EXHIBIT 10.1
EXCHANGE AGREEMENT
FOR
CONVERTIBLE RESTRICTED VOTING SHARES
This Exchange Agreement for Convertible Restricted Voting Shares (the
"Agreement") is entered into as of October 13, 1999, among Alliance Resources
Plc, a public limited company formed under the laws of England and Wales
("Alliance"), American Rivers Oil Company, a Delaware corporation ("AROC"), and
X. Xxx Xxxxxx, Jr., Lizinka X. Xxxxxx, X. Xxx Xxxxxx III, Lizinka X. Xxxxxx and
Xxxxx X. Xxxxxx (collectively, the "Shareholders").
Recitals
The Shareholders hold an aggregate of 10,000,000 convertible restricted
voting shares ("Convertible Shares") of Alliance pursuant to an Amended and
Restated Sale and Purchase Agreement dated as of September 23, 1998, between the
Shareholders and Alliance.
Alliance and AROC have entered into an Exchange and Merger Agreement (the
"Exchange and Merger Agreement") dated July 22, 1999, providing among other
things for AROC to offer (the "Offer") to acquire all of the outstanding
ordinary shares of Alliance.
One of the conditions to the completion of the Exchange and Merger
Agreement is that AROC shall enter into agreements with the Shareholders, on
terms satisfactory to Alliance, providing that after the Offer becomes
unconditional each then outstanding Convertible Share shall be exchanged for the
right to receive shares of the Common Stock of AROC Shares on terms
substantially similar to the terms of the Convertible Shares.
The parties to this Agreement desire to provide for the exchange of the
Convertible Shares for similar shares of AROC.
Now, therefore, in consideration of the premises and the mutual agreements
of the parties, the parties to this Agreement hereby agree as follows:
Agreement
1. AROC and Alliance agree that they will not modify or amend the terms of the
Offer or the Exchange and Merger Agreement without the consent of the
Shareholders.
2. Each of the Shareholders agrees that immediately upon the Offer being
declared unconditional as provided in Section 2.3 of the Exchange and
Merger Agreement, each outstanding Convertible Share of Alliance shall be
exchanged solely for one Convertible Restricted Voting Share (the "CRV
Stock") of AROC having the terms provided in the form of Certificate of
Amendment to the Certificate of Incorporation of American Rivers Oil
Company attached as Exhibit A to this Agreement, and each holder of a
certificate representing any such Convertible Shares shall thereafter cease
to have any rights with respect to such Convertible Shares, except the
right to receive the CRV Stock of AROC upon the surrender of such
certificate in accordance with Section 3 of this Agreement. Effective
immediately upon the Offer being declared unconditional, any and all rights
of the Shareholders to obtain or receive Deferred Shares of Alliance shall
be canceled and shall thereafter be of no further force or effect.
3. On or after the Offer being declared unconditional, each person who was
immediately before that time a holder of record of issued and outstanding
Convertible Shares may deliver to AROC a letter of transmittal duly
executed and completed in accordance with the instructions thereto,
together with such holders' certificates representing such Convertible
Shares, and AROC shall deliver to such holders certificates in respect of
the CRV Stock of AROC to which such holders are then entitled.
4. Each of the Shareholders represents and agrees as follows:
(a) He or she is the sole legal and beneficial owner of the
Convertible Shares registered in his or her name, free from any
encumbrance.
(b) He or she has the requisite power and authority to enter into and
perform this Agreement and this Agreement and any other documents
executed by him or her in connection with this Agreement will,
when executed, constitute binding obligations of the Shareholder
enforceable in accordance with their respective terms.
(c) He or she is an "accredited investor" as that term is defined in
the Securities Act of 1933, as amended, and is acquiring the CRV
Stock for his or her own account, and has received all
information he or she believes necessary to evaluate the
investment in the CRV Stock.
(d) The CRV Stock and the Common Stock, whether issued or arising as
a consequence of conversion, will be "restricted securities"
under the United States Securities Act of 1933 (as amended) and
that the ability to resell such CRV Stock and such Common Stock
will therefore be limited.
5. Each of Alliance and AROC represents and agrees as follows:
(a) The representations and warranties made by each of them in the
Exchange and Merger Agreement are true and correct.
(b) The execution and performance of this Agreement by each of them
have been duly and validly authorized by the board of directors
of each of them, and no other corporate action is necessary to
authorize the execution, delivery and performance of this
Agreement by each of them. Each of them has full, absolute and
unrestricted right, power and authority to execute and perform
this Agreement and to carry out the transactions contemplated
hereby. This Agreement has been duly and validly executed by each
of them and this Agreement and any other documents executed by
them in connection with this Agreement is constitute valid and
binding obligations of each of them, enforceable in accordance
with their respective terms.
(c) They will not modify or amend the terms of the Offer or the
Exchange and Merger Agreement without the consent of the
Shareholders.
