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SEVEN SEAS PETROLEUM INC.
SHAREHOLDER'S RIGHTS AGREEMENT
THIS SHAREHOLDER'S RIGHTS AGREEMENT has been made and entered
into this 23rd day of July, 2001, by and between Chesapeake Energy Corporation
("Chesapeake"), an Oklahoma corporation, and Seven Seas Petroleum Inc. ("Seven
Seas" or the "Company"), a Cayman Islands exempted company limited by shares,
with reference to the following circumstances:
A. Chesapeake and Seven Seas have entered into a Note Purchase
and Loan Agreement (the "Purchase Agreement") contemporaneously herewith
pursuant to which Chesapeake will purchase $22,500,000 of principal amount
Senior Secured Notes (the "Notes") of Seven Seas and 12,612,139 Warrants to
purchase an equal number of the Company's voting ordinary shares. Unless
otherwise defined or required by context, words defined in the Purchase
Agreement shall have the same meaning herein.
B. As a condition to Chesapeake's obligation to purchase the
Notes and Warrants, Seven Seas agreed to provide Chesapeake, under the terms and
conditions of this Agreement, the right to (i) designate up to two persons to
serve on Seven Seas board of directors and (ii) participate in future offerings
by Seven Seas.
ACCORDINGLY, premises considered, the parties have entered
into this agreement.
1. Chesapeake's Designation of Directors. In the
event Chesapeake elects to do so in writing, at any time from and after the
Closing Date until the termination of this Agreement, , the Board of the Company
will appoint in accordance with its procedures for the appointment of directors
as provided in its Articles of Association ("By-laws") and applicable law, two
persons designated by Chesapeake who are senior executives of Chesapeake and one
of whom is its chief executive officer (all such persons who, at any time, are
or were designated by Chesapeake for purposes of this agreement are referred to
herein as "Chesapeake Designees"). Chesapeake shall designate the Chesapeake
Designees by written notice to the Company. After appointment of the Chesapeake
Designees as provided herein, at each subsequent annual or special meeting for
the election of directors of the Company, the Company will nominate the
Chesapeake Designees in accordance with its By-laws. The Chesapeake Designees
will receive, at the expense of the Company, the same expense reimbursement with
respect to their services as directors of the Company as other directors of the
Company but will not receive the compensation paid to the other outside
directors of the Company. Upon termination of this Agreement in accordance with
its terms, Chesapeake shall cause all Chesapeake Designees then serving as
directors of Seven Seas to resign immediately. In the event any Chesapeake
Designee shall cease to serve as a director for any reason other than the
termination of this Agreement, the vacancy resulting thereby shall be filled by
the remaining directors of the Company in
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accordance with its By-laws and applicable law by a new Chesapeake Designee who
shall thereafter serve until the expiration of the term of the Chesapeake
Designee replaced by the new Chesapeake Designee. Notwithstanding anything to
the contrary contained herein, no Chesapeake Designee may be a person who
previously has been a director of Seven Seas and was properly removed for cause
from the board of directors of the Company or a person who has been convicted of
a felony or a crime involving moral turpitude.
2. Observation and Information Rights. At all times
during the term of this Agreement during which no Chesapeake Designees are
serving on the Company's Board, Chesapeake will have the right to designate one
representative of Chesapeake to attend and observe all meetings of the board of
directors of the Company and all meetings of the board of directors of each of
the Subsidiaries (as defined in the Purchase Agreement). The Company will
provide such designated observer with all notices, materials and information
provided to any of the members of the boards of directors at the same time as
such notices, materials and information are provided to the directors including,
without implied limitation, any written consent by the directors and any
notices, material or information regarding such written consent. The Company
will promptly pay or reimburse each such designated observer for all reasonable
out-of-pocket expenses incurred in connection with attending board meetings of
the Company or any Subsidiary. The foregoing rights to observe and receive
information will also apply to board of director meetings for any of the
Company's Subsidiaries at any time that the Chesapeake Designees are serving as
members of the Company's board of directors. The parties agree that the observer
will leave for that portion of any meeting where outside legal counsel is
discussing legal matters with the board of directors in a situation where the
presence of the observer is, in the reasonable opinion of such counsel, likely
to void the attorney client privilege with respect to such matter.
3. Right to Participate in Certain Securities
Issuances by Seven Seas.
