APRIL 2007 WAIVER, AMENDMENT AND AGREEMENT AS TO 2005 SUBORDINATED NOTES
EXHIBIT
10.55
APRIL
2007 WAIVER, AMENDMENT AND AGREEMENT
AS
TO 2005 SUBORDINATED NOTES
APRIL
2007 WAIVER, AMENDMENT AND AGREEMENT
AS
TO
2005 SUBORDINATED NOTES
THIS
APRIL 2007 WAIVER, AMENDMENT AND AGREEMENT AS TO 2005 SUBORDINATED NOTES (this
“Agreement”) is made as of April 27, 2007, among Galaxy Energy
Corporation, a Colorado corporation (“Galaxy” or the
“Company”), Bank Xxx. Xxxxxxxxx jr. & Cie., Clarion Finanz
AG, Capriccio Investments Inc., Desmodio Management Inc., Centrum Bank AG,
Finter Bank Zurich, Xxxxxx Xxxx Fund Trading, Vanguard Capital Limited, Xxxx
& Xxxxxx and Xxxx & Co. (collectively, the
“Buyers”).
W
I T N E
S S E T H:
WHEREAS,
the Company and the Buyers entered into that certain Securities Purchase
Agreement (the “2005 Subordinated Note Purchase Agreement”),
dated as of March 1, 2005, pursuant to which the Company issued to the Buyers,
among other things, senior subordinated convertible notes (as amended by that
certain Waiver and First Amendment to March 2005 Notes and Warrants, dated
as of
May 31, 2005, and in effect as of the date thereof, without amendment or
modification thereafter, the “2005 Subordinated Notes”) and
warrants (the “2005 Warrants”), dated March 1, 2005 to purchase
an aggregate of 1,637,235 shares (the
“WarrantShares”) (subject to adjustment as
provided therein) of the Common Stock of the Company and, in connection
therewith, entered into that certain Subordination Agreement, dated as of May
31, 2005, with the Subsidiaries, the Buyers, holders of secured notes issued
in 2004 (the “2004Noteholders”) and
an agent for the 2004 Noteholders (the “2005 Subordination
Agreement”); and
WHEREAS,
the 2005 Subordinated Notes have a stated maturity date of April 30, 2007;
and
WHEREAS,
the Company and Dolphin have entered into a Purchase and Sale Agreement with
PetroHunter Energy Corporation, a Maryland corporation
(“PetroHunter”), with respect to the proposed sale (the
“PRB Sale”) to PetroHunter by the Company and Dolphin
Energy
Corporation, a wholly-owned subsidiary of Galaxy (“Dolphin”) of
all of their real property; facilities; and oil, gas and other mineral drilling,
exploration and development rights, concessions, working interests and
participation that (i) are leased or otherwise owned or possessed by the Company
or Dolphin, (ii) in connection with which the Company or Dolphin has entered
into an option agreement, participation agreement or acquisition and drilling
agreement or (iii) the Company or Dolphin has agreed (or has an option) to
lease
or otherwise acquire or may be obligated to lease or otherwise acquire in
connection with the conduct of its business in the Powder River Basin of Wyoming
and Montana (the “PRB Assets”); and
WHEREAS,
the consideration for the PRB Assets is $20,000,000 in cash and $25,000,000
in
restricted shares of PetroHunter common stock (“PetroHunter
Stock”); and
WHEREAS,
to induce the holders of its secured debt to consent to the PRB Sale, the
Company (i) has agreed to issue an aggregate of 10,000,000 shares (subject
to
proportionate adjustment for stock splits, stock dividends or similar events
occurring after the date hereof) of
Common
Stock to such holders pursuant to automatic cashless exercises of the Warrants
held by such holders, pursuant to Section 2(e) of each of the Warrants and
Section 6(d) hereof, upon consummation of the PRB Sale (the “PRB Cash
Exercise”) and (ii) issued an aggregate of 2,000,000 shares of Common
Stock (the “Delayed Sale Share Issuance”) to such holders as
the PRB Sale was not consummated on or before January 31, 2007;
and
WHEREAS,
Galaxy desires to pay the 2005 Subordinated Notes with shares of PetroHunter
stock it receives upon closing of the PRB Sale and the Buyers are willing to
accept shares of PetroHunter stock as payment of their 2005 Subordinated Notes
on the terms set forth herein; and
WHEREAS,
Galaxy requires an extension of the maturity date of the 2005 Subordinated
Notes
as the PRB Sale may not be completed by April 30, 2007; and
WHEREAS,
one or more Triggering Events and/or Events of Default, both as defined in
the
2005 Subordinated Notes, may have occurred;
NOW,
THEREFORE, in consideration of the agreements, provisions and covenants
contained herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, each of the undersigned agrees
as
follows:
1. Extension
of Maturity Date and Confirmation of Subordination.
