EXHIBIT 10.18
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "Agreement") is made and entered into
this 30th day of January, 2003, by and among GLOBAL ENERGY GROUP, INC. (the
"Company"), a Delaware corporation; XXXXXX X. XXXXX ("Xxxxx"), an individual
with a principal residence in Springfield, Missouri; XXXXXX X. XXXXXXXXXX
("Xxxxxxxxxx"), an individual with a residence in Tampa, Florida; XXXXX X.
XXXXXX ("Xxxxxx"), "), an individual with a residence in Tampa, Florida and
QUEST CAPITAL ALLIANCE, L.L.C. ("Quest"), a Missouri limited liability company.
In this Agreement, (1) the term "New Lender" refers to either Quest or Xxxxx
individually, and the term "New Lenders" refers to Quest and Xxxxx collectively;
(2) the term "Old Lender" refers to Quest, Xxxxx, Xxxxxxxxxx or Xxxxxx
individually, and the term "Old Lenders" refers to any two or more of Quest,
Xxxxx, Xxxxxxxxxx and Xxxxxx collectively; and (3) the term "Lender" (as opposed
to "New Lender" or " Old Lender") refers to any New Lender or Old Lender
individually, and the term the term "Lenders" (as opposed to "New Lenders" or "
Old Lenders") refers to any two or more New Lenders or Old Lenders collectively.
BACKGROUND INFORMATION
The Company needs additional working capital to support its operations
and desires the New Lenders to provide such working capital in the form of loans
to the Company, and the New Lenders are willing to lend certain funds to the
Company. The New Lenders are willing to make such loans to the Company subject
to the terms and conditions of this Agreement. In addition, the Company desires
that the terms of certain outstanding indebtedness to the Old Lenders be
extended, and the Old Lenders are willing to extend such terms subject to the
terms and conditions of this Agreement.
ARTICLE I
NEW LOANS
Section 1.1. New Loans and Promissory Notes. On each date ("New Loan
Date") indicated in the table set forth in Section 1.3, the indicated New Lender
shall lend to the Company, or cause an affiliate of such New Lender to lend to
the Company, an amount of money ("New Loan Amount") indicated to be lent to the
Company on such date (each such loan being referred to as a "New Loan"). Each
New Loan shall be made pursuant to and reflected by a promissory note
(individually a "New Note," and together the "New Notes") each in the form
attached to this Agreement as Exhibit A. At the closing of each New Loan (the
"Closings"), the Company shall execute and deliver to the New Lender making the
related New Loan (or, as the case may be, the affiliate of the New Lender making
such New Loan) a New Note in the amount of the New Loan then made. Each New Note
shall bear interest at eight percent (8%) per annum and shall be due and payable
on February 1, 2004 or, if earlier, on the date that the Company completes a
"Qualified Equity Financing" (as defined in each Note).
Section 1.2. Warrants. As additional consideration for each New Loan,
and as an inducement to the New Lenders to make or cause to be made each New
Loan, at each Closing, simultaneously with the execution and delivery to the New
Lender of the related New Note, the
Company shall execute and deliver to the New Lender a warrant ("New Warrant") in
the form of Exhibit B, which New Warrant shall cover the number of shares ("New
Warrant Shares") of the Company's common stock, par value $.001 per share,
indicated with respect to such New Loan in the table set forth in Section 1.3.
Section 1.3. Specification of Dates, Lenders, and Amounts. The New Loan
Dates, New Lenders, New Loan Amounts and numbers of New Warrant Shares with
respect to each New Loan shall be as set forth in the following table:
NEW LOAN NEW WARRANT
NEW LOAN DATE NEW LENDER AMOUNT SHARES
----------------- ---------- -------- -----------
January 29, 2003 Quest $125,000 250,000
February 15, 2003 Quest $ 75,000 150,000
February 17, 2003 Xxxxx $ 75,000 150,000
March 1, 2003 Xxxxx $ 75,000 150,000
April 1, 2003 Xxxxx $ 75,000 150,000
May 1, 2003 Xxxxx $ 75,000 150,000
June 1, 2003 Xxxxx $ 75,000 150,000
Section 1.4. Salary Deferrals by Xxxxxxxxxx and Xxxxxx. As an
inducement to the other parties to enter into and perform their obligations
under this Agreement, Xxxxxxxxxx and Xxxxxx shall enter into an appropriate
agreement with the Company to defer their entire salary that otherwise would be
payable to them for services rendered during the period from January 29, 2003
through April 30, 2003, with deferred amounts accruing interest at 8% per annum.
No equity or other inducement shall be paid or provided to Xxxxxxxxxx and Xxxxxx
with respect to such deferrals.
