EXHIBIT 4.02
WARRANT AGENT AGREEMENT
--------------------------
NATURAL GAS SERVICES GROUP, INC.
AND
COMPUTERSHARE TRUST COMPANY, INC.
WARRANT AGENT
June ___, 2002
THIS AGREEMENT dated as of _______________, 2002, between NATURAL GAS
SERVICES GROUP, INC., a Colorado corporation (the "Company"), and COMPUTERSHARE
TRUST COMPANY, INC., a transfer agency located in Golden, Colorado (the "Warrant
Agent").
WHEREAS: The Company is conducting a public offering (the "Public
Offering") of 1,650,000 shares (the "Firm Shares") of Common Stock of the
Company ("Common Stock") and 1,650,000 warrants ("Firm Warrants"), one Warrant
entitling the Registered Owner thereof to purchase one share of Common Stock, or
an aggregate of 1,650,000 shares of Common Stock of the Company on exercise of
all Firm Warrants; and
The Company also is granting the several underwriters (the
"Underwriters") of the Company's Public Offering pursuant to an underwriting
agreement (the "Underwriting Agreement"), the option to purchase up to an
additional 247,500 shares (the "Over-Allotment Shares") and 247,500 warrants
(the "Over-Allotment Warrants") exercisable to purchase up to an aggregate of
247,500 shares of Common Stock; and
The Company desires to provide for the issuance, registration,
transfer, exchange and exercise of certificates (the "Warrant Certificates")
representing the Firm Warrants and the Over-Allotment Warrants (collectively,
herein, the "Warrants") and for the exercise of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth and for the purpose of defining the terms and
provisions of the Warrant Certificates and the Warrants, and the respective
rights and obligations thereunder of the Company, the registered holders of the
Warrant Certificates and the Warrant Agent, the parties hereto agree as follows:
1. DEFINITIONS. As used herein:
(a) "Common Stock" shall mean Common Stock, of the Company, whether now
or hereafter authorized, holders of which have the right to participate in the
distribution of earnings and assets of the Company without limit as to amount or
percentage.
(b) "Corporate Office" shall mean the place of business of the Warrant
Agent (or its successor) located in Denver, Colorado, which office is presently
located at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
(c) "Effective Date" shall mean ___________________, 2002, the date on
which the Company's Registration Statement is declared effective by the
Securities and Exchange Commission.
(d) "Exercise Date" shall mean the date of surrender for exercise of
any Warrant Certificate, provided the exercise form on the back of the Warrant
Certificate or a form substantially similar thereto has been completed in full
by the Registered Owner or a duly
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appointed attorney and the Warrant Certificate is accompanied by payment in full
of the Exercise Price.
(e) "Exercise Period" shall mean the period commencing on the Effective
Date and extending to and through the Expiration Date.
(f) "Exercise Price" shall mean a purchase price of $____ per share of
Common Stock (125% of the offering price for one Firm Share); provided, however,
that in the event the Company reduces the Exercise Price in accordance with
Section 9(i) hereof, the Exercise Price shall be as established by the Company
in accordance with such Section.
(g) "Expiration Date" shall mean 5:00 P.M. Mountain Time on the last
day of the 4 year period commencing on the Effective Date, subject to the terms
provided in Section 5 herein for redemption; provided however, if such date
shall be a holiday or a day on which banks are authorized to close, then the
Expiration Date shall mean 5:00 p.m., Mountain Time on the next following day
which in the State of Colorado is not a holiday or a day on which banks are
authorized to close. If the Company redeems the Warrants as provided in Section
5 of this Agreement, the Expiration Date shall be the date fixed for redemption.
(h) "Firm Warrants" shall mean 1,650,000 Warrants to purchase 1,650,000
shares of Common Stock, all of which will be purchased by the Underwriter from
the Company and sold in the Public Offering in accordance with the Underwriting
Agreement.
(i) "Over-Allotment Warrants" shall mean 247,500 Warrants to purchase
247,500 shares of Common Stock, any or all of which may be purchased by the
Representative for the several Underwriters from the Company in accordance with
the Underwriting Agreement. The Over-Allotment Warrants shall have identical
terms and conditions to those established for the Firm Warrants, subject to
their issuance in accordance with Section 2 hereof.
