SUBSCRIPTION AGREEMENT
Execution
Version
Xx Xxxxxx
Energy, Inc.
Xxxxx 00
#0-00, Xxxxxxx 000
Xxxxxx,
Xxxxxxxx
This
Subscription Agreement (this “Agreement”)
has been executed by Avante Petroleum S.A. (the “Subscriber”)
in connection with the stock purchase agreement (the “Stock
Purchase Agreement”) by and between the Subscriber and Xx Xxxxxx Energy,
Inc. (the “Company”),
pursuant to which, the Company is acquiring all of outstanding capital stock of
the Subscriber’s wholly owned subsidiary, Avante Colombia S.à.x.x., for
10,285,819 newly issued shares of common stock, $0.001 par value per share, of
the Company (the “Common
Stock”). Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Stock Purchase Agreement.
The
securities being subscribed for pursuant to this Agreement have not been
registered under the Securities Act of 1933, as amended (the “Securities
Act”). The Subscriber is an “accredited investor,” as defined
in Regulation D under the Securities Act, and a non-”U.S. person,” as defined in
Regulation S under the Securities Act.
1. Subscription.
a. Definite
Shares. Subject to the terms and conditions of this Agreement
and on the basis of the representations, warranties, covenants and agreements
contained herein, the Subscriber hereby subscribes for and agrees to purchase
1,428,572 shares (the “Definite
Shares”) of Common Stock, at a purchase price of $1.75 per share (subject
to adjustment as provided below), for an aggregate purchase price of $2,500,000
(the “Initial
Purchase Price”).
b. Contingent
Shares. In the event that the Company raises capital through
the sale of its securities to third parties (“Other
Investors”) pursuant to one or more private placements that close after
December 15, 2009 and on or before March 29, 2010 (collectively, the “Covered Offerings”),
and subject to the terms and conditions of this Agreement and on the basis of
the representations, warranties, covenants and agreements contained herein, the
Subscriber shall purchase additional shares of Common Stock (the “Contingent
Shares”) from the Company. The price per share payable by the
Subscriber for Contingent Shares (the “Effective
Price”) shall be the lesser of $1.75 and the lowest per share price paid
by Other Investors for shares of Common Stock in any Covered Offering (not
including the exercise or conversion price of any Common Stock equivalents sold
in such Covered Offering). The number of Contingent Shares to be
purchased by the Subscriber shall equal the quotient of (i) 50% of the gross
dollar amount raised in all Covered Offerings, up to a maximum of $2,500,000,
divided by (ii) the Effective Price. The total amount payable by the Subscriber
for Contingent Shares is referred to herein as the “Contingent
Purchase Price” and, together with the Initial Purchase Price, the “Purchase
Price.”
c. Pricing Adjustments for
Definite Shares. (1) In the event that the Company does not
complete any Covered Offering on or before March 29, 2010, then, the Company
shall issue to the Subscriber, for no additional consideration, 238,095
additional shares of Common Stock (the “No-Offering
Shares”), so that the Subscriber’s adjusted purchase price of the
Definite Shares and the No-Offering Shares, taken together, shall be $1.50 per
share. ($2,500,000 / $1.50 = 1,666,667 Definite Shares and
No-Offering Shares in the aggregate.) (2) In the event that the
Company does complete any Covered Offerings on or before March 29, 2010 and the
Effective Price is less than $1.75, then the Company shall issue to the
Subscriber, for no additional consideration, a number of additional shares of
Common Stock (the “Offering
Adjustment Shares”), so that the Subscriber’s adjusted per share purchase
price of the Definite Shares, the Contingent Shares and the Offering Adjustment
Shares, taken together, shall be equal to the Effective Price. (3)
The Definite Shares, the Contingent Shares, the No-Offering Shares and the
Offering Adjustment Shares are referred to collectively as the
“Shares.”