ARTICLE II
OLD LOANS
Section 2.1. Old Loan Arrangements. Each of the Old Lenders previously
has entered into one or more lending arrangements with the Company (the "Old
Loan Arrangements"). Pursuant to such arrangements, each Old Lender has made one
or more loans (the "Old Loans") to the Company, each represented by a promissory
note of the Company (the "Old Notes"), each of which is secured by one or more
prior security agreements or arrangements (the "Old Security Agreements"), and
with respect to which each Old Lender has been issued one or more warrants to
purchase common stock of the Company (the "Old Warrants"). New Loans and Old
Loans are referred to each individually as a "Loan" and collectively as the
"Loans." New Notes and Old Notes are referred to each individually as a "Note"
and collectively as the "Notes."
Section 2.2. Amendment of Old Loan Terms. The Old Lenders and the
Company agree that the terms of each Old Loan, and the terms and provisions of
each Old Note, shall be and hereby are amended to provide that (1) the maturity
or due date of each Old Loan and each Old Note shall be the same as the maturity
or due date of each New Loan and each New Note issued pursuant to Section 1.1,
and (2) whenever any portion of any Loan (whether New Loan or Old Loan) is
repaid, the aggregate amounts then being repaid on all Loans (including New
Loans and
INVESTMENT AGREEMENT PAGE 2
JANUARY 30, 2003
all Old Loans) combined shall be allocated among all Loans in proportion to
their respective outstanding balances, and payment or deferral of payment in
accordance with the foregoing shall not directly or indirectly (including after
the giving of notice or the passage of time) result in a default under any Loan
or related agreement.
Section 2.3. No Effect on Old Warrants. No Old Warrant is affected by
this Agreement, and each Old Warrant (unless and except to the extent already
exercised, if at all) remains outstanding and in full force and effect as
originally issued.
Section 2.4. No Effect on Old Security Agreements. No Old Security
Agreement is affected by this Agreement, and each Old Security Agreement (unless
and except to the extent, if at all, that the obligation(s) secured thereby have
been satisfied or discharged) remains in full force and effect as originally
made.
ARTICLE III
SECURITY; CROSS DEFAULT
Section 3.1. Security. For good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company does hereby grant
to each Lender, as security for the payment and performance of each Loan, each
Note, and each and every obligation thereunder, a security interest in certain
property described in Schedule 1 "Description of Collateral" attached hereto,
said security interest and pledge to include a lien on all proceeds, products,
accessions and substitutions of the property (such property, proceeds, products,
accessions and substitutions, are hereinafter sometimes collectively referred to
as the "Collateral").
Section 3.2. Separate Security Agreement. The Company and the Lenders
shall promptly upon execution of this Agreement execute and deliver each to the
other a Security Agreement in substantially the same form as is attached to this
Agreement as Exhibit C (the "Security Agreement").
Section 3.3. All Loans Are and Shall Remain Pari Passu. The Lenders
irrevocably agree that, for all purposes, they shall treat each and every Loan,
Note and related security interest individually and all Loans, Notes and related
security interests together, and they shall cause each and every Loan, Note and
related security interest individually and all Loans, Notes and related security
interests together to be treated, as being pari passu and of equal rank,
seniority, preference, priority, and right of payment, and in that regard the
Lenders shall cooperate with one another and coordinate any collection efforts
so as to call all Loans and all related security interests to be, as nearly as
practically and legally possible and permissible, treated as such. Each Lender
agrees not to take any action inconsistent with this paragraph. The Company
consents to the foregoing agreement.
Section 3.4. No Subordination for Any Reason. The Lenders and the
Company acknowledge and agree that (1) Xxxxxxxxxx and Xxxxxx are directors,
executive officers and controlling persons of the Company, (2) Xxxxxxxxxx and
Xxxxxx are not required to, but the
INVESTMENT AGREEMENT PAGE 3
JANUARY 30, 2003
Company, Xxxxx and Quest desire Xxxxxxxxxx and Xxxxxx to, enter into this
Agreement and effectuate the salary deferrals to be made by them, (3) Quest and
Xxxxx previously have lent funds to the Company on the condition that Xxxxxxxxxx
and Xxxxxx simultaneously make Loans to the Company, which loans were indeed
made by them, (4) Xxxxx, Quest and the Company will benefit from the extension
of such Loans by Xxxxxxxxxx and Xxxxxx, and (5) to the extent that the terms of
any prior Loan are being modified, or any security interest with respect to any
prior Loan is being created or modified, the same reflects a contemporaneous
exchange for new value given to the Company in the form of additional funding
and otherwise. Even if subject to a preference or to equitable subordination, no
Loan (and no security interest relating to any Loan) shall be subordinate in
right of payment or otherwise to any other Loan (or any security interest
relating to any other Loan).