(j) "Representative" shall mean Neidiger/Xxxxxx/Xxxxxxx, Inc., the
representative of the several Underwriters.
(k) "Registered Owner" shall mean the person in whose name any Warrant
Certificate shall be registered on the books maintained by the Warrant Agent
pursuant to Section 6 of this Agreement.
(l) "Registration Statement" shall mean the Company's Registration
Statement on Form SB-2 (S.E.C. File No. ________), as amended.
(m) "Subsidiary" shall mean any corporation of which shares having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (regardless of whether the shares of any other class or classes of
such corporation shall have or may have voting power by reason of the happening
of any contingency) are at the time directly or indirectly owned by the Company
or one or more subsidiaries of the Company.
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(n) "Warrant" or the "Warrants" shall mean and include up to 1,897,500
Warrants to purchase 1,897,500 authorized and unissued Shares of Common Stock of
the Company and, unless otherwise noted, shall include 1,650,000 Firm Warrants
and 247,500 Over-Allotment Warrants.
(o) "Warrant Agent" shall mean Computershare Investor Services, Inc.,
or its successor, as the transfer agent and registrar of the Warrants.
(p) "Warrant Shares" shall mean and include up to 1,897,500 authorized
and unissued shares of Common Stock reserved for issuance on exercise of the
Warrants, and unless otherwise noted, shall include 1,650,000 shares of Common
Stock issuable upon exercise of the Firm Warrants and 247,500 shares of Common
Stock issuable upon exercise of the Over-Allotment Warrants and any additional
shares of Common Stock or other property which may hereafter be issuable or
deliverable on exercise of the Warrants pursuant to Section 9 of this Agreement.
2. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES. Each Warrant shall
initially entitle the Registered Owner of the Warrant Certificate representing
such Warrant to purchase one share of Common Stock on exercise thereof, subject
to modification and adjustment as hereinafter provided in Section 9. Warrant
Certificates representing 1,650,000 Firm Warrants and evidencing the right to
purchase an aggregate of 1,650,000 shares of Common Stock of the Company shall
be executed by the proper officers of the Company and delivered to the Warrant
Agent for countersignature. Certificates representing the Firm Warrants to be
delivered to the Warrant Agent shall be in direct relation to the Firm Shares
sold in the Company's Public Offering and shall be attached to certificates
representing an equal number of Firm Shares. The Warrant Certificates
representing the Firm Warrants will be issued and delivered on written order of
the Company signed by the proper officers of the Company. The Warrant Agent
shall deliver Warrant Certificates in required whole number denominations to the
persons entitled thereto in connection with any transfer or exchange permitted
under this Agreement.
The Over-Allotment Warrants shall carry identical terms and conditions
to those established for the Firm Warrants and outlined herein. Up to 247,500
Over-Allotment Warrants may be issued and such Over-Allotment Warrants shall
evidence the right of the Registered Owners thereof to purchase an aggregate of
up to 247,500 shares of Common Stock of the Company. Any Warrant Certificates
for Over-Allotment Warrants to be issued will be issued and delivered on written
order of the Company signed by the proper officers of the Company on exercise of
the option to purchase Over-Allotment Warrants by the several Underwriters in
accordance with the Underwriting Agreement.
Except as provided in Section 8 hereof, share certificates representing
the Warrant Shares shall be issued only on or after the Exercise Date on
exercise of the Warrants or on transfer or exchange of the Warrant Shares. The
Warrant Agent, if other than the Company's Transfer Agent, shall arrange with
the Transfer Agent for the issuance and registration of all Warrant Shares.
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3. FORM AND EXECUTION OF WARRANT CERTIFICATES. The Warrant Certificates
shall be substantially in the form attached as Exhibit "A" and may have such
letters, numbers or other marks of identification and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement.
The Warrant Certificates shall be dated as of the date of issuance, whether on
initial issuance, transfer, exchange or in lieu of mutilated, lost, stolen or
destroyed Warrant Certificates.
Each Warrant Certificate for Firm Warrants shall be separately
transferable from the certificate representing Firm Shares immediately upon
issuance.
