaries for the periods presented therein.
3.12 Absence of Undisclosed Liabilities. Neither the Company
nor any Subsidiary has any material debt, liability or obligation of any nature
(whether accrued, absolute, contingent, direct, indirect, perfected, inchoate,
unliquidated, due or to become due) arising out of any transactions, series of
transactions, action or inaction or facts or conditions existing on or prior to
the date hereof (regardless of when such liability or obligation is asserted)
except: (a) as listed on Schedule 3.12; or (b) as clearly and accurately
disclosed in and accounted for in the Financial Statements or one or more of the
SEC Documents. The Company and its officers and directors do not know, and have
no reasonable grounds to know, of any basis for the assertion against the
Company or any Subsidiary of any material liabilities or obligations not clearly
and adequately reflected, reserved and disclosed in the Financial Statements or
the SEC Documents.
3.13 Absence of Certain Changes. As of the Closing there will
not have occurred since the Company's Annual Report on Form 10-K for the year
ended December 31, 2000: (a) any change, occurrence, condition or development
that will or is likely to have a Material Adverse Effect; (b) any dividend,
distribution, recapitalization, combination, redemption, subdivision or purchase
with respect to any shares of the capital stock of the Company or any
Subsidiary, except between and among the Company and the Subsidiaries; (c) any
new indebtedness for borrowed money incurred by the Company or any Subsidiary,
except
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for the indebtedness to Stillwater National Bank (the "SNB Loan") between and
among the Company and the Subsidiaries; (d) any sale, transfer or lease of any
of the assets of the Company or any Subsidiary, except in the ordinary course of
business or as set forth in Schedule 3.13 hereto; (e) except in connection with
the SNB Loan, any mortgage or pledge of, grant of security interest in or other
lien or encumbrance against any of the assets of the Company or any Subsidiary;
(f) any cancellation, compromise, release or waiver of any material claims,
indebtedness or obligations owing to the Company or any Subsidiary except
(whether pursuant to a contract agreement or otherwise) as a result of payments
of such obligations in the ordinary course of business consistent with past
practices; (g) any material increase or change, (or offer or promise whether or
not legally binding) in any salary, compensation or employee benefits with
respect to any employee of the Company or any Subsidiary outside the ordinary
course; (h) any physical damage, destruction or loss (whether or not covered by
insurance) with respect to the properties, business or prospects of the Company
which will or is likely to have a Material Adverse Effect; (i) any changes in
the accounting principles, methods or practices utilized by the Company or any
of its Subsidiaries (including depreciation or amortization policies or rates);
(j) any actual or threatened cancellation, default, termination or dispute under
any production sharing contract, Concession Agreements (as hereafter defined),
exploration agreement, transportation license or similar agreement with the
government of Colombia or Empresa Colombiana de Petroleos ("Ecepetrol") or under
any other material agreement, contract or relationship which is binding on the
Company, any Subsidiary or their assets which would have a Material Adverse
Effect; or (k) any action taken by the Company or its Subsidiaries with respect
to the foregoing.
3.14 Contracts, Leases, and Other Agreements. Except as set
forth in (1) Schedule "3.14" or Schedule "3.15" attached as a part hereof, (2)
in the Company's most recent 10-K or 10-Q filed with the SEC, (3) the Note
Purchase and Loan Agreement for the Senior Note, and (4) the Indenture, the
Company and the Subsidiaries are not parties to or bound by any contract, lease,
agreement, plan, license, arrangement, obligation or commitment (collectively,
the "Contracts"): (a) which is a requirement or output contract; (b) relating to
any indebtedness, guaranty, surety or indemnification by or for the Company or
any Subsidiary; (c) prohibiting the Company or any Subsidiary from freely
engaging in any business or competing anywhere in the world; or (d) that is
otherwise material to the business of the Company or any of its Subsidiaries.
All Contracts to which the Company or any Subsidiary is a party or by which any
of their assets are bound are listed in Schedule "3.14" and all Contracts
including, without limitation, the Dindal Association Contract issued by
Ecopetrol in March 1993, the Rio Seco Association Contract issued by Ecopetrol
in August 1995, the Rosablanca Association Contract issued by Ecopetrol in
February 1998, the Deep Dindal Association Contract issued by Ecopetrol in April
2001 and the ▇▇▇▇▇▇▇▇▇ Association Contract issued by Ecopetrol in April 2001
(the "Concession Agreements"), are valid, binding and in full force and effect.
There is no material breach, default, or event which, (with notice, lapse of
time or both) would constitute a material breach or default by the Company, any
Subsidiary or any other party to any of the Contracts. Neither the Company nor
any of its Subsidiaries has received any notice of breach, cancellation,
termination or non-renewal of any Contract.
3.15 ERISA. Except as set forth in Schedule "3.15" attached as
a part hereof, neither the Company nor any Subsidiary has maintained, sponsored,
adopted, made contributions to, obligated itself to make contributions to,
agreed to pay any benefits under, or granted rights
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under or with respect to any employee benefit plan ("Employee Benefit Plan")
which includes, without implied limitation, any retirement plan, deferred
compensation plan, medical plan, life insurance plan, long-term disability plan,
dental plan, personnel policy (including, but not limited to, vacation time,
holiday pay, bonus programs, moving expense reimbursement programs and sick
leave), excess benefit plan, bonus or incentive plan (including, but not limited
to, stock options, restricted stock, stock bonus and deferred bonus plans),
salary reduction agreement, change-of-control agreement, employment agreement,
consulting agreement, workers compensation law, unemployment compensation law,
social security law or any other benefit, program or contract, (whether written,
oral, voluntary or pursuant to a collective bargaining agreement), which could
give rise to or result in the Company or any Subsidiary having any debt,
liability, claim or obligation of any kind or nature, whether accrued, absolute,
continent, direct, indirect, known or unknown, perfected or inchoate or
otherwise and whether or not due to become due.
3.16 Arrangements with Related Parties. Except as disclosed in
the SEC Documents or as set forth on Schedule 3.16 and except for this
Agreement, the Related Agreements and the Rights Offering, there are no direct
or indirect contracts, arrangements or proposed transactions between the Company
or any Subsidiary and any Affiliate (as hereafter defined) of the Company or a
Subsidiary. For purposes of this Agreement, the term "Affiliate" means as to any
person or entity, any other person or entity controlling, controlled by or under
common control with that person or entity (whether such control is direct or
indirect). Each executive officer and director of the Company or any Subsidiary
(together with their immediate family members) is automatically deemed to be an
Affiliate of the Company and each Subsidiary.
3.17 Taxes. All foreign (including, without limitation,
Canadian, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ federal
and state, income, sales, employment and other tax returns and reports (the "Tax
Returns") of the Company and each Subsidiary required by law to be filed have
been timely filed or valid extensions have been obtained. The Tax Returns which
have been filed comply in all material respects with all applicable laws,
accurately reflect the results of the Company's operations and are true and
correct in all material respects. All taxes (including, without limitation, all
fees, penalties, interest and other governmental charges, the "Taxes") which are
due and payable have been timely paid and properly recorded in the appropriate
accounting records in a manner consistent in all material respects with the
applicable laws and the Company's past practices. There is no pending or known
threatened audit of or claim against the Company or any Subsidiary which might
result in the assessment or payment of additional Taxes in excess of the amounts
reflected on the Financial Statements or Tax Returns. The Company and the
Subsidiaries have not executed any waiver of any statute of limitations related
to any assessment of Taxes, filed or joined in any Tax Returns on a unitary,
combined or consolidated basis, been required to pay any Taxes attributable to
any other member of any group or affiliated Company that file consolidated
returns for federal income tax purposes by reason of Treasury Regulation
Section 1.1502-6 or any comparable provision of state or local law that provides
for joint or several liability, in whole or in part agreed to and are not
required to make any adjustments under Section 481(a) of the Internal Revenue
Code by reason of a change in accounting method or otherwise consented to have
the provisions of Section 341(f)(2) of the Internal Revenue Code apply to any
sale of its capital stock or become parties to any tax sharing agreements.
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3.18 Insurance. Schedule 3.18 is a true, correct and complete
list and description (including policy numbers) of all insurance policies owned
by the Company and each Subsidiary or otherwise pertaining to their business.
The insurance policies are in full force and effect, no default has occurred
under any policy and no notice of cancellation, intent to cancel, notice of
premium increase or any other notice regarding such notices has been received by
the Company or any Subsidiary. The insurance policies insure the Company and the
Subsidiaries against all risks and liabilities normally insured against by
companies similarly situated to the Company and the Subsidiaries. Schedule 3.18
also contains a list of all pending claims with respect to any insurance policy
and any instances of a denial, limitation or reservation of coverage by any
insurance company.
3.19 Litigation. Except as disclosed in the SEC Documents or
as set forth on Schedule 3.19, there are no actions, suits, proceedings or
investigations pending or threatened against or affecting the Company or any
Subsidiary before or by any foreign, federal, state, municipal or other
governmental court, department, commission, board, agency or instrumentality
which is likely to have a Material Adverse Effect. The Company and the
Subsidiaries: (a) are not operating under, subject to or in default with respect
to any order, writ, injunction or decree of any court or foreign, federal,
state, municipal or other governmental department, commission, board, agency or
instrumentality, foreign or domestic, which is likely to have a Material Adverse
Effect; (b) are not charged or threatened with a violation, or under
investigation with respect to possible violation, of any provision of any
foreign, federal, state or local law or administrative ruling or regulation
relating to any of them or their business, affairs, assets, prospects,
operations, employee relations or condition, financial or otherwise, which is
likely to have a Material Adverse Effect; and (c) have not received any material
complaint from any supplier, customer, client, vendor, well participant, royalty
owner, licensor, employee or contractor, which is likely to have a Material
Adverse Effect.
3.20 Consents. All consents, approvals, qualifications,
orders, authorizations or filings with respect to or required in connection with
the Company's execution, delivery and performance of this Agreement and the
issuance and sale of the Notes and Related Agreements (other than the Rights
Offering) have been obtained or will be obtained prior to Closing.
3.21 Title to Properties; Liens and Encumbrances. The Company
and each Subsidiary have defensible title to all of their properties and assets
free and clear of all mortgages, liens and encumbrances, except liens for
current taxes not yet due and minor liens and encumbrances which do not
materially impair the operations of the Company and the Subsidiaries. With
respect to properties and assets they hold under the Concession Agreements or
leases, the Company and the Subsidiaries are in compliance with such agreements
and leases and hold a valid license or leasehold interest thereunder free of all
liens, claims or encumbrances, and to the best knowledge of the Company, all
other parties to the Concession Agreements and leases are in compliance with the
material terms thereof. The Company's and the Subsidiaries' properties and
assets are in good condition and repair in all material aspects. The Company and
each of the Subsidiaries have defensible title to and the right to use all
assets necessary to conduct their businesses as presently conducted or as
proposed to be conducted free and clear of any liens, claims and encumbrances.
8
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3.22 Compliance with Law and Other Instruments. The Company
and the Subsidiaries: (a) are in full compliance (and not in violation of) any
applicable articles or certificate of in Company, bylaws, mortgage, indenture,
contract, agreement, instrument, judgment, decree, order, statute, rule or
regulation, except to the extent such failure to comply or violation would not
have a Material Adverse Effect; (b) have or can reasonably be expected to obtain
all material franchises, permits, licenses and approvals necessary to conduct
their business as presently conducted and as proposed to be conducted; and (c)
have no knowledge of any change to any law, statute, rule or regulation which
would materially and adversely affect the Company, any Subsidiary or their
business as presently conducted or as proposed to be conducted.
3.23 Reserve Information. The information which was supplied
by the Company to ▇▇▇▇▇ ▇▇▇▇▇ Company Petroleum Consultants (the "Reserve
Engineer"), independent engineers, for purposes of evaluating the oil and gas
reserves of the Company and the Subsidiaries as of December 31, 2000, including,
without limitation, production, costs of operation and development, current
prices for production, agreements relating to current and future operations and
sales of production, was true and correct in all material respects on the dates
such estimates were made and such information was supplied and was prepared in
accordance with customary industry practices, as indicated in the letter of the
Reserve Engineer dated February 21, 2001 (the "Reserve Letter"). The Reserve
Engineer was, as of the date of the Reserve Letter and is, as of the date
hereof, independent with respect to the Company and the Subsidiaries. Other than
normal production of the reserves and intervening product price fluctuations,
and except as set forth in the SEC Documents or Schedule 3.23, the Company is
not aware of any facts or circumstances that would result in a material adverse
change in the reserves, or the present value of future net cash flows therefrom,
as reflected in the Reserve Letter and the reserve report referenced therein.
Estimates of such reserves and present values as described in the Reserve Letter
and the reserve report referenced therein comply in all material respects to the
applicable requirements of Regulation S-X and Industry Guide 2 under the
Securities Act.
3.24 Solicitation. No form of general solicitation or general
advertising (as defined in Regulation D under the Securities Act) was used by
the Company, the Subsidiaries or any of their respective representatives in
connection with the offer and sale of the Notes, including, without limitation,
articles, notices or other communications published in any newspaper, magazine
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Notes have been issued and
sold by the Company within the six (6) month period immediately prior to the
date hereof.
3.25 Registration Requirements. Assuming the accuracy of the
Purchasers' representations and agreements set forth in this Agreement, no
registration under the Securities Act of the Notes is required for the sale of
the Notes to the Purchasers as contemplated by this Agreement.
3.26 Acknowledgment. The Company acknowledges that the
Purchasers and, for purposes of the opinions to be delivered to the Purchasers
pursuant to this Agreement,
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counsel to the Company and the Subsidiaries will rely upon the accuracy and
truth of the foregoing representations and the Company hereby consents to such
reliance.
4. Purchaser's Representations and Warranties. Each of the
Purchasers, severally and not jointly, represents and warrants to the Company as
follows:
4.1 Authorization; Power. Purchaser has all requisite power
and authority to execute, deliver and perform this Agreement and any Related
Agreements to which it is a party. Such Purchaser has taken all necessary action
for the authorization, execution, delivery and performance of this Agreement and
any Related Agreements and the consummation of the transactions contemplated
hereby and thereby. This Agreement and any Related Agreements are legal, valid
and binding obligations of such Purchaser, which are enforceable against such
Purchaser in accordance with their terms.
4.2 Investment Representations. Each Purchaser understands
that the Notes are not registered under the Securities Act. Such Purchaser also
understands that the Notes are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon such
Purchaser's representations contained in this Agreement. Such Purchaser hereby
represents and warrants as follows:
4.2.1 Economic Risk. Each Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company such that Purchaser is capable of
evaluating the merits and risks of an investment in the Company. Purchaser
understands that: (a) the investment contemplated by this Agreement involves a
substantial degree of risk, and (b) such Purchaser must bear the economic risk
of this investment indefinitely unless the Notes are registered pursuant to the
Securities Act, or an exemption from registration is available. Purchaser also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow such Purchaser to transfer all or any portion of the
Notes.
4.2.2 Acquisition for Own Account. Each Purchaser is
acquiring the Notes for such Purchaser's own account for investment purposes
only and not with a view to or in connection with a distribution within the
meaning of the Securities Act.
4.2.3 Protection. Each Purchaser represents that such
Purchaser: (a) is an accredited investor within the meaning of Regulation D
promulgated under the Securities Act; (b) has the capacity to protect his or its
own interests in connection with the transactions contemplated in this Agreement
and any Related Agreements; and (c) is not aware of any publication of any
advertisement in connection with the transactions contemplated in this
Agreement.
4.2.4 Company Information. Purchaser has: (a) received
and read all information that such Purchaser has requested regarding the
Company's business, management and financial affairs; (b) had the opportunity to
discuss such matters with directors, officers and management of the Company; (c)
had the opportunity to review the Company's operations and
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facilities; and (d) had the opportunity to ask questions of and receive answers
from the Company and its management regarding the terms and conditions of this
investment.
4.2.5 Residence. The office or offices of the Purchaser
in which its investment decision was made is located at the address or addresses
of such Purchaser set forth on the signature page hereto or on Schedule 1. Such
Purchaser represents that no offer to purchase securities of the Company was
made outside such jurisdiction.
