EXHIBIT 4.6
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE
SECURITIES LAWS (THE "STATE ACTS"), AND SHALL NOT BE SOLD OR OTHERWISE
TRANSFERRED BY THE HOLDER EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UPON THE ISSUANCE TO THE COMPANY OF AN OPINION OF COUNSEL OR
OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY
SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT AND THE STATE
ACTS.
WARRANT
to
PURCHASE COMMON STOCK
of
GULFPORT ENERGY CORPORATION
This certifies that, for good and valuable consideration, Gulfport Energy
Corporation, a Delaware corporation (the "Company"), grants to ING (U.S.)
Investments Corporation or its registered assigns (the "Warrantholder"), the
right to subscribe for and purchase from the Company the number of shares (the
"Warrant Shares") of common stock, par value $0.01 per share, of the Company
("Common Stock") set forth in subsection 1.1 hereof at the Exercise Price (as
defined in subsection 1.2 hereof). This Warrant shall be exercisable from and
after 9:00 A.M., Central Standard Time on the date on which the Exercise Price
is first established pursuant to subsection 1.2 hereof (the "Initial Exercise
Date") to and including 5:00 P.M., Central Standard Time on the date that is
five years after the Initial Exercise Date (the "Expiration Date"). The Exercise
Price and the number of Warrant Shares are subject to adjustment from time to
time as provided in Section 6.
SECTION 1. NUMBER OF WARRANT SHARES; EXERCISE PRICE.
1.1 NUMBER OF WARRANT SHARES. The number of Warrant Shares that the holder
of this Warrant shall initially have the right to subscribe for and purchase
hereunder shall be equal to two percent (2%) of the total number of outstanding
shares of Common Stock on a fully diluted basis after giving effect to (a) the
exercise of this Warrant, (b) the exercise or conversion of all outstanding
options or other rights to purchase or subscribe for Common Stock, all
outstanding securities convertible into or exchangeable for Common Stock or
options or other rights to purchase or subscribe for such convertible or
exchangeable securities, and (c) the consummation of the Rights Offering and the
exercise of all rights issued in connection therewith; provided, however, that
such number is subject to reduction pursuant to Section 2.7 of that certain
First Amendment to Credit Agreement dated as of August 18, 1998 by and between
the Company
and ING (U.S.) Capital Corporation. "Rights Offering" means the offering by the
Company of at least $7.5 million of rights to purchase shares of Common Stock
contemplated by the letter of intent dated July 23, 1998 between the
Warrantholder and the Company. The number of Warrant Shares that the holder of
this Warrant shall have the right to subscribe for and purchase from the Company
is subject to adjustment as provided in Section 6.
1.2 EXERCISE PRICE. The exercise price per Warrant Share, subject to
adjustment as provided in Section 6 (the "Exercise Price"), shall be equal to
the average of the closing sale prices of the Common Stock on the principal
stock exchange or stock market on which the Common Stock is traded, as quoted in
Bloomberg's Investor's Service, for the 30 trading days following consummation
of the Rights Offering; provided, however, that if the registration of the
Rights Offering with the Securities and Exchange Commission is not declared
effective by October 31, 1998 or the Rights Offering is not consummated within
30 calendar days after being declared effective, then the Exercise Price per
Warrant Share, subject to adjustment as provided in Section 6, shall be $0.25
per share.
SECTION 2. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; TAXES;
TRANSFER; DIVISIBILITY.
