SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT ("Agreement") dated as of December 30,
2004 (the "Effective Date"), by and among New Century Energy Corp., a Colorado
corporation, 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (the "Company"),
and the undersigned purchasers (collectively, the "Buyer").
W H E R E A S:
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A. The Company and the Buyer are executing and delivering this Agreement in
reliance upon the exemption from securities registration in afforded by the
rules and regulations promulgated by the United States Securities and Exchange
Commission (the "SEC");
B. Buyer desires to purchase and the Company desires to sell, upon the
terms and conditions set forth in this Agreement, 856,000 shares of Common
Stock, $0.001 par value per share (the "Common Stock"), of the Company, upon the
terms and subject to the limitations and conditions set forth in this Agreement.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OFCOMMON STOCK.
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A. PURCHASE OFCOMMON STOCK. On the Closing Date (as defined below),
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the Company shall deliver and sell to Buyer and Buyer agrees to purchase
from the Company the Common Stock.
B. FORM OF PAYMENT. On the Closing Date (as defined below), the Buyer
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shall deliver to the Company that certain Promissory Note dated January 30,
2004 in the original principal amount of $400,000 secured by a Security
Agreement, Pledge Agreement and Financing Statement of even date (the
"Promissory Note") for the Common Stock to be transferred and sold to it at
the Closing (as defined below) against delivery of certificates
representing the Common Stock. The Promissory Note shall be delivered by
Purchaser to the Company upon issuance of the Common Stock ("Closing")
marked paid along with a release of the Security Agreement, Pledge
Agreement and Financial Statement.
C. CLOSING DATE. The date and time of the transfer and sale of the
Common Stock pursuant to this Agreement (the "Closing Date") shall be 10:00
a.m. Central Standard Time on the next business day following the fifth day
after satisfaction (or waiver) of the conditions thereto set forth in
Section 6 and Section 7 below or such other mutually agreed upon time. The
Closing contemplated by this Agreement shall occur on the Closing Date at
such location as may be agreed to by the parties.
2. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
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warrants to the Company that:
A. INVESTMENT PURPOSE. As of the date hereof, the Buyer is purchasing
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the shares of Common Stock for its own account and not with a present view
towards the public sale or distribution thereof, except pursuant to sales
registered or exempted from registration under the 1933 Act; provided,
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however, that by making the representations herein, the Buyer does not
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agree to hold any of the shares of Common Stock for any minimum or other
specific term and reserves the right to dispose of the shares of Common
Stock at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
B. ACCREDITED INVESTOR STATUS. The Buyer is an "accredited investor"
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as that term is defined in Rule 501(a) of Regulation D (an "Accredited
Investor").
C. RELIANCE ON EXEMPTIONS. The Buyer understands that the shares of
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Common Stock are being transferred and sold to it in reliance upon specific
exemptions from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the truth and
accuracy of, and the Buyer's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Buyer set
forth herein in order to determine the availability of such exemptions and
the eligibility of the Buyer to acquire the shares of Common Stock.
D. INFORMATION. The Buyer and its advisors, if any, have been
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furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the transfer and sale
of the shares of Common Stock which have been requested by the Buyer or its
advisors. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Notwithstanding the foregoing,
the Company has not disclosed to the Buyer any material nonpublic
information and will not disclose such information unless such information
is disclosed to the public prior to or promptly following such disclosure
to the Buyer. Neither such inquiries nor any other due diligence
investigation conducted by Buyer or any of its advisors or representatives
shall modify, amend or affect Buyer's right to rely on the Company's
representations and warranties contained in Section 3 below. The Buyer
understands that its investment in the shares of Common Stock involves a
significant degree of risk.
E. GOVERNMENTAL REVIEW. The Buyer understands that no United States
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federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the shares of
Common Stock.
