August 28, 2008 Ms. Diana L. Kubik Chief Financial Officer Evergreen Energy Inc. Suite 1300 Denver, CO 80206
Exhibit
4.2
[LOGO]
ARISTEIA CAPITAL
August
28, 2008
Chief
Financial Officer
0000
00xx Xxxxxx
Suite
1300
Denver,
CO 80206
Re:
3(a)(9)
Exchange
This
letter agreement (this “Agreement”) confirms our agreement to exchange (the
“Exchange”) $18,750,000 in aggregate principal amount of the 8.00% CONVERTIBLE
SECURED NOTES DUE 2012 (the “Notes”), Cusip No. 00000XXX0,
of Evergreen Energy Inc. (the “Company”), a Delaware corporation, for
an aggregate of 10,500,000 shares of the Company’s common stock, par value $.001
per share (the “Common Stock”), pursuant to Section 3(a)(9) of the Securities
Act of 1933, as amended (the “Act”), on terms specified below:
Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 4 and 5
below, the Company agrees to issue to each fund listed in column (1) of Schedule I attached
hereto (each, a “Fund” and together, the “Funds”) on the Initial Closing Date
(as defined below) that number of shares of Common Stock as is set forth
opposite such Fund’s name in column (2) of Schedule I attached
hereto in exchange for that principal amount of the Notes as is set forth
opposite such Fund’s name in column (3) of Schedule I attached
hereto.
Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 4 and 5
below, the Company agrees to issue to each Fund on the Additional Closing Date
(as defined below) that number of shares of Common Stock as is set forth
opposite such Fund’s name in column (4) of Schedule I attached
hereto in exchange for that principal amount of Notes as is set forth opposite
such Fund’s name in column (5) of Schedule I attached
hereto.
The
date and time of the initial closing (the “Initial Closing Date”) shall be 10:30
a.m., New York City time, on August 29, 2008 after notification of satisfaction
(or waiver) of the conditions to the initial closing set forth in Sections 4 and
5 below (or such later date as is mutually agreed to by the Company and each
Fund). The date and time of the additional closing (the “Additional Closing
Date” and together with the Initial Closing
1
Date,
each a “Closing Date”) shall be 10:30 a.m., New York City time, on September 2, 2008 after notification of
satisfaction (or waiver) of the conditions to each closing set forth in Sections
4 and 5 below (or such other date as is mutually agreed to by the Company and
each Fund); provided, that if one or more Funds are prohibited from exchanging
its Notes for Common Stock because it would cause such Fund’s beneficial
ownership in the Common Stock to exceed the Maximum Percentage (as defined
below), such Fund may extend the Additional Closing Date by no more than three
(3) trading days and such Fund shall use it reasonable best efforts to take such
actions reasonably necessary to allow the exchange to occur on the Additional
Closing Date (as extended). If, despite such Fund’s reasonable best
efforts, it is still unable to exchange the Notes for Common Stock without
breaching the Maximum Percentage, such Fund’s obligation to exchange Notes for
Common Stock will be reduced to the maximum amount permitted without breaching
the Maximum Percentage.
Notwithstanding
the foregoing, no Fund shall have the right to exchange Notes for Common Stock
or any obligation to exchange Notes for Common Stock to the extent that after
giving effect to such exchange, such Fund (together with such Person’s
affiliates) would beneficially own in excess of 9.99% (the “Maximum Percentage”)
of the shares of Common Stock outstanding immediately after giving effect to
such exchange. For purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”). The Company hereby
represents and warrants that the number of outstanding shares of Common Stock,
prior to giving effect to the transactions contemplated here, is at least 84,651,000 and prior to the consummation
of the transactions contemplated hereby, the Company covenants and agrees that
it will promptly notify each Fund of any decrease in such number. The
provisions of this paragraph shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this paragraph to correct
this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended beneficial ownership limitation herein contained or to make
changes or supplements necessary or desirable to properly give effect to such
limitation.
The
Exchange will be subject to the following terms and conditions:
(1)
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The
Funds will privately exchange the Notes for the Common Stock, subject to
the following settlement payment and other
terms:
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a.
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Each
Fund will receive unlegended Common Stock on each Closing Date that may be
sold without restrictions into the public market, subject to the accuracy
of such Fund’s representations in Section 3
below.
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b.