2.1 DURATION AND EXERCISE OF WARRANT. This Warrant is immediately
exercisable on the Initial Exercise Date and may be exercised, in whole or in
part, at any time from the Initial Exercise Date to the Expiration Date. The
rights represented by this Warrant may be exercised by the Warrantholder of
record, in whole or in part, from time to time, by (a) surrender of this
Warrant, accompanied by the Exercise Form annexed hereto (the "Exercise Form")
duly executed by the Warrantholder of record and specifying the number of
Warrant Shares to be purchased to the Company at the office of the Company
located at 6307 Waterford Boulevard, Suite 100, Oklahoma City, Oklahoma 73118
(or such other office or agency of the Company as it may designate by notice to
the Warrantholder at the address of such Warrantholder appearing on the books of
the Company) during normal business hours on any day (a "Business Day") other
than a Saturday, Sunday or a day on which the New York Stock Exchange is
authorized to close or on which the Company is otherwise closed for business (a
"Nonbusiness Day") on or after 9:00 A.M. Central Standard Time on the Initial
Exercise Date but not later than 5:00 P.M. on the Expiration Date (or 5:00 P.M.
on the next succeeding Business Day, if the Expiration Date is a Nonbusiness
Day), (b) payment of the Exercise Price by (i) delivery to the Company in cash
or by certified or official bank check in New York Clearing House Funds, of an
amount equal to the Exercise Price for the number of Warrant Shares specified in
the Exercise Form or (ii) notice that the Warrantholder elects to effect a
cashless exercise as contemplated by subsection 2.6, specifying which of the two
cashless exercise methods described in subsection 2.6 shall be used, and (c)
such documentation as to the identity and authority of the Warrantholder as the
Company may reasonably request. Such Warrant Shares shall be deemed by the
Company to be issued to the Warrantholder as the record holder of such Warrant
Shares as of the close of business on the date on which this Warrant shall have
been surrendered and payment made for the Warrant Shares as aforesaid.
Certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder as promptly as practicable, and in any event
within ten (10)
-2-
Business Days, thereafter. The stock certificates so delivered shall be in
denominations as may be specified by the Warrantholder and shall be issued in
the name of the Warrantholder or, if permitted by subsection 2.4 and in
accordance with the provisions thereof, such other name as shall be designated
in the Exercise Form. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the certificates for the Warrant
Shares, deliver to the Warrantholder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant. No adjustments or payments shall be
made on or in respect of Warrant Shares issuable on the exercise of this Warrant
for any cash dividends paid or payable to holders of record of Common Stock
prior to the date as of which the Warrantholder shall be deemed to be the record
holder of such Warrant Shares.
2.2 LIMITATION ON EXERCISE. If this Warrant is not exercised prior to 5:00
P.M. on the Expiration Date (or the next succeeding Business Day, if the
Expiration Date is a Nonbusiness Day), this Warrant, or any new Warrant issued
pursuant to subsection 2.1, shall cease to be exercisable and shall become void,
and all rights of the Warrantholder hereunder shall cease.
2.3 PAYMENT OF TAXES. The issuance of certificates for Warrant Shares shall
be made without charge to the Warrantholder for any stock transfer or other
issuance tax in respect thereto; provided, however, that the Warrantholder shall
be required to pay any and all taxes which may be payable in respect to any
transfer involved in the issuance and delivery of any certificates for Warrant
Shares in a name other than that of the then Warrantholder as reflected upon the
books of the Company.
2.4 RESTRICTIONS ON TRANSFER. Neither this Warrant nor any of the Warrant
Shares may be transferred or sold except in compliance with applicable United
States federal and state securities laws. Subject to the foregoing, this Warrant
and all rights hereunder are transferable, in whole or in part, by the
Warrantholder and any such transfer is registerable at the office of the Company
referred to in subsection 8.6(a) by the holder hereof in person or by its duly
authorized attorney, upon surrender of this Warrant in accordance with Section 4
hereof. The Company may not transfer or assign any of its rights or obligations
under this Warrant, or any portion thereof.
2.5 DIVISIBILITY OF WARRANT. This Warrant may be divided into multiple
warrants upon surrender at the office of the Company referred to in subsection
8.6(a) on any Business Day, without charge to any Warrantholder.