(a) Definitions. As used herein, the
following terms shall have the meanings indicated:
"New Securities" shall mean any (i) Capital Stock, (ii) debt
or security convertible into Capital Stock and (iii) option, warrant or right to
acquire Capital Stock of the Company, whether or not attached to another
security, except New Securities shall not include (a) shares issued pursuant to
the exercise of the Warrants, (b) compensatory stock options and shares issued
pursuant to the exercise of compensatory options granted under existing stock
option plans of the Company approved by its shareholders, (c) the Warrants, the
Short Term Secured Notes or the Senior Secured Notes or any securities issued in
exchange therefor, including warrants issued pursuant to the rights offering
contemplated by the Purchase Agreement, (d) shares of Capital Stock issued in
connection with any stock split, stock dividend or recapitalization by the
Company, (e) shares of Capital Stock issued in connection with a merger,
consolidation, combination, share exchange or other acquisition pursuant to
which the Company acquires another entity , (f) shares of Capital Stock issued
in connection with the acquisition of assets by the Company, (g) shares of
Capital Stock issued in connection with the retirement of Company debt and (h)
shares of Capital Stock issued pursuant to a reorganization with the principal
purpose of changing the Company's domicile. At any time the Notes are
outstanding, the exclusions from the definition of New Securities contained in
clauses (e), (f) and
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(g) above will not apply unless the transaction is consummated in compliance
with the Purchase Agreement.
"Capital Stock" shall mean any class of capital shares
authorized to be issued by the Company under its Memorandum of Association or
other charter documents.
"Short Term Secured Notes" shall mean those certain secured
promissory notes in the aggregate principal amount of $22,500,000 issued to
Xxxxxx X. Xxxxxx III and other investors contemporaneously with the sale by the
Company to Chesapeake of $22,500,000 Senior Secured Notes under the Purchase
Agreement.
"Senior Secured Notes" shall mean Seven Seas' 12% Senior
Secured Notes due 2004 issued to Chesapeake by Seven Seas under the Purchase
Agreement and proposed to be issued in connection with a rights offering in
accordance with the Purchase Agreement.
"Public Offering" shall mean a firm commitment underwritten
public offering pursuant to a registration statement which has been declared
effective by the United States Securities and Exchange Commission under the
Securities Act of 1933, as amended, or any successor federal statute, as in
effect from time to time.
(b) Issues of New Securities. Seven Seas shall not
issue any New Securities unless it shall have first complied with, in the case
of an issuance other than pursuant to a Public Offering, the provisions of
Section 2 (c) or, in the case of a Public Offering, the provisions of Section 2
(d).
(c) Issues Not Involving a Public Offering. If Seven
Seas determines to issue New Securities other than in a Public Offering, then
Seven Seas shall provide written notice of such determination to Chesapeake,
which notice shall include all of the terms of the issuance and shall offer to
Chesapeake the right to purchase up to 20% of the New Securities, at the same
price and under the same terms as Seven Seas proposes to issue the New
Securities to others (the "Offer Notice"). If Chesapeake determines to accept
the offer contained in the Offer Notice, Chesapeake shall deliver a written
notice to the Company indicating its acceptance within ten (10) days after its
receipt of the Offer Notice, which notice shall indicate whether Chesapeake has
accepted the offer in whole or in part, and if accepted in part, the number or
amount of New Securities (which shall not be less than 5% of the New Securities)
as to which such offer has been accepted (an "Acceptance Notice"). Any
acceptance of the offer contained in the Offer Notice by delivery of an
Acceptance Notice shall, on consummation of the issuance of the New Securities
in accordance with the Offer Notice, be irrevocable and shall constitute a
commitment by Chesapeake to purchase from the Company and by the Company to sell
to Chesapeake the number or amount of New Securities covered by such Acceptance
Notice upon the terms contained in the Offer Notice. In the event any of the New
Securities covered by the Offer Notice are sold on different terms, the Company
will provide a new Offer Notice under this paragraph and the initial Offer
Notice will be superceded thereby.
(d) Issues Involving a Public Offering. If the
Company proposes to issue any New Securities in a Public Offering, the Company
shall provide written notice of such determination to Chesapeake no later than
the time that the Company commences the
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process to make the Public Offering. The notice shall include the proposed size
and other terms of such issuance, to the extent then known, the name or names of
the managing underwriter for the proposed Public Offering, if then known, and
the date when it is proposed that the Public Offering will be made. The Company
shall cause the underwriters of the Public Offering to offer to Chesapeake,
subject to such conditions as the underwriters may reasonably require, the right
to purchase from the underwriters of the Public Offering, at the Public Offering
price set forth on the cover page of the prospectus or prospectus supplement for
the Public Offering, 5% of the New Securities proposed to be issued.