a. Each
of
the Buyers, severally and not jointly, hereby agrees with the Company that
the
first sentence of Section 2(a)(xvi) of each of the Notes held by such Buyer
is
hereby amended and restated in its entirety as follows:
“(xvi) “Maturity
Date” means the earliest of (A) the date of consummation of the PRB
Sale (as defined in the April 2007 Waiver, Amendment and Agreement as to 2005
Subordinated Notes), (B) October 31, 2007, and (C) such date as all amounts
due
under this Note have been fully paid.”
b. Each
of the Buyers, severally and not jointly, hereby agrees and confirms that the
2005 Subordinated Notes continue to be subordinate pursuant to the terms of
the
2005 Subordination Agreement.
2. Amendment
of Notes.
a. Each
of
the Buyers, severally and not jointly, hereby agrees with the Company that
the
first sentence of Section 4(b) of each of the Notes held by such Buyer is hereby
amended and restated in its entirety as follows:
“(b) Optional
Redemption Upon Change of Control. In addition to the rights of
the Holder under Section 4(a), upon a Change of Control (as defined below)
of
the Company, the Holder shall have the right, at the Holder’s option, to require
the Company to redeem all or a portion of the Principal at a price equal to
100%
(or 115% in the case of an event satisfying the definition of Change of Control
pursuant to subsection (iii) below that is not pursuant to a definitive written
2
agreement
executed by the Company and approved by the Company’s Board of Directors) of the
Principal plus the Interest Amount with respect to such Principal (the
“Change of Control Redemption Price”).”
b. Each
of
the Buyers, severally and not jointly, hereby agrees with the Company that
the
third sentence of Section 11 of each of the Notes held by such Buyer is hereby
amended and restated in its entirety as follows:
“For
purposes of this Note: (x) “Indebtedness” of any
Person means, without duplication (A) all indebtedness for borrowed money,
(B)
all obligations issued, undertaken or assumed as the deferred purchase price
of
property or services (other than unsecured account trade payables that are
(i)
entered into or incurred in the ordinary course of the Company’s and its
Subsidiaries’ business, (ii) on terms that require full payment within 90 days,
(iii) not unpaid in excess of 90 days beyond invoice due date or are being
contested in good faith and as to which such reserve as is required by United
States generally accepted accounting principles (“GAAP”) has
been made and (iv) not exceeding at any one time an aggregate among the Company
and its Subsidiaries of $5,000,000), (C) all reimbursement or payment
obligations with respect to letters of credit, surety bonds and other similar
instruments, (D) all obligations evidenced by notes, bonds, debentures,
redeemable capital stock or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets or
businesses, (E) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case
with respect to any property or assets acquired with the proceeds of such
indebtedness (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or sale
of
such property), (F) all indebtedness referred to in clauses (A) through (E)
above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any mortgage, lien, pledge,
change, security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by any Person, even though the
Person that owns such assets or property has not assumed or become liable for
the payment of such indebtedness, and (G) all Contingent Obligations in respect
of indebtedness or obligations of others of the kinds referred to in clauses
(A)
through (F) above, and (y) “Contingent Obligation” means, as to
any Person, any direct or indirect liability, contingent or otherwise, of that
Person with respect to any indebtedness, lease, dividend or other obligation
of
another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto.”
3
3. Waiver
as to Section 2(f) of the 2005 Subordinated Notes.
a. The
Company hereby confirms that by the terms of Section 2(f) of the 2005
Subordinated Notes, the Fixed Conversion Price has decreased to
$1.25. However, each of the Buyers, severally and not jointly, hereby
irrevocably waives the right to receive any more shares upon conversion of
the
2005 Subordinated Note, than it would have received had the Fixed Conversion
Price remained at $1.88 per share. By way of example, a note in the
principal amount of $1,000,000 that was originally convertible at $1.88 would
have been converted into 531,915 shares. That note is still
convertible into 531,915 shares, but the remaining principal balance of
$335,106.25 must be paid in cash.