2.6 CASHLESS EXERCISE. At the option of the Warrantholder, the Warrantholder
may exercise this Warrant, without a cash payment of the Exercise Price, through
(i) application of all or a portion of the next due principal or interest
payment to be paid by the Company to ING (U.S.) Capital Corporation pursuant to
the Credit Agreement dated July 10, 1997 between the Company (then named "WRT
Energy Corporation") and ING (U.S.) Capital Corporation (the "Credit
Agreement"), as such agreement may be amended from time to time, or (ii) a
reduction in the number of Warrant Shares issuable upon the exercise of the
Warrant. The method described
-3-
in clause (i) of the preceding sentence shall not be available to any
Warrantholder other than [ING (U.S.) Capital Corporation] or its affiliates. If
the Warrantholder elects to use the method described in clause (ii) of the
preceding sentence, such reduction may be effected by designating that the
number of the shares of Common Stock issuable to the Warrantholder upon such
exercise shall be reduced by the number of shares having an aggregate Fair
Market Value as of the date of exercise equal to the amount of the total
Exercise Price for such exercise. For purposes of this Warrant, the "Fair Market
Value" of any Common Stock on any date in question shall be the closing sale
price of the Common Stock on the principal stock exchange or stock market on
which the Common Stock is traded on the Business Day immediately preceding such
date (or if there is no trading on such date, on the next preceding Business Day
on which there was trading in the Common Stock), as quoted in The Wall Street
Journal. If the Common Stock is not listed or qualified for trading on a stock
exchange or stock market at such time, then the Fair Market Value shall be
determined using such method as the Warrantholder and the Company shall agree.
In connection with any cashless exercise, no cash or other consideration will be
paid by the Warrantholder in connection with such exercise other than the
surrender of the Warrant itself, and no commission or other remuneration will be
paid or given by the Warrantholder or the Company in connection with such
exercise.
SECTION 3. RESERVATION AND LISTING OF SHARES.
All Warrant Shares issued upon the exercise of the rights represented by
this Warrant shall, upon issuance and payment of the Exercise Price in cash or
pursuant to subsection 2.6, be validly issued, fully paid and nonassessable and
free from all taxes, liens, security interests, charges and other encumbrances
with respect to the issuance thereof other than taxes in respect of any transfer
occurring contemporaneously with such issuance. The issuance of the Warrant
Shares pursuant hereto will not be subject to, and will not violate, any
preemptive or similar rights. During the period within which this Warrant may be
exercised, the Company shall at all times have authorized and reserved, and keep
available free from preemptive or similar rights, a sufficient number of shares
of Common Stock to provide for the exercise of this Warrant and of all other
options or rights to purchase or subscribe for Common Stock and the conversion
or exchange of all convertible or exchangeable securities of the Company, and
shall at its expense procure such listing thereof as then may be required on all
stock exchanges or automated quotation systems on which the Common Stock may be
listed.
SECTION 4. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT.
If permitted by subsection 2.4 or 2.5, upon surrender of this Warrant to the
Company with a duly executed instrument of assignment and funds sufficient to
pay any transfer tax, the Company shall, without charge, execute and deliver a
new Warrant of like tenor in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be canceled. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor.
-4-
SECTION 5. OWNERSHIP OF WARRANT.
The Company may deem and treat the person or entity in whose name this
Warrant is registered as the holder and owner hereof (notwithstanding any
notations of ownership or writing hereon made by anyone other than the Company)
for all purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer as provided in
subsections 2.1 and 2.5 or in Section 4.
SECTION 6. CERTAIN ADJUSTMENTS.
The Exercise Price at which Warrant Shares may be purchased hereunder and
the number of Warrant Shares to be purchased upon exercise hereof are subject to
change or adjustment as follows:
6.1 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly send by first class mail, postage prepaid, to all
Warrantholders, notice of such adjustment.