d. Warrants. As
additional consideration for the Purchase Price, on each Closing Date (as
defined below), the Company shall issue to the Subscriber a warrant (the “Warrants”)
to purchase a number of shares of Common Stock equal to the number of Shares
purchased at that Closing at an exercise price of $3.00 per share (subject to
adjustment upon certain events as provided in the form of
Warrant). The Warrants shall be in substantially the form attached
hereto as Exhibit
A. The Warrants shall initially be exercisable until three years after
the Initial Closing Date (as defined below); provided, that, in the event
that the Company consummates any Covered Offering in which the securities sold
include warrants to purchase Common Stock (“Other
Warrants”) and the expiration date of such Other Warrants is more than
three years after the Initial Closing (as defined below), then the expiration
date of the Warrants shall be extended to the latest expiration date of any such
Other Warrants. The shares of Common Stock underlying the Warrants
issued to the Subscriber are referred to herein as “Warrant
Shares.”
2. Closing.
a. Initial
Closing. Subject to the conditions of Section 8 below, the
closing of the subscription for the Definite Shares (the “Initial
Closing”) shall be on the date of the “Closing” under the Stock Purchase
Agreement (the “Initial Closing
Date”) at the place of the Closing under the Stock Purchase
Agreement.
b. Contingent
Closing. To the extent that the Company has raised capital
through the sale of its securities pursuant to one or more Covered Offerings,
the Company shall, no later than three Business Days after March 29, 2010,
deliver to the Subscriber a notice (the “Contingent
Purchase Notice”) describing the terms of each Covered Offering and
stating the aggregate and individual number of shares of Common Stock purchased
by Other Investors in Covered Offerings, the Contingent Purchase Price and the
Effective Price. The closing for any Contingent Shares required to be purchased
under Section 1.b. (the “Contingent
Closing,” and, together with the Initial Closing, a “Closing”)
shall occur on the following dates: (i) the Initial Closing Date, for any
Contingent Purchase Notice delivered prior to the Initial Closing, and (ii) the
fifth Business Day after March 29, 2010 (the “Contingent Closing
Date,” and, together with the Initial Closing Date, a “Closing
Date”), for any Contingent Purchase Notice delivered on or after the
Initial Closing, at the offices of Gottbetter & Partners, LLP, at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as is mutually
agreed to by the Company and the Subscriber).
c. No-Offering Shares.
Any No-Offering Shares to be issued to the Subscriber pursuant to the adjustment
provisions in Section 1.c. shall be issued within five Business Days after March
29, 2010.
d. Offering Adjustment
Shares. Any
Offering Adjustment Shares to be issued to the Subscriber pursuant to the
adjustment provisions in Section 1.c. shall be issued on the Contingent Closing
Date.
3. Closing
Procedure.
a. Subscription
Documents. On or before the Initial Closing Date, the
Subscriber shall execute this Agreement and the Registration Rights Agreement,
between the Company and the Subscriber of even date herewith, and shall review,
complete and execute the Anti-Money Laundering Investor Form (with attachments),
attached hereto as Appendix A, and the
Investor Certification, attached hereto as Appendix B
(collectively, the “Subscription
Documents”), and deliver the Subscription Documents to the
Company.
b. Purchase
Price. On or before each Closing Date, the Subscriber shall
deliver to the Company the full Purchase Price then payable for the Initial
Shares or Contingent Shares being purchased, by wire transfer of immediately
available funds as follows:
|
Bank:
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Citibank,
N.A.
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
|
ABA
Routing #:
|
000000000
|
|
SWIFT
CODE:
|
XXXXXX00
|
|
Beneficiary:
|
Xx
Xxxxxx Energy, Inc.
|
|
IMMA
Account #:
|
9953639103
|
|
Reference:
|
Purchase
Price for Subscription by Avante Petroleum
S.A.
|
4. Representations and Warranties of the
Company. The Company hereby represents and warrants to the
Subscriber the following:
a. Organization. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada.
b. Authorization. The
Company has the requisite power and authority to enter into this Agreement and
the other Subscription Documents and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and
the other Subscription Documents and the performance of all obligations of the
Company hereunder and thereunder have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has been
duly executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Subscriber, constitutes the valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
creditors’ rights generally, and (b) the availability of injunctive relief and
other equitable remedies.