The Warrant Certificates shall be executed on behalf of the Company by
its duly authorized officers, by manual signatures or by facsimile signatures
printed thereon, and shall have imprinted thereon a facsimile of the Company's
seal. The Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. In the
event any officer of the Company who executed the Warrant Certificates shall
cease to be an officer of the Company before the date of issuance of the Warrant
Certificates or before countersignature and delivery by the Warrant Agent, such
Warrant Certificates may be countersigned, issued and delivered by the Warrant
Agent with the same force and effect as though the person who signed such
Warrant Certificates had not ceased to be an officer of the Company.
4. EXERCISE. The exercise of Warrants in accordance with this Agreement
shall only be permitted during the Exercise Period.
Warrants shall be deemed to have been exercised immediately prior to
the close of business on the Exercise Date. The exercise form shall be executed
by the Registered Owner thereof or the Registered Owner's attorney duly
authorized in writing and shall be delivered together with payment to the
Warrant Agent, in cash or by official bank or certified check, of an amount in
lawful money of the United States of America. Such payment shall be in an amount
equal to the Exercise Price as hereinabove defined.
The person entitled to receive the number of Warrant Shares deliverable
on such exercise shall be treated for all purposes as the Registered Owner of
such Warrant Shares as of the close of business on the Exercise Date. The
Company shall not be obligated to issue any fractional share interests in
Warrant Shares. If Warrants represented by more than one Warrant Certificate
shall be exercised at one time by the same Registered Owner, the number of full
Warrant Shares which shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Warrant Shares issuable on such
exercise.
As soon as practicable on or after the Exercise Date and in any event
within 30 days after such date, the Warrant Agent shall cause to be issued and
delivered by the Transfer Agent to the person or persons entitled to receive the
same, a certificate or certificates for the number of Warrant Shares deliverable
on such exercise. No adjustment shall be made in respect of cash dividends on
Warrant Shares deliverable on exercise of any Warrant. The Warrant Agent shall
promptly notify the Company in writing of any exercise and of the number of
Warrant Shares
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caused to be delivered and shall cause payment of an amount in cash equal to the
Exercise Price to be made promptly to the order of the Company. The parties
contemplate such payments will be made by the Warrant Agent to the Company on a
weekly basis and will consist of collected funds only. The Warrant Agent shall
hold any proceeds collected and not yet paid to the Company in a
Federally-insured escrow account at a commercial bank selected by agreement of
the Company and the Warrant Agent, at all times relevant hereto. Following a
determination by the Warrant Agent that collected funds have been received, the
Warrant Agent shall cause the Transfer Agent to issue share certificates
representing the number of Warrant Shares purchased by the Registered Owner.
Expenses incurred by the Warrant Agent, including administrative costs,
and the standard fees imposed by the Warrant Agent for the Warrant Agent's
services, shall be paid by the Company and shall be deducted from the Escrow
Account prior to distribution of funds to the Company.
A detailed accounting statement setting forth the number of Warrants
exercised, the number of Warrant Shares issued, the net amount of exercised
funds and all expenses incurred by the Warrant Agent shall be transmitted to the
Company on payment of each exercise amount. Such accounting statement shall
serve as an interim accounting for the Company during the Exercise Period. The
Warrant Agent shall render to the Company, at the completion of the Exercise
Period, a complete accounting setting forth the number of Warrants exercised,
the identity of persons exercising such Warrants, the number of Warrant Shares
issued, the amounts distributed to the Company, and all expenses incurred by the
Warrant Agent.
The Company may be required to deliver a prospectus that satisfies the
requirements of Section 10 of the Securities Act of 1933, as amended (the "1933
Act") with delivery of the Warrant Shares and must have a registration statement
(or a post-effective amendment to an existing registration statement) effective
under the 1933 Act in order for the Company to comply with any such prospectus
delivery requirements. The Company will advise the Warrant Agent of the status
of any such registration statement under the 1933 Act and of the effectiveness
of the Company's registration statement or lapse of effectiveness.
No issuance of Warrant Shares shall be made unless there is an
effective registration statement under the 1933 Act, and registration or
qualification of the Warrant Shares, or an exemption therefrom, has been
obtained from state or other regulatory authorities in the jurisdiction in which
such Warrant Shares are sold. The Company will provide to the Warrant Agent
written confirmation of all such registration or qualification, or an exemption
therefrom, when requested by the Warrant Agent.
