Exhibit 10.4
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 ___________ or its
registered assigns (the "Warrantholder"), the right to subscribe for and
purchase from the Company the number of duly authorized and validly issued fully
paid and non-assessable 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 at any time and from time to time from and after 9:00 A.M.,
Central Standard Time on the date on which the Warrant is issued to and
including 5:00 P.M., Central Standard Time on the date that is five (5) 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 ________ shares of Common Stock, which is equal to _____ percent
(_____%) of the total number of outstanding shares of Common Stock on the date
of issuance hereof on a fully diluted basis after giving effect to (a) the
exercise of this Warrant, and (b) the exercise or conversion of 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.
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 5 trading days following the issuance of
the Warrant. In the event that any cash dividends are 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, the Exercise Price per
Warrant Share shall be reduced by the amount of each such dividend.
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 and from time to time from and after 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 Blvd., 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") 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) 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.
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 a reduction in the number of Warrant Shares issuable upon the
exercise of the Warrant. 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 and 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.
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 at any time or from time to time after the date hereof shall issue
additional shares of Common Stock pursuant to a stock dividend, stock
distribution, subdivision, share split or reclassification, then, and in
each such case, 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 and the number of
shares underlying the Warrant 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 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 at any time or from time to time
after the date hereof shall issue or sell 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. The total number of shares of common
stock to be purchased under the Warrant shall be increased to the
number obtained by dividing the new exercise price into the aggregate
exercise amount of the Warrant prior to the lowering of the Exercise
Price.
(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. The total number of shares of common stock to be
purchased under the Warrant shall be increased to the number
obtained by dividing the new exercise price into the aggregate
exercise amount of the Warrant prior to the lowering of the
Exercise Price.
(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 such convertible or exchangeable securities, the
following provisions shall apply for all purposes of calculating the
number of shares of common stock outstanding under this subsection 6.3
upon the exercise of the Warrants.
(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 therefore, 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 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 therefore 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.
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 Ct 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.
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 is 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 of 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 thereof, or of any Registrable Securities, without
any notice or other action by the transferring Holder of 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 of 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.
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:
(a) if to the Company, addressed to:
Gulfport Energy Corporation
6307 Waterford Blvd., 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 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 anytime 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.
IN WITNESS WHEREOF, the Company and the Warrantholder have caused this
Warrant to be signed by their duly authorized officers as of the _____ day
of August, 2002.
GULFPORT ENERGY CORPORATION
By:
------------------------------------------
Mike Liddell, Chief Executive Officer
[WARRANTHOLDER]
By:
------------------------------------------
Name:
Title:
GULFPORT ENERGY CORPORATION
WARRANT EXERCISE FORM
(To be executed upon exercise of 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 $
[ ] 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 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 _______________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers all
of 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 irrevocable 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 Offer or Agent (if any):
Address:
Note: The above signature should correspond
with the name on the face of the within
Warrant.
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