Section 3.5. Cross Default. Any default, in payment or otherwise, under
any Loan, any Note, the Security Agreement, or this Agreement shall constitute a
default under each and every Loan and Note, the Security Agreement, and this
Agreement, and thereupon (a) each Lender shall have each and every remedy
available with respect to any such default thereunder or under law, and (b) at
their election each Lender shall have the right to declare all amounts then
owing under any Loan, any Note, the Security Agreement, or this Agreement to
immediately due and payable in full.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Severability. If any term or other provision of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in any particular respect or under any particular
circumstance, such term or provision shall nevertheless remain in full force and
effect in all other respects and under all other circumstances, and all other
terms, conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner, to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
Section 4.2. Waiver. The failure of any party to insist upon strict
performance of any of the terms or conditions of this Agreement will not
constitute a waiver of any of its rights hereunder.
Section 4.3. Binding Agreements; No Third Party Beneficiaries; No
Assignability. Each of the provisions and agreements herein contained shall be
binding upon and inure to the benefit of the respective parties hereto, as well
as their successors, but no statement contained herein is intended to confer
upon any person or entity, other than the parties hereto and their successors in
interest and permitted assignees, any rights or remedies under or by reason of
this Agreement unless so stated to the contrary. No right under this Agreement
shall be assignable
INVESTMENT AGREEMENT PAGE 4
JANUARY 30, 2003
nor any duty delegable by any party, except as expressly authorized in this
Agreement, without the prior consent of the other party.
Section 4.4. Counterparts. This Agreement may be executed in any number
of counterparts, by means of multiple signature pages each containing less than
all required signatures, and by means of facsimile signatures, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 4.5. Construction. As used herein, unless the context otherwise
requires: (i) references to "Article" or "Section" are to an article or section
hereof; (ii) all references to "Exhibits" are to Exhibits attached hereto and
are incorporated herein by reference and made a part hereof; (iii) "include",
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
(iv) the headings of the various articles, sections and other subdivisions
hereof are for convenience of reference only and are in no way intended to, and
shall not be deemed to, describe, interpret, define, modify or limit the scope,
extent or intent of this Agreement or any of the terms or provisions of this
Agreement; and (v) words of gender used herein may be read as masculine,
feminine, or neuter, as required by context, and words of number may be read as
singular or plural, as similarly required.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX X. XXXXX QUEST CAPITAL ALLIANCE, L.L.C.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxx
Its: General Manager
XXXXXX X. XXXXXXXXXX XXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxx X. Xxxxxx
----------------------------- ---------------------------------------
GLOBAL ENERGY GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Its: CFO
INVESTMENT AGREEMENT PAGE 5
JANUARY 30, 2003
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND OTHER APPLICABLE SECURITIES LAWS, OR A DETERMINATION SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER APPLICABLE LAW.
PROMISSORY NOTE
$ , 2003
----------- --------------
FOR VALUE RECEIVED, GLOBAL ENERGY GROUP, INC., a Delaware corporation
("Maker"), promises to pay to the order of , ______________________, a
____________________________, or assigns ("Holder"), the sum of ____________
DOLLARS ($___________) together with interest on the outstanding principal
balance remaining unpaid from time to time until paid at eight percent (8%) per
annum.
1. PAYMENTS. The then unpaid principal amount of this Note, together with
all accrued and unpaid interest, shall be due and payable in full on the date
(the "Maturity Date") that is the earlier of (a) February 1, 2004 or (b) the
date the Company first completes a "Qualified Equity Financing." For the
purposes of this Note, a Qualified Equity Financing shall mean the sale by the
Company of equity interests in the Company for cash proceeds of not less than
$1,500,000, either in one transaction, or in a series of transactions within a
six-month period.
2. APPLICATION OF PAYMENTS. All payments shall apply first to accrued
interest and the remainder, if any, to reduction of principal as permitted
herein.
3. PREPAYMENT. Prior to the Maturity Date, Maker shall have the right to
prepay any part or all of the principal of this Note at any time and from time
to time, in each case without prior consent of Holder and without penalty.
4. NO CONVERSION RIGHT. This Note is not convertible and does not confer
upon Holder, as such, any right whatsoever as a shareholder of Maker.
5. EVENTS OF DEFAULT. The occurrence of any events or conditions described
in this Section shall constitute an Event of Default hereunder:
a. Maker shall fail to make any payments of principal of or
interest on any amount due hereunder when due.
b. Maker shall default in connection with any agreement for
borrowed money or other credit with any creditor other than Holder which
entitles said creditor to accelerate the maturity thereof and such default is
not cured within the grace period provided thereunder or within 10 business days
after such default, whichever is later; provided, however, that for such
purposes, the default shall be deemed to occur on the date the default event
occurs without taking into account any grace period provided in such other
agreement or credit arrangement.