6.2 PRESERVATION OF PURCHASE RIGHTS UPON MERGER, CONSOLIDATION. In case of
any consolidation of the Company with or merger of the Company into another
entity or in case of any sale, transfer or lease to another entity of all or
substantially all the assets or stock of the Company, the Warrantholder shall
have the right thereafter upon payment of the Exercise Price in effect
immediately prior to such action to receive upon exercise of this Warrant the
kind and amount of shares and other securities and property which such holder
would have been entitled to receive after the happening of such consolidation,
merger, sale, transfer or lease had this Warrant been exercised immediately
prior to such action, and the Company or such successor or purchasing entity, as
the case may be, shall execute with the Warrantholder an agreement to that
effect. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as practicable to the adjustments provided for in this Section 6. The
provisions of this subsection 6.2 shall apply similarly to successive
consolidations, mergers, sales, transfers or leases.
6.3 ADJUSTMENTS.
(a) Stock Dividends, Distributions or Subdivisions. In the event the
Company shall issue additional shares of Common Stock pursuant to a stock
dividend, stock distribution, subdivision, share split or reclassification,
concurrently with the effectiveness of such event, the Exercise Price in
effect immediately prior to such event shall be proportionately decreased
and the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior to such event shall be proportionately increased.
(b) Combinations or Consolidations. In the event the outstanding shares
of Common Stock shall be combined or consolidated, by reclassification,
reverse split or
-5-
otherwise, into a lesser number of shares of Common Stock, concurrently with
the effectiveness of such event, the Exercise Price in effect immediately
prior to such event shall be proportionately increased and the number of
Warrant Shares purchasable upon exercise of this Warrant immediately prior
to such event shall be proportionately decreased.
(c) Issuance of Additional Shares of Common Stock.
(i) In the event the Company shall issue Additional Shares
(defined below) without consideration or for a consideration
per share less than the Exercise Price in effect immediately
prior to the issuance, then the Exercise Price shall be
reduced to the price at which such Additional Shares are
issued.
(ii) In the event the Company shall issue Additional Shares for a
consideration per share less than the Fair Market Value of the
Common Stock as of the date of such issuance, but greater than
the Exercise Price in effect immediately prior to the
issuance, then the Exercise Price shall be reduced (but in no
event increased) to the amount determined by multiplying such
Exercise Price by a fraction:
(A) the numerator of which is the number of shares of Common
Stock outstanding immediately prior to the issuance of
such Additional Shares plus the number of shares of Common
Stock that the aggregate consideration, if any, received
by the Company for the Additional Shares so issued would
purchase at a price equal to the Fair Market Value of the
Common Stock as of the date of issuance; and
(B) the denominator of which is the number of shares of Common
Stock outstanding immediately prior to the issuance of
such Additional Shares plus the number of Additional
Shares so issued.
(iii) If the Company issues Common Stock for a consideration in
whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as
determined by mutual agreement of the Warrantholder and the
Company irrespective of any accounting treatment.
(iv) If the Company issues options or rights to purchase or
subscribe for Common Stock, securities convertible into or
exchangeable for Common Stock or options or rights to purchase
or subscribe for
-6-
such convertible or exchangeable securities, the following
provisions shall apply for all purposes of this subsection 6.3:
(A) The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any
conditions to exercisability including, without limitation,
the passage of time, but without taking into account
potential antidilution adjustments) of such options or
rights to purchase or subscribe for Common Stock shall be
deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the
consideration, if any, received by the Company upon the
issuance of such options or rights plus the exercise price
provided in such options or rights (without taking into
account potential antidilution adjustments) for the Common
Stock covered thereby.
(B) The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the
satisfaction of any conditions to convertibility or
exchangeability, including, without limitation, the passage
of time, but without taking into account potential
antidilution adjustments) for any such convertible or
exchangeable securities, or options or rights to purchase or
subscribe therefor, shall be deemed to have been issued at
the time such securities were issued or such options or
rights were issued and for consideration equal to the
consideration, if any, received by the Company for any such
securities and related option or rights (excluding any cash
received on account of accrued interest or accrued
dividends), plus the additional consideration, if any, to be
received by the Company (without taking into account
potential antidilution adjustments) upon the conversion or
exchange of such securities or the exercise of any related
options or rights.
