EXHIBIT 99(f)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into
effective July 24, 2007, by and between OCM GW Holdings, LLC, a Delaware limited
liability company ("Purchaser"), and J. Xxxxxx Xxxxxxxx ("Seller").
WITNESSETH:
WHEREAS, Seller owns beneficially and of record 1,645,152 shares of the
Common Stock, par value $0.001 per share (the "Common Stock"), of Crimson
Exploration Inc. (the "Company"); and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller 1,219,819 shares of the Common Stock, and on the date set
forth above, Seller has committed to sell, and Purchaser has committed to buy,
such shares.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Sale of Stock. Subject to the terms and conditions of this Agreement,
and the representations and warranties herein contained, Seller hereby agrees to
sell, and Purchaser hereby agrees to purchase, 1,219,819 shares of Common Stock
(the "Common Shares") for the consideration hereinafter described. The aggregate
purchase price to be paid by Purchaser and received by Seller for the Common
Shares shall be $8,500,000.00 (the "Purchase Price") payable in accordance with
Section 2(A).
2. Closing.
(A) Closing Date; Payment of Purchase Price. The closing (the
"Closing") shall take place at the offices of Akin Gump Xxxxxxx Xxxxx & Xxxx
LLP, 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000. The date of the
Closing shall be the date hereof and shall herein be referred to as the "Closing
Date." The Purchase Price shall be payable to Seller at the Closing in the form
of wire transfers or other method as may reasonably acceptable to Seller of
immediately available funds in the appropriate amount by Purchaser to the
account of Seller, written notice of which account shall have been provided to
Purchaser.
(B) Seller's Closing Documents; Purchaser's Closing Documents. Seller
shall deliver, or cause to be delivered, to Purchaser at Closing stock
certificate(s) for the Common Shares purchased hereunder accompanied by
appropriate stock transfer powers duly executed by Seller against delivery of
the Purchase Price to Seller. At or prior to Closing Seller shall, in addition,
execute and deliver to Purchaser a Certificate of Non-Foreign Status in the Form
of Exhibit A and a Form W-9, Request For Taxpayer Identification Number and
Certification.
3. Representations, Warranties and Covenants of Purchaser. Purchaser
hereby represents and warrants and covenants to Seller as of the Closing Date,
as follows:
(A) Purchaser has the relevant entity power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and has
taken all actions necessary to authorize the execution and delivery of this
Agreement, the performance of Purchaser's obligations hereunder and the
consummation of the transactions contemplated herein.
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(B) (i) Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"); (ii) Purchaser has sufficient knowledge and experience in
investing in companies similar to the Company in terms of the Company's stage of
development so as to be able to evaluate the risks and merits of Purchaser's
investment in the Company and it is able financially to bear the risks thereof;
(iii) Purchaser has received or has had full access to all the information it
considers necessary or appropriate to make an informed investment decision with
respect to the Common Shares to be purchased by Purchaser under this Agreement;
(iv) Purchaser further has had an opportunity to ask questions and receive
answers regarding the Common Shares and to obtain additional information
necessary to verify any information furnished to Purchaser or to which Purchaser
had access; and (v) the Common Shares being purchased by Purchaser are being
acquired for Purchaser's own account for the purpose of investment and not with
a view to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act.
(C) Purchaser understands that (i) the Common Shares have not been
registered under the Securities Act because of their sale in a transaction
exempt from the registration requirements of the Securities Act, (ii) the Common
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such registration, and
(iii) the Common Shares bear the appropriate legend required by the Securities
Act.
4. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as of the Closing Date, as follows:
(A) Seller has valid and marketable title to the Common Shares and has
the legal right and power, and all authorizations and approvals required by law
or otherwise, to execute this Agreement, to sell, transfer and deliver the
Common Shares and to perform his other obligations hereunder.
(B) Delivery of the Common Shares will pass marketable title to the
Common Shares to Purchaser, free and clear of any security interests, claims,
liens or other encumbrances whatsoever.
(C) Seller has taken all actions necessary to authorize the execution
and delivery of the Agreement, the performance of Seller's obligations
hereunder, and the consummation of the transactions contemplated herein.
(D) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein will not (i) conflict with, result in a
breach or violation of any of the terms or provisions of, or constitute (or with
due notice or lapse of time or both would constitute) a default under, or give
rise to any right of termination, acceleration or cancellation under, any
indenture, agreement, contract, license, arrangement, understanding, evidence of
indebtedness, note, lease or other instrument to which Seller or any of his
properties is bound, (ii) result in the violation of any statute, law, order,
rule or regulation applicable to Seller of any court or of any regulatory body
or administrative agency or other governmental body having jurisdiction, or
(iii) require any consent, approval, notification, waiver or other similar
action from any third party.
(E) (i) Seller is an "accredited investor" within the meaning of Rule
501 of Regulation D under the Securities Act; (ii) Seller has received or has
had full access to all the information it considers necessary or appropriate to
make an informed decision with respect to the Company and the sale of the Common
Shares to Purchaser under this Agreement; and (iii) Seller has had an
opportunity to ask questions and receive answers regarding the Company and to
obtain additional information necessary to verify any information furnished to
Seller or to which Seller had access.