c. Maker shall file a voluntary petition in bankruptcy or a
voluntary petition or answer seeking liquidation, reorganization, arrangement,
readjustment of its debts, or for any other relief under the Bankruptcy Code, or
under any other act or law pertaining to insolvency or debtor relief, whether
state, Federal, or foreign, now or hereafter existing; Maker shall enter into
any agreement indicating its consent to, approval of, or acquiescence in, any
such petition or proceeding; Maker shall apply for or permit the appointment by
consent or acquiescence of a receiver, custodian or trustee of Maker for all or
a substantial part of its property; Maker shall make an assignment for the
benefit of creditors; or Maker shall be unable or shall fail to pay its debts
generally as such debts become due, or Maker shall admit, in writing, its
inability or failure to pay its debts generally as such debts become due.
d. There shall have been filed against Maker an involuntary
petition in bankruptcy or seeking liquidation, reorganization, arrangement,
readjustment of its debts or for any other relief under the Bankruptcy Code, or
under any other act or law pertaining to insolvency or debtor relief, whether
State, Federal or foreign, now or hereafter existing; Maker shall suffer the
involuntary appointment of a receiver, custodian or trustee of Maker or for all
or a substantial part of its property or an action for such appointment shall be
commenced against Maker; or Maker shall suffer the issuance of a warrant of
attachment, execution or similar process against all or any substantial part of
the property of Maker or an action seeking the issuance of such a warrant,
execution or similar process shall be commenced against Maker.
e. One or more judgments or decrees shall be entered against
Maker involving in the aggregate a liability (not paid or fully covered by
insurance) of $25,000 or more and the same is not stayed, fully bonded off or
cured within ten (10) days thereafter.
6. ACCELERATION. Upon the occurrence of any Event of Default (as defined
herein) the whole indebtedness (including principal and accrued interest)
remaining unpaid, shall, at the option of Holder, become immediately due,
payable, and collectible.
7. NO WAIVER BY HOLDER. No delay or failure on the part of Holder in
exercising any power or right under this Note shall operate as a waiver of any
power or right, nor shall any single or partial exercise of any power or right
preclude further exercise of that power or right. The rights and remedies
specified in this Note are cumulative and not exclusive of any right or remedies
that Holder may otherwise possess.
Promissory Note Page 2
8. WAIVER OF PRESENTMENT, COLLECTION COSTS, ETC. Maker waives presentment
for payment, protest, notice of dishonor or default and notice of protest and
nonpayment of this Note. Should it become necessary to collect this Note through
an attorney, by legal proceedings, or otherwise, Maker promises to pay all costs
of collection, including costs incurred in connection with probate proceedings
or bankruptcy or other creditors' rights proceedings. Such costs of collection
shall in all cases include the reasonable fees and disbursements of attorneys,
paralegals or other legal advisors, whether prior to or at trial, or in
appellate proceedings.
9. ASSIGNMENT. The provisions of this Note bind, and are for the benefit
of, the respective successors and assigns of Holder, jointly and severally. This
Note may not be assigned by Maker without the written consent of Holder.
10. NOTICES. All notices, requests, demands and other communications which
are required or may be given hereunder shall be in writing and shall be deemed
to have been duly given when received if personally delivered; when transmitted
if transmitted by telecopy or similar electronic transmission method; one day
after it is sent, if sent by recognized expedited delivery service; and five
days after it is sent, if mailed, first class mail, postage prepaid and
telecopies simultaneous with such mailing. In each case notice shall be sent to
the address set forth in the books and records of Maker or to such other address
as such party shall have specified by notice in writing to the other parties.
11. APPLICATION OF MISSOURI LAW. This Note, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Missouri.
12. SECURITY. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Maker hereby grants to Holder, as
security for the payment and performance of this Note, a security interest in
certain property described in Schedule 1 "Description of Collateral" attached
hereto, said security interest and pledge to include a lien on all proceeds,
products, accessions and substitutions of the property (such property, proceeds,
products, accessions and substitutions, are hereinafter sometimes collectively
referred to as the "Collateral").
IN WITNESS WHEREOF, Maker has executed and delivered this Note the date
stated above.
GLOBAL ENERGY GROUP, INC.
By:
---------------------------------------
Name:
-----------------------
Its:
-----------------------
Promissory Note Page 3
SCHEDULE 1
Description of Collateral
The security interest granted under this Note covers the following types (or
items of property):
1. All of the Maker's presently existing and hereafter arising accounts,
contract rights, instruments, documents, chattel paper, and all other
forms of obligations owing to the Maker arising out of the sale or
lease of goods or the rendition of services by the Maker whether or not
earned by performance, and any and all credit insurance, guaranties and
other security therefor, as well as all merchandise returned to or
reclaimed by the Maker.
2. All of the Maker's present and hereafter acquired equipment, including
without limitation, motor vehicles, furniture, fixtures, dies, tools,
jigs, office equipment and other tangible personal property of the
Maker, and all machine tools, equipment, fixtures, office equipment,
furniture, furnishings, motors, motor vehicles, tools, dies, parts,
jigs, goods and any and all attachments, accessories, accessions,
replacements, substitutions, additions and improvements thereto,
wherever located.