5. Purchasers' Conditions. The obligation of each Purchaser to
purchase the Notes at the Closing is subject to the fulfillment of each of the
following conditions:
5.1 Representations and Warranties Correct. The
representations and warranties made by the Company in paragraph 3 of this
Agreement will be true and correct in all material respects as of the Closing,
with the same force and effect as if made at the Closing.
5.2 Performance. The Company and the Subsidiaries shall have
performed and complied with, in all material respects, its covenants and
agreements required to be performed or complied with on or prior to the Closing
Date, as set forth in this Agreement and the Related Agreements.
5.3 Legal Opinion. The Company will have delivered to the
Purchasers the opinion of McAfee & ▇▇▇▇ A Professional Company, counsel to the
Company, and Cayman Islands, Panamanian and Colombian counsel to the extent
requested by any of the Purchasers, dated the date of Closing, addressed to the
Purchasers substantially the same as those delivered to the purchaser of the
Senior Note.
5.4 Consents, Permits and Waivers. The Company will have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the Related
Agreements.
5.5 Adverse Effects. As of the Closing, since the date hereof,
there shall not have occurred any change, occurrence, condition or development
that will, or is likely to, have a Material Adverse Effect.
5.6 Purchase of the Senior Note. The Senior Note will have
been purchased and paid for in immediately available funds.
6. Company's Conditions. The Company's obligation to issue and
sell the Notes is subject to the satisfaction, on or prior to the Closing, as
applicable, of the following conditions:
6.1 Representations and Warranties True. The representations
and warranties made by each Purchaser in paragraph 4 of this Agreement will be
true and correct in all material respects as of the Closing, with the same force
and effect as if made at the Closing.
6.2 Performance of Obligations. Each Purchaser shall have
performed and complied with all covenants and agreements required to be
performed or complied with by such Purchaser on or prior to the Closing, as set
forth in this Agreement and the Related Agreements.
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6.3 Payment. Each of the Purchasers and the purchaser of the
Senior Note shall have paid the purchase price for the Notes in immediately
available funds.
6.4 Consents, Permits and Waivers. The Company will have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the Related
Agreements.
6.5 Fairness Opinion. The Company will have received an
opinion of CIBC World Markets Corp. that the transactions contemplated by this
Agreement, the sale of the Senior Notes and the Rights Offering are fair from a
financial point of view to the Company.
7. Payment or Exchange of Notes. The Company and the Purchasers
acknowledge and agree that to the extent the Series A Notes and Warrants are
purchased under the Rights Offering, the proceeds raised by the Company
therefrom will be used to pay the Notes in the following order of priorities:
First: To $5,000,000 principal amount, plus
accrued interest, on the Notes held by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III ("▇▇▇▇▇▇"); and
Second: To the remaining principal amount, plus
accrued interest, on the Notes held by all
Purchasers in the proportion of 57.14% to
▇▇▇▇▇▇ and 42.86% to the other Purchasers
pro rata based on the principal amounts of
the Notes held by the other Purchasers.
After consummation of the issuance of the Series A Notes and Warrants under the
Rights Offering, any remaining unissued Series A Notes and Warrants will be
issued by the Company to the Purchasers in exchange for the Notes plus an amount
equal to accrued interest on the Notes to be exchanged, if any. The Series A
Notes will be issued pursuant to the Indenture. The Warrants will be issued
pursuant to a Master Warrant Agreement in substantially the form of Exhibit E
hereto.
8. Agent Appointment; Jurisdiction. The Company hereby appoints
CT Corporation, located in
Oklahoma City,
Oklahoma, or such other person as may
be designated by the Company, in writing, as the Company's and the Subsidiaries'
agent (the "Agent") for the purpose of accepting notices and service of process.
Any notice or service of process delivered to the Agent will be deemed to be
served on the Company and the Subsidiaries for purposes of this Agreement and
the Related Agreements. Neither the Company nor any of the Subsidiaries will
remove or terminate the Agent unless prior thereto: (a) Chesapeake Energy
Corporation has consented to such removal or termination in writing; and (b) a
substitute Agent acceptable to Chesapeake Energy Corporation has been appointed
by the Company and each of the Subsidiaries. EACH OF THE COMPANY AND THE
SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS ITSELF TO THE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE STATE OF
OKLAHOMA AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON THE COMPANY AND THE SUBSIDIARIES BY SERVICE
ON THE AGENT IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE RELATED
AGREEMENTS BY ANY MEANS ALLOWED UNDER
OKLAHOMA OR FEDERAL LAW. ANY LEGAL
PROCEEDING ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OF THE
RELATED AGREEMENTS WILL BE BROUGHT AND LITIGATED EXCLUSIVELY IN THE UNITED
STATES DISTRICT COURT FOR
12
▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, TO THE EXTENT IT HAS SUBJECT MATTER
JURISDICTION, AND OTHERWISE IN THE
OKLAHOMA DISTRICT COURT SITTING IN
OKLAHOMA
COUNTY,
OKLAHOMA. THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE OR OTHERWISE, THAT ANY SUCH PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM OR THAT THE VENUE THEREOF IS IMPROPER, AND FURTHER AGREE
TO A TRANSFER OF ANY SUCH PROCEEDING TO A FEDERAL COURT SITTING IN THE
OKLAHOMA
CITY,
OKLAHOMA TO THE EXTENT THAT IT HAS SUBJECT MATTER JURISDICTION, AND
OTHERWISE TO A STATE COURT IN OKLAHOMA COUNTY, OKLAHOMA. IN FURTHERANCE THEREOF,
THE COMPANY, THE SUBSIDIARIES AND PURCHASERS EACH HEREBY ACKNOWLEDGE AND AGREE
THAT IT WAS NOT INCONVENIENT FOR THEM TO NEGOTIATE AND RECEIVE FUNDING OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN SUCH COUNTY AND THAT IT WILL BE
NEITHER INCONVENIENT NOR UNFAIR TO LITIGATE OR OTHERWISE RESOLVE ANY DISPUTES OR
CLAIMS IN A COURT SITTING IN SUCH COUNTY.
9. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto. This Agreement may be terminated at any time on or prior to the
Closing Date by the Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change is material and adverse,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq Market or limitation on prices for securities or
other instruments on any such exchange or the Nasdaq National Market, unless
such suspension or limitation is removed prior to the Closing Date, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, unless such suspension is removed prior to the Closing
Date, (iv) the enactment, publication, decree or other promulgation of any
foreign, federal or state statute, regulation, rule or order of any court or
other governmental authority which in the Purchasers' reasonable opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole, or (v) the declaration of a banking
moratorium by foreign, federal or state authorities.
10. Several Obligations. If any one or more of the Purchasers shall
fail or refuse to purchase the Notes which it or they have agreed to purchase
hereunder no other Purchaser will be obligated to purchase the Notes allocated
to such defaulting Purchaser. If on the Closing Date any Purchaser or Purchasers
shall fail or refuse to purchase the Notes it or they agreed to purchase, and
arrangements satisfactory to the non-defaulting Purchasers and the Company for
purchase of such Notes are not made within forty-eight (48) hours after such
default, at the option of a majority in principal amount the non-defaulting
Purchasers, this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company. In any such case which does not result
in termination of this Agreement, the Company will have the right to postpone
the Closing Date, but in no event for longer than seven (7) days, in order that
the required changes, if any, in any of the documents or arrangements that may
be effected. Any action taken under this paragraph will not relieve any
defaulting Purchaser from liability in respect of any default of such Purchaser
under this Agreement.
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11. Miscellaneous. The parties further agree as follows:
11.1 Fees and Expenses. The Company agrees to pay on demand
the following amounts: (a) all of the Company's costs and expenses of compliance
with all agreements and conditions contained in this Agreement and in the
Related Agreements; and (b) all costs and expenses (including attorney's fees
and costs) incurred by the Purchasers or any holders of the Notes arising out of
or in connection with the administration, enforcement or preservation of any
rights under this Agreement or the Related Agreements including, without
limitation, the collection or enforcement of this Agreement and the Related
Agreements by judicial proceedings, proceedings under Chapter 7 or 11 of the
Bankruptcy Code or any successor statute thereto, or otherwise.
11.2 Consent to Amendments; Waivers. The provisions of this
Agreement may be amended or waived at any time only by the written agreement of
the Company and Purchasers acquiring not less than fifty-one percent (51%) of
the Notes. Any waiver, permit, consent or approval of any kind or character on
the part of any such holder of any provisions or conditions of this Agreement
must be made in writing and will be effective only to the extent specifically
set forth in such writing. No course of dealing between the Company and any
holders of the Notes and no delay in exercising any right, remedy, or power
conferred hereby, by the Related Agreements, or now or hereafter existing at law
or under equity, by statute or otherwise, will operate as a waiver of or
otherwise prejudice any such right, power or remedy.
11.3 Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of the Purchasers or
holders of the Notes are also for the benefit of, and enforceable by, any
subsequent holders thereof.
11.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
11.5 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and will not be utilized in interpreting this Agreement.
11.6 Notices. Any notice, demand or communication required or
permitted to be given by any provision of this Agreement will be in writing and
will be deemed to have been given and received when delivered personally or by
telefacsimile to the party designated to receive such notice, or on the date
following the day sent by overnight courier, or on the third (3rd) business day
after the same is sent by certified mail, postage and charges prepaid, directed
to the addresses of the parties set forth on the signature pages hereto or on
Schedule 1 or to such other or additional addresses as any party might designate
by written notice to the other parties.
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11.7 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement, will be governed by the laws of the State
of Oklahoma applicable to contracts made and wholly to be performed in that
state.
11.8 Exhibits and Schedules. All exhibits and schedules hereto
are an integral part of this Agreement.
11.9 Final Agreement. This Agreement, together with the
Related Agreements constitutes the complete and final agreement of the parties
concerning the matters referred to herein, and supersedes all prior agreements
and understandings.
11.10 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered will be deemed an original, and such counterparts together will
constitute one instrument. The parties hereto have executed this Agreement on
the date first set forth above.
11.11 Separate Signature Pages. The Company has executed this
Agreement in multiple counterparts and the Purchasers shall execute this
Agreement by means of a separate signature page in the form attached hereto as
Exhibit F (a "Signature Page"). This Agreement shall become effective as of the
day and year first above written when each of the Purchasers shall have executed
a Signature Page and returned it to the Company for attachment as a part of this
Agreement.
11.12 Waiver of Jury Trial, Punitive Damages, Etc. Each of the
Purchasers and the Company hereby knowingly, voluntarily, intentionally and
irrevocably (a) waives, to the maximum extent not prohibited by law, any right
it may have to a trial by a jury in respect of any litigation based hereon, or
directly or indirectly at any time arising out of, under or in connection with
this agreement or any transaction contemplated hereby or associated herewith,
(b) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any such litigation any "special damages," as defined
below, (c) certifies that no party hereto nor any representative or counsel for
any party hereto has represented, expressly or otherwise, or implied that such
party would not, in the event of litigation, seek to enforce the foregoing
waivers, and (d) acknowledges that it has been induced to enter into this
agreement and the transactions contemplated hereby by, among other things, the
mutual waivers and certifications contained in this paragraph. As used in this
paragraph, "special damages" includes all special, consequential, exemplary or
punitive damages (regardless of how named), but does not include any payments or
funds which any party hereto has expressly promised to pay or deliver to any
other party hereto.
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19
IN WITNESS WHEREOF, the Company and the Purchasers have
executed this Agreement as of the date first above written.
SEVEN SEAS PETROLEUM INC., a Cayman Islands
exempted company limited by shares
By /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, President
Notice Address:
Seven Seas Petroleum Inc.
Attention: ▇▇▇▇▇ ▇. ▇▇▇, President
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
16
20
SEVEN SEAS PETROLEUM INC.
NOTE PURCHASE AGREEMENT
FOR
SERIES B SENIOR SECURED NOTES
---------------------------------------
PURCHASER'S SIGNATURE PAGE
TO
NOTE PURCHASE AGREEMENT
The undersigned, being a named Purchaser in Schedule 1 to
Note
Purchase Agreement for 12% Series B Senior Secured Notes dated July 23, 2001
(the "Purchase Agreement") of
Seven Seas Petroleum Inc. (the "Company"), a
Cayman Islands exempted company limited by shares, hereby acknowledges receipt
of and having read the Purchase Agreement executed by the Company. The
undersigned agrees to all of the terms and conditions of the Agreement.
EXECUTED and delivered to the Company as of the day and year first
above written.
----------------------------
Receipt Acknowledged on July 23, 2001:
Seven Seas Petroleum Inc.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇, President
BACKUP WITHHOLDING CERTIFICATIONS
TIN: -------------------------
[ ] TAXPAYER I.D. NUMBER. The Taxpayer Identification Number shown above
(TIN) is my correct taxpayer identification number.
[ ] BACKUP WITHHOLDING. I am not subject to backup withholding either because
I have not been notified that I am subject to backup withholding as a result of
a failure to report all
21
interest or dividends, or the Internal Revenue Service has notified me that I am
no longer subject to backup withholding.
[ ] EXEMPT RECIPIENTS. I am an exempt recipient under the Internal Revenue
Service Regulations.
[ ] NONRESIDENT ALIENS. I am not a United States person, or if I am an
individual, I am neither a citizen nor a resident of the United States.
SIGNATURE: I certify under penalties of perjury the statements checked in this
section.
X
--------------------------------------------- -----------------------------
(Signature) (Date)
22
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Revocable Living Trust
/s/ B. ▇▇▇▇ ▇▇▇▇▇
------------------------------------------
B. ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attorney-in-Fact for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attorney-in-Fact for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attorney-in-Fact for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ K. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
K. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact for Neligh ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ Family Investments ALP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee,
General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ISRAEL
------------------------------------------
▇▇▇▇▇▇▇ ▇. Israel
/s/ ▇▇▇▇▇▇ ▇. ISRAEL
------------------------------------------
▇▇▇▇▇▇ ▇. Israel
/s/ ▇. ▇. ▇▇ ▇▇▇▇▇▇
------------------------------------------
▇. ▇. ▇▇ ▇▇▇▇▇▇, Director for
Lombos Holdings Limited "C"
Petroleum Properties Management Company, LLC
By Petroleum Holding Corporation, Manager
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇. MAY
------------------------------------------
▇▇▇▇▇▇ ▇. May
RAMIIILAJ, A Limited Partnership By its
General Partner ▇▇▇▇▇▇ Investment Company
By its Vice President ▇▇▇▇▇▇ ▇. May
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Screndipity Investments, Ltd.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Living Trust
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Director for
Trans Federal Corporation Ltd.
23
SCHEDULE 1
Name of Purchaser Address Amount
----------------- ------- ------
Ramiiilaj, A Limited Partnership c/o The GHK Companies $15,000,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Petroleum Properties Management ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ $ 2,360,000
Company LLC ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. Israel ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 300,000
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. Israel ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇▇ $ 300,000
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ P.O. Drawer "U" $ 425,000
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Revocable Living Trust P.O. Drawer "U" $ 50,000
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Living Trust P.O. Drawer "U" $ 50,000
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. $ 75,000
Villa 116
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Neligh ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ $ 200,000
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. ▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇ $ 550,000
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ $ 150,000
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ $ 150,000
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 150,000
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
17
24
Name of Purchaser Address Amount
----------------- ------- ------
▇▇▇▇▇▇ Family Investments, A Limited c/o ▇▇▇▇ ▇▇▇▇▇▇ $ 200,000
Partnership ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Trans Federal Corporation Limited ▇.▇. ▇▇▇ ▇▇▇ $ 200,000
Main Street
Charlestown, Nevis
West Indies
Lombos Holdings Limited "C" c/o Continental Secretaries Limited $ 1,000,000
▇.▇. ▇▇▇ ▇▇▇ Charleshouse
▇▇▇▇▇▇▇ St.
St. Helier
Jersey
Serendipity Investments, Ltd. c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 1,100,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brothers, Inc. $ 240,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18
25
SCHEDULE 3.1
List of jurisdictions in which the Corporation is duly qualified to do
business.
Seven Seas Petroleum Inc.
