AMENDMENT TO STOCK AGREEMENT
THIS AMENDMENT TO STOCK AGREEMENT dated as of the 10th day of March 2006
(the "Amendment"), is made and entered into by and among Baseline Oil & Gas
Corp. (f/k/a College Oak Investments, Inc.), a Nevada corporation (the
"Company"), Xxxxxx Xxxxxx, an individual residing in the State of Connecticut
("Damson"), Xxxx Xxxxxx, an individual residing in the State of Connecticut
("Xxxxxx") and those individuals listed as "Acquirers" on the signature pages
hereof.
RECITALS:
WHEREAS, the Company, Damson, Gaines and the Acquirers are parties to a
Stock Agreement dated as of January 16, 2006 (the "Stock Agreement"), pursuant
to which (i) the Company agreed to issue certain shares of its common stock, par
value $.001 as contemplated therein and (ii) Xxxxxx and Damson agreed to cancel
certain of their stock options as set forth in the Stock Agreement;
WHEREAS, the Company, Damson, Gaines and the Acquirers desire to amend the
Stock Agreement in certain respects.
Capitalized terms used herein that are not defined herein shall have the
respective meanings assigned thereto in the Stock Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements contained herein, and the receipt of such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendments. The Stock Agreement is hereby amended, effective as of the
date hereof, as follows:
(a) The third recital of the Stock Agreement is amended by deleting
subclause (ii) thereof, and by substituting therefor the following: "(ii)
concurrently with the closing of the equity financing with respect to the
Closing under the Purchase Agreement, the Company will (A) grant to the
Management Acquirers or their designees, stock options to acquire, in the
aggregate, up to 3,930,750 shares of the Company's Common Stock and (B) issue,
transfer and convey to the Acquirers listed on Exhibit B (which is attached
hereto and made a part hereof) (the "Subsequent Acquirers") shares of Common
Stock, and such Subsequent Acquirers will purchase such shares of Common Stock,
at the same prices and on the same terms as the other investors participating in
such financing."
(b) Section 1.5 of the Stock Agreement is amended by deleting the
first sentence of subparagraph (a) thereof, and by substituting therefor the
following: "Damson and Xxxxxx each agree that, upon the Effective Option
Cancellation Date (as defined below), each of them shall cancel 3,894,250 shares
of Common Stock underlying their respective stock options."
(c) The following words are added to the end of the heading
appearing under "ARTICLE 2": "; GRANT OF STOCK OPTIONS".
(d) A new Section 2.4 is added to the Stock Agreement as follows:
"2.4 Grant of Stock Options to Management Acquirers. Upon the Closing Date, the
Company shall grant to the Management Acquirers or their designees (such
designees to be designated in writing to the Company at least 10 days prior to
the Closing Date), stock options (the "Management Acquirers Options"),
exercisable in the aggregate, for up to 3,930,750 shares of the Company's Common
Stock. The Management Acquirers Option shall be immediately exercisable at an
exercise price per share equal to the price per share paid by investors in the
Second Equity Round. The Company shall cause the shares of Common Stock
underlying the Management Acquirers Option to be included for sale in the first
registration statement filed by the Company following the Closing Date;
provided, however, that if requested by the Company's Placement Agent in the
Second Equity Round, each recipient of a Management Acquirers Option shall agree
to lock-up all of the shares of Common Stock underlying his/its Management
Acquirers Option for a period not to exceed one (1) year."
2. Ratification. The Company, Damson, Gaines and the Acquirers do hereby
ADOPT, RATIFY and CONFIRM the Stock Agreement and all of its terms and
provisions, as amended hereby, and declare the Stock Agreement, as so amended,
to be in full force and effect.
3. Counterparts. This Amendment may be executed and delivered (including
by facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
4. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the Commonwealth of Pennsylvania without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Pennsylvania or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officer as of the date first written
above.
BASELINE OIL & GAS CORP.
By: /s/ Xxxxx X. Birmingham
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Name: Xxxxx X. Birmingham
Title: President
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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ACQUIRERS:
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT D
MANAGEMENT ACQUIRERS STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is effective as of
___________ 2006 (the "Option Grant Date") by and between Baseline Oil & Gas
Corp., a Nevada corporation (the "Company") and [ ] an individual residing at
_______________________ (the "Optionee"). The Optionee and the Company hereby
agree as follows:
1. Grant. The Company hereby grants to the Optionee an option (the
"Option") to purchase up to an aggregate of __________ shares of the Company's
common stock (the "Optioned Shares") at an exercise price of $______ per
Optioned Share (the "Exercise Price").
2. Term. The Option granted hereby shall terminate no later than at the
close of business on ____________ 2016 (the "Termination Date").
3. Exercisability. This Option may be exercised in whole or in part, at
any time from and after the Option Grant Date until the Termination Date.
4. Procedure for Exercise.
(a) Notice. The Optionee may exercise the Option at any time with
respect to all or any part of the number of Optioned Shares by giving the
Secretary of the Company written notice of intent to exercise. The notice
of exercise shall specify the number of Optioned Shares as to which the
Option is to be exercised and the date of exercise thereof, which date
shall be at least five days after the giving of such notice unless an
earlier time shall have been mutually agreed upon.