F. TRANSFER OR RE-SALE. The Buyer understands that (i) the sale or
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re-sale of the shares of Common Stock has not been and is not being
registered under the 1933 Act or any applicable state securities laws, and
the shares of Common Stock may not be transferred unless (a) the shares of
Common Stock are sold pursuant to an effective registration statement under
the 1933 Act, (b) the Buyer shall have delivered to the Company an opinion
of counsel (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect that the
shares of Common Stock to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration, (c) the shares of Common
Stock are sold or transferred to an "affiliate" (as defined in Rule 144
promulgated under the 1933 Act (or a successor rule) ("Rule 144")) of the
Buyer who agrees to sell or otherwise transfer the shares of Common Stock
only in accordance with this Section 2(f) and who is an Accredited
Investor, or (d) the shares of Common Stock are sold pursuant to Rule 144;
(ii) any sale of such shares of Common Stock made in reliance on Rule 144
may be made only in accordance with the terms of said Rule and further, if
said Rule is not applicable, any re-sale of such shares of Common Stock
under circumstances in which the Company (or the person through whom the
sale is made) may be deemed to be an Buyer (as that term is defined in
Section 2(11) of the 0000 Xxx) may require compliance with some other
exemption under the 1933 Act or the rules and regulations of the SEC
thereunder; and (iii) neither the Company nor any other person is under any
obligation to register such shares of Common Stock under the 1933 Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder. Notwithstanding the foregoing or anything else
contained herein to the contrary, the shares of Common Stock may be pledged
as collateral in connection with a bona fide margin account or other
lending arrangement.
G. LEGENDS. The Buyer understands that the Common Stock, until such
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time as the shares of Common Stock have been registered under the 1933 Act
or otherwise may be sold pursuant to Rule 144 without any restriction as to
the number of securities as of a particular date that can then be
immediately sold, the certificates representing the Common Stock may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such shares of
Common Stock):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The securities may
not be sold, transferred or assigned in the absence of an effective
registration statement for the securities under said Act, or an opinion of
counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions, that registration is not required under said Act
or unless sold pursuant to Rule 144 under said Act."
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The legend set forth above shall be removed, and the Company shall
issue a certificate without such legend to the holder of any Security upon
which it is stamped, if, unless otherwise required by applicable state
securities laws, (a) such Security is registered for sale under an
effective registration statement filed under the 1933 Act or otherwise may
be sold pursuant to Rule 144 without any restriction as to the number of
securities as of a particular date that can then be immediately sold, or
(b) such holder provides the Company with an opinion of counsel, in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security
may be made without registration under the 1933 Act and such sale or
transfer is effected or (c) such holder provides the Company with
reasonable assurances that such Security can be sold pursuant to Rule 144.
The Buyer agrees to sell all shares of Common Stock, including those
represented by a certificate(s) from which the legend has been removed, in
compliance with applicable prospectus delivery requirements, if any.
H. AUTHORIZATION; ENFORCEMENT. This Agreement has been duly and
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validly authorized, executed and delivered on behalf of the Buyer, and this
Agreement constitutes a valid and binding agreement of the Buyer
enforceable in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OFTHE COMPANY. The Company represents and
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warrants to the Buyer that:
A. ORGANIZATION AND QUALIFICATION. The Company and each of its
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Subsidiaries (as defined below), if any, is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated, with full power and authority (corporate and
other) to own, lease, use and operate its properties and to carry on its
business as and where now owned, leased, used, operated and conducted.
Company has furnished Buyer a true and correct list of all of the
Subsidiaries of the Company and the jurisdiction in which each is
incorporated. The Company and each of its Subsidiaries is duly qualified as
a foreign corporation to do business and is in good standing in every
jurisdiction in which its ownership or use of property or the nature of the
business conducted by it makes such qualification necessary except where
the failure to be so qualified or in good standing would not have a
Material Adverse Effect. "Material Adverse Effect" means any material
adverse effect on the business, operations, assets, financial condition or
prospects of the Company or its Subsidiaries, if any, taken as a whole, or
on the transactions contemplated hereby or by the agreements or instruments
to be entered into in connection herewith. "Subsidiaries" means any
corporation or other organization, whether incorporated or unincorporated,
in which the Company owns, directly or indirectly, any equity or other
ownership interest.