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The
Common Stock issuable and deliverable upon the exchange of the Notes shall
be transferred by Deposit / Withdrawal at Custodian (DWAC) to each Fund’s
DTC participant account #0005 (Xxxxxxx Xxxxx & Co.). Each of the Funds shall deliver the Notes being
exchanged by them to the Company as promptly as practicable after the
Exchange.
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c.
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Each Fund that represents the principal amount of
the Notes as is set forth opposite such Fund’s name in columns (3) and (5)
of Schedule I attached hereto hereby agrees to consent to the amendments
to the Indenture governing the Notes set forth in the Supplemental
Indenture attached
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hereto as Exhibit A (the “Supplemental
Indenture”). Notwithstanding the provisions of Section 8(c)
hereto, such consent is subject to
all provisions of this Agreement and all transactions contemplated hereby,
not being invalid, in whole or in part, and Company’s compliance with all
of its obligations under this Agreement and the terms and conditions of
the indenture governing the Notes (as amended or modified, the
“Indenture”).
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d.
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Notwithstanding
anything to the contrary contained in the Indenture or otherwise, with
respect to any guarantees by any subsidiaries of the Company contained in
the Indenture, the Company and each of the Funds hereby agrees that each
such guarantee issued pursuant to the Indenture, prior to each exchange of
Notes for Common Stock hereunder, shall be null and void with respect to
such Notes being exchanged such that, at the time of each Exchange, such
Notes being exchanged shall not be guaranteed securities and shall be
solely securities of the Company.
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For the avoidance of doubt, the Exchange is not
conditioned on the approval of the requisite holders of Notes needed to approve
the Supplemental Indenture or the transactions contemplated thereby or the
effectiveness of such Supplemental Indenture.
(2) The
Company represents, warrants and agrees that:
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a.
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The
Company shall comply with all, and this transaction shall not contravene
any, applicable securities laws and the rules and regulations promulgated
thereunder, including Section 3(a)(9) of the
Act.
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b.
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The
Company shall not negotiate or consummate any exchanges with any other
holders of its securities under 3(a)(9) during the period beginning today
and ending 10 trading days from the date
hereof.
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c.
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The
Company has a sufficient number of authorized and unissued shares of
Common stock to consummate the
exchange.
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e.
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To
the knowledge of the Company, no Event of Default (as defined in the
Notes) has occurred and is continuing as of the date
hereof.
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f.
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The
Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware, and has the requisite
corporate power and authorization to own its properties and to carry on
its business as now being
conducted.
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g.
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The
Company is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be
in good standing would not reasonably be expected to have a Material
Adverse Effect. As used in this Agreement, "Material Adverse
Effect" means any material adverse effect on the business, properties,
assets, operations, results of operations, condition (financial or
otherwise) or
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prospects
of the Company, taken as a whole, or on the transactions contemplated by
this Agreement or by the agreements and instruments to be entered into in
connection with this Agreement, or on the authority or ability of the
Company to perform its obligations under this
Agreement.
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h.
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The
Company has the requisite power and authority to enter into and perform
its obligations under this Agreement and to issue the Common Stock as
required by and in accordance with the terms hereof. The
execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby,
including, without limitation, the exchange and issuance of the Common
Stock for the Notes have been duly authorized by the Company’s Board of
Directors and no further consent or authorization is required by the
Company, its Board of Directors or its
stockholders.
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i.
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The
Company has duly executed and delivered this Agreement and this Agreement
constitutes the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and
remedies.
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j.
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The
execution, delivery and performance of this Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby
(including, without limitation, the exchange and issuance of the Common
Stock will not (i) result in a violation of the Certificate of
Incorporation of the Company, any capital stock of the Company or the
Bylaws of the Company or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which the Company is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations and the rules and regulations of The NYSE
Arca Exchange (the “Principal Market”)) applicable to the Company or by
which any property or asset of the Company is bound or
affected.
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k.
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The
Company is not required to obtain any consent, authorization or order of,
or make any filing or registration with, any court, governmental agency or
any regulatory or self-regulatory agency or any other person in order for
it to execute, deliver or perform any of its obligations under or
contemplated by this Agreement, in each case in accordance with the terms
hereof, other than obtaining other consents and execution of the
Supplemental Indenture by the Trustee to effectuate the amendments to the
Indenture. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the
preceding sentence have been obtained or effected on or prior to the
applicable Closing Date (other than obtaining other consents
and
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execution
of the Supplemental Indenture by the Trustee to effectuate the amendments
to the Indenture), and the Company and is unaware of any facts or
circumstances which might prevent the Company from obtaining or effecting
any of the registration, application or filings pursuant to the preceding
sentence. The Company is not in violation of the listing
requirements of the Principal Market and has no knowledge of any facts
which would reasonably lead to delisting or suspension of the Common Stock
in the foreseeable future.