3. All of the Maker's present and future general intangibles and other
personal property (including, without limitation, all choses or things
in action, contract rights, goodwill, patents, trade names, trademarks,
blueprints, drawings, purchase orders, computer programs, computer
discs, computer tapes, literature, reports, catalogs, deposit accounts
and tax refunds) other than goods and accounts.
4. All of the Maker's present and future inventory in which the Maker has
any interest, including, but not limited to, goods, held by the Maker
for sale or lease or to be furnished under a contract of service and
all of the Maker's present and future raw materials, work in process,
finished goods, and packing and shipping materials, wherever located,
and any documents of title representing any of the above.
5. All books and records of the Maker, including, but not limited to,
minute books, ledgers, records indicating, summarizing or evidencing
Maker's assets, liabilities, accounts and all information relating
thereto, records indicating, summarizing or evidencing Maker's business
operations or financial condition, all computer programs, disc or tape
files, printouts, runs and other computer prepared information and the
equipment containing such information.
6. All proceeds (as defined in the UCC) of all of the foregoing,
including, but not limited to proceeds of insurance, and any and all
accounts, equipment, general intangibles, inventory, money, deposit
accounts or other tangible and intangible property resulting from the
sale or other deposition of any of the items in
Promissory Note Page 4
paragraph 1 through 5 above, and the proceeds thereof.
The above descriptions are, in each case, subject to any prior
agreement of Maker that would preclude the granting of any security
interest in any particular items otherwise included in the Collateral.
Promissory Note Page 5
EXHIBIT B
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE REGISTERED HOLDER
OF THIS WARRANT HAS AGREED THAT NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
WARRANT OR ANY OF SAID SHARES MAY BE MADE WITHOUT REGISTRATION UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAW, UNLESS THE HOLDER SHALL DELIVER TO THE
ISSUER AN OPINION (IN FORM SATISFACTORY TO THE ISSUER) OF COUNSEL SATISFACTORY
TO THE ISSUER THAT NO SUCH REGISTRATION IS REQUIRED.
GLOBAL ENERGY GROUP, INC.
COMMON STOCK PURCHASE WARRANT
________ Shares
This certifies that, for value received,
_____________________________________, a ______________________________ , or
assigns, is entitled, subject to the terms and conditions hereinafter set forth,
at or before 5:00 p.m., New York time, on the date three (3) years after the
date of this Warrant (the "Termination Date"), but not thereafter, to purchase
up to ___________ shares (the "Shares") of Common Stock, par value $0.001 per
share ("Common Stock"), of Global Energy Group, Inc., a Delaware corporation
(the "Company"). The purchase price payable upon the exercise of this Warrant
shall initially be $0.50 per share (the "Warrant Price").
Upon delivery of this Warrant with written notice of exercise duly
executed in form and substance reasonably satisfactory to the Company, together
with payment of the Warrant Price for the shares of Common Stock thereby
purchased, at the principal office of the Company or at such other address as
the Company may designate by notice in writing to the registered holder hereof
(the "Holder"), the Holder shall be entitled to receive a certificate or
certificates for the Shares so purchased. All Shares issued upon the exercise of
this Warrant will, upon issuance, be fully paid and nonassessable and free from
all taxes, liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
SECTION 1. TERM OF WARRANT; EXERCISE OF WARRANT
Subject to the terms of this Warrant, the Holder shall have the right,
at any time during the period commencing at 9:00 a.m., New York time, on the
date hereof, until
5:00 p.m., New York time, on the Termination Date, to purchase from the Company
the number of fully paid and nonassessable Shares to which the Holder may at the
time be entitled to purchase pursuant to this Warrant, upon surrender, to the
Company at this principal office, of this Warrant certificate, together with the
Purchase Form attached hereto duly completed and signed, and upon payment to the
Company of the Warrant Price for the number of Shares in respect of which this
Warrant is then being exercised. Payment of the aggregate Warrant Price shall be
made in cash or by certified or cashier's check, or a combination thereof.
SECTION 2. REGISTRATION AND TRANSFER
2.1. Registration. This Warrant is registered on the books of the
Company. The Company shall be entitled to treat the Holder as the sole owner of
this Warrant for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in this Warrant on the part of any other person,
and shall not be liable for any registration of transfer of this Warrant which
is to be registered in the name of a fiduciary or the nominee of a fiduciary
unless made with actual knowledge that a fiduciary or nominee is committing a
breach of trust in requesting such registration of transfer.
2.2. Transfer. This Warrant shall be transferable only on the books
of the Company maintained at its principal office, wherever located, upon
delivery of this Warrant either duly endorsed by the Holder or by the Holder's
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment, or authority to transfer. In all cases of transfer by an
attorney, the original letter of attorney, duly approved, or an official copy
thereof, duly certified, shall be deposited and remain with the Company. In case
of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited and remain with the Company in its
discretion. Upon any registration of transfer, the Company shall execute and
deliver a new Warrant to the person entitled thereto.
