COMMON STOCK ISSUANCE AGREEMENT
This Common Stock Issuance Agreement (this "Agreement") dated as of
February 4, 1999, is made between Energy Income Fund, L.P., a Delaware limited
partnership ("EIF") and Foreland Corporation, a Nevada Corporation ("Foreland").
RECITALS
WHEREAS, pursuant to the Financing Agreement dated as of January 6,
1998 by and among Foreland, Eagle Springs, Foreland Refining, Foreland Asphalt,
Foreland Asset, Transportation and Cowboy Asphalt (collectively referred to as
the "Borrowers") and EIF, as amended from time to time (the "Financing
Agreement"), EIF agreed to make loans to the Borrowers for the purposes and
subject to the terms and conditions set forth therein;
WHEREAS, pursuant to the Second Amendment to the Financing Agreement
dated as of even date herewith (the "Second Amendment"), EIF agreed to, among
other things, defer principal payments and advance additional funds under the
Financing Agreement;
WHEREAS, in exchange for this deferral and advance and other
consideration set forth in the Second Amendment, Foreland agreed to issue to EIF
250,000 shares of the Common Stock of Foreland (the "EIF Common Stock")
restricted from resale for one year from the date of this Agreement;
NOW THEREFORE, in consideration of the premises, and other good and
valuable consideration the adequacy of which is expressly acknowledged, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
I.1 Defined Terms. The following terms shall have the meanings set
forth herein:
"Affiliate", an, an "affiliate of", or a Person "affiliated" with, a
specified Person, is a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
"Business Day" shall mean any day other than a (i) Saturday, (ii)
Sunday, or (iii) any day on which commercial banking institutions in New York,
New York are authorized or obligated to close, provided that if four (4)
consecutive days are not Business Days, the next day shall be deemed a Business
Day whether or not banks located in New York are authorized or obligated to
close.
"Closing Date" shall mean the date when Closing actually occurs.
"Common Stock" shall mean the common stock, par value $.001 per share,
of Foreland.
"Eagle Springs" shall mean Eagle Springs Production Limited-Liability
Company, a Nevada limited liability company.
"Foreland Asphalt" shall mean Foreland Asphalt Corporation, a Utah
corporation.
"Foreland Asset" shall mean Foreland Asset Corporation, a Nevada
corporation.
"Foreland Refining" shall mean Foreland Refining Corporation, a Texas
corporation.
"Lien" shall mean any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge, preference, priority or other security agreement, option,
warrant, attachment, right of first refusal, preemptive, conversion, put, call
or other claim or right, restriction on transfer (other than restrictions
imposed by federal and state securities laws), or preferential arrangement of
any kind or nature whatsoever (including any restriction on the transfer of any
assets, any conditional sale or other title retention agreement, any financing
lease involving substantially the same economic effect as any of the foregoing
and the filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Losses" shall mean losses, damages, claims, demands, suits, costs,
expenses, liabilities and sanctions of every kind and character, including
without limitation reasonable attorneys' fees, court costs and costs of
investigation.
"Person" shall mean any natural person, sole proprietorship,
corporation, general partnership, limited partnership, limited liability
company, union, association, court, agency, agreement, tribunal,
instrumentality, commission, arbitrator, board, bureau, or other entity or
authority.
"Preferred Stock" shall mean all of the shares of the 1998 Series
Convertible Preferred Stock of Foreland.
"Qualified Offering" means an offering of the Common Stock in which
the aggregate net proceeds to Foreland shall be at least Four Million Dollars
($4,000,000).
"Registration Rights Agreement" shall mean that certain Registration
Rights Agreement by and between EIF and Foreland dated August 10, 1998 as
amended by the First Amendment to Registration Rights Agreement dated as of even
date herewith.
"Shareholder" shall mean any holder of Shares.
"Shares" shall mean any and all issued and outstanding shares of
capital stock of Foreland, including, without limitation, the Common Stock and
the Preferred Stock.
"Transportation" shall mean Foreland Transportation, Inc., a Utah
Corporation (formerly known as Petrosource Transportation).
In addition, the following terms are defined elsewhere in this
Agreement:
"Closing" Section 3.1
"Effective Time" Section 2.2
"EIF" Introductory paragraph
"Indemnified Party" Section 6.3
"Indemnifying Party" Section 6.3
"Indemnity Obligation" Section 6.3
"Liability" Section 4.1(h)
Terms used but not defined herein shall have the meanings ascribed to
them in the Financing Agreement.