Registered: Cayman Islands as of March 1, 2001
26
SCHEDULE 3.2
List of subsidiaries that the Corporation directly owns 100% of the
legal and beneficial capital equity and the jurisdictions in
which the subsidiaries are organized and qualified to do
business
OTHER JURISDICTIONS
IN WHICH
JURISDICTION OF QUALIFIED TO DO
NO. SUBSIDIARY INCORPORATION BUSINESS
-------- ----------------------------------------------------- ------------------------------------- ----------------------
1 Seven Seas Petroleum Holdings Inc. Cayman Islands (Dormant)
2 Seven Seas Petroleum Turkey Inc. British Colombia (Dormant)
3 Seven Seas Resources Australia Inc. British Colombia (Dormant)
4 Seven Seas Petroleum USA Inc. Delaware Texas
5 Seven Seas Petroleum Australia Inc. Cayman Islands (Dormant)
6 Seven Seas Petroleum PNG Inc. Cayman Island (Dormant)
7 Seven Seas Petroleum Argentina Inc. Cayman Islands (Dormant)
8 Seven Seas Petroleum Mediterranean Inc. Cayman Islands (Dormant)
9 Seven Seas Petroleum Turkey Inc. Cayman Islands (Dormant)
10 Seven Seas Petroleum Colombia Inc. Cayman Island Colombia
11 Petrolinson SA Panama Colombia
12 GHK Company Colombia Oklahoma ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Pipeline Company Cayman Islands (Dormant)
27
SCHEDULE 3.6
Options Issued Under Corporation's Stock Option Plan
As of July 6, 2001
GRANTED
EXERCISE PRICE OUTSTANDING OPTIONS
RANGE (NUMBER OF SHARES)
--------------------------------------- -----------------------------
$1.06 - 1.94 317,134
2.00 - 2.94 760,912
3.00 - 3.94 727,105
4.22 - 4.81 375,000
6.16 - 7.13 10,000
8.06 - 8.63 175,000
9.00 1,008,500
10.70 - 10.90 629,000
14.09 18,000
18.55 - 18.75 530,000
Undetermined(1) 136,283
-----------------------------
TOTAL GRANTED 4,686,934
=============================
AVAILABLE FOR GRANT 669,954
-----------------------------
TOTAL OPTIONS 5,356,888
=============================
(1) Certain options were granted to the Corporation's directors and officers
that vest periodically during the course of the year. The exercise price of the
option is the average between the high and low trading prices of the
Corporation's stock on the day of vesting.
28
SCHEDULE 3.7
List of each subsidiary's authorized, issued and
outstanding capital stock or other equity
interests along with the ownership of such
issued and outstanding shares.
CAPITAL STOCK
-----------------------------------------------
SUBSIDIARY OWNER (100%) AUTHORIZED ISSUED OUTSTANDING
-------------------------------------------- ------------------------- --------------- ----------- -------------------
Seven Seas Petroleum Holdings Inc. (Cayman) Seven Seas Petroleum Inc. 50,000 1 1
Seven Seas Petroleum Turkey Inc. (B.C.) Seven Seas Petroleum Inc. 10,000 1 1
Seven Seas Resources Australia Inc. (B.C) Seven Seas Petroleum Inc. 10,000 1 1
Seven Seas Petroleum USA Inc. Seven Seas Petroleum Inc. 1,000 100 100
Seven Seas Petroleum Australia Inc. Seven Seas Petroleum Inc. 50,000 1 1
(Cayman)
Seven Seas Petroleum PNG Inc. Seven Seas Petroleum Inc. 50,000 1 1
(Cayman)
Seven Seas Petroleum Argentina Inc. Seven Seas Petroleum Inc. 50,000 1 1
(Cayman)
Seven Seas Petroleum Mediterranean Inc. Seven Seas Petroleum Inc. 50,000 1 1
(Cayman)
Seven Seas Petroleum Turkey, Inc. (Cayman) Seven Seas Petroleum Inc. 50,000 1 1
Seven Seas Petroleum Colombia Inc. (Cayman) Seven Seas Petroleum Inc. 50,000 1 1
Petrolinson S.A. Seven Seas Petroleum Inc. 5,000 5,000 5,000
(Panama)
GHK Company Colombia Seven Seas Petroleum Inc. 100,000 1,000 1,000
(Oklahoma)
Guaduas Pipeline Company Seven Seas Petroleum Inc. 50,000 1 1
(Cayman)
29
SCHEDULE 3.10
LIST OF SEC DOCUMENTS THAT DO NOT COMPLY WITH THE SECURITIES
EXCHANGE ACT OF 1933, AS AMENDED, AND THE EXCHANGE
ACT OF 1934, AS AMENDED
NONE
30
SCHEDULE 3.12
List of Debts, Liabilities or Obligations by the Company or its Subsidiaries
1) Accounts Payable - General expenditures - Estimate of $263,000
as of 7/3/01
2) Accounts Payable related to Dindal and Rio Seco contract areas
(includes El Segundo 5-S well) - Estimate of $1,810,610 as of
7/3/01
3) Accounts Payable related to Guaduas--La Dorada Pipeline -
Estimate of $816,000 as of 7/3/01
4) Association contract obligations - Dindal, Rio Seco,
Rosablanca, Deep Dindal, and ▇▇▇▇▇▇▇▇▇
5) Any obligation of the Company or its subsidiaries under the
contracts listed as exhibits to the Company's Form 10-K for
the year ended December 31, 2001.
31
SCHEDULE 3.13
List of a Sale, Transfer, or Lease of any of Company's Assets since
December 31, 2000
1) Termination of Seven Seas interest in Tapir Association Contract
2) Reorganization of the Company's subsidiaries, converting all second and
third tier subsidiaries to first tier subsidiaries.
32
SCHEDULE 3.14
List of Contracts, Leases, Agreements, Plans, Licenses, Arrangements,
Obligations or Commitments
1) Dindal Association Contract, effective March 1993 as amended per the
agreement attached hereto
2) Rio Seco Association Contract, effective August 1995
3) Rosablanca Association Contract, effective February 1998
4) Deep Dindal Association Contract, effective April 2001
5) ▇▇▇▇▇▇▇▇▇ Association Contract, effective April 2001
6) Joint Operating Agreements related to the Dindal and Rio Seco
association contracts, signed March 1996 with January 2001 amendments
7) Lease for Corporate Headquarters office space in the Marathon Oil Tower
in Houston, signed in April 1998 and amended in April 2001
8) Lease agreements for Colombian operations office in the Teleport office
tower in Bogota, Colombia. Currently eight agreements are in place,
each with a year-long duration and a six-month advance notice of
termination clause.
9) Trust Indenture governing $110 million of senior subordinated notes,
dated May 1998
10) Exploration Agreement with Guaduas Oil Field partners, signed January
2001
11) Agreement with CIBC World Markets Corp. for service as the Company's
financial advisor, dated March 2001
12) Any contract, lease, agreement, obligation or commitment of the Company
or its subsidiaries listed as an exhibit to the Company's Form 10-K as
of 12/31/01
13) Any and all contracts contemplated by this Agreement or in that certain
term sheet dated April 20, 2001, specifically:
a) Pledge and Security Agreement
b) Deed of Charge over Shares Agreement (Colombian shares)
33
c) Collateral Agreement (Panamanian shares)
d) Collateral Sharing Agreement
e) Shareholders Rights Agreement
f) Registration Rights Agreement
g) Escrow Agreement - Subthrust Dindal Well Funds
h) Escrow Agreement - Senior Subordinated Notes Interest Payments
i) Series B
Note Purchase Agreement
j) Trust Indenture for Series A and B Notes
k) Parent Guaranty Agreement
l) Master Warrant Agreement
m) Subscription Agreement
34
SCHEDULE 3.15
List of Employee Benefit Plans or Related Policies
1) Employment contract with ▇▇▇▇▇ ▇. ▇▇▇, effective June 1997
2) Employment contract with ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, effective date December 1998
(attached)
3) Employment contract with ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, effective date October 1998
(attached)
4) Employment contract with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, effective November 1999
through November 2000 (contract will continue month to month until
either party terminates contract)
5) Change of Control contracts with certain Seven Seas employees,
including ▇. ▇▇▇▇▇▇▇ (June 2001), ▇. ▇▇▇▇▇▇▇▇▇▇ (February 2001), ▇.
▇▇▇▇▇▇▇ (February 2001), ▇. ▇▇▇▇▇▇▇ (February 2001) (standard form
attached)
6) Self funded Dental reimbursement policy for Company employees and their
eligible dependents - The Company has an unwritten policy of
reimbursing Houston-based and expatriate employees for all dental
expenses, excluding strictly cosmetic procedures.
7) Health insurance policies for Company employees - Insurer: The
Principal Financial Group
Summary of Benefits
HEALTH INSURANCE - Seven Seas Petroleum Inc. participates in a
Preferred Provider Organization (PPO) network established and
administered by Principal Financial Group. All members and their
dependents are eligible for coverage in the PPO plan. Member means any
person who is an eligible employee of the policyholder. If any member
or dependent is sick or injured, they are eligible for comprehensive
medical and prescription drugs under the terms of the PPO network. This
policy also covers vision expenses.
8) Life insurance policies for Company employees - Insurer: The Principal
Financial Group
Summary of Benefits
MEMBER LIFE INSURANCE - To be eligible for insurance one must be a
Member. A member is any person who is employed by the Policyholder on
other than a temporary or part-time basis, and regularly scheduled to
work for the Policyholder for at least 30 hours a week. The schedule of
benefits for Member Life Insurance is equal to two (2) times the
covered person's annual compensation. If the covered person shall die
while insured for Member Life Insurance, the company will pay the
covered person's beneficiary the Scheduled Benefit in force on the date
of the covered person's death. If the beneficiary does not survive the
covered person, the company will pay the estate, spouse, children,
parents or other persons as provided in the group policy. The maximum
schedule of benefit amount will not exceed
35
$600,000 or be less than $10,000. If the covered person is age 70 but
less than 75, the Company will pay 65% of the scheduled benefit. If the
covered person is age 75 and over, the Company will pay 45% of the
scheduled benefits.
In the case of Accidental Death and Dismemberment Insurance, the
Company will pay a percentage of the injured person's Scheduled
Benefit. Payment for loss of life will be to the injured person's
beneficiary. Payment for any other loss will be to the injured person.
9) Long Term Disability Insurance - Insurer: Fortis Benefits Insurance
Company
Summary of Benefits
GROUP LONG TERM DISABILITY INSURANCE - The policy pays a monthly
benefit designed to partly replace income lost during periods of
disability that result from injury, sickness, or pregnancy.
A covered person who remains disabled during the qualifying period may
become eligible to receive a monthly benefit based on monthly pay.
These benefits are payable while the disability continues, or until the
Maximum Benefit Period ends.
If a disabled person receives benefits from other sources, we may
reduce the benefits payable under the policy. There are also certain
disabilities for which benefits are not paid or are limited.
The policy includes a conversion privilege. If a covered person's Long
Term Disability Insurance ends, it may be possible to convert to a
conversion policy with no health exam.
10) Any stock option plans listed as an exhibit to the Company's Form 10-K
for the year ended December 31, 2000
11) Contribution to Texas Workers' Compensation Fund and any other employee
benefit plan as defined in the Agreement that is a state, federal, or
other governmental jurisdiction requirement
12) Retirement Plan: On January 1, 1996, the Company adopted a 401(k) plan
to provide employees with an opportunity to increase their retirement
savings by making tax-deductible contributions from their salaries into
the plan. The Company does not make any contribution to the retirement
plan.
13) Personnel Policy: Seven Seas has not adopted a formal personnel policy
to date. Except as specified in individual employment contracts, the
Company does not have a formal vacation policy.
36
SCHEDULE 3.16
List of Arrangements with Related Parties
1) Seven Seas loan to ▇▇▇▇▇ ▇. ▇▇▇, President and Chief Operating Officer
of Seven Seas. This principal amount of this loan is $200,000, bears a
6.06% interest rate and is due November 1, 2002.
2) Administrative Services Agreement with The GHK Corporation, a private
company owned by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, Chairman and Chief Executive
Officer of Seven Seas. Seven Seas recognized expenses related to this
agreement of $21,000, $21,000 and $28,000 in 2000, 1999 and 1998,
respectively. Seven Seas also pays certain miscellaneous costs incurred
by The GHK Corporation on behalf of Seven Seas. The Company reimbursed
GHK $23,000, $31,000 and $0.1 million in 2000, 1999, and 1998,
respectively, for such costs.
3) Executive Aircraft Agreement with The GHK Corporation. Seven Seas has
entered into an agreement with The GHK Corporation for the use of The
GHK Corporation's executive aircraft to transport Seven Seas executives
and employees on certain business travel. Under this agreement, Seven
Seas pays The GHK Corporation the lesser of the cost of a first class
airline ticket or the total actual expenses for each specific flight.
The Company had $24,000, $57,000 and $31,000 in such expenses during
2000, 1999 and 1998, respectively.
4) Stillwater Loan Agreement - ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guaranteed this loan and
received $62,500 in remuneration for the guarantee.
5) McAfee & ▇▇▇▇, A Professional Corporation, serves as Seven Seas'
corporate counsel. ▇▇▇▇ ▇. ▇▇▇▇▇▇ is a shareholder of McAfee & ▇▇▇▇ and
has been a member of Seven Seas' board of directors since 1997. The
Company incurred expenses from McAfee & ▇▇▇▇ in the amounts of
$499,340, $267,368 and $45,955 in 2000, 1999 and 1998, respectively.
37
SCHEDULE 3.18
LIST OF INSURANCE POLICIES AND PENDING CLAIMS
TYPE OF INSURANCE POLICY NUMBER
-------------------------------------------------------------------- --------------------
Foreign Workers' Compensation CXC037912
Foreign General Liability/Hired / Non-owned Automobile CXC037912
Texas Workers' Compensation TSF-001071312
Commercial General Liability/ Hired /Non-owned Automobile/ Property 35392096PHA
Director & Officers Liability DO978A1A00
Special Contingency Risk OE49375
Energy Package WCE8121
Group Long Term Disability Insurance G 3500348
Principal Financial Group Medical Insurance BC98472 A-1
PENDING CLAIMS
Seven Seas and one of its officers and directors, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, has been
sued by four former Seven Seas officers and directors in ▇▇▇▇▇▇, et al. v. Seven
Seas Petroleum Inc., et al., Cause No. 2000-50498, District Court of ▇▇▇▇▇▇
County, Texas, 133rd Judicial District. Plaintiffs recently dismissed from the
case ▇▇▇▇▇ ▇. ▇▇▇, a current officer and director, and ▇▇▇▇▇▇ ▇. ▇▇▇▇, a former
director. Plaintiffs allege that Seven Seas failed to obtain extensions of time
in which plaintiffs could exercise certain stock options granted to them, and
that the defendants induced them to enter into separation agreements with Seven
Seas that they would not have entered into but for Seven Seas' agreement to
obtain an extension of the time for plaintiffs to exercise their stock options.
The plaintiffs filed the case October 2, 2000, seeking damages in excess of $13
million. The Company has responded, and the case is in the process of discovery.
The Company has filed a counterclaim against two plaintiffs for breaching their
fiduciary duties in connection with certain employment agreements that they
caused the Company to enter into. A trial is scheduled for late August 2001.
Seven Seas intends to vigorously defend the case. There is a claim filed against
the Directors and Officers Liability insurance policy in excess of $100,000.
