EXHIBIT 10(GG)
This Subscription Agent Agreement is made as of the ___ day of
October, 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., a
national banking association,
(the "AGENT")
WHEREAS the Company has resolved to issue Rights and
Contingent Rights to purchase units (the "Units") at a price of $100 per Unit,
plus interest accrued since July 23, 2001 through the closing date of the Rights
Offering. Each Unit consists of one 12% Series A senior secured note in the
principal amount of $100 ("Notes") and a warrant ("Warrants") to purchase
56.08667 shares of the Company's Common Stock at an exercise price of $1.782955
per share;
AND WHEREAS the Rights and Contingent Rights are to be issued
only to certain shareholders holding Common Stock of the Company as hereinafter
described, which shareholders held Common Stock of the Company on the Record
Date;
AND WHEREAS the Agent acts as trustee of the Notes and warrant
agent of the Warrants pursuant to the Master Warrant Agreement, as amended;
AND WHEREAS the Company desires that the Agent act as
registrar and transfer agent for the Warrants;
AND WHEREAS the Company deems it expedient that the Agent act
as registrar and transfer agent for the Rights and Contingent Rights, and as
custodian of monies tendered upon exercise of the Rights and Contingent Rights;
NOW THEREFORE, in consideration of the mutual covenants herein
set forth, the parties hereto agree as follows:
1. DEFINITIONS:
1.01 In this Agreement:
(a) "Agreement" means this agreement;
(b) "Common Stock" means the issued and outstanding ordinary shares of
the Company, par value $0.001;
-2-
(c) "Contingent Rights" means the right of Shareholders owning fewer than
169 shares to purchase Units, subject to availability of the Units
after holders of the Rights exercise their Rights;
(d) "Contingent Subscription Certificate" has the meaning set forth in
Section 2.02(a);
(e) "Expiration Date" means 5:00 p.m., (Eastern Standard Time), on
___________, 2001;
(f) "Qualified Shareholders" means all Common Shareholders whose address
of record on the Record Date is in a Qualified Jurisdiction;
(g) "Notes" has the meaning set forth in the Recitals to this Agreement;
(h) "Qualified Jurisdictions" means jurisdictions outside of Canada as
may be determined by the Company;
(i) "Record Date" means as at the close of business on October 8, 2001;
(j) "Rights" means the right of Shareholders owning at least 169 Shares
to purchase Units;
(k) "Rights Offering" means the offering of the Rights and the Contingent
Rights as described in the Rights Offering prospectus and expected to
close on ______, 2001.
(l) "Rights Offering Prospectus" means the prospectus pursuant to which
the Rights are issued, dated ___________, 2001, a copy of which is
attached hereto as Appendix "A";
(m) "Shareholders" means the holders on the Record Date of the Common
Stock;
(n) "Subscription Certificates" has the meaning set forth in Section
2.02(a);
(o) "Subscription Funds" means any and all monies tendered by eligible
holders of Rights or Contingent Rights on subscription for the Units;
(p) "Units" has the meaning set forth in the Recitals to this Agreement;
and
(q) "Warrants" has the meaning set forth in the Recitals to this
Agreement.
2. APPOINTMENT OF AGENT:
2.01 The Agent is hereby appointed as registrar and transfer agent for the
Rights and Contingent Rights and the Agent hereby accepts such appointment upon
the terms hereinafter set forth.
