Exhibit 10.1
NEW FRONTIER ENERGY, INC.
AGREEMENT TO APPOINT DIRECTORS
THIS AGREEMENT TO APPOINT DIRECTORS (the "Agreement") is made effective
as of the 1st day of December 2006, by and among New Frontier Energy, Inc., a
Colorado corporation (the "Company"), and Iris Energy Holdings Limited, a Samoan
company (the "Investor").
A. The Investor has purchased 130,000 shares of the Company's $0.001
par value Series C Preferred Stock (the "Series C Preferred Stock").
B. In connection with the Investors purchase of the Series C Preferred Stock,
the Board of Directors of the Company (the "Board") has agreed to enter into
this Agreement upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto agree as follows:
1. Right to Appoint Members to the Company's Board. In connection with
Investor's purchase of the Series C Preferred Stock, Investor shall have
the right to appoint up to an equal number of members to the Board that
have not been previously appointed by Investor as are present on the Board
at the time of the exercise of the right to appoint members to the Board
(the "Right to Appoint"). For example, if at the time of exercise of the
Right to Appoint there are three members of the Board, none of which were
appointed by the Investor, then Investor shall have the right to appoint up
to three additional members to the Board. If at the time of exercise of the
Right to Appoint there are five members of the Board, one of which was
previously appointed by the Investor, then Investor shall have the right to
appoint up to four additional members to the Board.
2. Exercise of Right to Appoint.
(a) To Exercise the Right to Appoint, Investor shall send written
notice to the Company. At the time that Investor notifies the
Company that Investor desires to exercise the Right to Appoint,
Investor shall designate in writing the proposed appointees to
the Board and provide a completed and executed director
questionnaire (the "Director Questionnaire" attached hereto as
Exhibit A) for each proposed appointee. Such director
questionnaire includes written consent for the Company to conduct
a background check of the proposed appointee.
(b) Upon receipt of the notice of the exercise of the Right to
Appoint and the list of proposed appointees, the Company shall
have thirty (30) calendar days to conduct such due diligence on
the proposed appointees as the Company deems appropriate and
necessary in it sole discretion, including but not limited to a
background check.
(c) If the Company determines, for commercially reasonable and
demonstrable reasons that any of the proposed appointees are not
suitable to serve as members of the Board, the Company shall
notify the Investor in writing and such appointees shall not be
appointed to the Board. Otherwise, the Company's Board shall take
such action as is necessary to appoint such proposed appointees
to the Board at the earliest date possible. If the Company
determines that any of the proposed appointees are not suitable
to serve as members of the Board, the Company shall notify the
Investor in writing.
3. Representations and Warranties
(a) Investors Representations and Warranties.
(i) Investor is the beneficial owner of 130,000 shares of the
Company's Series C Preferred Stock and has full power and
authority to enter into this Agreement.
(ii) Investor understands and agrees that there can be no
assurance that the proposed appointees will be elected to
the Board by the common stockholders of the Company.
(b) The Company's Representations and Warranties.
(i) The Company has full power and authority to enter into this
Agreement.
4. Termination of the Right to Appoint. This Agreement shall terminate
immediately on the earlier to occur of the following:
(a) At such time as the Investor owns fewer than 35,000 shares of the
Series C Preferred Stock and fewer than 3,500,000 shares of
common stock of New Frontier Energy Inc.;
(b) If at any time prior to December 1, 2009 the Company conducts
private or public offerings that aggregate $20,000,000 or more of
the Company's $0.001 par value common stock ("Common Stock") or
securities that are convertible into shares of the Company's
Common Stock; or
(b) December 1, 2009.
5. Miscellaneous.
(a) Entire Agreement. This Agreement among the parties hereto as
contemplated by or referred to herein contain every obligation
and understanding between the parties relating to the subject
matter hereof and merges all prior discussions, negotiations,
agreements and understandings, both written and oral, if any,
between them, and none of the parties shall be bound by any
conditions, definitions, understandings, warranties or
representations other than as expressly provided or referred to
herein.
(b) Headings. The subject headings of the sections contained in this
Agreement are Included for convenience purposes only and shall
not control or affect the meaning, construction or interpretation
of any provision hereof.
(c) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors, heirs, personal representatives, legal
representatives, and permitted assigns.
(d) Notices. Any notice or other communication under this Agreement
shall be in writing and delivered personally or sent by certified
mail, return receipt requested, postage prepaid, or sent by
prepaid overnight courier to the parties at the addresses as
follows (or at such other addresses as shall be specified by the
parties by like notice):
If to the Company:
New Frontier Energy, Inc.
0000 X. Xxxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
If to the Investor:
Iris Energy Holdings Limited
L/2 Maxkar Bldg. PO Box 1225
Apia, Samoa
(e) Severability. Should any provision of this Agreement be declared
invalid by a court of competent jurisdiction, the remaining
provisions hereof shall remain in full force and effect
regardless of such declaration.
(f) Counterparts. This Agreement may be executed in several
counterparts and shall constitute one Agreement, binding on all
parties hereto, notwithstanding that all parties are not
signatory as to other original or the same counterpart. Facsimile
signatures are acceptable.
(g) Governing Law. This Agreement shall be construed under the laws
of the State of Colorado.
(h) Jurisdiction and Venue. This Agreement shall be subject to the
exclusive jurisdiction of the courts in Arapahoe County, the
State of Colorado or in the Federal District, the District of
Colorado. The parties to this Agreement agree that any breach of
any term or condition of this Agreement shall be deemed to be a
breach occurring in the State of Colorado by virtue of a failure
to perform an act required to be performed in the State of
Colorado and irrevocably and expressly agree to submit to the
jurisdiction of the courts in Arapahoe County, the state of
Colorado or in the Federal District, the District of Colorado for
the purpose of resolving any disputes among the parties relating
to this Agreement or the transactions contemplated hereby. The
parties irrevocably waive, to the fullest extent permitted by
law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement, or any judgment entered by any
court in Arapahoe County, the state of Colorado or in the Federal
District, the District of Colorado, and further irrevocably waive
any claim that any suit, action or proceeding brought in Arapahoe
County, the state of Colorado or in the Federal District, the
District of Colorado has been brought in an inconvenient forum.
(i) No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or
give any person other than the parties hereto and their
respective heirs, personal representatives, legal
representatives, successors and permitted assigns, any rights or
remedies under or by reason of this Agreement, except as
otherwise provided herein.
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
NEW FRONTIER ENERTY, INC.
/s/ Xxxx X. Xxxxx
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By: Xxxx X. Xxxxx, President
IRIS ENERGY HOLDINGS LIMITED
//signed//
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By: Dectra (Samoa) Limited, Director
EXHIBIT A
DIRECTOR QUESTIONNAIRE