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l.
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There
is no action, suit, proceeding, inquiry or investigation before or by
either Principal Market, any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company, the Common Stock or
any of the Company’s officers or directors in their capacities as such,
that is expected to have a Material Adverse
Effect.
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m.
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The
Company is not, and has never been, an issuer identified in Rule 144(i)(1)
of the Act.
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n.
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Neither
the Company nor any of its Subsidiaries has taken any steps to seek
protection pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy proceedings or any actual knowledge of any fact
which would reasonably lead a creditor to do so. The Company
and its Subsidiaries, individually and on a consolidated basis, are not as
of the date hereof, and after giving effect to the transactions
contemplated hereby to occur at each of the Closings, will not be
Insolvent (as defined below). For purposes of this Section
2(n), "Insolvent" means, with respect to any person, (i) the present fair
saleable value of such person’s assets is less than the amount required to
pay such person’s total indebtedness, (ii) such person is unable to pay
its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured, (iii) such person
intends to incur or believes that it will incur debts that would be beyond
its ability to pay as such debts mature or (iv) such person has
unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be
conducted.
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o.
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To
the Company’s knowledge, neither this Agreement nor any other written
statements or certificates made or delivered in connection herewith, when
taken as a whole, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under which
they were made.
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p.
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For
the purposes of Rule 144 under the Act, the Company acknowledges that the
holding period of the Common Stock issued hereunder may be tacked onto the
holding period of the Notes, and the Company agrees not to take a position
contrary to this Section. All shares of Common Stock issued
hereunder shall be issued without any restrictive
legend.
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(3)
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Each
Fund, severally and not jointly, hereby represents and warrants
that:
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a.
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such
Fund has the requisite power and authority to enter into this Agreement
and to perform its obligations under and the transactions contemplated by
this Agreement on behalf of the Funds, and the representations and
warranties contained in (b) through (f) below are accurate with respect to
such Fund;
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b.
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such
Fund has not acted on behalf of the Company and has received no commission
or remuneration from the Company other than as contemplated in this
Agreement;
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c.
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such
Fund was not solicited by anyone on behalf of the Company to enter into
this transaction, and it has not solicited any other holder of the
Company’s Notes to participate in this
transaction;
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d.
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such
Fund has sufficient knowledge and experience in financial and business
matters so as to be capable of bearing the economic risks of participation
in this transaction, and it is capable of evaluating the merits and risks
of participating in this transaction, including any risks associated with
surrendering any rights related to the Notes in exchange for the rights
and risks related to the Common Stock;
and
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e.
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neither
such Fund nor any of its affiliates is, and for three months immediately
preceding the date hereof, has been an officer, director or “beneficial
owner” (as defined for purposes of Rule 13d-3 of the Exchange Act) of 10%
or more of the Company’s Common
Stock.
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(4)
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Conditions
to the Company’s obligations hereunder on each of the applicable Closing
Dates:
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The
obligations of the Company to each Fund hereunder are subject to the
satisfaction of each of the following conditions, provided that these conditions
are for the Company’s sole benefit and may be waived by the Company at any time
in its sole discretion by providing such Fund with prior written notice
thereof:
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a.
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Each
Fund shall have executed this Agreement and delivered the same to the
Company.
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b.
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The
representations and warranties of each Fund in Section 3 shall be true and
correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect,
which shall be true and correct in all respects) as of the date when made
and as of the applicable Closing Date as though made at that time (except
for representations and warranties that speak as of a specific date, which
shall be true and correct as of such specified date) and each Fund shall
have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
applicable Closing Date.
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(5)
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Conditions
to each Fund’s obligations hereunder on each of the applicable Closing
Dates:
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The
obligations of each Fund hereunder are subject to the satisfaction of each of
the following conditions, provided that these conditions are for each such
Fund’s sole benefit and may be waived by such Fund at any time in its sole
discretion by providing the Company with prior written notice
thereof:
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a.