(C) In the event of any change in the number of shares of Common
Stock deliverable or in the consideration payable to the
Company upon exercise of such options or rights or upon
conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a
change resulting from the antidilution provisions thereof,
the Exercise Price, to the extent it is in any way affected
by the issuance of such options, rights or securities, shall
be recomputed to reflect such change, but no further
adjustment
-7-
shall be made for the actual issuance of Common Stock or any
payment of such consideration upon the exercise of any such
options or rights or the conversion or exchange of such
securities.
(D) Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the
expiration of any options or rights related to such
convertible or exchangeable securities, the Exercise Price,
to the extent it is in any way affected by the issuance of
such options, rights or securities or options or rights
related to such securities, shall be recomputed to reflect
the issuance of only the number of shares of Common Stock
(and convertible or exchangeable securities which remain in
effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities
or upon the exercise of the options or rights related to
such securities.
(E) The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to subsections
6.3(c)(iv)(A) and (B) shall be appropriately adjusted to
reflect any change, termination or expiration of the type
described in either subsection 6.3(c)(iv)(C) or (D).
(F) Notwithstanding the foregoing provisions of this subsection
6.3(c)(iv), the adjustments required by this subsection 6.3
with respect to the issuance of options under employee
benefit plans of the Company shall be made, in the
aggregate, only after the Warrantholder has notified the
Company that it intends to exercise this Warrant, in whole
or in part, at which time the required adjustments shall be
made with respect to all such options that shall have been
issued on or prior to the date of such notice and remain
outstanding (it being understood that if any such options
are actually exercised prior thereto, the appropriate
adjustments, if any, shall be made pursuant to the
applicable provision of this subsection 6.3(c) at the time
of exercise).
(v) "Additional Shares" shall mean any shares of Common Stock issued
(or deemed to have been issued as contemplated by subsection
6.3(c)(iv)) by the Company on or after the date of this Warrant
other than the Common Stock issued upon exercise of this Warrant
-8-
and the securities issued in connection with the Rights Offering
(which are addressed in subsection 1.1).
SECTION 7. REGISTRATION RIGHTS.
7.1 PIGGYBACK REGISTRATION. If at any time or from time to time, the
Company shall determine to register the sale of any of its securities, or to
offer any of its securities for sale pursuant to an offering statement under
Regulation A adopted under the Securities Act of 1933 (the "Securities Act") for
its own account or the account of any of its security holders, other than a
registration on Form S-8 relating solely to an employee benefit plan or a
registration on Form S-4 relating solely to a transaction under Rule 145 of the
Securities Act, the Company will:
(i) give to the initial Warrantholder and each other person or entity who
holds all or any portion of this Warrant or the Warrant Shares (collectively
with the initial Warrantholder, the "Holders") written notice thereof as soon as
practicable prior to filing the registration statement or offering statement,
but in any event not later than 20 days prior to such filing; and
(ii) on behalf of all entities requesting inclusion in such offering,
include such securities in the offering and may condition such offer on their
acceptance of any other reasonable conditions (including, without limitation, if
such offering is underwritten, that such requesting holders agree in writing to
enter into an underwriting agreement with customary terms). If the
representative of the underwriter advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
number of shares to be included in the underwriting or registration shall be
allocated first to the Company, and thereafter shall be allocated among the
Holders and other security holders requesting inclusion in the offering pro rata
on the basis of the number of shares each requesting Holder and other security
holder requests to be included bears to the total number of shares of all
requesting holders that have been requested to be included in such offering. If
a person who has requested inclusion in such offering as provided above does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company or the underwriter. The securities
so excluded shall also be withdrawn from registration, if applicable.