B. AUTHORIZATION; ENFORCEMENT. (i) The Company has all requisite power
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and authority to enter into and perform this Agreement and to consummate
the transactions contemplated hereby and to transfer the shares of Common
Stock, in accordance with the terms hereof, (ii) the execution and delivery
of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by the Company
and no further consent or authorization of the Company is required, (iii)
this Agreement has been duly executed and delivered by the Company, and
(iv) this Agreement constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
C. CAPITALIZATION. As of the date hereof, the authorized capital stock
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of the Company consists of (a) 100,000,000 shares of common stock, $0.001
par value ("Common Stock") of which 38,599,107 shares are issued and
outstanding, and 1,500,000 shares of which are reserved for issuance
pursuant to the Series A Convertible Preferred Stock; and (b) 20,000,00
shares of preferred stock, $0.001 par value, 5,000 shares of Series A
Convertible Preferred Stock are designated, issued and outstanding, and no
shares of which, other than the Common Stock are reserved for issuance
pursuant to stock option plans or other agreements. All of such outstanding
shares of capital stock are duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are subject to
preemptive rights or any other similar rights of the stockholders of the
Company or any liens or encumbrances imposed through the actions or failure
to act of the Company; and
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D. NO CONFLICTS. The execution, delivery and performance of this
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Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby will not (i) conflict with or result in a
violation of any provision of the Articles of Incorporation or By-laws or
(ii) violate or conflict with, or result in a breach of any provision of,
or constitute a default (or an event which with notice or lapse of time or
both could become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture, patent, patent license or instrument to which the Company, any
of its Subsidiaries or the Company is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and
regulations of any self-regulatory organizations to which the Company or
its securities or the Company are subject) applicable to the Company or any
of its Subsidiaries or the Company or by which any property or asset of the
Company or any of its Subsidiaries or the Company is bound or affected
(except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or
in the aggregate, have a Material Adverse Effect). Neither the Company nor
any of its Subsidiaries is in violation of its Articles of Incorporation,
By-laws or other organizational documents and neither the Company nor any
of its Subsidiaries is in default (and no event has occurred which with
notice or lapse of time or both could put the Company or any of its
Subsidiaries in default) under, and neither the Company nor any of its
Subsidiaries has taken any action or failed to take any action that would
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party or by which any property or
assets of the Company or any of its Subsidiaries is bound or affected,
except for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect. The businesses of the Company
and its Subsidiaries, if any, are not being conducted in violation of any
law, ordinance or regulation of any governmental entity. Except as
specifically contemplated by this Agreement and as required under the 1933
Act and any applicable state securities laws, the Company is not required
to obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency, regulatory agency, self
regulatory organization or stock market or any third party in order for it
to execute, deliver or perform any of its obligations under this Agreement
in accordance with the terms hereof or to transfer and sell the Common
Stock in accordance with the terms hereof. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence have been obtained or effected on or
prior to the date hereof. The Company is not in violation of the listing
requirements of the Electronic Bulletin Board (the "OTCBB") and does not
reasonably anticipate that the Common Stock will be delisted by the
Electronic Bulletin Board in the foreseeable future. The Company, after
making reasonable inquiry, is unaware of any facts or circumstances which
might give rise to any of the foregoing.
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E. SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed all
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reports, schedules, forms, statements and other documents required to be
filed by it with the SEC pursuant to the reporting requirements of the
Exchange Act of 1934, as amended (the "1934 Act"), including Form 10-KSB
for the fiscal year ended December 31, 2003 (all of the foregoing filed
prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents (other than exhibits to such
documents) incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). The Company has delivered to Buyer true and
complete copies of the SEC Documents, except for such exhibits and
incorporated documents. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the 1934 Act and
the rules and regulations of the SEC promulgated thereunder applicable to
the SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. None of the statements made in
any such SEC Documents is, or has been, required to be amended or updated
under applicable law (except for such statements as have been amended or
updated in subsequent filings prior the date hereof). As of their
respective dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements) and fairly
present in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred
in the ordinary course of business since December 31, 2003, which
individually and in the aggregate are not material to the financial
condition or operating results of the Company, and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected
in such financial statements, which, individually and in the aggregate, are
not material to the financial condition or operating results of the
Company.
4. COVENANTS. The parties shall use their best efforts to satisfy
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timely each of the conditions described in Section 6 and 7 of this
Agreement.