c. As
of the Closing, all action on the part of the Company, its board of directors,
officers and existing stockholders necessary for the authorization, execution
and delivery of this Agreement and the performance of all obligations of the
Company hereunder and thereunder shall have been taken, and this Agreement,
assuming due execution by the parties hereto and thereto, will constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject to: (i) judicial principles limiting the
availability of specific performance, injunctive relief, and other equitable
remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect generally relating to or affecting
creditors’ rights.
d. Valid Issuance of the Common
Stock. The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, and the Warrant Shares, when
issued, sold and delivered in accordance with the terms of the Warrants, for the
consideration expressed herein or therein, shall be duly authorized, and validly
issued, fully-paid and non-assessable, and will be free of restrictions on
transfer directly or indirectly created by the Company other than restrictions
on transfer under this Agreement and the Stock Purchase Agreement and under
applicable federal and state securities laws.
e. Governmental
Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the offer, sale or issuance of the Shares, the
Warrant or the Warrant Shares (collectively, the “Securities”),
except for the following: (i) the filing of such notices as may be required
under the Securities Act and (ii) the compliance with any applicable state
securities laws, which compliance will have occurred within the appropriate time
periods therefor.
f.
Litigation. There
are no actions, suits, proceedings or investigations pending or, to the best of
the Company’s knowledge, threatened before any court, administrative agency or
other governmental body against the Company which question the validity of this
Agreement or the other Subscription Documents, or the right of the Company to
enter into any of them, or to consummate the transactions contemplated hereby or
thereby.
g. Compliance with Other
Instruments. The execution, delivery and performance of and
compliance with this Agreement and the issuance and sale of the Shares, the
Warrants and the Warrant Shares will not (i) violate the provisions of any of
the Charter Documents of the Company or any of its Subsidiaries, (ii) violate or
constitute a default, an event of default or an event creating rights of
acceleration, termination, cancellation, imposition of additional obligations or
loss of rights, or require a consent to assignment, under any Contract (A) to
which the Company or any of its Subsidiaries is a party, (B) of which the
Company or any of its Subsidiaries is a beneficiary or (C) by which the Company
or any of its Subsidiaries or any of their respective assets is bound, (iii)
violate or conflict with any Law, Authorization or Order applicable to the
Company or any of its Subsidiaries, or give any Governmental Entity or other
Person the right to challenge any of the transactions contemplated by this
Agreement or to exercise any remedy, obtain any relief under or revoke or
otherwise modify any rights held under, any such Law, Authorization or Order, or
(iv) result in the creation of any Liens upon any of the assets owned or used by
the Company or any of its Subsidiaries..
h. Certain Registration
Matters. Assuming the accuracy of the Subscriber’s
representations and warranties set forth in this Agreement and the Subscription
Documents, no registration under the Securities Act is required for the offer
and sale of the Securities by the Company to the Subscriber
hereunder.
i.
No
General Solicitation. Neither the Company nor any person
acting on behalf of the Company has offered or sold any of the Securities by any
form of general solicitation or general advertising (within the meaning of
Regulation D)
j.
Representations of Company
in the Stock Purchase Agreement. The Company’s representations
and warranties made in Article IV of the Stock Purchase Agreement are true and
correct in all material respects as of the Closing Date, subject to the
qualifications, exceptions and effective times set forth therein.
5. Representations and Warranties of the
Subscriber. The Subscriber represents and warrants to the
Company the following:
a. The
Subscriber, its advisers, if any, and designated representatives, if any, have
the knowledge and experience in financial and business matters necessary to
evaluate the merits and risks of its prospective investment in the Company, and
have carefully reviewed and understand the risks of, and other considerations
relating to, the purchase of the Securities and the tax consequences of the
investment, and have the ability to bear the economic risks of the
investment.
b. The
Subscriber is acquiring the Securities for investment for its own account and
not with the view to, or for resale in connection with, any distribution
thereof. The Subscriber understands and acknowledges that the
Securities have not been registered under the Securities Act or any state or
foreign securities laws, by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state and foreign securities
laws, which depends upon, among other things, the bona fide nature of the
investment intent as expressed herein. The Subscriber further represents that it
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to any third person with respect
to any of the Securities.