I.2 Accounting Terms. Accounting terms used herein and not otherwise
defined herein shall be construed in accordance with generally accepted
accounting definitions and principles consistently applied.
I.3 Singular and Plural. Words used herein in the singular, where
the context so permits, shall be deemed to include the plural and vice versa.
The definitions of words in the singular herein shall apply to such words when
used in the plural where the context so permits and vice versa.
ARTICLE II
ISSUANCE
II.1 Issuance. Pursuant to the terms and subject to the conditions
hereof, on the Closing Date, but effective as of the Effective Time, Foreland
shall issue to EIF the EIF Common Stock in consideration of EIF's deferral of
principal payments and waiver of certain covenants under the Financing Agreement
and other consideration as described in the Second Amendment.
II.2 Effective Time. The issuance of the EIF Common Stock shall be
effective as of February 4, 1999 (the "Effective Time"); provided however, that
this Agreement shall be of no force and effect until receipt by EIF and
execution of this Agreement by EIF in Massachusetts.
ARTICLE III
THE CLOSING
III.1 Date of Closing. Subject to the conditions stated in this
Agreement, the consummation of the transactions contemplated hereby (the
"Closing") shall be held on such date as is mutually satisfactory to the parties
hereto.
III.2 Place of Closing. The Closing shall be held at such place as
the parties hereto may agree in writing.
III.3 Conditions to Foreland's Closing. The obligations of Foreland
hereunder are subject to the following conditions, each of which must be
satisfied or waived by Foreland prior to Closing:
(a) Execution of the Second Amendment. At the Closing, the
Second Amendment shall have been executed by EIF and Foreland.
(b) Other Deliveries. EIF shall have delivered such
documents, certificates and/or instructions as may be reasonably necessary or
advisable to carry out EIF's obligations under, and to fulfill the purpose of,
this Agreement.
(c) Representations and Warranties True. Foreland shall be
satisfied that all representations and warranties of EIF contained in this
Agreement are true in all material respects at and as of the Closing as if such
representations and warranties were made at and as of the Closing, and that EIF
shall have performed and satisfied all material agreements in all material
respects as required by this Agreement to be performed and satisfied by EIF at
or prior to the Closing.
III.4 Conditions to EIF's Closing. The obligations of EIF hereunder
are subject to the following conditions, each of which must be satisfied or
waived by EIF prior to Closing:
(a) Execution of the Second Amendment. At the Closing, the
Second Amendment shall have been executed by EIF and Foreland.
(b) Resolutions. Prior to or at Closing, EIF shall have
received resolutions of the Board of Directors and/or Shareholders of Foreland,
as required by law and Foreland's By-laws, authorizing and approving the
transactions contemplated by this Agreement, certified by the respective
Secretary or Assistant Secretary of Foreland, together with certified copies of
Foreland's Articles of Incorporation and By-laws and a good-standing certificate
with respect to Foreland from the State of Nevada.
(c) Stock Certificates. At the Closing, Foreland shall
deliver to EIF a certificate representing the EIF Common Stock, with all
necessary transfer taxes paid or other revenue stamps affixed thereto.
(d) Opinion of Counsel. Prior to or at Closing, EIF shall
have received an opinion of Xxxxx, Xxxxx & Xxxxxxx, L.L.C. in form and substance
reasonably acceptable to EIF.
(e) Registration Rights Agreement. Prior to or at Closing,
Foreland shall deliver the Registration Rights Agreement to EIF, executed by
Foreland.
(f) Other Deliveries. Foreland shall have delivered such
additional instruments, as may be reasonably necessary or advisable to carry out
EIF's obligations under, and to fulfill the purpose of, this Agreement and any
other document, certificate or other instructions delivered pursuant hereto.
(g) Representations and Warranties True. EIF shall be
satisfied that all representations and warranties of Foreland contained in this
Agreement shall be true in all material respects as at and as of the Closing as
if such representations and warranties were made at and as of the Closing, and
that Foreland have performed and satisfied all material agreements in all
material respects as required by this Agreement to be performed and satisfied by
Foreland at or prior to the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
IV.1 Representations and Warranties of Foreland. Foreland represents
and warrants as of the date hereof and as of the Closing Date as follows:
(a) Organization. Foreland is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
is duly qualified to carry on its business as now being conducted.