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The
Company shall have duly executed and delivered to each Fund (i) this
Agreement and (ii) the Common Stock being issued to such Fund at the
applicable Closing pursuant to this
Agreement.
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b.
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The
representations and warranties of the Company in Section 2 shall be true
and correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect,
which shall be true and correct in all respects) as of the date when made
and as of the applicable Closing Date as though made at that time (except
for representations and warranties that speak as of a specific date, which
shall be true and correct as of such specified date) and the Company shall
have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the
applicable Closing Date. Each Fund shall have received a
certificate, executed by the Chief Executive Officer or Chief Financial
Officer of the Company, dated as of the applicable Closing Date, to the
foregoing effect in the form attached hereto as Exhibit
B.
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c.
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The
Common Stock (A) shall be designated for quotation or listed on the
Principal Market and (B) shall not have been suspended, as of the
applicable Closing Date, by the SEC or the Principal Market from trading
on the Principal Market nor shall suspension by the SEC or the Principal
Market have been threatened, as of the applicable Closing Date, either (A)
in writing by the SEC or the Principal Market or (B) by falling below the
minimum listing maintenance requirements of the Principal
Market.
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d.
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The
Company shall have obtained all governmental, regulatory or third party
consents and approvals, if any, necessary for the issuance of the
Securities, including, without limitation, any approvals or notifications
required by the Principal Market.
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(6)
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In
the event that the Closings do not occur by the sixth (6th) trading date after
the date hereof, due to the Company’s or any Fund’s failure to satisfy the
conditions set forth in Sections 4 and 5 hereof (and the nonbreaching party’s
failure to waive such unsatisfied conditions(s)), the nonbreaching party shall
have the option to terminate their obligations to consummate the transactions
contemplated hereby at the close of business on such date without liability of
any party to any other party.
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a.
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Each
party shall use its best efforts timely to satisfy each of the covenants
and the conditions to be satisfied by it as provided in Sections 4, 5 and
7 of this Agreement.
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b.
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On
the first business day following the date of this Agreement, on or before 8:30 a.m., New York City time, the Company shall
file a Current Report on Form 8-K
describing the terms of the transactions contemplated by this Agreement in
the form required by the Exchange Act (the “8-K Filing”). As of the date and time of the filing of the 8-K Filing with
the SEC, the Company hereby acknowledges and
agrees that no Fund is in
possession of any material, nonpublic information received from the
Company, any of its subsidiaries or any of its respective officers,
directors, employees or agents, that is not disclosed in the 8-K
Filing. Until the six month
anniversary of the date hereof, the Company shall not, and shall
cause each of its subsidiaries and its and each of their respective
officers, directors, employees and agents, not to, provide any Fund with
any material, nonpublic information regarding the Company or any of its
subsidiaries from and after the filing of the 8-K Filing with the SEC
without the express written consent of such Fund. Subject to
the foregoing, neither the Company, its subsidiaries nor any Fund shall
issue any press releases or any other public statements with respect to
the transactions contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of the Funds, to make any
press release or other public disclosure with respect to such transactions
(i) in substantial conformity with the 8-K Filing and contemporaneously
therewith and (ii) as is required by applicable law and regulations
(provided that in the case of clause (i) each Fund shall be consulted by
the Company in connection with any such press release or other public
disclosure prior to its release). Without the prior written
consent of each Fund, neither the Company nor any of its subsidiaries or
affiliates shall disclose the name of any Fund in any filing,
announcement, release or otherwise, unless such disclosure is required by
law, regulation or the Principal
Market.
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c.
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If
the Company shall fail for any reason or for no reason to issue to any
Fund the shares of Common Stock required to be issued hereunder by
electronic delivery at the applicable balance account at DTC on any
Closing Date, and if on or after such Closing Date any Fund (in an open
market transaction or otherwise) purchases shares of Common Stock to
deliver in satisfaction of a sale by such Fund of the shares for Common
Stock that such Fund anticipated receiving without legend from the Company
(a “Buy-In”), then the Company shall, within three (3) trading days after
any Fund’s request and in such Fund’s discretion, either (i) pay cash to
such Fund in an amount equal to such Fund’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock
so purchased (the “Buy-In Price”), at which point the Company’s obligation
to deliver such shares of Common Stock shall terminate, or (ii) promptly
honor its obligation to deliver to such Fund such unlegended shares of
Common Stock as provided above and pay cash to the Fund
in
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an
amount equal to the excess (if any) of the Buy-In Price over the product
of (A) such number of shares of Common Stock, times (B) the closing sale
price of the stock on the day prior to the applicable Closing
Date.