b. Each
of
the Buyers, severally and not jointly, hereby agrees that whenever the terms
of
its 2005 Subordinated Note requires an adjustment to the Fixed Conversion Price
that would decrease such price, the Company shall not be required to issue
Buyer
any more shares than it would have issued, had the Fixed Conversion Price
remained at $1.88 per share. Each of the Buyers, severally and not
jointly, agrees that Buyer’s right to convert under Section 2 of the 2005
Subordinated Note shall be limited to that number of shares that Buyer would
have received had the Fixed Conversion Price remained at $1.88 per
share.
c. Each
of
the Buyers, severally and not jointly, hereby irrevocably waives any adjustment
of the Fixed Conversion Price pursuant to Section 2(f) of the 2005 Subordinated
Notes resulting from the PRB Cashless Exercise and Delayed Sale Share
Issuance.
4. Waiver
as to Section 9(a) of the 2005 Warrants.
a. The
Company hereby confirms that by the terms of the Section 9(a) of the 2005
Warrants, the Warrant Exercise Price has decreased to $1.25 per
share. However, each of the Buyers, severally and not jointly, hereby
waives the right to receive any more shares upon exercise of the 2005 Warrant,
than it would have received had the Warrant Exercise Price remained at $1.88
per
share. By way of example, a warrant to purchase 1,000,000 shares at
$1.88 per share is now a warrant to purchase 1,000,000 shares at $.125 per
share.
b. Each
of
the Buyers, severally and not jointly, hereby irrevocably waives the right
to
receive any more shares upon exercise of the 0000 Xxxxxxx in the event of
further decreases in the Warrant Exercise Price.
c. Each
of
the Buyers, severally and not jointly, hereby irrevocably waives any adjustment
of the Warrant Exercise Price and the number of shares of Common Stock
purchasable upon exercise of the 2005 Warrant pursuant to Section 9(a) of the
2005 Warrants resulting from the PRB Cashless Exercise and Delayed Sale Share
Issuance.
5. Trigger
Event and Event of Default Waiver.
Each
of
the Buyers, severally and not jointly, hereby waives (i) the Company’s failure
to list as a lien in the 2005 Subordinated Note Purchase Agreement a Mortgage,
Security Agreement, Assignment, Financing Statement and Fixture Filing to DAR,
LLC, dated effective January 14, 2004, (ii) the breaches of Section 4(m) of
the
2005 Subordinated Note Purchase Agreement and Section 11 of each of the 2005
Subordinated Notes held by such Buyer, as well
4
as
the
occurrence of a Triggering Event (as defined in the 2005 Subordinated Notes)
under Sections 3(b)(vii) and 3(b)(viii) of each of the 2005 Subordinated
Notes
held by such Buyer and an Event of Default (as defined in the 2005 Subordinated
Notes) under Sections 10(a)(ii) and 10(a)(iii) of each of the 2005 Subordinated
Notes held by such Buyer, resulting solely from the Company having incurred
Indebtedness (as defined in the Notes) in the form of obligations issued,
undertaken or assumed as the deferred purchase price of property or services
consisting of account trade payables exceeding an aggregate among the Company
and its Subsidiaries of $2,500,000, and (iii) any Triggering Event, Event
of
Default or other default under the 2005 Subordinated Note or 2005 Subordinated
Note Purchase Agreement resulting from the execution and delivery of the
November 0000 Xxxxxx and Amendment Agreement between the Company and the
holders
of the Company’s secured debt and the consummation of the transactions
contemplated thereby.
6. Payment
upon PRB Sale.
Each
of
the Buyers, severally and not jointly, hereby agrees to accept as full and
complete payment of principal and interest due under the 2005 Subordinated
Notes, restricted shares of PetroHunter Stock, the number of which and the
value
of which are to be negotiated between each of the Buyers and the
Company.