5. REDEMPTION. Commencing one year from the Effective Date, the Company
may, at its option, redeem the Warrants in whole, but not in part, for a
redemption price of $0.25 per Warrant, on not less than 30 days' notice to the
Registered Owners. The right to redeem the Warrants may be exercised by the
Company following such one year period and during the Exercise Period only in
the event (i) the closing bid price for Company's shares of Common Stock has
equaled or exceeded [$ ] (175% of the Warrant Exercise Price) for 20 consecutive
trading days, (ii) any notice of the call for redemption is given not more than
five (5) business
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days after the conclusion of the 20 consecutive trading days referred to in the
foregoing (i), (iii) the Company has a registration statement (or a
post-effective amendment to an existing registration statement) pertaining to
the Warrant Shares effective with the Securities and Exchange Commission, which
registration statement would enable a Registered Owner to exercise the Warrants,
and (iv) the expiration of the 30 day notice period is within the Exercise
Period. In the event the Company exercises its right to redeem the Warrants, the
Expiration Date will be deemed to be, and the Warrants will be exercisable until
the close of business on, the date fixed for redemption in such notice. If any
Warrant called for redemption is not exercised by such time, it will cease to be
exercisable and the Registered Owner thereof will be entitled only to the
redemption price.
6. RESERVATION OF SHARES AND PAYMENT OF TAXES. The Company covenants
that it will at all times reserve and have available from its authorized shares
of Common Stock such number of shares of Common Stock as shall then be issuable
on exercise of all outstanding Warrants. The Company covenants that all Warrant
Shares issuable shall be duly and validly issued, fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issue thereof.
The Registered Owner shall pay all documentary, stamp or similar taxes
and other government charges that may be imposed with respect to the issuance of
the Warrants, or the issuance, transfer or delivery of any Warrant Shares on
exercise of the Warrants. In the event the Warrant Shares are to be delivered in
a name other than the name of the Registered Owner of the Warrant Certificates,
no such delivery shall be made unless the person requesting the same has paid to
the Warrant Agent or Transfer Agent the amount of any such taxes or charges
incident thereto.
The Company will supply the Warrant Agent with blank Warrant
Certificates, so as to maintain an inventory satisfactory to the Warrant Agent.
The Company will file with the Warrant Agent a statement setting forth the name
and address of its Transfer Agent for Warrant Shares and of each successor
Transfer Agent, if any.
7. REGISTRATION OF TRANSFER. The Warrant Certificates may be
transferred in whole or in part, at any time during the Exercise Period. Warrant
Certificates to be exchanged shall be surrendered to the Warrant Agent at its
corporate office. The Company shall execute and the Warrant Agent shall
countersign, issue and deliver in exchange therefor, the Warrant Certificate or
Certificates which the holder making the transfer shall be entitled to receive.
The Warrant Agent shall keep transfer books at its corporate office on
which Warrant Certificates and the transfer thereof shall be registered. On due
presentment for registration of transfer of any Warrant Certificate at such
office, the Company shall execute and the Warrant Agent shall issue and deliver
to the transferee or transferees a new Warrant Certificate or Certificates
representing an equal aggregate number of Warrants.
All Warrant Certificates presented for registration of transfer or
exercise shall be duly endorsed or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Warrant
Agent.
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Prior to due presentment for registration of transfer thereof, the
Company and the Warrant Agent may treat the Registered Owner of any Warrant
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company or the
Warrant Agent) and the parties hereto shall not be affected by any notice to the
contrary.
8. LOSS OR MUTILATION. On receipt by the Company and the Warrant Agent
of evidence satisfactory as to the ownership of and the loss, theft, destruction
or mutilation of any Warrant Certificate, the Company shall execute and the
Warrant Agent shall countersign and deliver in lieu thereof, a new Warrant
Certificate representing an equal aggregate number of Warrants. In the case of
loss, theft or destruction of any Warrant Certificate, the Registered Owner
requesting issuance of a new Warrant Certificate shall be required to secure an
indemnity bond from an approved surety bonding company in favor of the Company
and Warrant Agent in an amount satisfactory to each of them. In the event a
Warrant Certificate is mutilated, such Certificate shall be surrendered and
cancelled by the Warrant Agent prior to delivery of a new Warrant Certificate.