6. Each of the parties hereby acknowledges that for United States federal
income tax purposes the exchange made pursuant to the Offer, together with
the exchange by the Shareholders of Convertible Shares for CRV Stock (the
"Exchange") is intended to constitute a "reorganization" within the
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meaning of section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), to which Alliance and AROC are parties within the meaning of
section 368(b) of the Code, and none of the parties shall take any position
on any tax return or report relating to United States Federal income taxes
which is inconsistent with such characterization.
7. Each of the Shareholders agrees that, until October 30, 2001, he or she
will not sell or otherwise transfer any Common Stock of the Corporation in
the open market without first providing written notice of his or her intent
to sell or otherwise transfer such shares to the Secretary of the
Corporation and thereafter providing the Corporation with a reasonable
opportunity to identify third parties to purchase such Common Stock upon
terms and conditions that are reasonable acceptable to the Shareholders and
such third parties.
8. Concurrently with the execution of this Agreement, the Shareholders and
AROC shall execute the Registration Rights Agreement in the form attached
as Exhibit B, which agreement will be effective upon the Offer being
declared unconditional. Upon such execution, the Registration Rights
Agreement dated October 30, 1998, among the Shareholders and Alliance shall
be deemed to be terminated and shall be of no further force or effect.
9. The representations, warranties, covenants and agreements of the parties to
this Agreement shall survive after the Offer is declared unconditional.
10. Except as otherwise provided in this Agreement, the parties shall each pay
their own expenses and costs in connection with this Agreement and the
transactions contemplated hereby.
11. Subject to the requirements of law and regulatory bodies, no party shall
make any public announcement or press release with respect to this
transaction without first consulting with the other parties and giving such
parties the opportunity to review and comment thereon.
12. This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party without the prior written consent of the others.
Nothing contained herein, express or implied, is intended to confer on any
person other than the parties hereto or their respective heirs, personal
representatives, successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
13. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, in such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
14. Any notice, request, instructions or other document to be given under this
Agreement to any party shall be in writing, sent by facsimile transmission
or delivered personally or by courier, as follows:
If to the Shareholders:
Xx. X. Xxx Xxxxxx, Jr.
0000 Xxx Xxxxx Xxxxx
0
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Alliance or AROC:
Alliance Resources
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
FAX: (000) 000-0000
Any party may change its address for purposes of this Section by giving written
notice of such change of address to the other parties in the manner herein
provided for giving notice. Any notice or communication hereunder shall be
deemed to have been given when received.
15. This Agreement (including the instruments between the parties referred to
herein and any waivers delivered pursuant hereto) constitutes the entire
agreement among the parties and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof. The exhibits are a part of this
Agreement as if fully set forth herein. All references to articles,
sections, subsections, paragraphs, clauses, exhibits and schedules shall be
deemed references to such part of this Agreement, unless the context shall
otherwise require.
16. No supplement, modification, or amendment of this Agreement or waiver of
any provision of this Agreement will be binding unless executed in writing
by, or on behalf of, all parties to this Agreement. No waiver of any of the
provisions of this Agreement will be deemed or will constitute a waiver of
any other provision of this Agreement (regardless of whether similar), nor
will any such waiver constitute a continuing waiver unless otherwise
expressly provided.
17. Descriptive headings contained herein are for convenience of reference only
and shall not affect the meaning or interpretation hereof.
18. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall
constitute but one agreement.
19. The parties shall execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered such instruments and take such other action as
may be necessary or advisable to carry out their obligations under this
Agreement and under any document, certificate or other instrument delivered
pursuant hereto or required by law.
20. THIS AGREEMENT AND THE LEGAL RELATIONS AMONG THE PARTIES HERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF OKLAHOMA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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In Witness Whereof, the parties have executed this Agreement as of the date
written above.
ALLIANCE RESOURCES PLC
By:_________________________________________
Name: ______________________________________
Title: _____________________________________
AMERICAN RIVERS OIL COMPANY
By:_________________________________________
Name: ______________________________________
Title: _____________________________________
/s/ X. Xxx Xxxxxx
--------------------------------------------
X. Xxx Xxxxxx
/s/ Lizinka X. Xxxxxx
--------------------------------------------
Lizinka X. Xxxxxx
/s/ X. Xxx Xxxxxx, Jr.
--------------------------------------------
X. Xxx Xxxxxx III, either individually or by
X. Xxx Xxxxxx, Jr. as Attorney-in-Fact
/s/ X. Xxx Xxxxxx, Jr.
--------------------------------------------
Lizinka X. Xxxxxx, either individually or by
X. Xxx Xxxxxx, Jr. as Attorney-in-Fact
/s/ X. Xxx Xxxxxx, Jr.
--------------------------------------------
Xxxxx X. Xxxxxx, either individually or by
X. Xxx Xxxxxx, Jr. as Attorney-in-Fact
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