2.02 The Agent shall keep the Company's register of Rights and Contingent
Rights, register of transfers and supply of unissued Subscription Certificates
and Contingent Subscription Certificates and, subject to such instructions as
may be from time to time given by the Company in writing through any of its
Chairman, President or Secretary or other duly authorized officer, the Agent
shall:
(a) in accordance with Section 3.01, issue to Qualified Shareholders
certificates representing the Rights ("Subscription Certificates") or
certificates representing the Contingent Rights (the "Contingent
Subscription Certificates") which are to be held by them, as
contemplated by the Rights Offering Prospectus or transferred to them
after the initial issuance,
-3-
respectively, and enter or register such certificates on the
Company's register of transfers;
(b) mail (by first class insured mail) to each Qualified Shareholder
(except as contemplated under Section 3.01 hereof), the Rights
Offering Prospectus, the Rights Certificates or Contingent Rights
Certificate, as the case may be, issued to each Qualified
Shareholder, a cover letter and a return envelope addressed to the
Agent;
(c) permit transfers to be made upon register of transfers by holders of
Rights and Contingent Rights, or by their duly authorized attorneys,
and cancel Subscription Certificates and Contingent Subscription
Certificates surrendered upon such transfers provided that no
transfer of Rights or Contingent Rights shall be made or Subscription
Certificate or Contingent Subscription Certificates issued to any
Shareholder that is not a Qualified Shareholder;
(d) in accordance with the Rights Offering Prospectus, accept
Subscription Certificates and Subscription Funds from Qualified
Shareholders with at least 169 shares of Common Stock, and cancel
such Subscription Certificates properly presented for exercise from
the register of Rights;
(e) in accordance with the Rights Offering Prospectus, accept Contingent
Subscription Certificates and Subscription Funds from Qualified
Shareholders with fewer than 169 shares of Common Stock and, if Units
remain available after the Expiration Date, after the Rights are
exercised, allocate one Unit to each of the Contingent Right holders
who exercise their Contingent Rights in accordance with the terms and
conditions set forth in the Rights Offering Prospectus; to the extent
that the number of Contingent Rights exercised exceeds the number of
Units available after the Rights are exercised, the Company shall
determine and instruct the Agent which Qualified Shareholders will
receive the available Units;
(f) maintain an escrow account to be used solely as a depository for
Subscription Funds received by Contingent Right holders, such
Subscription Funds to be held in such account until the Expiration
Date, after which time the Funds shall be returned to each of the
exercising Contingent Rights holders to the extent that no Units
remain available for issuance to such holder or holders;
(g) in the event that any Units remain available on the Expiration Date
after the exercise of the Rights and the Contingent Rights, advise
the Company of the number of Units which remain available;
(h) after the Expiration Date and after all duly tendered Subscription
Certificates and Contingent Subscription Certificates for the Units
have been calculated, cancel all Rights and Contingent Rights from
the register;
-4-
(i) until the Expiration Date, make such entries from time to time in the
said register as may be necessary in order that the account of each
holder of Rights and Contingent Rights, as the case may be, of the
Company may be properly and accurately kept;
(j) supply the Company from time to time, as required, with lists of
holders of Rights and Contingent Rights, as the case may be, as shown
by the said register, correct to the dates of such lists showing the
name and last known address of each holder and the number of Rights
or Contingent Rights held by each holder; and
(k) the Agent shall:
(i) prior to the closing of the Rights Offering, provide to the
Company a complete list of holders of Rights and Contingent
Rights who have elected to subscribe to the Notes, including
the principal amount of Notes to be issued to each such holder
and the number of Warrants to be issued to each such holder;
(ii) as soon as possible following the closing of the Rights
Offering, issue and mail (by first class insured mail)
notification to each subscriber to Notes advising the holder of
the principal amount of Notes subscribed for and purchased by
such holder pursuant to the Rights Offering, and certificates
to each Warrant holder representing the Warrants subscribed for
and purchased by such holder pursuant to the Rights Offering.
3. THE RIGHTS AND CONTINGENT RIGHTS:
3.01 The Rights will be issued to Qualified Shareholders shown on the Company's
register of Common Stock as owning at least 169 shares of Common Stock on the
Record Date. The Rights will be in fully registered form and will be freely
transferable. The Rights will be exercisable in accordance with the Rights
Offering Prospectus.
3.02 The Contingent Rights will be issued to Qualified Shareholders shown on the
registers of Common Stock as owning fewer than 169 shares of Common Stock on the
Record Date. The Contingent Rights will be in fully registered form and will be
freely transferable. The Contingent Rights will be exercisable in accordance
with the Rights Offering Prospectus.
4. TAX MATTERS
4.01 The Company shall instruct the Agent in writing of the tax forms, if any,
that are to be issued and the appropriate filings that to be made with the
Internal Revenue Service prior to the Expiration of the Rights Offering. Absent
written instruction from the Company, the Agent shall not be responsible for any
tax filings.
-5-
5. APPOINTMENT OF CUSTODIAN
5.01 The Agent is hereby appointed as custodian for the receipt and holding of
the Subscription Funds and the Agent hereby accepts such appointment.
5.02 Subscription Funds received from Contingent Right holders shall be
maintained separately from the Subscription Funds for the rights.
6. DELIVERY OF SUBSCRIPTION FUNDS
6.01 Any Subscription Funds which may happen to be received by the Company will
promptly be delivered or paid over to the Agent together with all necessary
information regarding the subscriber.
6.02 After the Expiration Date, and after the calculation and tabulation of all
properly tendered subscriptions, the Subscription Funds will be paid by the
Agent to the Company upon the authentication of the global note representing the
Notes and the issuance of certificates representing the Warrants subscribed for
and purchased in the Rights Offering.