38
SCHEDULE 3.19
LIST OF ACTIONS, SUITS, PROCEEDINGS OR INVESTIGATIONS PENDING OR
THREATENED AGAINST OR AFFECTING THE COMPANY OR ANY SUBSIDIARIES
DURING THE LAST TWO YEARS
HEIRS OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Two of our subsidiaries, Petrolinson, S.A. and GHK Colombia, along with the
former owner of Petrolinson, S.A., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the heirs of ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, are defendants in a lawsuit that was filed in Santa Fe de
Bogota, Colombia in 1998. The plaintiffs are the heirs of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Franco. The plaintiffs have two claims. First, they claim that a de facto
company existed between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the defendants concerning the
Dindal and Rio Seco association contract areas. Second, they claim that before
the Dindal and Rio Seco association contracts were executed, the de facto
company conducted exploration works in the Dindal and Rio Seco association
contract areas. The plaintiffs claim they have the right to participate in
income earned from the Dindal and Rio Seco association contract areas. None of
the plaintiffs are party to the association contracts. However, they are seeking
50% of the income generated by the de facto company they claim existed. It is
not clear what percentage of the Dindal and Rio Seco association contract areas
are covered by the plaintiffs' claims. Our Colombian counsel, Raisbeck, Lara,
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, members of the law firm of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, believe that
if this claim is litigated the chances of the plaintiffs succeeding are remote.
SURFACE LOCATION
A lawsuit was filed by the landowner of the El Segundo 1 surface location to
cancel the Company's surface lease. The Company responded to this claim on
November 4, 1999, and has vigorously defended this claim. Examinations regarding
the claim were held in September 2000, and the probatory stage of the matter was
closed on March 21, 2001. Final allegations were presented on April 16, 2001.
The Company's Colombian legal counsel, Gamba, Barrera, ▇▇▇▇▇▇▇ y Asociados, has
advised the Company that, on the basis of the claims asserted, it is unlikely
that it will lose the lawsuit.
NOTEHOLDER CLAIM
A claim has been brought against Seven Seas by one of the noteholders in
connection with the Special Notes issued on August 7, 1997. The claim, which is
against Seven Seas and Yorkton Securities Inc., alleges that the noteholder was
not initially advised of the right of Seven Seas to convert the debentures into
units of common shares and warrants. The claim also alleges that there were
errors in the methodology of effecting conversion pursuant to the indenture
between Seven Seas and Montreal Trust Company of Canada dated August 7, 1997
such that the conversion was not effective. The plaintiff in the claim is
seeking damages against Seven Seas in the amount of $340,000 for negligent
misrepresentation and breach of contract or alternatively, for an order
directing Seven Seas to exchange the units currently held by the plaintiff into
a note in the amount of $340,000 payable on July 24, 2002 with interest payable
thereon at a rate of 6% per annum or directing Seven Seas to reimburse the
plaintiff in the amount of $340,000 for the purchase price of the Special Notes.
Seven Seas believes it has meritorious defenses and intends to take appropriate
steps to defend the action vigorously.
FORMER MANAGEMENT
Seven Seas and one of its officers and directors, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, has been
sued by four former Seven Seas officers and directors in ▇▇▇▇▇▇, et al. v. Seven
Seas Petroleum Inc., et al., Cause No. 2000-50498, District Court of ▇▇▇▇▇▇
County, Texas, 133rd Judicial District. Plaintiffs recently dismissed from the
case ▇▇▇▇▇ ▇. ▇▇▇, a current officer and director, and ▇▇▇▇▇▇ ▇. ▇▇▇▇, a former
director. Plaintiffs allege that Seven Seas failed to obtain extensions of time
in which plaintiffs could exercise certain stock options granted to them, and
that the defendants induced them to enter into separation agreements with Seven
Seas that they would not have entered into but for Seven Seas' agreement to
obtain an extension of the time for plaintiffs to exercise their stock options.
The plaintiffs filed the case October 2, 2000, seeking damages in excess of $13
million. The Company has responded, and the case is in the process of discovery.
The Company has filed a counterclaim against two plaintiffs for breaching their
fiduciary duties in connection with certain employment agreements that they
caused the Company to enter into. A trial is scheduled for late August, 2001.
Seven Seas intends to vigorously defend the case.
39
SCHEDULE 3.19 CONTINUED...
FORMER EMPLOYEE
A lawsuit has been filed against GHK Company Colombia in the Bogota labor court
by a former employee who claims that he incurred $1.6 million in expenses in
connection with a criminal action filed against him in Guaduas. Our Colombian
legal counsel has advised us that it is unlikely that we will lose the lawsuit
due to the fact that, upon his departure from service, the plaintiff
acknowledged that GHK had paid in full all monies owed.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ filed a labor suit against GHK on September 15, 2000, attempting to
prove the existence of a fixed term employment contract for the period between
September 8, 1998 and September 8, 2001. Consequently his pretensions are the
payment of severance, severance interests, vacations, service premium,
indemnification for unilateral termination of the employment contract and a
penalty for the unearned salaries since the unilateral termination of the
contract. GHK answered the claim opposing the pretensions made, based on the
settlement signed in the USA. The proceeding was closed by the Court during the
first hearing, since the lawyer acting as informal agent for the plaintiff was
not timely ratified. The recommendation is to have a settlement between ▇▇▇▇▇
and GHK in front of a Colombian Labor Court, in order to prevent future
litigation.
ENVIRONMENTAL PENALTY
On June 8, 1998, the Ministry of Environment required our subsidiary, GHK
Company Colombia, to perform some remedial work on the El Segundo 6-E location
and access road. GHK Company Colombia performed the work, and thereafter
reported to the Ministry of Environment that all the work had been completed. In
various site visits, ministry officials have confirmed that the alleged
violations have been properly remedied. On July 8, 1999, GHK Company Colombia
filed all the documentation, which confirmed total compliance to the
requirements.
In March 2000, we paid a fine of approximately $223,000 to the Ministry of
Environment in connection with a resolution issued against GHK Colombia by the
Ministry of Environment in which it declared GHK Company Colombia to be in
violation of a 1997 decree in connection with the construction of the El Segundo
7-E well location. We have filed an appeal for a reversal of the resolution. We
believe that we have corrected the environmental violations claimed by the
Ministry of Environment; however, the appeal process can take up to two years.
The El Segundo 7-E location has been restored and we currently have no drilling
activities planned at this location.
40
SCHEDULE 3.23
LIST OF FACTS OR CIRCUMSTANCES RESULTING IN A MATERIAL ADVERSE CHANGE
IN DECEMBER 31, 2001 RESERVE ESTIMATES
NONE
41
SCHEDULE 3.25
LIST OF FACTS OR CIRCUMSTANCES RESULTING IN A MATERIAL ADVERSE CHANGE
IN DECEMBER 31, 2001 RESERVE ESTIMATES
NONE
42
EXHIBIT A
(Face of Note)
12% Series B Senior Secured Notes
CUSIP
No. $
SEVEN SEAS PETROLEUM INC.
promises to pay to ______________ or registered assigns, the principal sum of
___________________ Dollars ($______________) on the earlier to occur of the
consummation of Seven Seas' Rights Offering of the Series A Notes and November
7, 2004.
Interest Payment Date: The earlier to occur of the date of consummation of Seven
Seas' Rights Offering of the Series A Notes and November 7, 2004.
Record Date: The earlier to occur of 15 days prior to the date of consummation
of Seven Seas' Rights Offering of the Series A Notes and April 23, 2004.
SEVEN SEAS PETROLEUM INC.
By:
--------------------------------
Name:
Title:
UNITED STATE TRUST COMPANY
OF NEW YORK
as Trustee
By:
-----------------------------------------
Authorized Signatory
Dated: , 2001
------------------
================================================================================
A-1
43
(Back of Note)
12% Series B Senior Secured Notes
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U. S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U. S. PERSONS, EXCEPT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IN A TRANSACTION
MADE IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO SEVEN SEAS) OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING.
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. INTEREST. Seven Seas Petroleum, Inc., a Cayman Islands exempt company
limited by shares (the "Company"), promises to pay interest on the principal
amount of this Note at 12.000% per annum until maturity and shall pay Additional
Amounts, if any. Interest will accrue and be compounded quarterly from July 23,
2001 through July 23, 2003 and will continue to compound quarterly and will be
payable at maturity. Interest accruing after July 23, 2003 will be paid
quarterly on October 23, 2003 and on the 23rd day of each successive January,
April, July and October thereafter until the Note is paid in full. All accrued
interest and Additional Amounts, if any, shall be paid on the Maturity Date to
Persons who are registered Holders of Notes at the close of business on the date
that is 15 days immediately prior to the Maturity Date, even if such Notes are
cancelled after such record date and on or before the Maturity Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
Quarterly interest accrued and unpaid will, to the extent lawful, accrue
interest at the rate provided in this Note.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Amounts, if any (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay principal, premium, if any,
interest and Additional Amounts, if any, on the Maturity Date and Interest
Payment Dates, as applicable, to the Persons who are registered Holders of
Notes. The Notes shall be payable by wire transfer of
A-2
44
immediately available funds to the registered Holder of the Global Note and,
with respect to certificated Notes, by wire transfer of immediately available
funds in accordance with instructions provided by the registered Holders of
certificated Notes or, if no such instructions are specified, by mailing a check
to each such Holder's registered address. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust Company of New
York, the Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of July
23, 2001 ("Indenture") between the Company and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION. The Notes are subject to redemption for cash at the
option of the Company, in whole or in part, upon not less than 10 nor more than
60 days notice to each Holder of Notes to be redeemed at a purchase price of
100.000% of the principal amount thereof, in each case plus any accrued and
unpaid interest and Additional Amounts, if any, thereon to the redemption date.
6. MANDATORY REDEMPTION. In addition to any required Change of Control Offer or
an Asset Sale Offer, the Company will redeem a portion of its senior secured
Indebtedness, including a portion of Notes, if the Company does not spud the
Sub-Thrust Test Well prior to February 28, 2002. The redemption shall be on a
pro rata basis for an aggregate principal amount of senior secured Indebtedness
equal to the funds remaining in the Escrow Account, at a purchase price equal to
100.000% of the principal amount of the senior secured Indebtedness, plus
accrued and unpaid interest and Additional Amounts, if any, thereon to the date
of purchase. The Company shall not be required to make any other mandatory
redemption payments with respect to the Notes.
▇-▇
▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $100 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 100.000% of the aggregate principal amount thereof plus accrued
and unpaid interest thereon and Additional Amounts, if any, to the date of
purchase (the "Change of Control Payment"). Within 30 days following any Change
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates an Asset Sale
resulting in Net Proceeds in any period of twelve consecutive months, the
Company may apply, or enter into binding contracts irrevocably committing the
Company or such Restricted Subsidiary to apply, such Net Proceeds to an
investment in another business, a capital expenditure or an acquisition of other
tangible assets, in each case, in the Oil and Gas Business, the permanent
reduction of Indebtedness under a secured Credit Agreement or the permanent
reduction of any other senior secured Indebtedness of the Company or permanent
reduction of any long-term secured Indebtedness of such Restricted Subsidiary.
The amount of any excess Net Proceeds required to be applied, or to be committed
to be applied, during such twelve-month period and not applied as so required by
the end of such period shall constitute "Excess Proceeds."
If, on the 366th day after the receipt of any Net Proceeds from an
Asset Sale, there exists Excess Proceeds, the Company must commence and
consummate an Asset Sale Offer to the Holders of Notes and the Holders of any
Indebtedness ranking equally with the Notes and entitled to participate in such
an Asset Sale Offer on a pro rata basis, in an aggregate principal amount of
Notes and such other Indebtedness equal to the Excess Proceeds on such date, at
a purchase price equal to 100.000% of the principal amount thereof, plus, in
each case, accrued interest and Additional Amounts, if any, to the date of
purchase.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes and portions of Notes
selected shall be in amounts of $100 or whole multiples of $100; except that if
all of the Notes of a Holder are to be redeemed, the entire outstanding amount
of Notes held by such Holder, even if not a multiple of $100, shall be redeemed.
On and after the redemption date interest ceases to accrue on Notes, or portions
thereof called for redemption.
9. SECURITY. To secure the due and punctual payment of the principal,
interest and Additional Amounts, if any, on the Notes and all other amounts
payable by the Company under the Indenture and the Notes when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Notes and the Indenture, the Company has granted a
security interest in the Collateral to the Trustee for the benefit of the
Holders of Notes pursuant to the Indenture. The Collateral is subject to release
from the Lien of the Indenture to the extent provided therein.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $100 and integral multiples of $100. The
transfer of Notes may be
A-4
46
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
interest payment date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its
owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding Notes
voting as a single class, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting
as a single class. Without the consent of any Holder of a Note, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for certificated Notes in addition to or in place of
uncertificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation, or sale of
substantially all of the Company's assets, to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
13. DEFAULTS AND REMEDIES. Events of Default include, in summary form: (a)
default in payment when due of the principal of or premium, if any, on the
Notes; (b) default for 30 days in the payment when due of interest or Additional
Amounts, if any, on the Notes; (c) default in the performance of the provisions
of Sections 3.8, 4.9, 4.10, 4.11 and 5.01 of the Indenture; (d) failure by the
Company for 60 days after notice to comply with any of its other agreements in
the Indenture or the Notes; (e) the nonpayment within any applicable grace
period after the final maturity, or the acceleration by the Holders because of a
default, of Indebtedness of the Company or any Restricted Subsidiary, and the
total amount of such Indebtedness unpaid or accelerated exceeds $5.0 million;
(f) failure by the Company or any of its Restricted Subsidiaries to pay final
judgments aggregating in excess of $5.0 million, which judgments are not paid,
discharged or stayed for a period of 60 consecutive days; and (g) certain events
of bankruptcy or insolvency with respect to the Company or any of its Restricted
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable, subject to certain conditions.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any
A-5
47
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest and premium, if any, on, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
14. DEFEASANCE. The Indenture and the obligations under the Notes may be
defeased (subject to certain exceptions) or the Company may cease to comply with
certain covenants of the Indenture, upon satisfaction of the conditions
specified in Article 8 of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
16. NO RECOURSE AGAINST OTHERS. No recourse for the payment of the principal of,
premium, if any, or interest or Additional Amounts, if any, on any of the Notes,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company contained in
this Indenture or in any of the Notes, or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator or past,
present or future director, officer, employee, controlling Person or stockholder
of the Company. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
17. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall furnish to any Holder upon written request and without charge
a copy of the Indenture. Requests may be made to:
Seven Seas Petroleum Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
A-6
48
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
---------------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:
------------------------
A-7
49
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.9 or 4.10 of the Indenture, check the box below:
[ ] Section 4.9 [ ] Section 4.10
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.9 or Section 4.10 of the Indenture, state the amount you
elect to have purchased:
$
-------------
Date: Your Signature:
------------- -----------------------------
(Sign exactly as your name appears on the Note)
Signature Guarantee:
----------------------
Tax Identification No:
---------------------
A-8
50
Exhibit B - Security Agreement and Deed of Mortgage Over Shares
Deliberately omitted; incorporated by reference to Exhibits 10(C) and
10(D) hereof.
51
Exhibit C - Indenture
Deliberately omitted; incorporated by reference to Exhibit 4(E) hereof.
52
Exhibit D - Collateral Sharing and Agency Agreement
Deliberately omitted; incorporated by reference to Exhibit F of Exhibit
10(B) hereof.
53
MASTER WARRANT AGREEMENT
BETWEEN
SEVEN SEAS PETROLEUM INC.