7. Representations
and Warranties of the Company. The Company represents and
warrants to each of the Buyers that:
a. Authorization;
Enforcement; Validity. The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, the Notes (as amended hereby), and the Warrants. The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby (including the transfer of the shares
of
PetroHunter Stock in accordance herewith) have been duly authorized by the
board
of directors of the Company, and no further consent or authorization is required
of any of the Company or its Board of Directors or shareholders (under
applicable law, the rules and regulations of the Principal Market (as defined
in
the Notes) or otherwise. This Agreement has been duly executed and
delivered by the Company, and each of this Agreement, the Notes (as amended
hereby), and the Warrants constitutes a valid and binding obligation of each
of
the Company enforceable against the Company in accordance with its
terms.
b. No
General Solicitation. Neither the Company, nor any of its
affiliates, nor any Person acting on its or their behalf, has engaged or will
engage in any form of general solicitation or general advertising (within the
meaning of Regulation D under the 0000 Xxx) in connection with the offer or
sale
of the PetroHunter Stock to the Buyers.
c. Acquisition
of PetroHunter Stock. The Company will acquire the PetroHunter
Stock for its own account as principal and not with a view towards, or for
resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted from registration under the 1933 Act;
provided, however, that by making the representations herein, the Company does
not represent that it agreed to hold any of the PetroHunter Stock for any
minimum or other specific term.
5
d. Accredited
Investor Status. The Company is an “accredited investor” as that
term is defined in Rule 501(a)(3) of Regulation D under the 1933
Act.
e. Reliance
on Exemptions. The Company understands that the PetroHunter Stock
will be transferred to the Buyers in reliance on specific exemptions from the
registration requirements of federal and state securities laws and that the
Buyers are relying in part upon the truth and accuracy of, and the Company’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Company set forth herein in order to determine the
availability of such exemptions and the eligibility of the Company to transfer
the PetroHunter Stock to the Buyers.
f. Information. The
Company and its advisors, if any, were furnished with all materials relating
to
the business, finances and operations of PetroHunter and materials relating
to
the Company’s acquisition of PetroHunter Stock that were requested by the
Company. The Company and its advisors, if any, were afforded the
opportunity to ask questions of PetroHunter. The Company has sought
such accounting, legal and tax advice as it has considered necessary to make
an
investment decision with respect to its acquisition and subsequent transfer
of
the PetroHunter Stock. The Company has conducted its own investigation, to
the
extent that the Company has determined necessary or desirable, in connection
with the transfer of the PetroHunter Stock to the Buyers and is not relying
on
any statements of or information from any Buyer concerning
PetroHunter.
8. Representation
and Warranties of Each of the Buyers. Each of the Buyers, jointly
and not severally, represents and warrants to the Company that with respect
to
such Buyer:
a. Existence;
Authorization. Such Buyer is a validly existing corporation,
partnership, limited liability company or other entity and has the requisite
corporate, partnership, limited liability or other organizational power and
authority to enter into and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of such Buyer and is a valid and binding
agreement of such Buyer, enforceable against such Buyer in accordance with
its
terms.
b. Investment
Purpose. Such Buyer will acquire the PetroHunter Stock for its
own account and not with a view towards, or for resale in connection with,
the
public sale or distribution thereof, except pursuant to sales registered or
exempted under the 1933 Act; provided, however, that by making the
representations herein, such Buyer does not agree to hold any of the PetroHunter
Stock for any minimum or other specific term and reserves the right to dispose
of the Common Shares and PetroHunter Stock at any time in accordance with or
pursuant to a registration statement or an exemption under the 1933
Act.
c. Accredited
Investor Status. Such Buyer is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation D.
d. No
Registration. Such Buyer understands that (1) the shares of
PetroHunter Stock (A) have not been registered under the 1933 Act or any state
securities laws and (B) will be issued in reliance upon an exemption from the
registration and prospectus delivery requirements of the 1933 Act and state
securities laws, and (2) such Buyer must
6
therefore
bear the economic risk of such investment indefinitely unless a subsequent
disposition thereof is registered under the 1933 Act and applicable state
securities laws or is exempt therefrom.
e. Understanding
of Investment Risks. Such Buyer has knowledge, skill and
experience in financial, business and investment matters relating to an
investment of this type and is capable of evaluating the merits and risks of
such investment and protecting Buyer’s interest in connection with the
acquisition of the shares of PetroHunter Stock. Such Buyer
understands that the acquisition of the PetroHunter Stock is a speculative
investment and involves substantial risks and that Buyer could lose Buyer’s
entire investment in the 2005 Subordinated Notes. To the extent
deemed necessary by Buyer, such Buyer has retained, at its own expense, and
relied upon, appropriate professional advice regarding the investment, tax
and
legal merits and consequences of purchasing and owning the PetroHunter
Stock. Such Buyer has the ability to bear the economic risks of
Buyer’s investment in the PetroHunter Stock, including a complete loss of the
investment, and Buyer has no need for liquidity in such investment.