(b) Capital Stock. On the date hereof, the authorized capital
of Foreland consists of (i) 50,000,000 shares of Common Stock, par value $0.001
per share, of which 9,423,190 shares are issued and outstanding as of the date
hereof, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per
share, of which:
(A) 2,000,000 preferred shares are designated as 1991
Series Convertible Preferred Stock with 20,000 of such preferred
shares issued and outstanding (convertible into 6,667 shares of
Common Stock);
(B) 1,650,000 preferred shares are designated as 1994
Series Convertible Redeemable Preferred Stock with 153,140 of
such preferred shares issued and outstanding (convertible into
51,047 shares of Common Stock);
(C) 1,000,000 preferred shares are designated as 1995
Series Convertible Preferred Stock with 349,103 of such preferred
shares issued and outstanding (convertible into 116,368 shares of
Common Stock);
(D) 50,000 preferred shares are designated as Series A
Preferred Stock with none of such preferred shares issued and
outstanding;
(E) 2,000 preferred shares are designated as 1998 Series
Convertible Preferred Stock with all of such preferred shares
issued and outstanding (convertible into 333,333 shares of Common
Stock); and
(F) 298,000 preferred shares are not designated.
Foreland has no other Shares or capital stock of any class or other equity
securities or equity equivalents authorized, issued or outstanding. Foreland
has reserved a sufficient number of authorized shares of Common Stock for
issuance pursuant to Warrant No. 1 and Warrant No. 2 and for conversion of the
Preferred Stock. Except as set forth in Schedule 4.1, there are no outstanding
or authorized options, warrants, calls, subscriptions, rights, agreements or
commitments of any character obligating Foreland to issue any Shares or
securities convertible into or exchangeable for or evidencing the right to
purchase or subscribe for any capital stock of Foreland. All issued and
outstanding shares of the capital stock of Foreland (i) are, or shall be upon
the Closing, duly authorized, validly issued, fully-paid and nonassessable,
(ii) are, shall be and have been (other than the 1998 Series Preferred Stock)
free of any preemptive rights, (iii) were not, and shall not be, issued in
violation of the terms of any contract, agreement, lease, plan, instrument or
other document binding on Foreland, and (iv) were and shall be issued in
compliance with all applicable charter documents of Foreland and all applicable
federal and state securities or "blue sky" laws and regulations.
(c) Transfer of the EIF Common Stock. Upon the consummation of
the transactions contemplated hereby, EIF will acquire title to the EIF Common
Stock, free and clear of any and all Liens. The EIF Common Stock has been, or
will be prior to the Closing, duly authorized and, when issued and delivered to
EIF as provided in this Agreement, will be validly issued, fully paid, and
nonassessable, and the issuance of such shares will not violate or contravene
the terms of any contract, agreement, note, bond, mortgage, indenture, deed or
trust, license, franchise, permit, lease, plan, instrument, or other document
binding on Foreland. The EIF Common Stock shall be restricted from resale for
one year from the date of this Agreement and has registration rights pursuant to
the Registration Rights Agreement.
(d) No Conflict. Foreland has all requisite power and authority
to carry on its business as presently conducted, to enter into this Agreement
and to perform its obligations hereunder. The consummation of the transactions
contemplated by this Agreement will not violate, or be in conflict with, any
material provision of the certificate of incorporation of Foreland or any
material provision of any agreement or instrument to which Foreland is a party
or by which it is bound (except for any provision in any agreement relating to
required consents to transfer), noncompliance with which would have a materially
adverse effect upon EIF, upon EIF's acquisition or ownership of the EIF Common
Stock after the Closing Date or upon any of the transactions contemplated by
this Agreement or, to the knowledge of Foreland, any judgment, decree, order,
statute, rule or regulation applicable to Foreland (subject to required
approvals of Federal, state or other governmental agencies).
(e) Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite action on the part of Foreland.
(f) Enforceability. This Agreement has been duly executed and
delivered on behalf of Foreland. This Agreement constitutes legal, valid and
binding obligations of Foreland enforceable in accordance with their respective
terms.
(g) Proceedings. There are no actions, suits, proceedings or
governmental investigations or inquiries pending, or, to the knowledge of
Foreland, threatened against Foreland or any of its Affiliates, or their
respective properties, assets, operations or businesses, which would, singly or
in the aggregate, have a material adverse effect on the business of Foreland.