4. Representations and Warranties of Seven Seas. Seven Seas
represents and warrants to Chesapeake that (i) Seven Seas is an exempted company
limited by shares (as defined in The Companies Law (2000 Revision) of the Cayman
Islands) duly organized, validly existing and in good standing under the laws of
the Cayman Islands and has the corporate power and authority to enter into this
agreement and to carry out its obligations hereunder, (ii) the execution and
delivery of this agreement by Seven Seas and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Seven Seas and no other corporate proceedings on
the part of the Company are necessary to authorize this agreement or any of the
transactions contemplated hereby, and (iii) this agreement has been duly
executed and delivered by Seven Seas and constitutes a valid and binding
obligation of the Company and, assuming this agreement constitutes a valid and
binding obligation of Chesapeake, is enforceable against Seven Seas in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and similar laws affecting
creditors' rights generally from time to time and to general principles of
equity.
5. Representations and Warranties of Chesapeake. Chesapeake
represents and warrants to Seven Seas that (i) Chesapeake is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Oklahoma and has the corporate power and authority to enter into this agreement
and to carry out its obligations hereunder, (ii) the execution and delivery of
this agreement by Chesapeake and the consummation by Chesapeake of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Chesapeake and no other corporate proceedings on
the part of Chesapeake are necessary to authorize this agreement or any of the
transactions contemplated hereby, and (iii) this agreement has been duly
executed and delivered by Chesapeake and constitutes a valid and binding
obligation of Chesapeake, and, assuming this agreement constitutes a valid and
binding obligation of Seven Seas, enforceable against Chesapeake in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance and similar laws affecting creditor's rights
generally from time to time and to general principles of equity.
6. Amendment. This Agreement may be amended or waived only by
written instrument duly executed by the parties.
7. Injunctive Relief. Each of the parties hereto hereby
acknowledges that in the event of a breach by any of them of any material
provision of this agreement, the aggrieved party may be without an adequate
remedy of law. Each of the parties therefore agrees that in the event of a
breach of any material provision of this agreement the aggrieved party may
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elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this agreement. By
seeking or obtaining any such relief, the aggrieved party will not be precluded
from seeking or obtaining any other relief to which it may be entitled in equity
or at law.
8. Governing Law. This agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of Oklahoma, without regard to the principles of conflicts of
law thereof.
9. Termination. This agreement may be terminated (i) by mutual
written consent of the parties hereto; (ii) by Chesapeake at any time by written
notice to Seven Seas and (iii) by Chesapeake or Seven Seas by written notice to
the other if Chesapeake's Senior Secured Note has been paid in full and
Chesapeake shall have become the beneficial owner (for purposes of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of less than 20% of the
Warrants or the Warrant Shares.
10. Notices. All notices, requests, demands or other
communications required or permitted by this agreement shall be in writing and
effective when received, and delivery shall be made personally or by registered
or certified mail, return receipt requested, postage prepaid, or overnight
courier or confirmed facsimile transmission, addressed as follows:
(a) If to Seven Seas:
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx X. Xxx, President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
McAfee & Xxxx A Professional Corporation
00xx Xxxxx, Xxx Xxxxxxxxxx Xxxxxx
000 X. Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
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(b) If to Chesapeake:
Chesapeake Energy Corporation
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. XxXxxxxxx, Chairman & CEO
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Self, Esq.
Commercial Law Group, PLLC
2715 Oklahoma Tower
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
11. Severability. If any term or other provision of this
agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
12. Entire Agreement. This agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. This
Agreement shall not be assigned by operation of law or otherwise.
13. Parties in Interest. This agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this agreement.
14. Headings. The descriptive headings contained in this
agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this agreement.
15. Counterparts. This agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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EXECUTED as of the day and year first above written.
SEVEN SEAS PETROLEUM INC.
By /s/ XXXXX X. XXX
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Xxxxx X. Xxx, President
CHESAPEAKE ENERGY CORPORATION
By /s/ XXX X. XXXX
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Xxx X. Xxxx, President
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