7.2 REGISTRABLE SECURITIES. For the purposes of this Section 7, the term
"Registrable Securities" shall mean any Warrant Shares issued or issuable to a
Holder upon exercise of its Warrant, any shares of Common Stock issued to a
Holder as a dividend on its Warrant Shares, and any other shares of Common Stock
distributable on, with respect to, or in replacement of or substitution for such
Registrable Securities, including those that have been transferred as permitted
under this Warrant, except for those that have been sold or transferred pursuant
to an effective registration statement or pursuant to Rule 144 under the
Securities Act.
-9-
7.3 INDEMNIFICATION.
(a) Subject to applicable law, the Company will indemnify each Holder, each
underwriter and each person controlling such Holder or underwriter against all
claims, losses, damages and liabilities, including legal and other expenses
reasonably incurred, arising out of any untrue or allegedly untrue statement of
a material fact contained in the registration statement, or any omission or
alleged omission to state a material fact required to be stated in the
registration statement or necessary to make any statements therein not
misleading, or arising out of any violation by the Company of the Securities
Act, any state securities or "blue sky" laws or any applicable rule or
regulation.
(b) Subject to applicable law, each Holder, severally and not jointly, will
indemnify the Company, and each person controlling the Company, against all
claims, losses, damages and liabilities, including legal and other expenses
reasonably incurred, arising out of any untrue or allegedly untrue statement of
a material fact contained in the registration statement, or required to be
stated in the registration statement or necessary to make the statements
contained therein not misleading, to the extent, but only to the extent, that
such untrue statement or omission is contained in any information or affidavit
furnished in writing by such Holder to the Company specifically for inclusion in
such registration statement. In no event shall the liability of such Holder
under this paragraph be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Common Stock pursuant to the
registration statement giving rise to such indemnification obligation.
7.4 TRANSFER OF REGISTRATION RIGHTS. The registration rights of a Holder
under Section 7 hereof shall automatically be transferred to any transferee of
this Warrant, or any portion hereof, or of any Registrable Securities, without
any notice or other action by the transferring Holder or such transferee. Any
such transferee will be deemed to be a Holder for purposes of this Section 7,
and as a condition precedent to such transferee's exercise of its rights
hereunder, such transferee must agree to be bound by the terms of this Section
7.
7.5 OBLIGATIONS OF A HOLDER AND OTHERS IN A REGISTRATION. Each Holder agrees
to timely furnish such information regarding such person and the securities
sought to be registered and to take such other action as the Company may
reasonably request, including the entering into of agreements and the providing
of documents, in connection with the registration or qualification of such
securities and/or the compliance of such registration statement with all
applicable laws. Each Holder severally agrees that, in connection with any
offering undertaken pursuant to subsection 7.1, the Company shall have the right
to, if it deems an underwriter or underwriters necessary or appropriate,
designate such underwriter(s); provided, however, that if the Company does not
within 60 days from the date of the last written notice of the Holder(s)
delivered pursuant to subsection 7.1 designate such underwriter(s) in writing to
the Holder(s), the Holder(s) shall have the right to designate their own
underwriter(s). If the registration involves an underwriter, each participating
Holder agrees, upon the request of such underwriter, not to sell any
unregistered securities of the Company for a period of 120 days following the
effective date of the registration statement for such offering and to enter into
an underwriting agreement with such underwriters containing customary terms and
provisions.
-10-
7.6 REPRESENTATION. The Company represents and warrants that there are no
existing registration rights or similar agreements that would prohibit, or that
would be violated or breached by, the Company's execution and delivery of this
Warrant.
7.7 EXPENSES OF REGISTRATION. All expenses incurred in connection with
registrations pursuant to this Section 7, including, without limitation, all
registration fees, federal and state filing and qualification fees, printing
expenses, fees and disbursements of counsel for the Company and one counsel for
the Holders and expenses of any special audits of the Company's financial
statements incidental to or required by such registration, shall be borne by the
Company, except that the Company shall not be required to pay underwriters'
discounts or commissions relating to Registrable Securities being sold by any
Holders.