(h) Financial Statements. The financial statements of Foreland
dated as of September 30, 1998 (i) fairly present the assets, liabilities, and
financial condition of Foreland as of the dates thereof and the results of
operations of Foreland for the respective periods ended on such dates, (ii) have
been prepared from the books and records of Foreland in accordance with
generally accepted accounting principles consistently applied, and (iii) include
all adjustments that are necessary for a fair presentation of the information
shown and do not contain any items of a special or nonrecurring nature that are
not identified as such. Foreland has no direct or indirect liability,
indebtedness, obligation, expense, claim, deficiency, guaranty, or endorsement
of or by any Person (other than endorsements of notes, bills, and checks
presented to banks for collection or deposit in the ordinary course of business)
of any type, whether accrued, absolute, contingent, matured, unmatured, or
otherwise ("Liability") other than Liabilities that are reflected, accrued or
reserved for in the Financial Statements or arise in the ordinary course of
Foreland's business consistent with past practice. The Financial Statements do
not contain as of the date hereof any misstatement of material fact and does not
fail to state any facts necessary (in lights of the circumstances in which they
were made) to make the statements therein not misleading. Since the date of
such Financial Statements, there has been no material adverse change in the
assets, business, financial condition or prospects of Foreland.
(i) Compliance with Law. Foreland is not in violation of any
order, injunction, judgment, ruling, law, or regulation of any court or
governmental authority applicable to the property or business of Foreland, which
violation or violations in the aggregate would have a material adverse effect on
Foreland. The licenses, permits and other governmental authorizations held by
Foreland are valid and sufficient for the conduct of Foreland's businesses as
currently conducted, except where the failure to hold such licenses, permits,
and other governmental authorizations would not have a material adverse effect.
(j) Fees. Foreland has not incurred any liability, contingent
or otherwise, for brokers' or finders' fees relating to the transactions
contemplated by this Agreement for which EIF or Foreland shall have any
responsibility whatsoever.
IV.2 Representations and Warranties of EIF. EIF represents and
warrants to Foreland as of the date hereof and as of the Closing Date as
follows:
(a) Organization. EIF is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to carry on its business as currently conducted.
(b) No Conflict. EIF has all requisite power and authority to
carry on its business as presently conducted, to enter into this Agreement, and
to perform its obligations under this Agreement. The consummation of the
transactions contemplated by this Agreement will not violate, or be in conflict
with, any material provision of the limited partnership or partnership agreement
of EIF or any agreement or instrument to which EIF is a party or by which it is
bound, noncompliance with which would have a materially adverse effect upon
Foreland or upon EIF's acquisition or ownership of the EIF Common Stock or upon
any of the transactions contemplated by this Agreement, or, to the knowledge of
EIF, any judgment, decree, order, statute, rule or regulation applicable to EIF
(subject to required approvals of Federal, state or other governmental
agencies).
(c) Accredited Investor. EIF is an Accredited Investor as
defined by Regulation D of the Securities Act of 1933, as amended.
(d) Authorization. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite action on the part of EIF.
(e) Enforceability. This Agreement has been duly executed and
delivered on behalf of EIF. This Agreement constitutes legal, valid and binding
obligations of EIF, enforceable in accordance with their respective terms.
(f) Investment Intent. EIF acknowledges that the EIF Common
Stock has not been registered under the Securities Act of 1933, as amended, or
applicable state securities laws and that the certificates representing such
shares will bear a legend to such effect. EIF is acquiring the EIF Common Stock
hereunder for investment purposes only and not with a view to, or for resale in
connection with, the distribution thereof and with no intention of distributing
or selling any thereof except in compliance with federal or state securities
laws, and will make no sale or other transfer of the EIF Common Stock except in
compliance with federal or state securities laws.
(g) Fees. EIF has incurred no liability, contingent or
otherwise, for brokers' or finders' fees relating to the transactions
contemplated by this Agreement for which Foreland shall have any responsibility
whatsoever.
ARTICLE V
OBLIGATIONS AFTER CLOSING
V.1 Transfer Taxes. Foreland shall pay all transfer, documentary,
sales, use, registration, excise or similar taxes in connection with the
transactions contemplated by this Agreement.