AND
U.S. TRUST COMPANY OF TEXAS, N.A.,
AS WARRANT AGENT
DATED AS OF ___________, 2001
WARRANTS TO PURCHASE 12,612,140 SHARES OF COMMON STOCK
54
TABLE OF CONTENTS
Page
1. Definitions..............................................................................................1
1.1 Affiliate.......................................................................................1
1.2 Agreement.......................................................................................1
1.3 Business Day....................................................................................1
1.4 Common Stock....................................................................................1
1.5 Company.........................................................................................1
1.6 Company Order...................................................................................2
1.7 Convertible Securities..........................................................................2
1.8 Corporate Agency Office.........................................................................2
1.9 Current Market Price............................................................................2
1.10 Effective Registration Statement................................................................2
1.11 Exercise Date...................................................................................2
1.12 Exercise Price..................................................................................2
1.13 Exchange Act....................................................................................2
1.14 Expiration Date.................................................................................2
1.15 Holder..........................................................................................2
1.16 Indenture.......................................................................................2
1.17 Non-Surviving Combination.......................................................................2
1.18 Note............................................................................................2
1.19 Options.........................................................................................3
1.20 Person..........................................................................................3
1.21 Registrar.......................................................................................3
1.22 Registration Statement..........................................................................3
1.23 Rule 144........................................................................................3
1.24 SEC.............................................................................................3
1.25 Securities Act..................................................................................3
1.26 Subsidiary......................................................................................3
1.27 Warrant Agent...................................................................................3
1.28 Warrant Certificates............................................................................3
1.29 Warrant Register................................................................................3
1.30 Warrant Shares..................................................................................3
1.31 Warrants........................................................................................3
2. Warrants.................................................................................................4
2.1 Issuance of Warrants............................................................................4
2.2 Form, Denomination and Date of Warrants.........................................................4
2.3 Execution and Delivery of Warrant Certificates..................................................4
2.3.1 Maximum Number.........................................................................4
2.3.2 Execution..............................................................................4
2.4 Transfer and Exchange...........................................................................5
2.4.1 Transfer of Warrants...................................................................5
2.4.2 Expenses...............................................................................5
2.4.3 Identification.........................................................................5
2.5 Temporary Securities............................................................................5
-i-
55
3. Exercise and Expiration of Warrants......................................................................6
3.1 Exercise of Warrants............................................................................6
3.2 Expiration of Warrants..........................................................................6
3.3 Method of Exercise..............................................................................6
3.4 Partial Exercise................................................................................7
3.5 Issuance of Warrant Shares......................................................................7
3.6 Time of Exercise................................................................................7
3.7 Application of Funds Upon Exercise of Warrants..................................................7
3.8 Payment of Taxes................................................................................7
3.9 Surrender of Certificates.......................................................................8
3.10 Shares Issuable.................................................................................8
4. Registration Rights......................................................................................8
4.1 Registration Procedures.........................................................................8
4.2 Suspension of Exercise..........................................................................9
5. Anti-Dilution Adjustments................................................................................9
5.1 Issuance of Common Stock........................................................................9
5.2 Effect on Exercise Price of Certain Events.....................................................10
5.2.1 Issuance of Rights or Options.........................................................10
5.2.2 Issuance of Convertible Securities....................................................10
5.2.3 Change in Option Price or Conversion Rate.............................................11
5.2.4 Expired Options and Unexercised Convertible Securities................................11
5.2.5 Calculation of Consideration Received.................................................11
5.2.6 Integrated Transactions...............................................................12
5.2.7 Treasury Shares.......................................................................12
5.2.8 Record Date...........................................................................12
5.3 Stock Splits and Reverse Splits................................................................12
5.4 Reorganizations and Asset Sales................................................................12
5.4.1 Reorganization or Reclassification....................................................13
5.4.2 Consolidation; Merger, Etc............................................................13
5.5 Certain Events.................................................................................13
5.6 Notice of Adjustment...........................................................................13
5.7 Notices to Holders.............................................................................14
5.8 Exceptions to Anti-Dilution Adjustment.........................................................14
6. Loss or Mutilation......................................................................................15
7. Capitalization..........................................................................................15
8. Reservation and Authorization of Warrant Shares.........................................................16
9. Warrant Transfer Books..................................................................................16
10. Warrant Holders.........................................................................................17
10.1 Voting or Dividend Rights......................................................................17
10.2 Rights of Action...............................................................................17
10.3 Treatment of Holders...........................................................................17
10.4 Communications to Holders......................................................................17
11. Warrant Agent...........................................................................................18
11.1 Nature of Duties and Responsibilities Assumed..................................................18
11.2 Right to Consult Counsel.......................................................................19
11.3 Compensation, Reimbursement and Indemnification................................................19
-ii-
56
11.4 Warrant Agent May Hold Company Securities......................................................19
11.5 Resignation and Removal; Appointment of Successor..............................................20
11.6 Appointment of Countersigning Agent............................................................20
12. Miscellaneous...........................................................................................21
12.1 Notices Generally..............................................................................21
12.2 APPLICABLE LAW.................................................................................22
12.3 Persons Benefitting............................................................................22
12.4 Counterparts...................................................................................22
12.5 Amendments.....................................................................................22
12.6 Inspection.....................................................................................23
12.7 Entire Agreement...............................................................................23
12.8 Headings.......................................................................................23
EXHIBITS
Form of Warrant Certificate.....................................................................................A-1
-iii-
57
MASTER WARRANT AGREEMENT
THIS MASTER WARRANT AGREEMENT is entered into ___________, 2001,
between SEVEN SEAS PETROLEUM INC., a Cayman Islands exempted company limited by
shares (the "Company"), and U.S. TRUST COMPANY OF TEXAS, N.A. (the "Warrant
Agent").
RECITALS:
A. The Company is offering the Company's 12% Series A Senior Secured
Notes due 2004 (the "Notes") in the aggregate principal amount of Twenty-Two
Million Five Hundred Thousand Dollars ($22,500,000.00) pursuant to a rights
offering to the Company's shareholders and others.
B. The Company proposes to issue with the Notes, Common Stock Purchase
Warrants (the "Warrants") to purchase Twelve Million Six Hundred Twelve Thousand
One Hundred Forty (12,612,140) of the Company's ordinary shares, par value
$0.001, pursuant to this Agreement.
C. The Company desires to retain the Warrant Agent to act on behalf of
the Company and the Warrant Agent is willing to act on behalf of the Company in
connection with the issuance of the Warrants and the other matters provided
herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein the parties agree as follows:
1. Definitions. Wherever used in this Agreement the following terms
will have the meanings indicated:
1.1 Affiliate. As to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control of such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
1.2 Agreement. This Warrant Agreement, as the same may be
amended, modified or supplemented from time to time.
1.3 Business Day. A day which in New York, New York, is neither a
legal holiday nor a day on which banking institutions are authorized by law or
regulation to close.
1.4 Common Stock. The Company's ordinary shares, par value $0.001
per share.
1.5 Company. Seven Seas Petroleum Inc. and its successors and
assigns.
58
1.6 Company Order. A written request or order signed in the name
of the Company by an authorized officer and delivered to the Warrant Agent.
1.7 Convertible Securities. Any stock or securities (directly or
indirectly) convertible into or exchangeable for Common Stock.
1.8 Corporate Agency Office. The offices maintained by the
Warrant Agent and identified in accordance with paragraph 9 of this Agreement.
1.9 Current Market Price. With respect to any security: (a) if
the security is traded on an organized exchange or market for which sales price
information is updated, the average closing price of the security on the stock
exchange or market where the security is traded or the average last bid prices
as quoted on the applicable exchange or market for the immediately preceding
five (5) trading days; and (b) if the security is not traded on an organized
exchange or market, the price per share of the security as determined in good
faith by the Company's Board of Directors. If such valuation is objected to by
the Holders of over forty percent (40%) of the Warrants within ten (10) days
after notice of such valuation, then the valuation will be made by a reputable
investment bank of national standing selected by the Company, the expense of
which will be paid by the Company.
1.10 Effective Registration Statement. A registration statement
filed by the Company which has become effective under the Securities Act.
1.11 Exercise Date. The date the Warrants first become
exercisable, which is the date the Registration Statement becomes effective.
1.12 Exercise Price. The purchase price per Warrant Share payable
on exercise of a warrant. The initial exercise price is $1.783995, and is
subject to adjustment as provided in paragraph 5 of this Agreement.
1.13 Exchange Act. The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.14 Expiration Date. June 30, 2008.
1.15 Holder. Any Person in whose name any Warrant Certificate is
registered upon the Warrant Register.
1.16 Indenture. The Indenture dated as of July 23, 2001, by and
among the Company and U.S. Trust Company of Texas, N.A.
1.17 Non-Surviving Combination. Any merger, consolidation or
other business combination by the Company with one or more other entities in a
transaction in which the Company is not the surviving entity or becomes a
wholly-owned subsidiary of another entity.
1.18 Note. A 12% Series A Senior Secured Note due 2004 issued
pursuant to the Indenture.
-2-
59
1.19 Options. Any rights or options to subscribe for or purchase
Common Stock or Convertible Securities.
1.20 Person. Any individual, corporation (including a business
trust), partnership, joint venture, association, joint-stock company, trust,
estate, limited liability company, unincorporated association, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
1.21 Registrar. U.S. Trust Company of Texas, N.A., and its
successors and assigns. .
1.22 Registration Statement. A Registration Statement as
contemplated by paragraph 4 of this Agreement.
1.23 Rule 144. Rule 144 promulgated under the Securities Act or
any successor rule.
1.24 SEC. The Securities and Exchange Commission or any successor
agency thereto.
1.25 Securities Act. The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
1.26 Subsidiary. With respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of equity interests entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the Subsidiaries of such Person or a combination thereof.
1.27 Warrant Agent. The Person named in the preamble hereof or
the successor or successors of such Person appointed in accordance with the
terms hereof.
1.28 Warrant Certificates. Those certain warrant certificates
evidencing the Warrants, substantially in the form of Exhibit "A" attached as a
part hereof.
1.29 Warrant Register. The warrant register as contemplated by
paragraph 9 of this Agreement.
1.30 Warrant Shares. The Common Stock issuable upon exercise of
the Warrants, the number of shares of which is subject to adjustment from time
to time in accordance with paragraph 5.
1.31 Warrants. Those warrants issued hereunder to purchase
initially up to an aggregate of 12,612,140 Warrant Shares at the Exercise Price,
subject to adjustment pursuant to paragraph 5 of this Agreement.
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2. Warrants. The Warrants will be issued as follows:
2.1 Issuance of Warrants. Contemporaneously with the issuance of
each Note, the Warrant Agent will issue to the registered owner of the Note one
or more Warrant Certificates evidencing the requisite number of Warrants as set
forth on a list of registered holders of Notes furnished to the Warrant Agent by
the Registrar pursuant to Section 7.12 of the Indenture. Each Warrant
Certificate issued pursuant to this paragraph 2.1 will evidence the number of
Warrants equal to the following: (a) 56.05396; multiplied by (b) the number
obtained by (i) dividing the initial principal balance of the Notes specified as
held by the holder as set forth in the above list by (ii) One Hundred Dollars
($100.00), and (c) rounded to the nearest whole number. Subject to the terms of
this Agreement and the Warrant Certificate, each Warrant evidenced by the
Warrant Certificate will represent the right to purchase one Warrant Share,
subject to adjustment as provided in paragraph 5 of this Agreement.
2.2 Form, Denomination and Date of Warrants. Each of the Warrant
Certificates: (a) will be issued in substantially the form of Exhibit "A"
attached as a part hereof; (b) will be numbered, lettered or otherwise
distinguished in such manner as the Company may determine with the approval of
the Warrant Agent; and (c) will be dated as of the date of the authentication of
the Warrant Certificate. To the extent not inconsistent with the terms of this
Agreement, any of the Warrant Certificates may be issued with appropriate
insertions, omissions, substitutions, variations and legends as may be required
to comply with any state or federal law, rule or regulation, the rules of any
securities market in which the Warrants are admitted to trading or to otherwise
conform to general usage. All Warrant Certificates and the underlying Warrants
will be otherwise substantially identical except as to denomination and as
otherwise provided in this Agreement.
2.3 Execution and Delivery of Warrant Certificates. The Warrant
Certificates will be executed and delivered as follows:
2.3.1 Maximum Number. Warrant Certificates evidencing
Warrants which may be countersigned and delivered under this Agreement are
limited to: (a) Warrant Certificates evidencing Twelve Million Six Hundred
Twelve Thousand One Hundred Forty (12,612,140) Warrants as adjusted in
accordance with paragraph 5 of this Agreement; and (b) additional Warrant
Certificates countersigned and delivered on registration, transfer, exchange or
in lieu of previously countersigned Warrant Certificates pursuant to this
Agreement.
2.3.2 Execution. The Warrant Certificates will be
executed on behalf of the Company by an authorized officer of the Company,
either manually or by facsimile signature printed thereon. In addition to the
foregoing, the Warrant Certificates will be countersigned by the Warrant Agent
and will not be valid for any purpose unless so countersigned. After the date of
this Agreement, Warrant Certificates evidencing Warrants may be executed by the
Company and delivered to the Warrant Agent for countersignature. Thereafter on
receipt of a Company Order or at the direction of the Company as set forth in
this Agreement, the Warrant Agent will countersign and deliver such Warrant
Certificates to the Company for delivery or deliver such Warrant Certificate to
the Holder as directed by the Company. The Warrant Agent is further hereby
authorized to countersign and deliver Warrant Certificates as required by this
paragraph 2.3 or by paragraphs 2.2, 3.4, 5 or 9 of this Agreement.
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If an officer of the Company whose signature is placed on a Warrant Certificates
ceases to be an officer before countersignature and issuance of the Warrant
Certificate by the Warrant Agent, such Warrant Certificate may be countersigned
by the Warrant Agent and delivered with the same force and effect as though such
Person were an officer of the Company on the date of issuance of such Warrant
Certificate. In addition at any time after the date of this Agreement, Warrant
Certificates may be signed on behalf of the Company by an authorized officer as
of the actual date of execution of such Warrant Certificate regardless of
whether such Person was an officer of the Company on the date of the execution
of this Agreement.
2.4 Transfer and Exchange. The Warrants will be transferable as
follows:
2.4.1 Transfer of Warrants. The Holder of a Warrant may
transfer all or part of such Warrant, subject to and in compliance with the
restrictions on transfer set forth in this Agreement and the applicable Warrant
Certificate. On receipt by the Warrant Agent at the Corporate Agency Office of:
(a) the Warrant Certificate, duly endorsed as provided herein for the number of
Warrants to be transferred; (b) written instructions from such Holder directing
the Warrant Agent to authenticate and deliver one or more Warrant Certificates
for the number of Warrants to be transferred; and (c) the identity, address and
tax identification number of each transferee, then the Warrant Agent will cancel
or cause to be canceled such Warrant Certificate and, concurrently therewith,
the Company will execute, and the Warrant Agent will authenticate and deliver,
one or more Warrant Certificates in accordance with the instructions referred to
above.
2.4.2 Expenses. No charge will be made to a Holder for
the transfer or exchange of Warrants hereunder. Notwithstanding the foregoing,
the Company may require payment of a sum sufficient to cover any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange of the Warrants.
2.4.3 Identification. The Warrant Agent will use CUSIP
numbers in notices of repurchase or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of such numbers either as printed on the Warrants or as
contained in any notice of repurchase or exchange and that reliance may be
placed only on the other identification numbers printed on the Warrants. The
Company will promptly notify the Warrant Agent of any change in the CUSIP
numbers.
2.5 Temporary Securities. Pending the preparation of definitive
Warrants, the Company may execute and the Warrant Agent will authenticate and
deliver temporary Warrants (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Warrant Agent). Temporary
Warrants will be issuable as registered Warrants, of any authorized
denomination, and substantially in the form of the definitive Warrants but with
such omissions, insertions and variations as may be appropriate for temporary
Warrants, all as may be determined by the Company with the concurrence of the
Warrant Agent. Temporary Warrants may contain such references to provisions of
this Agreement as is appropriate. Every temporary Warrant will be executed by
the Company and be authenticated by the Warrant Agent upon the same conditions
and in substantially the same manner, and with like effect, as the definitive
Warrants. Without unreasonable delay, the Company will execute and furnish
definitive Warrants and thereupon temporary Warrants may be surrendered in
exchange therefor without
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charge at the office of the Warrant Agent in accordance with paragraph 9 of this
Agreement. Until so exchanged, the temporary Warrants will be entitled to the
same benefits under this Agreement as definitive Warrants.
3. Exercise and Expiration of Warrants. When validly issued and subject
to the provisions of the Warrant Certificate and this Agreement, each Warrant
Certificate will entitle the Holder thereof to acquire from the Company, subject
to the terms hereof (including Exhibit A hereto), for each Warrant evidenced
thereby, one Warrant Share at the Exercise Price, subject to the anti-dilution
adjustments under this Agreement. The Exercise Price and the number of Warrant
Shares to be received on exercise of the Warrants will be adjusted from time to
time as required by paragraph 5 of this Agreement.