c. The
Subscriber understands that an active public market for the Company’s Common
Stock may not now exist and that there may never be an active public market for
the Shares.
d. The
Subscriber, its advisers, if any, and designated representatives, if any, have
received and reviewed information about the Company and have had an opportunity
to discuss the Company’s business, management and financial affairs with its
management. The Subscriber understands that such discussions, as well
as any written information provided by the Company, were intended to describe
the aspects of the Company’s business and prospects which the Company believes
to be material, but were not necessarily a thorough or exhaustive
description. Some of such information may include projections as to
the future performance of the Company, which projections may not be realized,
may be based on assumptions which may not be correct and may be subject to
numerous factors beyond the Company’s control. The Subscriber has
received and reviewed all documents and other information regarding the Company
and an investment in the Securities that it has requested or desired in
connection with making an investment decision.
e. The
Subscriber is a corporation duly organized, validly existing and in good
standing under the Laws of Luxembourg.
f. The
Subscriber has the requisite power and authority to enter into this Agreement
and the other Subscription Documents and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the other Subscription Documents and the performance of all
obligations of the Subscriber hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the
Subscriber. This Agreement has been duly executed and delivered by
the Subscriber and, assuming due authorization, execution and delivery by the
Company, constitutes the valid and binding obligation of the Subscriber,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to creditors’ rights
generally, and (ii) the availability of injunctive relief and other equitable
remedies.
g. The
Subscriber (i) is an “accredited investor” as defined in Rule 501 of Regulation
D as promulgated by the Securities and Exchange Commission under the Securities
Act and (ii) is not a “U.S. Person” as defined in Regulation S as promulgated by
the Securities and Exchange Commission under the Securities Act, and shall
submit to the Company such further assurances of such status as may be
reasonably requested by the Company.
h. The
Subscriber is acquiring the Shares in an offshore transaction pursuant to
Regulation S and hereby represents to the Company as follows:
(i)
The Subscriber is outside the United States when
receiving and executing this Subscription Agreement;
(ii) The
Subscriber is not acquiring the Securities as a result of, and will not itself
engage in, any “directed selling efforts” (as defined in Regulation S) in the
United States in respect of any Securities, which would include any activities
undertaken for the purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for the resale of any of
the Securities; provided, however, that the Subscriber may sell or otherwise
dispose of Securities pursuant to registration of such Securities under the
Securities Act and any applicable state and provincial securities laws or under
an exemption from such registration requirements and as otherwise provided
herein;
(iii) The
Subscriber understands and agrees that offers and sales of any of the Securities
prior to the expiration of a period of one year after the date of transfer of
the Securities under this Subscription Agreement (the “Distribution
Compliance Period”), shall only be made in compliance with the safe
harbor provisions set forth in Regulation S, pursuant to the registration
provisions of the Securities Act or an exemption therefrom, and that all offers
and sales after the Distribution Compliance Period shall be made only in
compliance with the registration provisions of the Securities Act or an
exemption therefrom, and in each case only in accordance with all applicable
securities laws;
(iv) The
Subscriber understands and agrees not to engage in any hedging transactions
involving the Securities prior to the end of the Distribution Compliance Period
unless such transactions are in compliance with the Securities Act;
and
(v) The
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the Securities or any use of this Subscription Agreement,
including: (a) any applicable legal requirements incumbent upon the Subscriber
within its jurisdiction for the purchase of the Securities; (b) any foreign
exchange restrictions applicable to such purchase; (c) any governmental or other
consents that the Subscriber may need to obtain; and (d) the income tax and
other tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Securities. Such Subscriber’s subscription
and payment for, and its continued beneficial ownership of, the Securities will
not violate any applicable securities or other laws of the Subscriber’s
jurisdiction.
i.