5. TRANSFER AGENT INSTRUCTIONS. The Company shall issue irrevocable
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instructions to its transfer agent to issue certificates, registered in the
name of Buyer or its nominee, for the Common Stock. All such certificates
shall bear the restrictive legend specified in Section 2(g) of this
Agreement. The Company warrants that no instruction other than the
irrevocable instructions referred to in this Section 5, and stop transfer
instructions to give effect to Section 2(f) hereof will be given by the
Company to its transfer agent and that the shares of Common Stock shall
otherwise be freely transferable on the books and records of the Company as
and to the extent provided in this Agreement. Nothing in this Section shall
affect in any way the Buyer's obligations and agreement set forth in
Section 2(g) hereof to comply with all applicable prospectus delivery
requirements, if any, upon re-sale of the shares of Common Stock. The
Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Buyer, by vitiating the intent and purpose of
the transactions contemplated hereby. Accordingly, the Company acknowledges
that the remedy at law for a breach of its obligations under this Section 5
will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Section, that the Buyer
shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach and requiring immediate transfer, without
the necessity of showing economic loss and without any bond or other
security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL. The obligation of
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the Company hereunder to transfer and sell the Common Stock to Buyer at the
Closing is subject to the satisfaction, at or before the Closing Date of
each of the following conditions thereto, provided that these conditions
are for the Company's sole benefit and may be waived by the Company at any
time in its sole discretion:
A. The Buyer shall have executed this Agreement, and delivered
the same to the Company.
B. The Buyer shall have delivered to the Company the Promissory
Note marked paid in accordance with Section 1(b) above.
C. The Buyer shall have delivered to the Company a duly executed
release of the Security Agreement, Pledge Agreement and Financing
Statement.
D. The representations and warranties of the Buyer shall be true
and correct in all material respects as of the date when made and as
of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and
the Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the
Buyer at or prior to the Closing Date.
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E. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority
of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. The obligation of
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Buyer hereunder to purchase the Common Stock at the Closing is subject to the
satisfaction, at or before the Closing Date of each of the following conditions,
provided that these conditions are for such Buyer's sole benefit and may be
waived by such Buyer at any time in its sole discretion:
A. The Company shall have executed this Agreement, and delivered the
same to the Buyer.
B. The Company shall have delivered to Buyer certificates representing
the Common Stock registered in the name of Buyer.
C. The irrevocable instructions, in form and substance satisfactory to
the Buyer, shall have been delivered to the Company's Transfer Agent.
D. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the
Closing Date as though made at such time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
Closing Date. The Buyer shall have received a certificate or certificates,
executed by the chief executive officer of the Company, and the Company
dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by such Buyer including, but not
limited to certificates with respect to the Company's Articles of
Incorporation, By-laws and Board of Directors' resolutions relating to the
transactions contemplated hereby.
E. The Company shall have delivered to Buyer an executed copy of the
Registration Rights Agreement in the form and substance satisfactory to
Buyer.
8. GOVERNING LAW; MISCELLANEOUS.
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A. GOVERNING LAW. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITH SUCH STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS
LOCATED IN HOUSTON, TEXAS WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS
AGREEMENT, THIS AGREEMENT ENTERED INTO IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR
PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A PARTY
MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE
SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR PROCEEDING. NOTHING
HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING
UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES,
INCLUDING ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION
WITH SUCH DISPUTE.
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B. COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may
be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
C. HEADINGS. The headings of this Agreement are for convenience of
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reference only and shall not form part of, or affect the interpretation of,
this Agreement.
D. SEVERABILITY. In the event that any provision of this Agreement is
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invalid or enforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
E. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the instruments
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referenced herein contain the entire understanding of the parties with
respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Buyer
makes any representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be waived or amended other
than by an instrument in writing signed by the party to be charged with
enforcement.