3.1 Exercise of Warrants. Subject to the terms and conditions of
the Warrant Certificate and this Agreement, and subject to the Registration
Statement being effective and exercise not otherwise being suspended as provided
in paragraph 4 hereof, the Holder of a Warrant Certificate may on any Business
Day from and after the Exercise Date through and including the Expiration Date
exercise all or part of a whole number of the Warrants evidenced by the Warrant
Certificates for the Warrant Shares purchasable thereunder.
3.2 Expiration of Warrants. Unless sooner terminated as herein
provided, the Warrants will terminate and become void as of 5:00 p.m., New York
time on the Expiration Date. After Warrants representing fifty-one percent (51%)
or more of the number of Warrants originally issued pursuant to this Agreement
have been exercised, at any time that the closing price of the Company's Common
Stock on the principal stock exchange or market on which the Company's Common
Stock is traded has been not lower than $3.00 for more than twenty (20)
consecutive trading days, the Company may give the remaining Holders written
notice that they must exercise their Warrants within thirty (30) days after the
date of such notice or the Warrants will terminate and become void as of 5:00
p.m., New York time on the thirty-first (31st) day after the date of such
notice. In that event, the Holder may exercise all or any of the Warrants by
delivering to the Warrant Agent at the Corporate Agency Office duly executed
written notice of such Holder's election to exercise Warrants in the form set
forth on the reverse of, or attached to, the Warrant Certificate specifying the
number of Warrants to be exercised and the number of Warrant Shares to be
surrendered in payment of the aggregate Exercise Price for the Warrant Shares to
be delivered to the Holder; and (b) the Warrant Certificate evidencing such
Warrants. For purposes of this paragraph 3.2, each Warrant which is being
surrendered in payment of the aggregate Exercise Price will be attributed a
value equal to: (x) the Current Market Price per share of Common Stock less (y)
the current Exercise Price.
3.3 Method of Exercise. Subject to the terms of this Agreement,
including paragraph 4.2 hereof, the Holder may exercise all or any of the
Warrants by delivering to the Warrant Agent at the Corporate Agency Office: (a)
duly executed written notice of such Holder's election to exercise Warrants in
the form set forth on the reverse of, or attached to, the Warrant Certificate
specifying the number of Warrant Shares to be exercised; (b) the Warrant
Certificate evidencing such Warrants; and (c) an amount equal to the aggregate
Exercise Price for the Warrants being exercised in immediately available funds,
rounded to the nearest tenth of a cent.
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3.4 Partial Exercise. If fewer than all the Warrants represented
by a Warrant Certificate are exercised, such Warrant Certificate will be
surrendered and a new Warrant Certificate of the same tenor and for the number
of Warrants which were not exercised will be executed by the Company. The
Warrant Agent will countersign the new Warrant Certificate registered in such
name or names as may be directed in writing by the Holder and deliver the new
Warrant Certificate to the Person or Persons in whose name such new Warrant
Certificate is registered. The Company will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purpose.
3.5 Issuance of Warrant Shares. On surrender of a Warrant
Certificate evidencing Warrants in conformity with the foregoing provisions and
payment of the Exercise Price in respect of the exercise of one or more Warrants
evidenced thereby the Warrant Agent will: (a) deliver to the Company the notice
of exercise received pursuant to paragraph 3.3 of this Agreement; (b) deliver or
deposit all funds received as instructed by the Company; and (c) advise the
Company by telephone at the end of such day of the number of Warrants exercised
and the amount of funds received. On such exercise the Company will as promptly
as practicable, and in any event within five (5) Business Days after receipt by
the Company of written notice of exercise, execute or cause to be executed and
delivered or cause to be delivered to the Holder: (x) a stock certificate or
certificates representing the aggregate number of Warrant Shares purchased
pursuant to such exercise; (y) any new Warrant Certificate under paragraph 3.4
of this Agreement; and (z) any cash payment in lieu of any fractional share(s).
The certificate or certificates so delivered will be, to the extent possible, in
such denomination or denominations as such Holder requests in such notice of
exercise and will be registered or otherwise placed in the name of, and
delivered to, the Holder or such other Person as designated by the Holder in
such notice.
3.6 Time of Exercise. A Warrant will be deemed to have been
exercised immediately prior to the close of business on the date on which all
requirements set forth in paragraph 3.3 of this Agreement applicable to such
exercise have been satisfied. Certificate(s) evidencing the Warrant Shares
issued on the exercise of such Warrant will be deemed to have been issued and,
for all purposes of this Agreement, the recipient will be deemed to be and
entitled to all rights of the holder of record of such Warrant Shares as of such
time.
3.7 Application of Funds Upon Exercise of Warrants. Any funds
delivered to the Warrant Agent on exercise of any Warrants will be held by the
Warrant Agent in trust for the Company. The Warrant Agent will promptly deliver
and pay to or on the written order of the Company all funds received by it upon
the exercise of any Warrants by bank wire transfer to an account designated by
the Company or as the Warrant Agent otherwise may be directed in writing by the
Company.
3.8 Payment of Taxes. The Company will pay any and all taxes
(other than income taxes) and other charges that may be payable in respect of
the issue or delivery of Warrant Shares on exercise of Warrants. The Company
will not be required to pay any tax or other charge imposed as a result of a
transfer in connection with the issue and delivery of any certificates for
Warrant Shares or payment of cash to any Person other than the registered Holder
of the Warrant Certificate surrendered in the exercise of a Warrant. The Warrant
Agent and the Company will not be required to issue or deliver any certificate
or pay any cash until: (a) such
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transfer tax or charge, if any, has been paid or an amount sufficient for the
payment thereof has been delivered to the Warrant Agent or the Company; or (b)
it has been established to the Company's satisfaction that any such transfer tax
or other charge that is or may become due has been paid.
3.9 Surrender of Certificates. Any Warrant Certificate
surrendered for exercise will be delivered to the Warrant Agent. All Warrant
Certificates surrendered to the Warrant Agent will be promptly canceled and the
Warrant Agent will deliver a certificate of destruction to the Company, unless
the Company requests otherwise.
3.10 Shares Issuable. The number of Warrant Shares issuable upon
exercise of Warrants will be the number of Warrant Shares into which such
Warrants are then exercisable. The number of Warrant Shares "into which each
Warrant is exercisable" initially will be one share, subject to adjustment as
provided in paragraph 5 of this Agreement.
4. Registration Rights. The Company shall prepare and file with the SEC
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Warrant Shares. The Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of the Warrant Shares for issuance by the Company upon exercise of
the Warrants.
4.1 Registration Procedures In connection with the filing of the
Registration Statement, the Company shall:
(a) Use its best efforts to cause the Registration Statement to become
effective as soon as reasonably practicable after the Warrants are issued and to
keep such Registration Statement continuously effective under the Securities Act
until the earlier of (i) the Expiration Date, or (ii) the date on which all of
the Warrant Shares have been issued;
(b) Furnish to Holders copies of the prospectus included in such
Registration Statement (including each prospectus supplement), in conformity
with the requirements of the Securities Act.
(c) Use its reasonable best efforts to register or qualify the Warrant
Shares covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as determined by the Company's counsel to be
necessary or required, and do such other acts and things as may be required to
enable Holders to exercise the Warrants in the jurisdictions for exercise of the
Warrants owned by Holders.
(d) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC.
(e) Immediately notify the Holders at any time upon the Company
becoming aware that the prospectus included in the Registration Statement, or as
such prospectus may be amended or supplemented, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading in
light of the circumstances then existing, and promptly prepare and furnish to
Security Holders copies of an amended or supplemental prospectus to the Holders
as may be
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necessary so that, as thereafter delivered upon exercise of the Warrants, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading in the light of the circumstances
then existing. In the event the Company shall give any such notice, the Holders
shall no longer be permitted to exercise the Warrants, and the Exercise Period
shall be extended by the number of days during the period from and including the
date of the giving of such notice to and including the date when Holders shall
have received the copies of such supplemented or amended prospectus.
(f) Use its best efforts to list such Warrant Shares on the primary
securities exchange or other trading market on which the Common Stock is then
listed, if such Warrant Shares are not already so listed and if such listing is
then permitted under the rules of such exchange or other trading market, and to
provide a transfer agent and registrar for such Warrant Shares covered by such
Registration Statement not later than the effective date of such Registration
Statement.
4.2 Suspension of Exercise. In the event that, in the judgment of
the Company, it is advisable to suspend exercise of the Warrants by Holders
because the Company is conducting negotiations for a material business
combination or due to pending material developments or events that have not yet
been publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver notice to the
Holders that exercise has been suspended and, thereafter, the Holders shall not
exercise the Warrants, and the Exercise Period shall cease to run or will not
commence, until Holders have received copies of the supplemented or amended
prospectus provided for in paragraph 4.1(e), or until it is advised in writing
by the Company that the prospectus may be used, and have received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such prospectus; provided that the duration of such suspension
shall not exceed 90 days. The Company will use its best efforts to ensure that
the use of the prospectus may be resumed, and the Exercise Period will commence,
as promptly as is practicable and, in any event, promptly after the earlier of
(x) public disclosure of such material business combination or pending material
development or event sufficient to permit an Affiliate of the Company to sell
Common Stock or (y) in the judgment of the Company, public disclosure of such
material business combination or material development or event would not be
prejudicial to the Company.
5. Anti-Dilution Adjustments. In order to prevent dilution of the
rights granted with respect to the Warrants, the Exercise Price is subject to
adjustment from time to time as provided in this paragraph 5, and the number of
Warrant Shares obtainable on the exercise of a Warrant will be subject to
adjustment from time to time as provided in this paragraph 5.
5.1 Issuance of Common Stock. If and whenever on or after the
date of this Agreement the Company issues or sells, or in accordance with
paragraph 5.2 of this Agreement is deemed to have issued or sold, any shares of
Common Stock for a consideration per share less than the Exercise Price in
effect immediately prior to such time, then immediately upon such issue or sale
the Exercise Price will be reduced to the new Exercise Price determined by
dividing:
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(a) the sum of (i) the product derived by multiplying the
Exercise Price in effect immediately prior to such issue or sale times the
number of shares of Common Stock deemed outstanding immediately prior to such
issue or sale, plus (ii) the consideration, if any, received by the Company upon
such issue or sale, by
(b) the number of shares of Common Stock deemed outstanding
immediately after such issue or sale.
Upon each such adjustment of the Exercise Price hereunder, the number of Warrant
Shares acquirable on exercise of a Warrant will be adjusted to the number of
shares determined by multiplying the Exercise Price in effect immediately prior
to such adjustment by the number of Warrant Shares acquirable on exercise of a
Warrant immediately prior to such adjustment and dividing the product thereof by
the Exercise Price resulting from such adjustment.
5.2 Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under paragraph 5.1, the following will
be applicable:
5.2.1 Issuance of Rights or Options. If the Company in any manner
grants or sells any Options and the price per share for which Common Stock is
issuable on the exercise of such Options, or on conversion or exchange of any
Convertible Securities issuable on the exercise of such Options, is less than
the Exercise Price in effect immediately prior to the time of the granting or
sale of such Options, then the total maximum number of shares of Common Stock
issuable on the exercise of such Options, or on conversion or exchange of the
total maximum amount of such Convertible Securities issuable on the exercise of
such Options, will be deemed to be outstanding and to have been issued and sold
by the Company at the time of the granting or sale of such Options for such
price per share. For purposes of this paragraph, the "price per share for which
Common Stock is issuable on exercise of such Options or upon conversion or
exchange of such Convertible Securities" is determined by dividing (a) the total
amount, if any, received or receivable by the Company as consideration for the
granting or sale of such Options, plus the minimum aggregate amount of
additional consideration payable to the Company on the exercise of all such
Options, plus in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable to the Company on the issuance or sale of such Convertible Securities
and the conversion or exchange thereof, by (b) the total maximum number of
shares of Common Stock issuable on exercise of such Options or on the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options. No further adjustment of the Exercise Price will be made upon the
actual issuance of such Common Stock or of such Convertible Securities on the
exercise of such Options or upon the actual issuance of Common Stock on
conversion or exchange of such Convertible Securities.
5.2.2 Issuance of Convertible Securities. If the Company in any
manner issues or sells any Convertible Securities and the price per share for
which Common Stock is issuable on conversion or exchange thereof is less than
the Exercise Price in effect immediately prior to the time of such issue or
sale, then the maximum number of shares of Common Stock issuable on conversion
or exchange of such Convertible Securities will be deemed to be outstanding and
to have been issued and sold by the Company at the time of the issue or sale of
such Convertible Securities for such price per share. For the purposes of this
paragraph, the
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"price per share for which Common Stock is issuable on conversion or exchange
thereof" is determined by dividing (a) the total amount received or receivable
by the Company as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company on the conversion or exchange thereof, by (b) the
total maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities. No further adjustment of the
Exercise Price will be made upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities, and if any such issue or
sale of such Convertible Securities is made on exercise of any Options for which
adjustments of the Exercise Price had been or are to be made pursuant to other
provisions of this paragraph 5.2, no further adjustment of the Exercise Price
will be made by reason of such issue or sale.
5.2.3 Change in Option Price or Conversion Rate. If the purchase
price provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or the
rate at which any Convertible Securities are convertible into or exchangeable
for Common Stock changes at any time, the Exercise Price in effect at the time
of such change will be adjusted immediately to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities
still outstanding provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time
initially granted, issued or sold and the number of shares of Common Stock
issuable hereunder will be correspondingly adjusted. For purposes of this
paragraph 5.2, if the terms of any Option or Convertible Security which was
outstanding as of the date of this Agreement are changed in the manner described
in the immediately preceding sentence, then such Option or Convertible Security
and the Common Stock deemed issuable upon exercise, conversion or exchange
thereof will be deemed to have been issued as of the date of such change.
Notwithstanding the foregoing no such change will at any time cause the Exercise
Price hereunder to be increased.
5.2.4 Expired Options and Unexercised Convertible Securities. On
the expiration of any Option or the termination of any right to convert or
exchange any Convertible Securities without the exercise of such Option or
right, the Exercise Price then in effect and the number of shares of Common
Stock acquirable hereunder will be adjusted immediately to the Exercise Price
and the number of shares which would have been in effect at the time of such
expiration or termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination, never
been issued. For purposes of this paragraph 5.2, the expiration or termination
of any Option or Convertible Security which was outstanding as of the date of
issuance of this Agreement will not cause the Exercise Price hereunder to be
adjusted unless, and only to the extent that, a change in the terms of such
Option or Convertible Security caused it to be deemed to have been issued after
the date of this Agreement.
5.2.5 Calculation of Consideration Received. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor will be deemed to
be the amount received by the Company therefor. In case any Common Stock,
Options or Convertible Securities are issued or sold for consideration other
than cash, the amount of the consideration other than cash received by the
Company will be the fair value of such consideration, except where such
consideration
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consists of securities, in which case the amount of consideration received by
the Company will be the Current Market Price thereof as of the date of receipt.
In case any Common Stock, Options or Convertible Securities are issued to the
owners of the non-surviving entity in connection with any merger in which the
Company is the surviving entity the amount of consideration therefor will be
deemed to be the fair value of such portion of the net assets and business of
the non-surviving entity as is attributable to such Common Stock, Options or
Convertible Securities, as the case may be. The fair value of any consideration
other than cash or securities will be determined at the reasonable discretion of
the board of directors of the Company consistent with the value assigned for
Generally Accepted Accounting Principles purposes. Notice of such determination
will be given to the Warrant Agent and the Holders.
5.2.6 Integrated Transactions. In case any Option or Convertible
Security is issued in connection with the issue or sale of other securities of
the Company, together comprising one integrated transaction in which no specific
consideration is allocated to such Options or Convertible Security by the
parties thereto, the Options or Convertible Security will be deemed to have been
issued for consideration determined at the reasonable discretion of the board of
directors of the Company consistent with the value assigned for purposes of
Generally Accepted Accounting Principles. Notice of such determination will be
given to the Warrant Agent and the Holders.
5.2.7 Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares of Common Stock owned or
held by or for the account of the Company or any Subsidiary, and the disposition
of any shares so owned or held will be considered an issue or sale of Common
Stock.