6.03 Any Subscription Funds received by the Agent from holders of Contingent
Rights, for holders who do not receive Units due to lack of availability of such
Units, shall be returned by the Agent to the appropriate Contingent Rights
holder as soon as practical after the Expiration Date in bank check form.
6.04 ANY SUBSCRIPTION FUNDS OR OTHER FUNDS HELD BY THE AGENT DURING THE TERMS OF
THIS AGREEMENT SHALL BE EITHER (i) HELD BY AGENT AS CASH, OR (ii) INVESTED BY
AGENT IN SHARES OF THE FEDERATED AUTOMATED GOVERNMENT MONEY TRUST, WHICH INVESTS
IN OBLIGATIONS OF, OR GUARANTEED BY, THE UNITED STATES GOVERNMENT, ITS AGENCIES
OR INSTRUMENTALITIES, MATURING IN ONE YEAR OR LESS, WHICH OBLIGATIONS MAY BE
PURCHASED THROUGH REPURCHASE AGREEMENTS WITH SAID OBLIGATIONS AS COLLATERAL. ANY
INTEREST EARNED ON ANY OF THE SUBSCRIPTION FUNDS OR OTHER FUNDS SHALL BE PAID TO
THE COMPANY.
7. COVENANTS BY THE COMPANY:
7.01 The Company covenants with the Agent that:
(a) it will pay the Agent remuneration for its services hereunder as
per the fee agreement between Company and Agent attached as and
will repay to the Agent on demand the amount of all out-of-pocket
expenditures (including, but not limited to, postage, photocopying,
telecommunications, long distance calls, overtime, legal fees and
disbursements and stationary printing) whatever which the Agent
reasonably incurs in the execution of its duties hereunder; and
(b) it will promptly give notice to the Agent of any and all changes to
the terms and conditions of the Rights and Contingent Rights which
it may resolve to make from time to time and that it will prepare
and execute any and all documents to amend this Agreement pursuant
to any such changes made.
-6-
8. REPLACEMENT OF LOST RIGHTS CERTIFICATES:
8.01 The authority of the Agent shall also extend to the issue as transfer agent
and registrar of any Subscription Certificate or Contingent Subscription
Certificates, the issue of which shall be authorized in writing by the Company
through any of its Chairman, President or Secretary, or other duly authorized
officer, in lieu of a Subscription Certificate or Contingent Subscription
Certificates shown to have been lost, destroyed or stolen as provided in
Sections 8.02 and 8.03.
8.02 The applicant for the issue of a new Subscription Certificate(s) or
Contingent Subscription Certificate(s) pursuant to this Article 8 shall bear the
cost of the issue thereof and in case of loss, destruction or theft shall, as a
condition precedent to the issue thereof, furnish to the Agent and the Company
such evidence of ownership and of the loss, destruction or theft of the
certificate satisfactory to the Company and to the Agent in their sole
discretion, and such applicant shall also be required to furnish an indemnity
bond satisfactory to the Company and the Agent, to save each of them harmless,
and shall pay the expenses, charges and any taxes applicable thereto to the
Company and the Agent in connection therewith.
8.03 No new Subscription Certificates or Contingent Subscription Certificates
shall be issued in lieu of Subscription Certificate or Subscription Certificates
claimed to have been lost, destroyed or stolen until a statutory declaration and
indemnity bond, if required, in form satisfactory to the Company and the Agent
shall have been furnished to the Agent.
9. INDEMNITY OF THE AGENT:
9.01 The Company hereby indemnifies the Agent and its directors, officers,
employees and agents and saves them harmless from and against any and all
liabilities, claims, losses, demands, expenses, suits, actions, proceedings,
judgments, penalties damages, levies and reasonable disbursements (collectively,
the "Liabilities") which may arise from the carrying out by the Agent of its
obligations under this Agreement in good faith without gross negligence (as
determined by a final, non-appealable order, judgment, decree or ruling of a
court of competent jurisdiction) and in accordance with applicable law including
the costs and expenses of defending against any claim of liability for the
foregoing. The Agent shall in no event be liable for special, indirect,
incidental, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if the Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action. This indemnity shall survive the termination of this Agreement of the
resignation or removal of the Agent.
9.02 Without in any way limiting the generality of the foregoing indemnity of
Section 9.01, the Agent may use its own judgment in the performance of its
duties but at any time it may apply to the Company or to counsel for the
Company, or to its own counsel at the expense of the Company for instructions or
advice, and the Company will fully indemnify and hold the Agent harmless in
accordance with Section 9.01 from any liability for any action taken by the
Agent in
-7-
accordance with its own judgment or pursuant to any applicable legislation,
regulation or order in accordance with or pursuant to such instructions or
advice as may be given to it by any of the Chairman, President or Secretary, or
other duly authorized officer of the Company, or instructions or advice of
counsel for the Company or of its own counsel. This indemnity shall survive the
resignation of the Agent in connection with any and all of its duties and
obligations under this Agreement.