F. NOTICES. Any notices required or permitted to be given under the
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terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including
a recognized overnight delivery service) or by facsimile and shall be
effective five days after being placed in the mail, if mailed by regular
United States mail, or upon receipt, if delivered personally or by courier
(including a recognized overnight delivery service) or by facsimile, in
each case addressed to a party. The addresses for such communications shall
be:
If to the Company:
New Century Energy Corp.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. XxXxxxxxx, President
With copy (which shall not constitute notice) to:
Xx. Xxxxx X. Xxxx
0000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to the Buyer:
At the addresses specified on the signature page hereof.
Each party shall provide notice to the other party of any change in address.
G. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
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inure to the benefit of the parties and their successors and assigns.
Neither the Company nor Buyer shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, subject to Section 2(f), Buyer may assign
its rights hereunder to any person that purchases shares of Common Stock in
a private transaction from Buyer or to any of its "affiliates," as that
term is defined under the 1934 Act, without the consent of the Company.
H. THIRD PARTY BENEFICIARIES. This Agreement is intended for the
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benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
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I. SURVIVAL. The representations and warranties of the Company and the
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agreements and covenants set forth in Sections 3, 4, 5 and 8 shall survive
the closing hereunder notwithstanding any due diligence investigation
conducted by or on behalf of the Buyer. The Company agrees to indemnify and
hold harmless the Buyer and all its officers, directors, employees and
agents for loss or damage arising as a result of or related to any breach
or alleged breach by the Company of any of its representations, warranties
and covenants set forth in Sections 3 and 4 hereof or any of its covenants
and obligations under this Agreement, including advancement of expenses as
they are incurred.
J. PUBLICITY. The Company and the Buyer shall have the right to review
a reasonable period of time before issuance of any press releases, SEC,
over-the-counter market or NASD filings, or any other public statements
with respect to the transactions contemplated hereby; provided, however,
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that (i) the Company shall be entitled, without the prior approval of the
Buyer, to make any press release or SEC, Electronic Bulletin Board (or
other applicable trading market) or NASD filings with respect to such
transactions as is required by applicable law and regulations (although the
Buyer shall be consulted by the Company in connection with any such press
release prior to its release and shall be provided with a copy thereof and
be given an opportunity to comment thereon) and (ii) the Company will not
disclose any material nonpublic information to Buyer unless such
information is disclosed to the public prior to or promptly following such
disclosure to the Buyer.
K. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
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done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
L. NO STRICT CONSTRUCTION. The language used in this Agreement will be
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deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any
party.
M. REMEDIES. The Company acknowledges that a breach by it of its
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obligations hereunder will cause irreparable harm to the Buyer by vitiating
the intent and purpose of the transaction contemplated hereby. Accordingly,
the Company acknowledges that the remedy at law for a breach of its
obligations under this Agreement will be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions of
this Agreement, that the Buyer shall be entitled, in addition to all other
available remedies at law or in equity, and in addition to the penalties
assessable herein, to an injunction or injunctions restraining, preventing
or curing any breach of this Agreement and to enforce specifically the
terms and provisions hereof, without the necessity of showing economic loss
and without any bond or other security being required.
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IN WITNESS WHEREOF, the Buyer and the Company have caused this
Agreement to be duly executed as of the date first above written.
NEW CENTURY ENERGY CORP.
COMPANY
By: /s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxx, Chief Executive Officer
BLACKCAP DIAMOND FIDELITY LP LLLP
(A DELAWARE LIMITED LIABILITY LIMITED PARTNERSHIP)
BY: HANOVER FINANCIAL MANAGEMENT, INC.
(a Delaware corporation)
ITS: GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxxx Xx.
----------------------------------------------------
Xxxxx X. Xxxxxx, Xx., President, Sole Officer
and Original Limited Partner
Address: X.X. Xxx 000
Xxxxxx Xxxx, Xxxxx 00000
Number of Shares Purchased: 214,000
OMEGA CAPITAL OPPORTUNITIES LP LLLP
(A DELAWARE LIMITED LIABILITY LIMITED PARTNERSHIP)
BY: SACRSTON TRADING LTD
(a Delaware corporation)
ITS: GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------------
Xxxxx X. Xxxxxx, President, Sole Officer
and Original Limited Partner
Address: 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000 Xxx 230
Xxxxxxxxxxx, Xxxxx 00000
Number of Shares Purchased: 642,000