SECTION 3. EXCHANGE OF WARRANT CERTIFICATE
This Warrant certificate may be exchanged for another certificate or
certificates entitling the Holder to purchase a like aggregate number of Shares
as this certificate then entitles the Holder to purchase. Any Holder of this
Warrant desiring to exchange this Warrant certificate shall make such request in
writing delivered to the Company, and shall surrender this certificate, properly
endorsed, to the Company. Thereupon, the Company shall execute and deliver to
the person entitled thereto a new Warrant certificate or certificates, as the
case may be, as so requested.
SECTION 4. PAYMENT OF TAXES
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of Shares upon the exercise of this Warrant; provided
that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in such issuance.
SECTION 5. MUTILATED OR MISSING WARRANT
In case the certificate evidencing this Warrant shall be mutilated,
lost, stolen or destroyed, the Company may, in its discretion, issue and deliver
in exchange and substitution for and upon cancellation of this certificate if it
is mutilated, or in lieu of and substitution for this certificate if it is lost,
stolen or destroyed, a new Warrant certificate of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of this Warrant and indemnity, if
requested, also satisfactory to the Company. Applicants for such substitute
Warrant certificate shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Company may prescribe.
SECTION 6. RESERVATION OF SHARES
There have been reserved, and the Company shall at all times keep
reserved, out of its authorized Common Stock a number of shares of Common Stock
sufficient to provide for the exercise of the rights of purchase represented by
this Warrant. Any transfer agent for the Common Stock or for any other shares of
the Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be requisite for such purpose.
SECTION 7. PURCHASE BY THE COMPANY
The Company shall have the right, except as limited by law, other
agreements or herein, to purchase or otherwise acquire this Warrant at such
times, in such manner and for such consideration as it may deem appropriate and
as shall be agreed with the Holder of this Warrant.
SECTION 8. ADJUSTMENT OF WARRANT
If the Company shall at any time subdivide or combine its outstanding
shares of Common Stock, or if the Common Stock issuable upon exercise of this
Warrant shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification, or otherwise, or if at any time there shall be a capital
reorganization of the Company's Common Stock or merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
this Warrant shall thereafter evidence the right to purchase the number of
shares of Common Stock or other securities or other property that would have
been issuable as a result of that change with respect to the Shares of Common
Stock which were purchasable under this Warrant immediately before that
subdivision or combination.
SECTION 9. FRACTIONAL INTERESTS
The Company shall not be required to issue fractional Shares on the
exercise of this Warrant. If any fraction of a Share would, except for the
provisions of this Section 9, be issuable on the exercise of this Warrant (or
specified portion thereof), the Company shall pay an amount in cash equal to the
current fair market value of a Share, as reasonably determined by the Company,
multiplied by such fraction.
SECTION 10. NO RIGHT AS STOCKHOLDERS; NOTICES TO HOLDER
Nothing contained in this Warrant shall be construed as conferring upon
the Holder or the Holder's transferees the right to vote or to receive dividends
or to consent or to receive notice as stockholders in respect of any meeting of
stockholders for the election of directors of the Company or any other matter,
or any rights whatsoever as stockholders of the Company, except and unless to
the extent specifically stated herein.
SECTION 11. SUPPLEMENTS AND AMENDMENTS
The Company may from time to time supplement or amend this Warrant,
without the approval of the Holder, in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not be inconsistent with the provisions
of this Warrant and which shall not adversely affect the interest of the Holder.
Any other amendment to this Warrant may be made only by a written instrument
executed by the Company and the Holder.
SECTION 12. SUCCESSORS
All the covenants and provisions of this Warrant by or for the benefit
of the Company or the Holder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 13. APPLICABLE LAW
This Warrant shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be construed in accordance with
the laws of said state.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer and its corporate seal to be affixed thereto.
Date: , 20
------------ ---- GLOBAL ENERGY GROUP, INC.
By:
------------------------------
Name:
Title:
EXHIBIT C
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made and entered into this 30th day of
January, 2003, by and between each party identified on the signature page to
this Agreement as a "Secured Party" (collectively, the "Secured Parties") and
GLOBAL ENERGY GROUP, INC., a Delaware corporation (the "Debtor"). This Security
Agreement is executed and delivered as contemplated by and pursuant to that
certain Investment Agreement dated the date of this Security Agreement and
entered into by and among the Debtor and the Secured Parties (the "Investment
Agreement"). All terms appearing in this Security Agreement that are defined in
the Investment Agreement and not defined otherwise herein shall have the
meanings ascribed to such terms in the Investment Agreement.