9.03 In the event of any disagreement or controversy under this Agreement, or if
conflicting demands or notices are made upon the Agent, or in the event the
Agent is in doubt as to which action it should have taken under this Agreement,
Agent shall have the absolute right to either or both of the following courses
of action at the expense of the Company: (i) stop all further proceedings in,
and performance of, this Agreement and of all instructions received hereunder,
or (ii) file a suit in interpleader and obtain an order from a court of
competent jurisdiction requiring all persons involved to interplead and litigate
in such court their several claims and rights among themselves with the Agent.
9.04 The Agent shall incur no liability and shall be fully protected in acting
upon any written notice, request, waiver, consent, receipt or other paper or
document furnished to it and signed by the parties thereto, not only as to its
due execution and validity and the effectiveness of its provision but also to
the truth and acceptability of any information therein contained which it in
good faith believes to be genuine and what it purports to be.
9.05 The Agent shall have no duties except those which are expressly set forth
herein and it shall not be bound by any notice of a claim or demand with respect
to, or any waiver, modification, amendment, termination or rescission of this
Agreement, unless received by it in writing, and signed by the parties hereto
and, if its duties are herein affected, unless it shall have given prior written
consent thereto. The Agent undertakes only the duties and obligations expressly
imposed by this Agreement and assumes no implied duties or obligations.
9.06 The Agent shall not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Subscription Certificates
or Contingent Subscription Certificates or be required to verify the same, but
all such statements and recitals are and shall be deemed to have been made by
the Company only.
9.07 The Company agrees that it will perform, execute, acknowledge and deliver
or cause to be delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Agent for the carrying out or
performing by the Agent of the provisions of this Agreement.
9.08 The Agent may execute and exercise any of the rights or powers hereby
vested in it or perform any duty hereunder either itself or by or through its
attorneys or agents, and the Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or agents or for
any loss of the Company resulting from any such act, default, neglect or
misconduct, absent gross negligence (as determined by a final, non-appealable
order, judgment, decree or ruling of a court of competent jurisdiction) in the
selection and continued employment thereof.
-8-
10. NOTICES:
10.01 All payments required to be made or given pursuant to this Agreement shall
be mailed by first class mail postage prepaid or delivered by hand and any
notice required to be made or given pursuant to this Agreement shall be in
writing and shall be deemed to be validly given if delivered or if sent by
registered letter, postage prepaid or if sent by facsimile. Any notice so mailed
shall be deemed to have been given and received by the addressee on the fourth
business day next following the day on which such notice is mailed, or, if sent
by facsimile shall be deemed to have been received on the date upon which an
acknowledgement of receipt is received from the addressee provided that if such
acknowledgement of receipt is received after 4:00 p.m., eastern standard time,
such notice shall be deemed to be received on the next business day, or, if
delivered, shall be deemed to have been given on the delivery date, at the
offices and to the parties at the addresses shown below:
If to the Agent:
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Corporate Trust
Facsimile Number: (xxx) xxx-xxxx
If to the Company:
Seven Seas Petroleum Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxx, President
Facsimile Number: (000) 000-0000
with a copy to:
McAfee & Xxxx
A Professional Corporation
00xx Xxxxx, Xxx Xxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
11. GENERAL:
11.01 It is understood and agreed that any benefits accruing to the holders of
Rights or Contingent Rights at any time are held by each and every holder as
against the Company alone;
-9-
in all respects, subject to Article 3 and Section 5.02 hereof, the Agent shall
act as agent of the Company in the execution of duties specifically ascribed to
Agent hereunder.
11.02 In the event of any inconsistency between the provisions of this Agreement
and the Rights Offering Prospectus, the terms of the Rights Offering Prospectus
shall govern.
11.03 Time shall be of the essence of this Agreement.
11.04 This Agreement shall enure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
11.05 This Agreement shall be governed by and construed in accordance with the
laws of the Texas.
11.06 Subject headings as used in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
11.07 This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first above written.
SEVEN SEAS PETROLEUM INC.
BY:
--------------------------------------
Name:
Tile:
U.S. TRUST COMPANY OF TEXAS, N.A.
BY:
--------------------------------------
Name:
Title:
APPENDIX "A"