V.2 Financial Information. During the term of the Loans, Foreland
shall prepare financial statements in accordance with generally accepted
accounting principles consistently applied as of each March 31, June 30,
September 30, and December 31 for the periods then ended. Quarterly statements
shall contain consolidated financial statements including a balance sheet,
statement of income, and statements of the source and application of cash flow
for the period then ended. Annual statements prepared as of each December 31
and for the year period then ended shall be audited and accompanied by an
opinion from an independent certified public accountant. Copies of the
financial statements required by this subsection shall be furnished to EIF
within 45 days after the end of each fiscal period except for the annual
statements, copies of which shall be furnished within 90 days after the end of
the fiscal period to which they relate. EIF acknowledges that, while the
Financing Agreement is in place, delivery of such financial information as is
required pursuant to the Financing Agreement will satisfy Foreland's obligation
under this Section 5.2.
V.3 Registration. In addition to any and all rights set forth in
this Agreement, EIF shall have registration rights as set forth in the
Registration Rights Agreement.
V.4 Further Assurances. After Closing, Foreland and EIF shall each
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered such instruments and take such other action as may be necessary or
advisable to assure to the other the rights, titles, interests, estates, and
privileges intended to be assigned, delivered, or reserved to such party and to
consummate the transactions and to carry out their obligations under this
Agreement and under any document, certificate, or other instrument delivered
pursuant hereto.
ARTICLE VI
INDEMNIFICATION
VI.1 Indemnification by EIF. From and after the Closing Date, EIF
shall defend, indemnify and save and hold harmless Foreland, its directors,
officers, employees and agents against all Losses arising out of or resulting
from any breach of any representation, warranty, covenant or agreement of EIF
under this Agreement (including the Schedules and the Exhibits hereto).
VI.2 Indemnification by Foreland. From and after the Closing Date,
Foreland shall defend, indemnify and save and hold harmless EIF, its directors,
officers, employees and agents against all Losses (a) arising out of or
resulting from any breach of any representation, warranty, covenant or agreement
of Foreland under this Agreement (including the Schedules and the Exhibits
hereto); (b) that relate to claims or other demands by third parties with
respect to any violation by Foreland of any federal or state securities laws in
connection with the transactions contemplated by this Agreement; or (c) in
connection with the operating of the Properties from the Closing Date.
VI.3 Procedures. The parties hereto agree promptly to notify the
other party of the making of any demand, the assertion of any claim, or the
commencement of any suit, action or proceeding by any third party for which
indemnity may be sought under this Agreement (an "Indemnity Obligation") prior
to expending or committing to expend funds for which indemnity may be sought.
The party from whom indemnification is sought (the "Indemnifying Party") shall
have the right, but not the obligation, to assume the defense or settlement of
any Indemnity Obligation of which the party seeking indemnification (the
"Indemnified Party") gives notice; provided, however, that if the Indemnifying
Party does not elect to assume such defense or settlement, the Indemnified Party
shall have the right, but not the obligation, to assume such defense or
settlement but shall not thereby waive any right to indemnity therefor by the
Indemnifying Party pursuant to this Agreement, and the Indemnifying Party shall
at all times have the right, at its option and expense, to participate fully
therein. Each party shall have reasonable access to the books, records and
personnel in the possession or control of the other party which are pertinent to
the defense or settlement of any Indemnity Obligation. The parties shall
cooperate in the defense or settlement of any Indemnity Obligation, but the
party electing to assume such defense or settlement shall have full authority to
determine all action to be taken with respect thereto and the terms of the
settlement; provided, however, that without the consent of the Indemnified
Party, no settlement shall be entered into that does not include as an
unconditional term thereof the giving by the Person asserting such claims of an
unconditional release of the Indemnified Party from all personal liability with
respect to such claim. The Indemnified Party may join the Indemnifying Party in
any suit, action or proceeding to which any such right of indemnity created by
this Agreement would or might apply, for the purpose of enforcing any such
right.
ARTICLE VII
MISCELLANEOUS
VII.1 Survival. The representations, warranties, covenants,
agreements and indemnities set forth in this Agreement shall survive the
Closing; provided, however, that any claim or demand for breach of a
representation or warranty under Sections 6.1 or 6.2(a) and any claim or demand
under Section 6.2 must be asserted in writing on or before the one (1) year
anniversary date of the Closing Date, after which date such indemnities shall
expire except to the extent this Agreement expressly provides that any such
provision shall survive for a longer period. If the Closing occurs, all
conditions of Closing shall be deemed to have been satisfied or waived, and,
after the Closing, neither party shall have any liability whatsoever to the
other arising out of, resulting from or attributable to any such conditions of
Closing, regardless of whether such conditions of Closing were, in fact,
satisfied or waived.