Subscriber represents that neither it nor, to its
knowledge, any person or entity controlling, controlled by or under common
control with it, nor any person having a beneficial interest in it, nor any
person on whose behalf the Subscriber is acting: (i) is a person listed in the
Annex to Executive Order No. 13224 (2001) issued by the President of the United
States (Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on
the List of Specially Designated Nationals and Blocked Persons maintained by the
U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is
providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior
non-U.S. political figure or an immediate family member or close associate of
such figure; or (v) is otherwise prohibited from investing in the Company
pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset
control laws, regulations, rules or orders (categories (i) through (v), each a
“Prohibited
Subscriber”). The Subscriber agrees to provide the Company,
promptly upon request, all information that is reasonably necessary or
appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist
and asset control laws, regulations, rules and orders. The Subscriber consents
to the disclosure to U.S. regulators and law enforcement authorities by the
Company and its affiliates and agents of such information about the Subscriber
as is reasonably necessary or appropriate to comply with applicable U.S.
antimony laundering, anti-terrorist and asset control laws, regulations, rules
and orders. The Subscriber acknowledges that if, following its investment in the
Company, the Company reasonably believes that the Subscriber is a Prohibited
Subscriber or is otherwise engaged in suspicious activity or refuses to promptly
provide information that the Company requests, the Company has the right or may
be obligated to prohibit additional investments, and take any other actions
required by law.
j.
The Subscriber has adequate means of
providing for its current and anticipated financial needs and contingencies, is
able to bear the economic risk for an indefinite period of time and has no need
for liquidity of the investment in the Securities and could afford a complete
loss of such investment.
k. The
Subscriber is not subscribing for Securities as a result of or subsequent to any
advertisement, article, notice or other communication, published in any
newspaper, magazine or similar media or broadcast over television, radio, or the
internet, or presented at any seminar or meeting, or any solicitation of a
subscription by a person not previously known to the Subscriber in connection
with investments in securities generally.
l.
All of the information provided by the Subscriber
in this Agreement and in the other Subscription Documents is correct and
complete as of the date of this Agreement, and, if there should be any material
change in such information prior to the Closing, the Subscriber will immediately
furnish revised or corrected information to the Company.
m. The
Subscriber realizes that realizes that because of the inherently speculative
nature of business activities and investments of the kind contemplated by the
Company, the Company’s financial position and results of operations may be
expected to fluctuate from period to period and will, generally, involve a high
degree of financial and market risk that can result in substantial or, at times,
even total loss of the value of the Securities.
n. The
Subscriber understands that no governmental agency has passed upon the
Securities or made any finding or determination as to the wisdom of any
investments therein.
6. Transfer
Restrictions. The Subscriber acknowledges and agrees as
follows:
a. The
Securities have not been registered for sale under the Securities Act, in
reliance on the private offering exemption in Section 4(2) thereof; the Company
does not intend to register any of the Securities under the Securities Act at
any time in the future; and, in the absence of such registration, the
undersigned may not dispose of any of the Securities unless an exemption from
the registration requirements of the Securities Act is available.
b. The
Company was, at one time, a “shell company” as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant
to Rule 144(i) under the Securities Act, securities issued by a current or
former shell company (such as the Securities) that otherwise meet the holding
period and other requirements of Rule 144 nevertheless cannot be sold in
reliance on Rule 144 until one year after April 10, 2009 (the date on which the
Company filed current “Form 10 information“ (as defined in Rule 144(i)) with the
SEC reflecting that it ceased being a shell company), and provided that at the
time of a proposed sale pursuant to Rule 144, the issuer is subject to the
reporting requirements of section 13 or 15(d) of the Exchange Act and has filed
all reports and other materials required to be filed by section 13 or 15(d) of
the Exchange Act, as applicable, during the preceding 12 months (or for such
shorter period that the issuer was required to file such reports and materials),
other than Form 8-K reports. As a result, the restrictive legends on
certificates for the Securities set forth below cannot be removed except in
connection with an actual sale meeting the foregoing
requirements.
c. The
Subscriber understands that the certificates representing the Securities shall
bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of such certificates or other
instruments):
For the
Shares:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE
SECURITIES ACT OR AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS.
For the
Warrants:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT OR AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. ANY SUCH TRANSFER MAY
ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS.