Applicants for a substitute Warrant Certificate shall also comply with such
other regulations and pay such other reasonable charges as the Company may
prescribe.
9. ADJUSTMENT OF EXERCISE PRICE AND SHARES.
(a) If at any time prior to the expiration of the Warrants by their
terms or by exercise, the Company increases or decreases the number of its
issued and outstanding shares of Common Stock, or changes in any way the rights
and privileges of such shares of Common Stock, by means of (i) the payment of a
share dividend or the making of any other distribution on such shares of Common
Stock payable in its shares of Common Stock, (ii) a split or subdivision of
shares of Common Stock, or (iii) a consolidation or combination of shares of
Common Stock, then the Exercise Price in effect at the time of such action and
the number of Warrants required to purchase each Warrant Share at that time
shall be proportionately adjusted so that the numbers, rights and privileges
relating to the Warrant Shares then purchasable upon the exercise of the
Warrants shall be increased, decreased or changed in like manner, for the same
aggregate purchase price set forth in the Warrants, as if the Warrant Shares
purchasable upon the exercise of the Warrants immediately prior to the event had
been issued, outstanding, fully paid and nonassessable at the time of that
event. Any dividend paid or distributed on the shares of Common Stock in shares
of any other class of shares of the Company or securities convertible into
shares of Common Stock shall be treated as a dividend paid in shares of Common
Stock to the extent shares of Common Stock are issuable on the payment or
conversion thereof.
(b) In the event, prior to the expiration of the Warrants by exercise
or by their terms, the Company shall be recapitalized by reclassifying its
outstanding shares of Common Stock into shares with a different par value, or by
changing its outstanding shares of Common Stock to shares without par value or
in the event of any other material change in the capital structure of the
Company or of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any Registered Owner of the Warrants
shall thereafter have the right to purchase, on the basis and the terms and
conditions specified in this Agreement, in lieu of the Warrant Shares
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theretofore purchasable on the exercise of any Warrant, such securities or
assets as may be issued or payable with respect to or in exchange for the number
of Warrant Shares theretofore purchasable on exercise of the Warrants had such
reclassification, recapitalization or conveyance not taken place; and in any
such event, the rights of any Registered Owner of a Warrant to any adjustment in
the number of Warrant Shares purchasable on exercise of such Warrant, as set
forth above, shall continue and be preserved in respect of any stock, securities
or assets which the Registered Owner becomes entitled to purchase.
(c) In the event the Company, at any time while the Warrants shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part of
the terms of such sale, dissolution, liquidation or winding up such that the
Registered Owner of a Warrant may thereafter receive, on exercise thereof, in
lieu of each Warrant Share which the Registered Owner would have been entitled
to receive, the same kind and amount of any stock, securities or assets as may
be issuable, distributable or payable on any such sale, dissolution, liquidation
or winding up with respect to each share of Common Stock of the Company;
provided, however, that in the event of any such sale, dissolution, liquidation
or winding up, the right to exercise the Warrants shall terminate on a date
fixed by the Company, such date to be not earlier than 5:00 P.M., Mountain Time,
on the 30th day next succeeding the date on which notice of such termination of
the right to exercise the Warrants has been given by mail to the Registered
Owners thereof at such addresses as may appear on the books of the Company.
(d) On exercise of the Warrants by the Registered Owners, the Company
shall not be required to deliver fractions of Warrant Shares; provided, however,
that the Company shall make prompt, proportionate, equitable, lawful and
adequate provisions in respect of any such fraction of one Warrant Share either
on the basis of adjustment in the then applicable Exercise Price or a purchase
of the fractional interest at the price of the Company's shares of Common Stock
or such other reasonable basis as the Company may determine.