5.2.8 Record Date. If the Company takes a record of the holders
of Common Stock for the purpose of entitling them (a) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
or (b) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date will be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold on the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
5.3 Stock Splits and Reverse Splits. In the event that the Company at
any time after the date of this Agreement subdivides its outstanding shares of
Common Stock into a greater number of shares (by stock split, stock dividend,
recapitalization or otherwise), the Exercise Price in effect immediately prior
to such subdivision will be proportionately reduced and the number of Warrant
Shares purchasable pursuant to this Warrant immediately prior to such
subdivision will be proportionately increased. Conversely, in the event that the
outstanding shares of Common Stock at any time are combined into a smaller
number of shares (by reverse stock split or otherwise), the Exercise Price in
effect immediately prior to such combination will be proportionately increased
and the number of Warrant Shares purchasable upon the exercise of this Warrant
immediately prior to such combination will be proportionately reduced.
5.4 Reorganizations and Asset Sales. If any capital reorganization or
reclassification of the capital stock of the Company, or any consolidation,
merger or share exchange of the Company with another Person, or the sale,
transfer or other disposition of all or
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substantially all of its assets to another Person will be effected in such a way
that a holder of Common Stock of the Company will be entitled to receive capital
stock, securities or assets with respect to or in exchange for shares of Common
Stock, then the following provisions will apply:
5.4.1 Reorganization or Reclassification. If any capital
reorganization or reclassification of the capital stock of the Company shall be
effected in such a way that holders of Common Stock shall be entitled to receive
stock or securities or assets of the Company with respect to or in exchange for
Common Stock, then the Holder of each Warrant then outstanding shall have the
right upon exercise to receive the kind and amount of stock, securities or
asserts receivable upon reorganization or reclassification by a holder of the
number of shares of Common Stock which such Holder would have received had the
Holder exercised the Warrant immediately prior to such reorganization or
reclassification.
5.4.2 Consolidation; Merger, Etc. Immediately prior to the
effective time of any consolidation, merger, share exchange, sale, transfer or
other disposition with another Person, the Warrants shall be cancelled and each
holder of Warrants will thereafter have the right to receive, in lieu of the
Warrant Shares immediately theretofore receivable upon the exercise of the
rights represented hereby, such shares of capital stock, securities or assets as
may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of Warrant Shares
which the Holder would have received had the Holder made a cashless exercise by
surrendering a number of Warrants with an attributed value equal to (x) the
Current Market Price per share of Common Stock less (y) the current Exercise
Price such that the aggregate attributed value of the surrendered Warrants is
equal to the Exercise Price of the remaining Warrants.
5.5 Certain Events. If any event occurs of the type contemplated by the
provisions of this paragraph 5 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 shares of Common Stock obtainable upon exercise of the Warrants so
as to protect the rights of the holders of the Warrants. No such adjustment will
increase the Exercise Price or decrease the number of shares of Common Stock
obtainable as otherwise determined pursuant to this paragraph 5.
5.6 Notice of Adjustment. Whenever the Exercise Price or the number of
Warrant Shares issuable upon the exercise of the Warrants will be adjusted as
herein provided, or the rights of the holder hereof will change by reason of
other events specified herein, the Company will compute the adjusted Exercise
Price and the adjusted number of Warrant Shares in accordance with the
provisions hereof and will prepare an officer's certificate setting forth the
adjusted Exercise Price and the adjusted number of Warrant Shares issuable upon
the exercise of the Warrants or specifying the other shares of stock, securities
or assets receivable as a result of such change in rights, and showing in
reasonable detail the facts' and calculations upon which such adjustments or
other changes are based. The Company will promptly cause to be mailed to each
Holder copies of such officer's certificate together with a notice stating that
the Exercise Price and the number of Warrant Shares purchasable upon exercise of
the Warrants have been adjusted and setting forth the adjusted Exercise Price
and the adjusted number of Warrant Shares purchasable upon the exercise of the
Warrants.
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5.7 Notices to Holders. In case at any time the Company proposes:
5.7.1 to declare any dividend upon its Common Stock payable in
capital stock or make any dividend or other distribution (including cash
dividends) to the holders of its Common Stock;
5.7.2 to offer for subscription pro rata to all of the holders of
its Common Stock any additional shares of capital stock of any class or other
rights;
5.7.3 to effect any capital reorganization, or reclassification
of the capital stock of the Company, or consolidation, merger or share exchange
of the Company with another Person, or sale, transfer or other disposition of
all or substantially all of its assets; or
5.7.4 to effect a voluntary or involuntary dissolution,
liquidation or winding up of the Company,
then, in any one or more of such cases, the Company will give the holder hereof
(a) at least 20 days' (but not more than 90 days') prior written notice of the
date on which the books of the Company will close or a record will be taken for
such dividend, distribution or subscription rights or for determining rights to
vote in respect of such issuance, recapitalization, reorganization,
reclassification, consolidation, merger, share exchange, sale, transfer,
disposition, dissolution, liquidation or winding up, and (b) in the case of any
such issuance, recapitalization, reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer, disposition, dissolution,
liquidation or winding up, at least 20 days' (but not more than 90 days') prior
written notice of the date when the same will take place. Such notice in
accordance with the foregoing clause (a) will also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock will be entitled thereto, and such notice in accordance
with the foregoing clause (b) will also specify the date on which the holders of
Common Stock will be entitled to exchange their Common Stock, as the case may
be, for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, share exchange, sale, transfer,
disposition, dissolution, liquidation or winding up, as the case may be.
5.8 Exceptions to Anti-Dilution Adjustment. Notwithstanding anything to
the contrary contained in this Agreement, there will be no adjustment in the
Exercise Price or the number of Warrant Shares obtainable upon exercise of the
Warrants as a consequence of the issuance by the Company of (a) any Option,
warrant, Convertible Security or other right to acquire Common Stock outstanding
or in effect as of the date of this Agreement and not amended after the date of
this Agreement; (b) any Options, stock purchase rights or other rights to
acquire up to five million three hundred fifty-six thousand eight hundred
eighty-eight (5,356,888) shares of Common Stock on exercise of Options granted
or that may be granted under the Company's compensatory 1995, 1996 and 1997
stock option plans at an exercise price no less than the current market price on
the date of issuance; (c) up to twelve million six hundred twelve thousand one
hundred forty (12,612,140) of the warrants to be issued by the Company to
Chesapeake Energy Corporation; or (d) the issuance of shares of Common Stock as
a result of the exercise of any of the foregoing. The number of shares of Common
Stock exempted from the anti-dilution adjustments under foregoing clause (b)
assumes that no such Options have been
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exercised and as a result will be reduced for any Options issued under the
Company's 1995, 1996 and 1997 stock option plans which were exercised prior to
the date of this Agreement.
6. Loss or Mutilation. Upon: (a) receipt by the Company and the Warrant
Agent of evidence satisfactory to them of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and such security or
indemnity as may be required by them to save each of them harmless; and (b)
surrender, in the case of mutilation, of the mutilated Warrant Certificate to
the Warrant Agent and cancellation thereof, then, in the absence of notice to
the Company of the Warrant Agent that the Warrants evidenced thereby have been
acquired by a bona fide purchaser, the Company will execute and on written
request the Warrant Agent will countersign and deliver to the registered Holder
of the lost, stolen, destroyed or mutilated Warrant Certificate, in exchange
therefor or in lieu thereof, a new Warrant Certificate of the same tenor and for
a like aggregate number of Warrants. At the written request of such registered
Holder, the new Warrant Certificate so issued will be retained by the Warrant
Agent as having been surrendered for exercise, in lieu of delivery thereof to
such Holder, and will be deemed for purposes of this Agreement to have been
surrendered for exercise on the date the conditions specified in clauses (a) and
(b) of the preceding sentence were first satisfied. Upon the issuance of any new
Warrant Certificate under this paragraph 6, the Company may require the payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in relation thereto and other expenses (including the fees and expenses of the
Warrant Agent and of counsel to the Company) in connection therewith. Every new
Warrant Certificate executed and delivered pursuant to this paragraph 6 in lieu
of any lost, stolen or destroyed Warrant Certificate will constitute an
additional contractual obligation of the Company, whether or not the allegedly
lost, stolen or destroyed Warrant Certificate will be at any time enforceable by
anyone, and will 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 paragraph 6 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
7. Capitalization. As of the date of this Agreement: the Company's
authorized capital stock consists of one hundred fifty million (150,000,000)
shares of Common Stock and fifty million (50,000,000) shares which may be
designated by the board of directors of the Company, none of which have been
designated or issued. As of the date of this Agreement the only shares of
capital stock issued and outstanding, reserved for issuance or committed to be
issued are: (a) thirty-seven million eight hundred thirty-six thousand four
hundred twenty (37,836,420) fully paid and non-assessable shares of Common Stock
duly issued and outstanding; (b) twelve million six hundred twelve thousand one
hundred forty (12,612,140) shares of Common Stock reserved for issuance as a
result of the issuance of warrants to Chesapeake Energy Corporation (the
"Chesapeake Warrants"); (c) twelve million six hundred twelve thousand one
hundred forty (12,612,140) shares of Common Stock reserved for issuance on
exercise of the Warrants; and (d) five million three hundred fifty-six thousand
eight hundred eighty-eight (5,356,888) shares of Common Stock issuable on
exercise of Options granted or to be granted under the Company's 1995, 1996 and
1997 stock option plans. The Warrant Shares reserved for issuance represent no
less than twenty percent (20%) of the Company's fully diluted shares of Common
Stock which as of the date of this Agreement includes all of the issued and
outstanding shares of Common Stock, any shares of Common Stock issuable under
this Agreement, the maximum number of shares of Common Stock issuable in
connection with the
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Chesapeake Warrants and any other Options or Convertible Securities, excluding
only shares of Common Stock issuable upon the exercise of Options issued under
the Company's 1995, 1996 and 1997 compensatory stock option plans.
8. Reservation and Authorization of Warrant Shares. The Company will at
all times reserve and keep available, free from preemptive rights, solely for
issue upon the exercise of Warrants such number of its authorized but unissued
Warrant Shares deliverable upon the exercise of Warrants as will be sufficient
to permit the exercise in full of all outstanding Warrants. The Company
covenants that all Warrant Shares will, at all times that Warrants are
exercisable, be duly approved for listing subject to official notice of issuance
on each securities exchange, if any, on which the Common Stock are then listed.
The Company covenants that all Warrant Shares that may be issued on exercise of
Warrants will upon issuance be duly authorized, validly issued and fully paid
and nonassessable and free of preemptive or similar rights. The Company hereby
authorizes and directs its current and future transfer agents for the Common
Stock at all times to reserve stock certificates for such number of authorized
shares as will be requisite for such purpose. The Warrant Agent is hereby
authorized to requisition from time to time from any such transfer agents stock
certificates required to honor outstanding Warrants on exercise thereof in
accordance with the terms of this Agreement, and the Company hereby authorizes
and directs such transfer agents to comply with all such requests of the Warrant
Agent. The Company will supply such transfer agents with duly executed stock
certificates for such purposes.
9. Warrant Transfer Books. The Warrant Agent will maintain an office in
the United States of America, where Warrant Certificates may be surrendered for
registration of transfer or exchange and where Warrant Certificates may be
surrendered for exercise of Warrants evidenced thereby, which office is located
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇, on the date of this Agreement. The Warrant Agent will give prompt
written notice to all Holders of any change in the location of such office. The
Warrant Certificates evidencing the Warrants will be issued in registered form
only. The Company will cause to be kept at the office of the Warrant Agent
designated for such purpose the Warrant Register for the registration of Warrant
Certificates and of transfers or exchanges of Warrant Certificates as provided
in this Agreement and subject to such reasonable regulations as the Warrant
Agent may prescribe and such regulations as may be prescribed by law. Subject to
paragraph 2.4 of this Agreement, on surrender for registration of the transfer
of any Warrant Certificate at the Corporate Agency Office, the Company will
execute, and the Warrant Agent will countersign and deliver, in the name of the
designated transferee or transferees, one or more new Warrant Certificates
evidencing a like aggregate number of Warrants. Subject to paragraph 2.4: (a) at
the option of the Holder, Warrant Certificates may be exchanged at the office of
the Warrant Agent on payment of the charges hereinafter provided for other
Warrant Certificates evidencing a like number of Warrants; and (b) whenever any
Warrant Certificates are so surrendered for exchange, the Company will execute
and the Warrant Agent will countersign and deliver Warrant Certificates of the
same tenor and evidencing the same number of Warrants as evidenced by the
Warrant Certificates surrendered by the Holder. All Warrant Certificates issued
on any registration or exchange of Warrant Certificates will be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such registration of transfer or exchange. Subject to paragraph 2.4 of this
Agreement, every Warrant Certificate surrendered for
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registration of transfer or exchange will (if so required by the Company or the
Warrant Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Warrant Agent, duly
executed by the Holder thereof. The Warrant Agent will, on request of the
Company from time to time, deliver to the Company such reports of registered
ownership of the Warrants and such records of transactions with respect to the
Warrants and the Warrant Shares as the Company may request. The Warrant Agent
will also make available to the Company for inspection by the Company's agents
or employees, from time to time as the Company may request, such original books
and accounts and records maintained by the Warrant Agent in connection with the
issuance and exercise of Warrants hereunder, such inspections to occur at the
Corporate Agency Office during normal business hours. The Warrant Agent will
keep copies of this Agreement and any notices given to Holders hereunder
available for inspection by the Holders during normal business hours at the
Corporate Agency Office. The Company will supply the Warrant Agent from time to
time with such numbers of copies of this Agreement as the Warrant Agent may
request.
10. Warrant Holders. The Holders will have the following rights and
obligations:
10.1 Voting or Dividend Rights. Except as provided in this
Agreement, prior to the exercise of the Warrants: (a) a Holder will not be
entitled to any of the rights of a holder of Common Stock with respect to the
Warrant Shares, including, without limitation, the right to vote at or to
receive any notice of any meetings of stockholders; (b) the consent of any
Holder will not be required with respect to any action or proceeding of the
Company; (c) no Holder, by reason of the ownership or possession of a Warrant or
the Warrant Certificate representing the same, will have any right to receive
any stock dividends of the Company prior to, or for which the relevant record
date preceded, the date of the exercise of such Warrant; and (d) no Holder will
have any right not expressly conferred by this Agreement or the Warrant
Certificate held by such Holder.
10.2 Rights of Action. All rights of action against the Company
in respect of this Agreement, except rights of action vested in the Warrant
Agent, are vested in the Holders. A Holder may enforce and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Holder's rights to exercise, exchange or tender
for purchase such Holder's Warrants in the manner provided in this Agreement
without the consent of the Company, the Warrant Agent or any other Holder.
10.3 Treatment of Holders. By the acceptance of a Warrant
Certificate each Holder consents and agrees with the Company, the Warrant Agent
and subsequent holders of such Warrant Certificate that, prior to due
presentment of such Warrant Certificate for registration of transfer, the
Company and the Warrant Agent may treat the Person in whose name the Warrant
Certificate is registered as the owner thereof for all purposes and as the
Person entitled to exercise the rights granted under the Warrants, and neither
the Company, the Warrant Agent nor any agent thereof will be affected or bound
by any notice to the contrary.
10.4 Communications to Holders. If any Holder notifies the
Warrant Agent in writing that the Holder desires to communicate with other
Holders with respect to its rights under this Agreement or under the Warrants,
the Warrant Agent will provide to such applicant a list of the names and
addresses of all Holders as of the most recent practicable date within five (5)
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Business Days after receipt of such notice and payment to the Warrant Agent by
such Holder of the reasonable expenses of preparing such list. Each Holder by
acceptance of a Warrant Certificate agrees that the Company, the Warrant Agent
and any agent of the foregoing will not be held accountable by reason of the
disclosure of such information in accordance with this paragraph 10.4.