The
legend(s) set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped, if (a) such Securities are being sold pursuant to a registration
statement under the Securities Act, or (b) in connection with an actual
sale of the Securities meeting the requirements set forth in Section 6(b) above
and if such holder delivers to the Company an opinion of counsel, reasonably
acceptable to the Company, that a disposition of the Securities is being made
pursuant to an exemption from the registration requirements of the Securities
Act.
d. The
Subscriber further understands that, until the Securities cease to be subject to
the lock-up provisions of Section 5.9 of the Stock Purchase Agreement, the
certificates representing the Securities shall bear a legend in substantially
the following form (and a stop-transfer order may be placed against transfer of
such certificates or other instruments):
For the
Shares:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF MAY NOT BE OFFERED, SOLD, CONTRACTED FOR SALE, SUBJECTED TO ANY
OPTION TO PURCHASE, HYPOTHECATED, PLEDGED OR OTHERWISE DISPOSED OF, NOR MAY
TITLE THERETO BE TRANSFERRED, UNTIL SEPTEMBER 2, 2012, EXCEPT IN ACCORDANCE WITH
THE TERMS OF THE STOCK PURCHASE AGREEMENT DATED AS OF MARCH 2, 2010 (THE “SPA”)
BY AND BETWEEN XX XXXXXX ENERGY, INC. AND AVANTE PETROLEUM S.A. A
COPY OF THE SPA IS AVAILABLE FROM THE SECRETARY OF THE COMPANY UPON
REQUEST.
For the
Warrants:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF MAY NOT BE OFFERED, SOLD, CONTRACTED FOR SALE, SUBJECTED TO ANY
OPTION TO PURCHASE, HYPOTHECATED, PLEDGED OR OTHERWISE DISPOSED OF, NOR MAY
TITLE THERETO BE TRANSFERRED, UNTIL SEPTEMBER 2, 2012, EXCEPT IN ACCORDANCE WITH
THE TERMS OF THE STOCK PURCHASE AGREEMENT DATED AS OF MARCH 2, 2010 (THE “SPA”)
BY AND BETWEEN XX XXXXXX ENERGY, INC. AND AVANTE PETROLEUM S.A. A
COPY OF THE SPA IS AVAILABLE FROM THE SECRETARY OF THE COMPANY UPON
REQUEST.
7. Reservation of
Shares. The Company covenants and agrees that it shall, at all
times, reserve out of its authorized but unissued shares of Common Stock, a
sufficient number of shares as may be required from time to time to satisfy the
Company’s obligations to issue No-Offering Shares or Offering Adjustment Shares
pursuant to Section 1(b) hereof, and Warrant Shares pursuant to the terms of the
Warrants.
8. Irrevocability; Binding Effect;
Termination. The Subscriber hereby acknowledges and agrees
that the subscription hereunder is irrevocable by the Subscriber, except as
required by applicable law, and that this Agreement shall survive the death or
disability of the Subscriber and shall be binding upon and inure to the benefit
of the parties and their heirs, executors, administrators, successors and
permitted assigns. Notwithstanding the foregoing, the obligations of Subscriber
hereunder are conditioned upon the Closing of the Stock Purchase
Agreement. In the event that the Stock Purchase Agreement is
terminated pursuant to Article IX thereof, this Agreement and Subscriber’s
subscription hereunder shall immediately terminate without any further
action.
9. Modification. This
Agreement shall not be modified or waived except by an instrument in writing
signed by the party against whom any such modification or waiver is
sought.
10. Notices. Any notice
or other communication required or permitted to be given hereunder shall be in
writing and shall be mailed by certified mail, return receipt requested, or
delivered against receipt to the party to whom it is to be given (a) if to the
Company, at the address set forth above, or (b) if to the Subscriber, at the
address set forth on the signature page hereof (or, in either case, to such
other address as the party shall have furnished to the other in writing in
accordance with the provisions of this Section 10). Any notice or
other communication given by certified mail shall be deemed given at the time of
receipt thereof.