5. Acknowledgements by Seller.
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(A) Seller acknowledges and agrees that Purchaser has informed Seller
that Purchaser (i) as of the date hereof owns a majority of the Company's
outstanding shares of Series G Convertible Preferred Stock, par value $0.01 per
share (the "Series G Preferred Stock"), and as a result has exercised the right
to elect a majority of the Company's board of directors through majority
ownership of the Series G Preferred Stock, and that Purchaser controls a
majority of voting power with respect to matters on which the Common Stock is
entitled to vote except with respect to elections of directors (in which case
Purchaser has the right to elect a majority of such directors as majority holder
of the Series G Preferred Stock), and is party to a Shareholders Rights
Agreement, dated February 28, 2005, with the Company, and (ii) may be in
possession of material non-public information relating to the Company (including
financial projections, future capital expenditures, acquisitions, financings or
other transactions, production volumes, reserves, current and future projects
and business strategy) and that it is not at liberty to disclose such
information, and has not disclosed and will not disclose any such information,
and Seller acknowledges such non-disclosure.
(B) Seller hereby irrevocably and unconditionally waives and releases
Purchaser and its affiliates and their respective officers, directors, members,
managers, equityholders, agents, attorneys and employees from all claims that
Seller might have (whether for damages, recission or any other relief) based on
Purchaser's possession or non-disclosure of material, non-public information as
contemplated in Section 5(A). Seller represents and warrants that he has not and
will not solicit or encourage, directly or indirectly, any other person to
assert such a claim, and Seller confirms that he understands the significance of
the foregoing waiver.
6. Miscellaneous.
(A) Survival. Except as otherwise set forth herein, the
representations, warranties, covenants, acknowledgements and obligations of the
parties hereto contained in this Agreement shall survive the Closing.
(B) Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of its subject matter and
supersedes all prior understandings, agreements, or representations by or among
the parties hereto, written or oral, to the extent they relate in any way to the
subject matter hereof or the transactions contemplated hereby.
(C) Amendment; Waiver. This Agreement may not be amended or modified,
and no provisions hereof may be waived, without the written consent of the
parties hereto.
(D) Notices. Any notice or other communication required or permitted to
be given to a party pursuant to the provisions of this Agreement will be in
writing and will be effective and deemed given under this Agreement on the
earliest of: (a) the date of personal delivery, (b) the date of transmission by
facsimile, with confirmed transmission and receipt, (c) two days after deposit
with a nationally-recognized courier or overnight service such as Federal
Express, or (d) five days after mailing via certified mail, return receipt
requested. All notices not delivered personally or by facsimile will be sent
with postage and other charges prepaid and properly addressed to the party to be
notified at the address set forth for such party:
(i) If to Purchaser:
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: B. Xxxxx Xxxx
Telecopier: (000) 000-0000
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(ii) If to Seller, at the address set forth on the signature page
hereto.
(E) Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision hereof will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is adjudged by a court, governmental body, arbitrator not to
be enforceable in accordance with its terms, the parties agree that the court,
governmental body, arbitrator making such determination will have the power to
modify the provision in a manner consistent with its objectives such that it is
enforceable, and/or to delete specific words or phrases, and in its reduced
form, such provision will then be enforceable and will be enforced.
(F) No Third Party Beneficiaries. Except as otherwise set forth in this
Agreement, all representations, warranties, covenants, acknowledgements and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. Nothing in this
Agreement shall create or be deemed to create any third-party beneficiary rights
in any person not a party to this Agreement.
(G) Representations and Warranties Exclusive. ALL REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE, AND ARE GIVEN IN LIEU OF
ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ALL OF WHICH ARE
EXPRESSLY DISCLAIMED. Each of Seller and Purchaser acknowledge that no other
representations or warranties, express or implied, have been made with respect
to the Company or the purchase and sale of the Common Shares by the other party
hereto or any of their respective officers, directors, employees, agents or
affiliates other than as are expressly set forth in this Agreement, and that
neither Seller nor Purchaser is relying on any representations or warranties,
express or implied, not expressly set forth in this Agreement.
(H) Governing Law. This Agreement and the performance of the
transactions and the obligations of the parties hereunder will be governed by
and construed and enforced in accordance with the laws of the State of Texas,
without giving effect to any choice of law principles.
(I) Descriptive Headings. The section and subsection headings contained
in this Agreement are inserted for convenience only and will not affect in any
way the meaning or interpretation of this Agreement.
(J) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument. Execution and delivery of a
counterpart hereof by facsimile or electronic transmission (.pdf) shall be
effective as execution and delivery of a manually executed and delivered
counterpart hereof.
(K) Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement or any other agreement or
document to be executed or delivered pursuant hereto, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and disbursements in addition
to any other relief to which such party may be entitled.
(L) Further Assurances. If any further action is necessary or
reasonably desirable to carry out this Agreement's purposes, each party will
take such further action (including executing and delivering any further
instruments and documents and providing any reasonably requested information) as
the other party reasonably may request.
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(M) Joinder of Spouses. The spouse of Seller has joined in the
execution and delivery of this Agreement for the express purpose of binding her
community property interests, if any, in the Common Shares.
(SIGNATURE PAGES FOLLOW)
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(PURCHASE AGREEMENT
SIGNATURE PAGE)
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first written above.
PURCHASER:
OCM GW HOLDINGS, LLC
By: OCM Principal Opportunities Fund III, L.P.,
its managing member
By: OCM Principal Opportunities Fund III GP, LLC,
its general partner
By: Oaktree Fund GP I, L.P. its managing member
By: /s/ B. Xxxxx Xxxx
----------------------------------------
Name: B. Xxxxx Xxxx/Managing Director
Title: Authorized Signatory
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx/Assistant Vice President
Title: Authorized Signatory
(PURCHASE AGREEMENT
SIGNATURE PAGE)
SELLER:
/s/ J. Xxxxxx Xxxxxxxx
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J. Xxxxxx Xxxxxxxx, individually
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Mrs. J. Xxxxxx Xxxxxxxx
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[Spouse]