f. Access
to Information. Such Buyer has been furnished all information (or
provided access to all information) regarding the business and financial
condition of PetroHunter, its expected plans for future business activities,
the
attributes of the PetroHunter Stock and the merits and risks of an investment
in
the PetroHunter Stock which such Buyer has requested or otherwise needs to
evaluate the investment in PetroHunter. In making the proposed
investment decision, such Buyer is relying solely on investigations made by
Buyer and Buyer’s representatives. The offer to acquire the
PetroHunter Stock was communicated to such Buyer in such a manner that Buyer
was
able to ask questions of and receive answers from the management of the Company
concerning the terms and conditions of the proposed transaction.
g. Nature
of Investment. Such Buyer acknowledges and is aware that there
has never been any representation, guarantee or warranty made by the Company
or
any officer, director, employee or agent or representative of the Company,
expressly or by implication, as to (1) the approximate or exact length of time
that such Buyer will be required to remain an owner of the PetroHunter Stock;
(2) the percentage of profit and/or amount of or type of consideration, profit
or loss to be realized, if any, as a result of this investment; or (3) that
the
limited past performance (if any) or experience on the part of PetroHunter,
or
any future expectations will in any way indicate the predictable results of
the
ownership of the PetroHunter Stock or of the overall financial performance
of
PetroHunter.
h. Reliance
on Exemptions. Such Buyer understands that the PetroHunter Stock
are being offered and sold to it in reliance on specific exemptions from the
registration requirements of the United States federal and state securities
laws
and that the Company is relying in part upon the truth and accuracy of, and
such
Buyer’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Buyer set forth herein in order
to
determine the availability of such exemptions and the eligibility of such Buyer
to acquire the PetroHunter Stock.
i. Restricted
Nature of Shares. Such Buyer understands that the shares of
PetroHunter Stock have not been registered under the 1933 Act or any securities
laws of any jurisdiction, that the shares of PetroHunter Stock are “restricted
securities” as that term is defined
7
in
Rule
144 under the 1933 Act, that PetroHunter will, from time to time, make stop
transfer notations in its records to ensure compliance with the 1933 Act
in
connection with any proposed transfer of the shares of PetroHunter Stock
and
that all certificates evidencing the shares of PetroHunter Stock shall bear
a
restrictive legend in substantially the language set forth
below:
“THE
SECURITES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
US
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION
S
UNDER THE SECURITIES ACT, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, OR (3) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH
ALL APPLICABLE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE
COMMON SHARES OF THE COMPANY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH
THE
SECURITIES ACT.”
9. Information. Such
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of PetroHunter and materials relating
to the offer and sale of the PetroHunter Stock that have been requested by
such
Buyer. Such Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company regarding
PetroHunter. Neither such inquiries nor any other due diligence
investigations conducted by such Buyer or its advisors, if any, or its
representatives shall modify, amend or affect such Buyer’s right to rely on the
Company’s representations and warranties contained in Section 8. Such
Buyer understands that its investment in the PetroHunter Stock involves a high
degree of risk. Such Buyer has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision
with respect to its acquisition of the PetroHunter Stock.
10. Independent
Nature of the Buyers. The obligations of each of the Buyers
hereunder are several and not joint with the obligations of the other
Buyers. Each of the Buyers shall be responsible only for its own
agreements and covenants hereunder and under the other documents executed in
connection with the 2005 Subordinated Notes (the “Transaction
Documents”). The decision of each of the Buyers to
enter into this Agreement has been made by each such party independently of
any
of the other Buyers and independently of any information, materials, statements
or opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or any of its Subsidiaries or PetroHunter or any of
its
subsidiaries which may have been made or given by any of the other Buyers or
by
any agent or employee of any of the other Buyers, and none of the Buyers nor
any
of their respective agents or employees shall have any liability to any of
the
other Buyers (or any other Person) relating to or arising from any such
information, materials, statements or opinions. Nothing contained
herein or in any of the other Transaction Documents, and no action taken by
any
of the Buyers pursuant hereto or thereto,
8
shall
be
deemed to constitute any of the Buyers as a partnership, an association,
a joint
venture or any other kind of entity, or create a presumption that any of
the
Buyers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated hereby or thereby. Each
of the Buyers shall be entitled to independently protect and enforce its
rights,
including the rights arising out of this Agreement and the other Transaction
Documents (in each case as amended hereby), and it shall not be necessary
for
any of the other Buyers to be joined as an additional party in any proceeding
for such purpose.