(e) In the event, prior to expiration of the Warrants by exercise or by
their terms, the Company shall determine to take a record of the holders of its
shares of Common Stock for the purpose of determining shareholders entitled to
receive any stock dividend, distribution or other right which will cause any
change or adjustment in the number, amount, price or nature of the shares of
Common Stock or other stock, securities or assets deliverable on exercise of the
Warrants pursuant to the foregoing provisions, the Company shall give to the
Registered Owners of the Warrants at the addresses as may appear on the books of
the Company at least 10 days' prior written notice to the effect that it intends
to take such a record. Such notice shall specify the date as of which such
record is to be taken; the purpose for which such record is to be taken; and the
number, amount, price and nature of the shares of Common Stock or other stock,
securities or assets which will be deliverable on exercise of the Warrants after
the action for which such record will be taken has been completed. Without
limiting the obligation of the Company to provide notice to the Registered
Owners of the Warrants of any corporate action hereunder, the failure of the
Company to give notice shall not invalidate such corporate action of the
Company.
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(f) The Warrants shall not entitle the Registered Owner thereof to any
of the rights of shareholders or to any dividend declared on the shares of
Common Stock unless the Warrant is exercised and the Warrant Shares purchased
prior to the record date fixed by the Board of Directors of the Company for the
determination of holders of shares of Common Stock entitled to such dividend or
other right.
(g) The Company shall be empowered, in the sole and unconditional
discretion of the Board of Directors, at any time during the Exercise Period, to
reduce the applicable Exercise Price of the Warrants. Any reduction in the
applicable Exercise Price shall be effective upon written notice to the Warrant
Agent, which notice shall be given pursuant to a duly and validly authorized
resolution of the Board of Directors of the Company. Any such reduction in the
Exercise Price shall not entitle the Registered Owners to issuance of any
additional Common Shares pursuant to the adjustment provisions set forth
elsewhere herein, regardless of whether the reduction in the Exercise Price was
effected either prior to or following exercise of Warrants by the Registered
Owners thereof. A nonexercising Registered Owner shall have no remedy or rights
to receive any additional Warrant Shares as a result of any reduction in any
applicable Exercise Price pursuant to this subsection.
10. DUTIES, COMPENSATION AND TERMINATION OF WARRANT AGENT.
The Warrant Agent shall act hereunder as agent and in a ministerial
capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and delivering
Warrant Certificates or by any other act hereunder, be deemed to make any
representations as to the validity, value or authorization of the Warrant
Certificate or the Warrants represented thereby or of the Warrant Shares or
other property delivered on exercise of any Warrant. The Warrant Agent shall not
be under any duty or responsibility to any holder of the Warrant Certificates to
make or cause to be made any adjustment of the Exercise Price or to determine
whether any fact exists which may require any such adjustment.
The Warrant Agent shall not (i) be liable for any recital or statement
of fact contained herein or for any action taken or omitted by it in reliance on
any Warrant Certificate or other document or instrument believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties, (ii) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the Warrant Certificates, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
The Warrant Agent may at any time consult with counsel satisfactory to
it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken or omitted by it in good faith in accordance
with the opinion or advice of such counsel.
Any notice, statement, instruction, request, direction, order or demand
of the Company shall be sufficiently evidenced by an instrument signed by an
officer of the Company. The Warrant Agent shall not be liable for any action
taken or omitted by it in accordance with such notice, statement, instruction,
request, direction, order or demand.
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The Company agrees to pay the Warrant Agent reasonable compensation for
its services hereunder and to reimburse the Warrant Agent for its reasonable
expenses. The Company further agrees to indemnify the Warrant Agent against any
and all losses, expenses and liabilities, including judgments, costs and counsel
fees, for any action taken or omitted by the Warrant Agent in the execution of
its duties and powers hereunder, excepting losses, expenses and liabilities
arising as a result of the Warrant Agent's negligence or willful misconduct.
The Warrant Agent may resign its duties or the Company may terminate
the Warrant Agent and the Warrant Agent shall be discharged from all further
duties and liabilities hereunder (except liabilities arising as a result of the
Warrant Agent's own negligence or willful misconduct) on 30 days' prior written
notice to the other party. Upon notice by the Company to the Warrant Agent, the
Warrant Agent shall cause a copy of such notice of resignation to be mailed to
the Registered Owner of each Warrant Certificate. The expenses the Warrant Agent
incurs in mailing such notice shall be paid by the Company. On such resignation
or termination, the Company shall appoint a new Warrant Agent. If the Company
shall fail to make such appointment within a period of 30 days after it has been
notified in writing of the resignation by the Warrant Agent, then the Registered
Owner of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new Warrant Agent. Any new Warrant Agent,
whether appointed by the Company or by such court, shall be a bank or trust
company having a capital and surplus, as shown by its last published report to
its shareholders, of not less than $1,000,000, and having its principal office
in the United States.