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(8)
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a.
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This
Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the other party; provided that a facsimile signature shall be
considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a
facsimile signature.
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b.
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The
headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this
Agreement.
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c.
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If
any provision of this Agreement is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or
unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability
of such provision shall not affect the validity of the remaining
provisions of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of
the parties as to the subject matter hereof and the prohibited nature,
invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations
of the parties or the practical realization of the benefits that would
otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or
unenforceable provision(s) with a valid provision(s), the effect of which
comes as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
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d.
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All
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of
the State of Delaware, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Delaware or any
other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Wilmington Delaware, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service
of process and consents to process
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being
served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner
permitted by law. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
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e.
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This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other
Person.
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f.
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Each
party shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party
may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
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g.
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The
language used in this Agreement will be deemed to be the language chosen
by the parties to express their mutual intent, and no rules of strict
construction will be applied against any
party.
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h.
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This
Agreement supersedes all other prior oral or written agreements between
the Funds, the Company, their affiliates and persons or entities
(“Persons”) acting on their behalf with respect to the matters discussed
herein, and this Agreement and the instruments referenced herein contain
the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Fund makes any representation,
warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be amended other
than by an instrument in writing signed by the Company and each
Fund. No provision hereof may be waived other than by an
instrument in writing signed by the party against whom enforcement is
sought. The Company has not, directly or indirectly, made any
agreements with any of the Funds relating to the terms or conditions of
the transactions contemplated hereby except as set forth
herein.
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i.
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Any
notices, consents, waivers or other communications required or permitted
to be given under the terms of this Agreement must be in writing and will
be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated
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and
kept on file by the sending party); or (iii) one Business Day after
deposit with an overnight courier service, in each case properly addressed
to the party to receive the same. The addresses and facsimile
numbers for such communications shall
be:
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If
to the Company:
0000
00xx Xxxxxx, Xxxxx 0000
Denver,
CO 80206
Telephone: (000)000-0000
Facsimile: (000)000-0000
Attention: Xx.
Xxxxx X. Xxxxx
Chief
Financial Officer
If
to any Fund:
c/o
Aristeia Capital, L.L.C.
000
Xxxxxxx Xxx, 3rd Floor
New
York, NY 10016
Telephone: (000)000-0000
Facsimile: (000)000-0000
Attention: Xxxxxxx
X. Xxxxxx
Member
of the Manager
or
to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
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j.
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The
representations and warranties of the Company and the Funds contained
herein and the agreements and covenants set forth herein shall survive the
Closings.
|
|
k.
|
Any
Person having any rights under any provision of this Agreement shall be
entitled to enforce such rights specifically (without posting a bond or
other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by
law. Furthermore, the Company recognizes that in the event that
it fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief
to the
|
11
|
Funds. The
Company therefore agrees that each Fund shall be entitled to seek
temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages and without posting a bond or other
security.
|
12
Please
sign to acknowledge agreement with the above terms and return by fax to the
undersigned.
Aristeia
International Limited
By: /s/Xxxxxxx X
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Member
of the Manager
Aristeia Special
Investments Master, L.P.
By: /s/Xxxxxxx X
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Member
of the Manager
Aristeia Partners,
L.P.
By: /s/Xxxxxxx X
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Member
of the Manager
Acknowledged
and agreed to:
By: /s/ Xxxxx X
Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Vice-President and Chief Financial
Officer
13
SCHEDULE
I
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
Fund
|
Initial
Closing
Number
of Shares of
Common
Stock
|
Initial
Closing
Principal
Amount of Notes
|
Additional
Closing
Number
of Shares of
Common
Stock
|
Additional
Closing
Principal
Amount of
Notes
|
Aristeia
International Limited
|
5,880,000
|
$10,500,000
|
1,655,360
|
$2,956,000
|
Aristeia
Special Investments Master, L.P.
|
1,680,000
|
$3,000,000
|
454,160
|
$811,000
|
Aristeia
Partners, L.P.
|
672,000
|
$1,200,000
|
158,480
|
$283,000
|
14