W I T N E S S E T H:
WHEREAS, the Debtor is now and in the future may be indebted to the
Secured Parties in various amounts and pursuant to various instruments (the
"Loans");
WHEREAS, the Debtor has, or will have, executed and delivered to the
Secured Parties its promissory notes with respect to the Loans (the "Notes");
and
WHEREAS, the Secured Parties desire to receive security for the payment
of the Notes and the Debtor is willing and able to give such security.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, it is hereby agreed as follows:
1. Security Interest. Secured Parties, subject to the terms and
provisions hereof, have made and may make loans and advances to or for the
account of Debtor. In consideration of any such loan or advance, Debtor hereby
grants to Secured Parties a security interest in and agrees and acknowledges
that Secured Parties, without further action on their part, has and shall
continue to have a continuing security interest in all of the "Collateral" (as
defined in Section 2 below).
2. Collateral. For the purposes of this Agreement, the term
"Collateral" shall mean all of the right, title and interest of the Debtor in,
to or under those assets and properties described on SCHEDULE 1 hereto.
3. Obligations. This Agreement shall continue in full force and
effect and Secured Parties shall have the security interest herein described to
secure payment of, and so long as there exists, any outstanding indebtedness or
liability whatsoever by Debtor to any Secured Party, whether direct or indirect,
absolute or contingent, due or to become due, and whether now existing or
hereafter arising, and howsoever evidenced or acquired, including but not
limited to any indebtedness or obligation under any one or more of the Notes,
and whether joint, several, or
Security Agreement
Page 2
joint and several (collectively, the "Obligations"). Secured Parties have a
right of set off against Debtor with respect to the Obligations at any and all
times and in any and all proceedings or actions, including but not restricted to
bankruptcy, reorganization, receivership or insolvency.
4. Warranties. Debtor hereby represents, warrants, covenants and
agrees to and with Secured Parties that:
(a) Debtor will perform all of the covenants of Debtor
under the Obligations and under any notes or agreements, including the
Notes, and will perform all of Debtor's covenants under all documents
executed by Debtor pursuant thereto.
(b) In the event Debtor defaults with respect to any of
its covenants hereunder, Secured Parties may proceed against such
security or guarantors as Secured Parties have with respect to the
Obligations, in such fashion and in such order as Secured Parties may
desire and Secured Parties shall not be deemed to have waived any of
their security rights or other rights by virtue of the order or fashion
in which they elect to realize on the various security interests or
guaranties which they have to secure the Obligations or by virtue of
bringing any action to realize on any of the various security
interests.
5. Payments by Secured Parties. At their option but without
obligation to Debtor, Secured Parties may discharge taxes, liens or security
interest or other encumbrances at any time levied or placed on the Collateral,
may place and pay for insurance thereon, and may pay any necessary filing or
recording fees. Debtor agrees to reimburse Secured Parties on demand for any
payment made or any expense incurred by Secured Parties pursuant to the
foregoing authorization, and such expenses if not reimbursed shall be added to
the Obligations secured hereby.
6. Default and Remedies. Upon the happening of any of the
following events or conditions, namely: (1) default in the payment or
performance of any of the Obligations secured hereby, of any covenant or
liability contained or referred to herein, or any note or other instrument
evidencing any of the Obligations, including but not limited to the Note, or in
any guaranty thereof; (2) any warranty, representation or statement made or
furnished to any Secured Party by or on behalf of Debtor in connection with this
Agreement or to induce any Secured Party to lend monies to Debtor proves to have
been false in any respect when made or furnished; (3) any substantial theft,
loss, damage or destruction of any of the Collateral, or any sale, transfer,
lease, disposition or encumbrance to or of any of the Collateral, or the making
of any levy, seizure or attachment thereof or thereon; (4) dissolution,
termination of existence, insolvency, business failure, appointment of receiver
for Debtor or any of the Collateral or any part of the property of Debtor, or
any material assignment for the benefit of the creditors by, or the commencement
of any proceedings under any bankruptcy or insolvency laws by or against,
Debtor; or (5) any Secured Party in good faith believes that the prospect of
payment or performance by Debtor is impaired and deems itself insecure;
thereupon or at any time thereafter, such defects not having previously been
cured, any Secured Party at its option may declare all of the Obligations
secured hereby to be immediately due and payable and shall then have the
remedies of a secured party under the Florida Uniform Commercial Code or other
applicable law, including without limitation the right to take possession of the
Collateral, and for
Security Agreement
Page 3
that purpose Secured Parties may, so far as the Debtor can give authority
therefor, enter upon any premises on which the Collateral or any part thereof
may be situated, and remove the same therefrom or render the same unusable or
store the Collateral on Debtor's premises for a reasonable time without rent or
cost to Secured Parties. Secured Parties may require Debtor to gather the
Collateral and to make it available to Secured Parties at a place to be
designated by Secured Parties which is reasonably convenient to both parties. If
any notice need be given, it will be reasonable for Secured Parties to give
Debtor five (5) days prior written notice of the time and place of any public
sale or of the time after which any private sale or any other intended
disposition is to be made. Expenses of retaking, holding, preparing for sale,
selling or the like, including Secured Parties' reasonable attorney's fees and
other costs and expenses, will be paid by Debtor, including all costs and
attorneys fees incurred in any appeal.