11. Assignability. This
Agreement and the rights, interests and obligations hereunder are not
transferable or assignable by the Subscriber, and the transfer or assignment of
the Securities shall be made only in accordance with all applicable
laws.
12. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles thereof relating to the conflict of laws.
13. Dispute
Resolution. The parties agree to submit all controversies
under this Agreement for resolution in accordance with the provisions of Section
11.7 of the Stock Purchase Agreement.
14. Use of
Pronouns. All pronouns and any variations thereof used herein
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or persons referred to may require.
15. Confidentiality. The
confidentiality provisions of Section 5.4 of the Stock Purchase Agreement shall
continue in full force and effect in accordance with its terms and shall apply
to any information in relation to this Agreement.
16. Miscellaneous.
a. This
Agreement, together with the other Subscription Documents, constitutes the
entire agreement between the Subscriber and the Company with respect to the
purchase and sale of the Securities and supersedes all prior oral or written
agreements and understandings, if any, relating to the subject matter
hereof. The terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by a written document executed
by the party entitled to the benefits of such terms or provisions.
b. The
representations and warranties of the Company and the Subscriber made in this
Agreement shall survive the execution and delivery hereof and delivery of the
Shares.
c. Each
of the parties hereto shall pay its own fees and expenses (including the fees of
any attorneys, accountants, appraisers or others engaged by such party) in
connection with this Agreement and the transactions contemplated hereby, whether
or not the transactions contemplated hereby are consummated.
d. This
Agreement may be executed in one or more original or facsimile counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
e. Each
provision of this Agreement shall be considered separable and, if for any reason
any provision or provisions hereof are determined to be invalid or contrary to
applicable law, such invalidity or illegality shall not impair the operation of
or affect the remaining portions of this Agreement.
f.
Paragraph titles are for descriptive purposes only
and shall not control or alter the meaning of this Agreement as set forth in the
text.
g. The
Subscriber hereby agrees to furnish the Company such other information as the
Company may request prior to the Closing with respect to its subscription
hereunder.
17. Public
Disclosure. Except as otherwise provided herein, each party
shall not make any announcement nor disclosure of this Agreement or the
transactions contemplated hereby without the prior consent of the other party,
which consent shall not be unreasonably withheld. Notwithstanding
anything contained herein to the contrary, the Subscriber acknowledges that it
is the intent of the Company to publicly announce the execution of this
Agreement and the Stock Purchase Agreement, and the Subscriber hereby agrees to
cooperate reasonably with the Company in respect of the drafting thereof and
generally consents to such announcements, copies of which shall be provided to
the Subscriber prior to their public release.
[SIGNATURE
PAGE FOLLOWS IMMEDIATELY]
SIGNATURE
PAGE TO
IN
WITNESS WHEREOF, the Subscriber hereby executes this Subscription Agreement as
of the 2nd day of
March, 2010
AVANTE
PETROLEUM S.A.
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By:
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Name:
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Title:
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Address
of Executive Offices:
00x
Xxxxxxxxx Xxxxxx XX
0000
Xxxxxxxxxx
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IRS
Tax Identification Number:
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Telephone
Number:
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Facsimile
Number:
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E-mail
Address:
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XX
XXXXXX ENERGY, INC.
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By:
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Name:
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Title:
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Appendix
A
The following is required in
accordance with the AML provision of the USA PATRIOT
ACT.
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INVESTOR
NAME:
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LEGAL
ADDRESS:
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SS#
or TAX ID#
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of
INVESTOR:
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IDENTIFICATION,
DOCUMENTATION AND SOURCE OF FUNDS:
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1.
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Please
submit a copy of a non-expired identification for the authorized
signatory(ies) on the investment documents, showing name, date of birth
and signature:
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Current
Driver’s License
or
Valid Passport
or
Identity Card
(Circle
one or more)
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2.
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If
the Investor is a corporation, please submit the following corporate
documents:
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(i)
Articles of Incorporation (or similar); (ii) Corporate Resolution granting
authority to signatory(ies) and designating that they are permitted to make the
proposed investment.
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3.