After acceptance in writing of an appointment of a new Warrant Agent is
received by the Company, such new Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; provided, however, if it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed. The
Company shall file a notice of appointment of a new Warrant Agent with the
resigning Warrant Agent and shall forthwith cause a copy of such notice to be
mailed to the Registered Owner of each Warrant Certificate.
Any corporation into which the Warrant Agent or any new Warrant Agent
may be converted or merged, or any corporation resulting from any consolidation
to which the Warrant Agent or any new Warrant Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent
shall be a successor Warrant Agent under this Agreement, provided that such
corporation is eligible for appointment as a successor to the Warrant Agent. Any
such successor Warrant Agent shall promptly cause notice of its succession as
Warrant Agent to be mailed to the Company and to the Registered Owner of each
Warrant Certificate. No further action shall be required for establishment and
authorization of such successor Warrant Agent.
The Warrant Agent, its officers or directors and it subsidiaries or
affiliates may buy, hold or sell Warrants or other securities of the Company and
otherwise deal with the Company in the
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same manner and to the same extent and with like effect as though it were not
the Warrant Agent. Nothing herein shall preclude the Warrant Agent from acting
in any other capacity for the Company.
11. MODIFICATION OF AGREEMENT. The Warrant Agent and the Company may by
supplemental agreement make any changes or corrections in this Agreement they
shall deem appropriate to cure any ambiguity or to correct any defective or
inconsistent provision or mistake or error herein contained. Additionally, the
parties may make any changes or corrections deemed necessary which shall not
adversely affect the interests of the Registered Owners of Warrant Certificates;
provided, however, this Agreement shall not otherwise be modified, supplemented
or altered in any respect except with the consent in writing of the Registered
Owners of Warrant Certificates representing not less than a majority of the
Warrants outstanding. Additionally, no change in the number or nature of the
Warrant Shares purchasable on exercise of a Warrant or the Exercise Price
therefor shall be made without the consent in writing of the Registered Owner of
the Warrant Certificate representing such Warrant, other than such changes as
are specifically prescribed by this Agreement.
12. NOTICES. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed given sufficiently in writing and sent by registered or certified mail,
return receipt requested and postage prepaid, or by tested telex, telegram or
cable to:
in the case of the Company:
Natural Gas Services Group, Inc.
0000 Xxxxx Xxxxxx Xxxx 0000
Xxxxxxx, Xxxxx 00000
and in the case of the Warrant Agent:
Computershare Trust Company, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx & Whitney, LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
and, if requested by the Company to the Registered Owner of a Warrant
Certificate, at the address of such Registered Owner as set forth on the books
maintained by the Warrant Agent.
13. PERSONS BENEFITING. This Agreement shall be binding upon and inure
to the benefit of the Company, the Warrant Agent and their respective successors
and assigns, and
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the Registered Owners and beneficial owners from time to time of the Warrant
Certificates. Nothing in this Agreement is intended or shall be construed to
confer on any other person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. FURTHER INSTRUMENTS. The parties shall execute and deliver any and
all such other instruments and shall take any and all such other actions as may
be reasonable or necessary to carry out the intention of this Agreement.
15. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
16. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies as
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other action or
occurrence.
17. GENERAL PROVISIONS. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Colorado. Except
as otherwise expressly stated herein, time is of the essence in performing
hereunder. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement may not be modified or
amended or any term or provision hereof waived or discharged except in writing
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning thereof. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above mentioned.
THE COMPANY:
NATURAL GAS SERVICES GROUP, INC.
By: _________________________________
Xxxxx X. Xxxxxx, President
ATTEST:
_____________________________
Xxxx X. Wait, Secretary
THE WARRANT AGENT:
COMPUTERSHARE INVESTOR SERVICES, INC.
By: _________________________________
ATTEST:
_____________________________
Secretary
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