11. Successors
and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. The successors and assigns of such entities shall
include their respective receivers, trustees or
debtors-in-possession.
12. Further
Assurances. The Company hereby agrees from time to time, as and
when requested by any Buyer, to execute and deliver or cause to be executed
and
delivered, all such documents, instruments and agreements, including secretary’s
certificates, stock powers and irrevocable transfer agent instructions, and
to
take or cause to be taken such further or other action, as such Buyer may
reasonably deem necessary or desirable in order to carry out the intent and
purposes of this Agreement and the other Transaction Documents.
13. Rules
of Construction. All words in the singular or plural include the
singular and plural and pronouns stated in either the masculine, the feminine
or
neuter gender shall include the masculine, feminine and neuter, and the use
of
the word “including” in this Agreement shall be by way of example rather than
limitation.
14. Governing
Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of Colorado, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Colorado or any other jurisdiction) that would cause the application of
the
laws of any jurisdiction other than the State of Colorado. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Denver, 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 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. 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.
9
15. Counterparts. 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 each other
party. In the event that any signature to this Agreement or any
amendment hereto is delivered by facsimile transmission or by e-mail delivery
of
a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. No party hereto shall raise
the use of a facsimile machine or e-mail delivery of a “.pdf” format data file
to deliver a signature to this Agreement or any amendment hereto or the fact
that such signature was transmitted or communicated through the use of a
facsimile machine or e-mail delivery of a “.pdf” format data file as a defense
to the formation or enforceability of a contract, and each party hereto forever
waives any such defense.
16. Section
Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of
the
provisions hereof.
17. No
Strict Construction. 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.
18. Merger. This
Agreement and the other Transaction Documents, as amended hereby, represent
the
final agreement of each of the parties hereto with respect to the matters
contained herein and may not be contradicted by evidence of prior or
contemporaneous agreements, or prior or subsequent oral agreements, among any
of
the parties hereto.
[Remainder
of page intentionally left blank; Signature page
follows]
10
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by each
of
the undersigned as of the date first above written.
|
COMPANY:
GALAXY
ENERGY CORPORATION
|
|
|
By: /s/
Xxxxxxxxxxx X.
Xxxxxxxx
Name: Xxxxxxxxxxx
X.
Xxxxxxxx
Title: SVP
&
CFO
|
|
| BUYERS: | |||
| BANK XXX. XXXXXXXXX JR. & CIE. | |||
|
|
By:
|
/s/ X. Xxxxxx /s/ X. Xxxxxxx | |
| Name: | X. Xxxxxx X. Xxxxxxx | ||
| Title: | Vice President Director | ||
| CLARION FINANZ AG | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | ||
| Title: | Director | ||
| CAPPRICCIO INVESTMENTS INC. | |||
|
|
By:
|
/s/ X. Xxxxxxxxx | |
| Name: | X. Xxxxxxxxx | ||
| Title: | Director | ||
| DESMODIO MANAGEMENT INC. | |||
|
|
By:
|
/s/ Xxxx-Xxxxx Xxxxxxxx | |
| Name: | Xxxx-Xxxxx Xxxxxxxx | ||
| Title: | Director | ||
| CENTRUM BANK AG | |||
|
|
By:
|
/s/ X. Xxxxxxxxxxx /s/ X. Xxxxxx | |
| Name: | X. Xxxxxxxxxxx X. Xxxxxx | ||
| Title: | Executive Director Authorized Officer | ||
| FINTER BANK ZURICH | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxx /s/ Xxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxxx Xxxx Xxxxxx | ||
| Title: | AVP AVP | ||
| XXXXXX XXXX FUND TRADING | |||
|
|
By:
|
/s/ X. Xxxxxxx /s/ X. Xxxxx | |
| Name: | X. Xxxxxxx X. Xxxxx | ||
| Title: | AVP AVP | ||
| VANGUARD CAPITAL LIMITED | |||
|
|
By:
|
/s/ Olivier Chaponnier | |
| Name: | Olivier Chaponnier | ||
| Title: | Director | ||
| XXXX & XXXXXX (custodian for Xxxxx Xxxxxxx) | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | ||
| Title: | |||
| XXXX & CO. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | ||
| Title: | Director | ||