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Please
advise where the funds were derived from to make the proposed
investment:
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Investments
Savings
Proceeds of
Sale
Other ____________
(Circle
one or more)
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Signature:
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Print
Name:
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Title
(if applicable):
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Date:
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Appendix
B
XX
XXXXXX ENERGY, INC.
INVESTOR
CERTIFICATION
For
Individual Accredited Investors Only
(all
Individual Accredited Investors must INITIAL where
appropriate):
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Initial
_______
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I
have a net worth (including home, furnishings and automobiles) in excess
of $1,000,000 either individually or through aggregating my individual
holdings and those in which I have a joint, community property or other
similar shared ownership interest with my spouse.
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Initial
_______
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I
have had an annual gross income for the past two years of at least
$200,000 (or $300,000 jointly with my spouse) and expect my income (or
joint income, as appropriate) to reach the same level in the current
year.
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For Non-Individual Accredited
Investors
(all Non-Individual Accredited
Investors must INITIAL where
appropriate):
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Initial
_______
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The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that is 100% owned by persons who meet
at least one of the criteria for Individual Investors set forth
above.
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Initial
_______
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The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that has total assets of at least $5
million and was not formed for the purpose of investing in the
Company.
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Initial
_______
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The
investor certifies that it is an employee benefit plan whose investment
decision is made by a plan fiduciary (as defined in ERISA §3(21)) that is
a bank, savings and loan association, insurance company or registered
investment adviser.
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Initial
_______
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The
investor certifies that it is an employee benefit plan whose total assets
exceed $5,000,000 as of the date of this Agreement.
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Initial
_______
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The
undersigned certifies that it is a self-directed employee benefit plan
whose investment decisions are made solely by persons who meet either of
the criteria for Individual Investors.
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Initial
_______
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The
investor certifies that it is a U.S. bank, U.S. savings and loan
association or other similar U.S. institution acting in its individual or
fiduciary capacity.
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Initial
_______
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The
undersigned certifies that it is a broker-dealer registered pursuant to
§15 of the Securities Exchange Act of 1934.
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Initial
_______
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The
investor certifies that it is an organization described in §501(c)(3) of
the Internal Revenue Code with total assets exceeding $5,000,000 and not
formed for the specific purpose of investing in the
Company.
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Initial
_______
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The
investor certifies that it is a trust with total assets of at least
$5,000,000, not formed for the specific purpose of investing in the
Company, and whose purchase is directed by a person with such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the prospective
investment.
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Initial
_______
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The
investor certifies that it is a plan established and maintained by a state
or its political subdivisions, or any agency or instrumentality thereof,
for the benefit of its employees, and which has total assets in excess of
$5,000,000.
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Initial
_______
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The
investor certifies that it is an insurance company as defined in §2(13) of
the Securities Act, or a registered investment
company.
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For
Non-U.S. Person Investors
(all Investors who are not a U.S.
Person must INITIAL this section):
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Initial
_______
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The
Investor is not a “U.S. Person” as defined in Regulation S; and
specifically the Purchaser is not:
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A.
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a
natural person resident in the United States of America, including its
territories and possessions (“United States”);
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B.
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a
partnership or corporation organized or incorporated under the laws of the
United States;
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C.
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an
estate of which any executor or administrator is a U.S.
Person;
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D.
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a
trust of which any trustee is a U.S. Person;
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E.
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an
agency or branch of a foreign entity located in the United
States;
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F.
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a
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. Person;
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G.
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a
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States; or
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H.
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a
partnership or corporation: (i) organized or incorporated under the laws
of any foreign jurisdiction; and (ii) formed by a U.S. Person principally
for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the Act) who are not
natural persons, estates or
trusts.
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And, in
addition:
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I.
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the
Purchaser was not offered the Units in the United
States;
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J.
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at
the time the buy-order for the Units was originated, the Purchaser was
outside the United States; and
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K.
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the
Purchaser is purchasing the Units for its own account and not on behalf of
any U.S. Person (as defined in Regulation S) and a sale of the Units has
not been pre-arranged with a purchaser in the United
States.
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EXHIBIT
A
(Form of
Warrant)