7. General. This Agreement and the security interest in the
Collateral created hereby shall terminate only when the obligations hereby
secured have been paid in full. No waiver by any Secured Party of any default
shall be effective unless in writing nor operate as a waiver or any other
default or of the same default on a future occasion. To the extent that Debtor's
obligations are now or hereafter secured by property other than the Collateral
or by the guarantee, endorsement or property of any other person, firm or
corporation, then Secured Parties shall have the right in their sole discretion
to determine which rights, securities, liens, security interests or remedies it
shall at any time pursue, relinquish, subordinate or modify, or take any other
action with respect thereto without in any way modifying or affecting any of
them or any of their rights hereunder. Until default, Debtor may have possession
of the Collateral and use the same in any lawful manner not inconsistent with
this Agreement. Debtor will not mortgage, pledge or hypothecate its property or
assets of any kind to anyone except to Secured Parties or otherwise sell or
dispose of any of its property or assets of any kind except in the normal course
of its business. Debtor waives notice of non-payment, presentment, demand,
protest or notice thereof as to any accounts or any securities or instruments or
notes relating thereto, or otherwise except as specified herein. All rights and
remedies herein are cumulative and not alternative. This Agreement contains the
entire agreement of the parties and neither shall be bound by anything not
expressed herein. This Agreement supplements, but shall not be construed to
terminate, replace or diminish, any prior security agreement or arrangement
between Debtor and any one or more Secured Parties. All notices to either party
shall be given by certified mail, postage prepaid, at the address first
mentioned. Whenever used herein, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
All Debtors hereto are bound jointly and severally.
8. Definitions and Miscellaneous. Sections 3 and 4 of the
Investment Agreement are hereby incorporated herein by reference and made a part
hereof.
Security Agreement
Page 4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXX X. XXXXX QUEST CAPITAL ALLIANCE, L.L.C.
By:
-------------------------------- --------------------------
Name: Xxxxxx X. Xxx
Its: General Manager
XXXXXX X. XXXXXXXXXX XXXXX X. XXXXXX
-------------------------------- ------------------------------
GLOBAL ENERGY GROUP, INC.
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Its: CFO
SCHEDULE 1
Description of Collateral
The security interest granted under this Note covers the following types (or
items of property):
1. All of the Maker's presently existing and hereafter arising accounts,
contract rights, instruments, documents, chattel paper, and all other
forms of obligations owing to the Maker arising out of the sale or
lease of goods or the rendition of services by the Maker whether or not
earned by performance, and any and all credit insurance, guaranties and
other security therefor, as well as all merchandise returned to or
reclaimed by the Maker.
2. All of the Maker's present and hereafter acquired equipment, including
without limitation, motor vehicles, furniture, fixtures, dies, tools,
jigs, office equipment and other tangible personal property of the
Maker, and all machine tools, equipment, fixtures, office equipment,
furniture, furnishings, motors, motor vehicles, tools, dies, parts,
jigs, goods and any and all attachments, accessories, accessions,
replacements, substitutions, additions and improvements thereto,
wherever located.
3. All of the Maker's present and future general intangibles and other
personal property (including, without limitation, all choses or things
in action, contract rights, goodwill, patents, trade names, trademarks,
blueprints, drawings, purchase orders, computer programs, computer
discs, computer tapes, literature, reports, catalogs, deposit accounts
and tax refunds) other than goods and accounts.
4. All of the Maker's present and future inventory in which the Maker has
any interest, including, but not limited to, goods, held by the Maker
for sale or lease or to be furnished under a contract of service and
all of the Maker's present and future raw materials, work in process,
finished goods, and packing and shipping materials, wherever located,
and any documents of title representing any of the above.
5. All books and records of the Maker, including, but not limited to,
minute books, ledgers, records indicating, summarizing or evidencing
Maker's assets, liabilities, accounts and all information relating
thereto, records indicating, summarizing or evidencing Maker's business
operations or financial condition, all computer programs, disc or tape
files, printouts, runs and other computer prepared information and the
equipment containing such information.
6. All proceeds (as defined in the UCC) of all of the foregoing,
including, but not limited to proceeds of insurance, and any and all
accounts, equipment,
Security Agreement
Page 6
general intangibles, inventory, money, deposit accounts or other
tangible and intangible property resulting from the sale or other
deposition of any of the items in paragraph 1 through 5 above, and the
proceeds thereof.
The above descriptions are, in each case, subject to any prior agreement of
Maker that would preclude the granting of any security interest in any
particular items otherwise included in the Collateral.