11. Warrant Agent.
11.1 Nature of Duties and Responsibilities Assumed. The Company
hereby appoints the Warrant Agent to act as agent of the Company as set forth in
this Agreement. The Warrant Agent hereby accepts the appointment as agent of the
Company and agrees to perform that agency upon the terms and conditions set
forth in this Agreement and in the Warrant Certificates or as the Company and
the Warrant Agent may hereafter agree. The parties agree that the terms and
conditions set forth in the Warrant Certificates are subject to and governed by
this Agreement or any other terms and conditions hereafter agreed to by the
Company and the Warrant Agent. The Warrant Agent will not, by countersigning
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to validity or authorization of: (a) the Warrants or the
Warrant Certificates (except as to its countersignature thereon); (b) any
securities or other property delivered upon exercise of any Warrant; (c) the
accuracy of the computation of the number, kind or amount of stock or other
securities or other property deliverable upon exercise of any Warrant; or (d)
the correctness of any of the representations of the Company made in any
certifications that the Warrant Agent receives. The Warrant Agent will not at
any time have any duty to calculate or determine whether any facts exist that
may require any adjustments pursuant to paragraph 5 of this Agreement. The
Warrant Agent will not have the duty or responsibility to determine the accuracy
or correctness of any such calculation or the methods employed in making the
same. The Warrant Agent makes no representation and will not be accountable with
respect to the validity or value (or the kind or amount) of any Warrant Shares
or of any securities or property which may at any time be issued or delivered on
the exercise of any Warrant or upon any adjustment pursuant to paragraph 5 of
this Agreement. The Warrant Agent will not be responsible for any failure of the
Company to make any cash payments or to issue, transfer or deliver any Warrant
Shares or stock certificates or other securities or property on the surrender of
any Warrant Certificate for the purpose of exercise or on any adjustment
pursuant to paragraph 5 of this Agreement. The Warrant Agent will not: (x) be
liable for any recital or statement of fact contained herein or in the Warrant
Certificates or for any action taken, offered or omitted by it in good faith on
the belief that any Warrant Certificate or any other documents or any signatures
are genuine or properly authorized; (y) be responsible for any failure by the
Company to comply with any of its covenants and obligations contained in this
Agreement or in the Warrant Certificates; or (z) be liable for any act or
omission in connection with this Agreement except for its own gross negligence,
bad faith or willful misconduct. The Warrant Agent is hereby authorized to
accept and is protected in accepting instruments with respect to the performance
of its duties hereunder by Company Order and to apply to any such officer named
in such Company Order for instructions (which instructions will be promptly
given in writing when requested), and the Warrant Agent will not be liable for
any action taken or suffered to be taken by it in good faith in accordance with
the instructions in any Company Order. The Warrant Agent is hereby authorized to
accept and is protected in accepting, and may rely upon without otherwise
verifying, the list of registered holders and related information furnished by
the Registrar for the purpose of determining those holders who
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are entitled to receive Warrant Certificates, and the Warrant Agent will not be
liable for any action taken or suffered to be taken by it in good faith in
reliance upon such lists and information furnished by the Registrar. The Warrant
Agent may execute and exercise any of the rights and powers hereby vested in it
or perform any duty hereunder either itself or by and through its attorneys,
agents or employees, provided that reasonable care has been exercised in the
selection and in the continued employment of any such attorney, agent or
employee. The Warrant Agent will not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
of this Agreement, unless first indemnified to its satisfaction, but this
provision will not affect the power of the Warrant Agent to take such action as
the Warrant Agent may consider proper, whether with or without such indemnity.
The Warrant Agent will promptly notify the Company in writing of any claim made
or action, suit or proceeding instituted against it arising out of or in
connection with this Agreement. The Company will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further acts, instruments and assurances as may reasonably be required by
the Warrant Agent in order to enable it to carry out or perform its duties under
this Agreement. The Warrant Agent will act solely as agent of the Company
hereunder and does not assume any obligation or relationship of agency or trust
for or with any of the Holders or any beneficial owners of Warrants. The Warrant
Agent will not be liable except for the failure to perform such duties as
specifically set forth herein or specifically set forth in the Warrant
Certificates, and no implied covenants or obligations will be read into this
Agreement against the Warrant Agent whose duties and obligations will be
determined solely by the express provisions hereof or the express provisions of
the Warrant Certificates.
11.2 Right to Consult Counsel. The Warrant Agent may at any time
consult with legal counsel satisfactory to it (who may be legal counsel for the
Company), and the Warrant Agent will incur no liability or responsibility to the
Company or to any Holder for any action taken, suffered or omitted by it in good
faith in accordance with the written opinion or advice of such counsel.
11.3 Compensation, Reimbursement and Indemnification. The Company
agrees to pay the Warrant Agent reasonable compensation for the Warrant Agent's
service hereunder as the Company and the Warrant Agent may agree and to
reimburse the Warrant Agent for all reasonable expenses and disbursements
(including reasonable counsel fees and expenses) incurred in connection with the
execution and administration of this Agreement. The Company further agrees to
indemnify the Warrant Agent for and save it harmless against any losses,
liabilities or reasonable expenses arising out of or in connection with the
acceptance and administration of this Agreement, including the reasonable costs,
legal fees and expenses of investigating or defending any claim of such
liability, except that the Company will have no liability hereunder to the
extent that any such loss, liability or expense results from the gross
negligence, bad faith or willful misconduct of the Warrant Agent and the Warrant
Agent's officers, directors, employees and agents.
11.4 Warrant Agent May Hold Company Securities. The Warrant
Agent, any countersigning agent and any stockholder, director, officer or
employee of the foregoing may buy, sell or deal in any of the Warrants or other
securities of the Company or its Affiliates, become pecuniarily interested in
transactions in which the Company or its Affiliates may be interested, contract
with or lend money to the Company or its Affiliates or otherwise act as fully
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and freely as though it were not the Warrant Agent. Nothing herein will preclude
the Warrant Agent or any countersigning agent from acting in any other capacity
for the Company or for any other legal entity.
11.5 Resignation and Removal; Appointment of Successor. The
Warrant Agent may resign on thirty (30) days prior written notice to the
Company. The Company may remove the Warrant Agent on thirty (30) days prior
written notice. On such resignation or termination the Warrant Agent will be
discharged from all further duties and liabilities under this Agreement (except
liability arising as a result of the Warrant Agent's own gross negligence, bad
faith or willful misconduct). The Warrant Agent will, at the expense of the
Company, cause notice to be given to each Holder of such notice of resignation
or removal. On such resignation or removal, the Company will appoint in writing
a new Warrant Agent. If the Company fails to make such appointment within a
period of thirty (30) calendar days after it has been notified in writing of
such resignation by the resigning Warrant Agent or after such removal, then any
Holder may apply to any court of competent jurisdiction in the United States for
the appointment of a new Warrant Agent. Any new Warrant Agent appointed under
this paragraph will be a corporation doing business under the laws of the United
States or any state thereof in good standing, authorized under such laws to act
as a Warrant Agent, and in the business of acting as transfer agent for publicly
held securities. After acceptance in writing of such appointment in writing, the
new Warrant Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as the Warrant Agent under
this Agreement, without any further assurance, conveyance, act or deed. However,
if for any reason it will be necessary or expedient to execute and deliver any
further assurance, conveyance, act or deed, the same will be done at the
reasonable expense of the Company and will be legally and validly executed and
delivered by the resigning or removed Warrant Agent. No later than the effective
date of any such appointment, the Company will file notice thereof with the
resigning or removed Warrant Agent. Failure to give the notice provided for in
this paragraph 11.5 (or any defect therein), will not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of a new Warrant Agent. Any corporation into which the Warrant Agent or any new
Warrant Agent may be merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new Warrant Agent is a party, will be a
successor Warrant Agent under this Agreement without any further act, provided
that such corporation would be eligible for appointment as successor to the
Warrant Agent under the provisions of this paragraph 11.5. Any such successor
Warrant Agent will promptly cause notice of its succession as Warrant Agent to
be given to each Holder at such Holder's last address as shown on the Warrant
Register.
11.6 Appointment of Countersigning Agent. The Warrant Agent may
appoint one or more countersigning agents which will be authorized to act on
behalf of the Warrant Agent to countersign Warrant Certificates and Warrant
Certificates so countersigned will be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. Wherever reference is made in this Agreement
to the countersignature and delivery of Warrant Certificates by the Warrant
Agent or to Warrant Certificates countersigned by the Warrant Agent, such
reference will be deemed to include countersignature and delivery on behalf of
the Warrant Agent by a countersigning agent and Warrant Certificates
countersigned by a countersigning agent. Each countersigning agent will be
acceptable to the Company and will at the time of appointment be a corporation
doing business under the laws of the United States of America or any state
thereof in good standing,
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authorized under such laws to act as countersigning agent, and have a combined
capital and surplus of not less than $100,000,000.00. The combined capital and
surplus of any such new countersigning agent will be deemed to be the combined
capital and surplus as set forth in the most recent annual report of its
condition published by such countersigning agent prior to its appointment,
provided that such reports are published at least annually pursuant to law or to
the requirements of a federal or state supervising or examining authority. Any
corporation into which a countersigning agent may be merged, or any corporation
resulting from any consolidation to which such countersigning agent is a party,
will be a successor countersigning agent without any further act, provided that
such corporation would be eligible for appointment as a new countersigning agent
under the provisions of this paragraph 11.6, without the execution or filing of
any paper or any further act on the part of the Warrant Agent or the
countersigning agent. Any such successor countersigning agent will promptly
cause notice of its succession as countersigning agent to be given to each
Holder at such Holder's last address as shown on the Warrant Register. The
countersigning agent may resign at any time by giving thirty (30) days prior
written notice thereof to the Warrant Agent and to the Company. The Warrant
Agent may at any time terminate the agency of a countersigning agent by giving
thirty (30) days prior written notice thereof to such countersigning agent and
to the Company. The Warrant Agent agrees to pay to each countersigning agent
from time to time reasonable compensation for its services under this paragraph,
and the Warrant Agent will be entitled to be reimbursed for such payments,
subject to the provisions of paragraph 11.3 this Agreement. Any countersigning
agent will have the same rights and immunities as those of the Warrant Agent set
forth in paragraph 11.1 of this Agreement.
12. Miscellaneous.
12.1 Notices Generally. Any request, notice, direction,
authorization, consent, waiver, demand or other communication permitted or
authorized by this Agreement to be made upon, given or furnished to or filed
with the Company or the Warrant Agent by the other party hereto or by any Holder
will be sufficient for every purpose under this Agreement if in writing
(including telecopy communication) and telecopied or delivered by hand
(including by courier service) as follows:
If to the Company: Seven Seas Petroleum Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
If to the Warrant Agent: U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
or, in either case, such other address as set forth in a notice delivered in
accordance with this paragraph 12.1. All such communications will, when so
telecopied or delivered by hand, be effective when telecopied with confirmation
of receipt or received by the addressee, respectively. Any person that
telecopies any communication hereunder to any Person will, on the same date as
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such telecopy is transmitted, also send, by first-class mail, postage prepaid
and addressed to such Person as specified above, an original copy of the
communication so transmitted. Where this Agreement provides for notice to
Holders of any event, such notice will be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at the address of such Holder as
it appears in the Warrant Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder will
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver will be equivalent of such notice. In case of the
suspension of regular mail service or by reason of any other cause it will be
impracticable to give such notice by mail, then such notification as will be
made by a method approved by the Warrant Agent as one which would be most
reliable under the circumstances for successfully delivering the notice to the
addressees will constitute a sufficient notification for every purpose
hereunder.
12.2 APPLICABLE LAW. THIS AGREEMENT, EACH WARRANT CERTIFICATE
ISSUED HEREUNDER, EACH WARRANT EVIDENCED THEREBY AND ALL RIGHTS ARISING
HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF OKLAHOMA, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
12.3 Persons Benefitting. This Agreement will be binding upon and
inure to the benefit of the Company, the Warrant Agent, the Holders and their
respective successors and assigns. Nothing in this Agreement is intended or will
be construed to confer upon any Person, other than the Company, the Warrant
Agent and the Holders, any right, remedy or claim under or by reason of this
Agreement or any part hereof. Each holder, by acceptance of a Warrant
Certificate, agrees to all of the terms and provisions of this Agreement
applicable thereto.
12.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which will for all purposes be deemed to be an
original, and all such counterparts will together constitute but one and the
same instrument.
12.5 Amendments. The Company and the Warrant Agent may, without
the consent or concurrence of the Holders of the Warrant Certificates, by
supplemental agreement or otherwise, amend this Agreement for the purpose of
making any changes or corrections in this Agreement that: (a) are required to
cure any ambiguity or to correct or supplement any defective or inconsistent
provision or clerical omission or mistake or manifest error herein contained;
(b) add to the covenants and agreements of the Company in this Agreement further
covenants and agreements of the Company thereafter to be observed; or (c)
surrender any rights or powers reserved to or conferred upon the Company in this
Agreement. Notwithstanding the foregoing, in either case such amendment will not
adversely affect the rights or interests of the Holders in any material respect.
This Agreement may otherwise be amended by the Company and the Warrant Agent
only with the consent of the Holders of a majority of the then outstanding
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Warrants. Notwithstanding the foregoing, consent of each Holder of a Warrant
affected will be required for any amendment pursuant to which the Exercise Price
would be increased or the number of Warrant Shares purchasable upon exercise of
Warrants would be decreased (other than pursuant to adjustments provided
herein). The Warrant Agent will join with the Company in the execution and
delivery of any such amendment unless such amendment affects the Warrant Agent's
own rights, duties or immunities hereunder, in which case the Warrant Agent may,
but will not be required to, join in such amendment. Upon execution and delivery
of any amendment pursuant to this paragraph 12.5, such amendment will be
considered a part of this Agreement for all purposes and every Holder of a
Warrant Certificate theretofore or thereafter countersigned and delivered
hereunder will be bound thereby. Promptly after the execution by the Company and
the Warrant Agent of any such amendment, the Company will give notice to the
Holders setting forth in general terms the substance of such amendment. However,
any failure of the Company to mail such notice or any defect therein, will not
in any way impair or affect the validity of any such amendment.
12.6 Inspection. The Warrant Agent will cause a copy of this
Agreement to be available at all reasonable times at the Corporate Agency Office
for 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 the Holder.
12.7 Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto as to the subject matter hereof and supersedes
all previous agreements among all or some of the parties hereto with respect
thereto, whether written, oral or otherwise.
12.8 Headings. The descriptive headings of the paragraphs of this
Agreement are inserted for convenience and will not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
SEVEN SEAS PETROLEUM INC., a Cayman Islands
exempted company limited by shares
By
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Name:
---------------------------------------
Title:
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U.S. TRUST COMPANY OF TEXAS, N.A.
By
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Name:
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Title:
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EXHIBIT F
SEVEN SEAS PETROLEUM INC.
NOTE PURCHASE AGREEMENT
FOR
SERIES B SENIOR SECURED NOTES
----------------------------------
PURCHASER'S SIGNATURE PAGE
TO
NOTE PURCHASE AGREEMENT
The undersigned, being a named Purchaser in Schedule 1 to
Note
Purchase Agreement for 12% Series B Senior Secured Notes dated July 23, 2001
(the "Purchase Agreement") of Seven Seas Petroleum Inc. (the "Company"), a
Cayman Islands exempted company limited by shares, hereby acknowledges receipt
of and having read the Purchase Agreement executed by the Company. The
undersigned agrees to all of the terms and conditions of the Agreement.
EXECUTED and delivered to the Company as of the day and year
first above written.
Receipt Acknowledged on July 23, 2001:
Seven Seas Petroleum Inc.
By
------------------------------
▇▇▇▇▇ ▇. ▇▇▇, President
81
BACKUP WITHHOLDING CERTIFICATIONS
TIN:
-----------------------------------
[ ] TAXPAYER I.D. NUMBER. The Taxpayer Identification Number shown above (TIN)
is my correct taxpayer identification number.
[ ] BACKUP WITHHOLDING. I am not subject to backup withholding either because I
have not been notified that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or the Internal Revenue Service has
notified me that I am no longer subject to backup withholding.
[ ] EXEMPT RECIPIENTS. I am an exempt recipient under the Internal Revenue
Service Regulations.
[ ] NONRESIDENT ALIENS. I am not a United States person, or if I am an
individual, I am neither a citizen nor a resident of the United States.
SIGNATURE: I certify under penalties of perjury the statements checked in this
section.
X
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(Signature) (Date)