SECTION 8. MISCELLANEOUS.
8.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
8.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company, the Warrantholder and the other Holders
and their respective heirs, legal representatives, successors and assigns.
Nothing in this Warrant, expressed or implied, is intended to or shall confer on
any person or entity other than the Company, the Warrantholder and the other
Holders, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant.
8.3 AMENDMENTS. This Warrant may not be modified or amended except by a
written instrument signed by the Company and the Warrantholder.
8.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
8.5 FURTHER ASSURANCES. Each of the Company, the Warrantholder and the other
Holders shall do and perform all such further acts and things and execute and
deliver all such other certificates, instruments and/or documents as any party
hereto may reasonably request in connection with the performance of the
provisions of this Warrant.
8.6 NOTICES. All demands, requests, notices and other communications
required or permitted to be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally, sent by
confirmed facsimile or sent by United States certified or registered first class
mail, postage prepaid, to the parties hereto at the following addresses or at
such other address as any party hereto shall hereafter specify by notice to the
other party hereto:
-11-
(a) if to the Company, addressed to:
Gulfport Energy Corporation
6307 Waterford Boulevard, Suite 100
Oklahoma City, Oklahoma 73118
Attention: President
Telephone No.: (405) 848-8807
Facsimile No.: (405) 848-8816
(b) If to the Warrantholder or any other Holder, addressed to the address of
such person appearing on the books of the Company.
Except as otherwise provided herein, all such demands, requests, notices and
other communications shall be deemed to have been received on the date of
personal delivery thereof, the sending of confirmed facsimile thereof or on the
third Business Day after the mailing thereof.
8.7 SEPARABILITY. Any term or provision of this Warrant which is invalid or
unenforceable in any jurisdiction shall be ineffective in such jurisdiction to
the extent of such invalidity or unenforceability without rendering invalid or
unenforceable any other term or provision of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
8.8 FRACTIONAL SHARES. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to any
fraction of a share called for upon any exercise hereof, the Company shall pay
to the Warrantholder an amount in cash equal to such fraction multiplied by the
Fair Market Value of a share of Common Stock as of the date of such exercise.
8.9 GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL AND SERVICE OF
PROCESS. THIS WARRANT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES
APPLICABLE THERETO AND THE INTERNAL LAWS OF THE STATE OF NEW YORK (OTHER THAN
ITS CHOICE OF LAW RULES), AND THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SUBSECTION
8.6 ABOVE. THE COMPANY WAIVES TRIAL BY JURY, ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. NOTHING IN THIS SUBSECTION 8.9 SHALL AFFECT THE RIGHT
OF THE WARRANTHOLDER OR ANY OTHER HOLDER TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE WARRANTHOLDER OR ANY OTHER
HOLDER TO BRING ANY ACTION OR
-12-
PROCEEDING AGAINST THE COMPANY, ANY OF ITS SUBSIDIARIES AND/OR THEIR RESPECTIVE
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHERE SUCH PARTY MAINTAINS
OFFICES OR HAS PROPERTY.
8.10 EQUITABLE RELIEF. The Company recognizes that, in the event the Company
fails to perform, observe or discharge any of its obligations or liabilities
under this Warrant, any remedy of law may prove to be inadequate relief to the
Warrantholder or any other Holder, and therefore, the Company agrees that the
Warrantholder or other Holder, if it so requests, shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages, in addition to any other remedies that may be available
to it at law or in equity.