(b) Payment of Exercise Price. Full payment (in U.S. Dollars) by the
Optionee of the Exercise Price for the Optioned Shares purchased shall be
made on or before the exercise date specified in the notice of exercise in
cash, or, with the prior written consent of the Board, in whole or in part
through the surrender of previously acquired shares of common stock
(valued at their fair market value on the exercise date). If the Optionee
fails to pay for any of the Optioned Shares specified in such notice or
fails to accept delivery thereof, the Optionee's right to purchase such
Optioned Shares may be terminated by the Company. The date specified in
the Optionee's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Optioned
Shares to be purchased upon such exercise shall have been received by such
date.
In addition to the method of payment set forth above, provided that
the Company's common stock is either registered on a national securities
exchange or quoted by the NASDAQ at the time of exercise, Optionee shall
have the right to exercise this Option in full or in part by delivering
written notice to the Company, and Optionee shall receive the number of
Optioned Shares equal to the product of (x) the number of Optioned Shares
as to which this Option is being exercised, multiplied by (y) a fraction,
the numerator of which is the Market Price (defined below) of the
Company's common stock minus the Exercise Price of the Optioned Shares and
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the denominator of which is the Market Price of the Company's common
stock. As used in this Agreement, the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in case no such
reported sale takes place on such day, the average of the last reported
sale prices for the last three (3) trading days, in either case as
officially reported by the principal securities exchange on which the
Company's common stock is listed or admitted to trading, or, if the common
stock is not listed or admitted to trading on any exchange, the average
closing sale price as furnished by the NASD through The NASDAQ Stock
Market, Inc. ("NASDAQ").
(c) Other Limitations on Exercise. The obligation of the Company to
deliver shares of common stock upon the exercise hereof shall be subject
to the condition that if at any time the Company's Board of Directors
shall determine in its sole discretion that the listing, registration or
qualification of the Option or the Optioned Shares upon any securities
exchange or under any state or federal law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition
of, or in connection with, the grant of this Option or the issuance or
purchase of stock hereunder, then this Option may not be exercised in
whole or in part unless such listing, registration, qualification, consent
or approval shall have been effected or obtained free of any conditions
not acceptable to the Board of Directors.
5. Adjustment of and Changes in Stock of Company. If the Company at any
time after the Option Grant Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the
number of shares of Common Stock obtainable upon exercise of this Option will be
proportionately increased. If the Company at any time after the Option Grant
Date combines (by combination, reverse stock split or otherwise) one or more
classes of its outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination will
be proportionately increased and the number of Optioned Shares issuable upon
exercise of this Option will be proportionately decreased. Any adjustment under
this Section 5 shall become effective at the close of business on the date the
subdivision or combination becomes effective.
6. Non-Transferability of Option. During the Optionee's lifetime, this
Option shall be exercisable only by the Optionee or any guardian or legal
representative of the Optionee, and the Option shall not be transferable except,
in case of the death of the Optionee, by will or the laws of descent and
distribution, nor shall the Option be subject to attachment, execution or other
similar process. In the event of (a) any attempt by the Optionee to alienate,
assign, pledge, hypothecate or otherwise dispose of this Option, except as
provided for herein, or (b) the levy of any attachment, execution or similar
process upon the rights or interest hereby conferred, the Company may terminate
the Option by notice to the Optionee and it shall thereupon become null and
void.
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7. Restrictions on Underlying Stock. The shares of common stock issuable
upon exercise of this Option may not be sold, pledged, hypothecated, transferred
or assigned in the absence of an effective registration statement for the
securities under the applicable federal and state securities laws or an opinion
of counsel satisfactory to the Company to the effect that such registration is
not required thereunder.
8. "Piggy-Back" Registration Rights. If at any time commencing on the
Grant Date and expiring five (5) years hereafter, the Company proposes to
register any of its securities under the Securities Act of 1933 (other than in
connection with an initial public offering or in connection with a Form S-8),
then the Company shall afford the Optionee the opportunity to include for sale
in such registration statement, shares of common stock acquired by the Optionee
upon the exercise of this Option, provided however, that if the Board of
Directors of the Company determines in good faith that the number of shares to
be included in such registration is too large, then the Company will include
only such number of Optioned Shares as the Board of Directors shall in good
faith determine.
9. Nonqualified Option. The Option granted hereby shall be treated as a
nonqualified stock option and not as an incentive stock option under the
Internal Revenue Code.
10. No Rights as Stockholder. Neither the Optionee nor any personal
representatives shall be, or shall have any of the rights and privileges of, a
stockholder of the Company with respect to any shares of common stock
purchasable or issuable upon the exercise of this Option, in whole or in part,
prior to the date of exercise of this Option in accordance with the provisions
hereof.
11. Successors and Assigns. This Option shall not be assignable by the
Optionee without the prior consent of the Company, which shall not be
unreasonably withheld. This Option shall be binding upon the successors and
assigns of the Company, and shall be expressly assumed by any successor to the
Company pursuant to a merger in which the Company is not the surviving entity.
12. Miscellaneous. This Option and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This certificate is deemed to have been delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State. The headings in this Stock Option Agreement are for purposes
of reference only, and shall not limit or otherwise affect any of the terms
hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized representative and the Optionee has hereunto set
his hand as of the Option Grant Date.
BASELINE OIL & GAS CORP.
By :________________________________
Xxxxx Birmingham, President
__________________________________
[Name of Management Acquirer]
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