VII.2 Exhibit and Schedules. The Exhibit and Schedules referred
to in this Agreement are hereby incorporated in this Agreement by reference and
constitute a part of this Agreement. Each party to this Agreement and its
counsel has received a copy of the Exhibits and Schedules prior to and as of the
execution of this Agreement.
VII.3 Expenses. Foreland shall be responsible for payment of all
expenses, including legal fees, incurred by Foreland and EIF to negotiate,
document, and close the transactions contemplated hereby.
VII.4 Notices. All notices and communications required or
permitted under this Agreement shall be in writing and any communication or
delivery hereunder shall be deemed to have been duly made when personally
delivered to the individual indicated below, or if sent by telecopier or mailed,
when received by the party charged with such notice and addressed as follows:
If to EIF:
Energy Income Fund, L.P.
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
If to Foreland:
Foreland Corporation
000 Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: N. Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Copies of all notices (other than reports or other routine
communications), which shall not constitute notice hereunder, shall be delivered
to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
- and -
Xxxxx, Xxxxx & Xxxxxxx, L.L.C.
Xxxxxx Xxxxx, Xxxx Xxx Xxxxx
00 Xxxx Xxxxxxxx (300 Xxxxx)
Xxxx Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Any party may, by written notice so delivered to the other parties,
change the address or individual to which delivery shall thereafter be made.
VII.5 Amendments. Except for waivers specifically provided
herein, this Agreement may not be amended nor any rights hereunder waived except
by an instrument in writing signed by the party to be charged with such
amendment or waiver and delivered by such party to the party claiming the
benefit of such amendment or waiver.
VII.6 Limitation of Remedies. In no event shall either party to
this Agreement be entitled to recover special or consequential damages from the
other party as a result of a breach of this Agreement by such other party,
including, without limitation, special damages in the nature of lost or future
profits.
VII.7 Counterparts. This Agreement may be executed by EIF and
Foreland in any number of counterparts, no one of which need be executed by all
parties hereto, but all of which together shall constitute one and the same
instrument.
VII.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
VII.9 Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto and all other agreements executed in connection herewith)
constitutes the entire understanding among the parties with respect to the
subject matter hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter.
VII.10 Parties in Interest. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and, except as otherwise
prohibited, their respective heirs, devisees, executors, administrators,
successors and assigns; and except as provided in this Article VII, which is
also intended to benefit and be enforceable by the Indemnified Parties, nothing
contained in this Agreement, express or implied, is intended to confer upon any
other Person any benefits, rights or remedies.
VII.11 Nonwaiver. No course of dealing or any delay or failure to
exercise any right, power or remedy hereunder on the part of EIF shall operate
as a waiver of or otherwise prejudice EIF's rights, powers or remedies.
VII.12 Drafting. Each Party acknowledges that its legal counsel
participated in the preparation of this Agreement. The Parties therefore
stipulate that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement to favor any Party against the other.
IN WITNESS WHEREOF, the parties hereto each has caused this Agreement
to be executed by its duly authorized officer all as of the day and year first
set forth above.
ENERGY INCOME FUND, L.P.
By: EIF General Partner, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx, A Managing Director
FORELAND CORPORATION
By: /s/ N. Xxxxxx Xxxxxx, President
SCHEDULE 4.1
The following schedule sets forth the number of shares of common stock issuable
pursuant to outstanding options, warrants, calls, subscriptions, rights,
agreements or commitments of any character obligating Foreland to issue any
Shares or securities convertible into or exchangeable for or evidencing the
right to purchase or subscribe for any Capital Stock of Foreland:
Reason for Potential Shares
Issuance Issuable
----------------------- -----------
Preferred Stock
1991 Series 6,667
1994 Series 51,047
1995 Series 116,368
1998 Series 333,333
Options 1,222,334
Warrants 1,546,803
Warrants to Purchase 43,874
Preferred Stock
TOTAL ISSUABLE 3,320,426
The foregoing schedule does not include shares that may be issuable pursuant to
applicable anti-dilution provisions respecting the foregoing.