8.11 EXPENSES AND ATTORNEYS' FEES. If, at any time or times, whether prior
or subsequent to the date hereof, the Warrantholder employs counsel for advice
or other representation or incurs reasonable legal and/or other costs and
expenses in connection with:
(a) the negotiation, preparation or execution of this Warrant or any
amendment of or modification of this Warrant;
(b) any litigation, contest, dispute, suit, proceeding or action (whether
instituted by the Warrantholder, the Company or any other person) in any way
relating to this Warrant, unless a court of competent jurisdiction finds in
favor of the Company as the prevailing party, and awards court costs and
attorneys' fees to the such prevailing party; or
(c) any attempt to enforce any rights of the Warrantholder against the
Company or any other person that may be obligated to the Warrantholder by virtue
of this Warrant in accordance with the terms of this Warrant;
then, in any such event, the reasonable attorneys' fees arising from such
services and all reasonable expenses, costs, charges, and fees of counsel or of
the Warrantholder in any way or respect arising in connection with or relating
to any of the events or actions described in this subsection shall be payable on
demand by the Company, to the Warrantholder.
8.12 COUNTERPARTS. This Warrant may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same Warrant.
-13-
IN WITNESS WHEREOF, the Company and the initial Warrantholder have caused
this Warrant to be signed by their duly authorized officers as of the 18th day
of August, 1998.
GULFPORT ENERGY CORPORATION
By:
---------------------------------------
Mark Lidell, President
ING (U.S.) CORPORATION
By:
---------------------------------------
Peter Y. Clinton, Senior Vice President
-14-
GULFPORT ENERGY CORPORATION
WARRANT EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned, the record holder of this Warrant, hereby irrevocably
elects to exercise the right, represented by this Warrant, to purchase
________________ of the Warrant Shares and herewith pays the Exercise Price in
accordance with the terms of this Warrant by (check one):
[ ] tendering payment for such Warrant Shares to the order of GULFPORT
ENERGY CORPORATION in the amount of $____________;
[ ] applying $_________ of the principal and/or interest otherwise due from
Gulfport Energy Corporation to the undersigned on ______________, ______
pursuant to the Credit Agreement (as defined in the Warrant), as permitted
by clause (i) of subsection 2.6 of the Warrant; or
[ ] surrendering the undersigned's purchase rights with respect to __________
Warrant Shares, having an aggregate Fair Market Value as of the date of
this exercise of $_________, which equals or exceeds the aggregate
Exercise Price of the Warrant Shares being purchased, as permitted by
clause (ii) of subsection 2.6 of the Warrant. (The Company shall refund to
the Warrantholder in cash any such excess value, not to exceed 99.9% of
the Fair Market Value of one share of Common Stock.)
The undersigned requests that a certificate for the Warrant Shares being
purchased be registered in the name of _______________________________ and that
such certificate be delivered to ___________________________________.
Date Signature
-------------------- ---------------------------
-15-
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
all the rights of the undersigned under the within Warrant, with respect to the
number of shares of Common stock covered thereby set forth below, to:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
, and hereby irrevocably constitutes and appoints ____________________________
as agent and attorney-in-fact to transfer said Warrant on the books of Gulfport
Energy Corporation, with full power of substitution in the premises.
Dated: ________________, ______.
In the presence of
- ---------------------------------------
Name:
----------------------------------
Signature:
--------------------------------------
Title of Signing Officer or Agent (if any):
------------------------------------------------
Address:
----------------------------------------
----------------------------------------
Note: The above signature should correspond with
the name on the face of the within Warrant.
-16-
太阳城娱乐平台
体育博彩平台
博彩公司
实博
炎黄财经
LOL外围下注
ag真人平台
同步助手
美高梅
澳门威尼斯人
海南华图教育
博彩平台
婺城新闻网
bet365中国
复旦大学附属儿科医院
皇冠体育
太阳城网络赌博平台
中国国家数据
黄金城
游久DOTA专题站
红蚂蚁装饰公司
中国台风网
海波重科
上海华硕招聘中心
爱否
职酷网
译酷网
北京赶集网
天津康辉国际旅行社
当当网食品馆
成都九龙医院官网
搜农坊
站点地图
红网家居频道
理工宇龙