EXHIBIT 10.3
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") is entered into as
of April 10, 2001, by and among DELTA PETROLEUM CORPORATION, a corporation
duly organized and existing under the laws of the State of Colorado (the
"Company") and Xxxxxx Private Equity, LLC (hereinafter referred to as
"Xxxxxx"), amends and restates the Agreement between the parties dated on or
about July 21, 2000.
RECITALS:
WHEREAS, pursuant to the Company's offering ("Equity Line") of up to
Twenty Million Dollars ($20,000,000), excluding any funds paid upon exercise
of the Warrants, of Common Stock of the Company pursuant to that certain
Amended and Restated Investment Agreement (the "Investment Agreement") between
the Company and Xxxxxx dated on or about April 10, 2001, the Company has
agreed to sell and Xxxxxx has agreed to purchase, from time to time as
provided in the Investment Agreement, shares of the Company's Common Stock for
a maximum aggregate offering amount of Twenty Million Dollars ($20,000,000);
and
WHEREAS, pursuant to the terms of the Investment Agreement, the Company
has agreed, among other things, to issue to the Subscriber Commitment
Warrants, as defined in the Investment Agreement, to purchase a number of
shares of Common Stock, exercisable for five (5) years from their respective
dates of issuance.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in Agreement and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Issuance of Commitment Warrants. As compensation for entering into the
Equity Line, Xxxxxx received a warrant convertible into 500,000 shares of the
Company's Common Stock, in the form attached hereto as Exhibit A (the
"Commitment Warrants").
2. Issuance of Additional Warrants. If the Company shall at any time
effect a reverse stock split (i.e. a stock split as a result of which the
shares of Common Stock shall be changed into or become exchangeable for a
smaller number of shares (a "Reverse Stock Split")), and if and only if the
Stockholders' Equity (as defined below) on the trading day immediately
preceding the date of the Reverse Stock split is less than $1 million, then on
the date of such Reverse Stock Split, and on each one year anniversary (each,
an "Anniversary Date") of the Reverse Stock Split thereafter throughout the
term of the Commitment Warrants, the Company shall issue to Xxxxxx additional
warrants (the "Additional Warrants"), in the form of Exhibit A, to purchase a
number of shares of Common Stock, if necessary, such that the sum of the
number of Warrants and the number of Additional Warrants issued to Xxxxxx
shall equal at least 6.2% of the number of fully diluted shares of Common
Stock of the Company (not including any shares issued or issuable to Xxxxxx)
that are outstanding immediately following the Reverse Stock Split or
Anniversary Date, as applicable. The Additional Warrants shall be
exerciseable at the same price as the Commitment Warrants, shall have
piggyback registration rights and shall have a 5-year term. For purposes
hereof, the term "Stockholders' Equity" at a given time shall have the meaning
as set forth in the Company's then current financial statements.
3. Opinion of Counsel. Concurrently with the issuance and delivery of the
Commitment Opinion (as defined in the Investment Agreement) to the Investor,
or on the date that is six (6) months after the date of this Agreement,
whichever is sooner, the Company shall deliver to the Investor an Opinion of
Counsel (signed by the Company's independent counsel) covering the issuance of
the Commitment Warrants and the Additional Warrants, and the issuance and
resale of the Common Stock issuable upon exercise of the Warrants and the
Additional Warrants.
4. Change in Corporate Entity. The Company shall not, at any time after
the date hereof, enter into any merger, consolidation or corporate
reorganization of the Company with or into, or transfer all or substantially
all of the assets of the Company to, another entity unless the resulting
successor or acquiring entity in such transaction, if not the Company (the
"Surviving Entity"), (i) has Common Stock listed for trading on Nasdaq or on
another national stock exchange and is a Reporting Issuer, and (ii) assumes
by written instrument the Company's obligations with respect to this Agreement
and the Additional Warrants, including but not limited to the obligations to
deliver to the Investor shares of Common Stock and/or securities that Investor
is entitled to receive pursuant to this Investment Agreement and upon exercise
of the Additional Warrants and agrees by written instrument to reissue, in the
name of the Surviving Entity, any Additional Warrants (each in the same terms
as the Commitment Warrants originally issued or required to be issued by the
Company) that are outstanding immediately prior to such transaction, making
appropriate proportional adjustments to the number of shares represented by
such Warrants and the exercise prices of such Warrants to accurately reflect
the exchange represented by the transaction.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Act or the Securities Exchange Act of 1934, which matters shall be
construed and interpreted in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 10th day of April, 2001.
DELTA PETROLEUM CORPORATION SUBSCRIBER:
XXXXXX PRIVATE EQUITY, LLC
By: ________________________________ By: __________________________________
Xxxxxx X. Xxxxxx, Xx., & CEO Xxxx X. Xxxxxx, Manager
Delta Petroleum Corporation 000 Xxxxxxxx Xxxxxx Xxxxxxx
000 00xx Xxxxxx, Xxxxx 0000 Xxxxx 000
Xxxxxx, XX 80202 Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
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