Exhibit 10.3
AGREEMENT
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AGREEMENT made as of October 30, 2003 between XXXXXXXXX ENERGY CORPORATION,
a Delaware corporation (the "Company), and XXXXXXX XXXXXX ("Xxxxxx").
WHEREAS, the Company is indebted to Xxxxxx for accrued and unpaid
compensation in the amount of $417,733.00 (the "Accrued Amount").
WHEREAS, Xxxxxx and the Company desire to settle the Accrued Amount in full
upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual representations and
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Payment. In full and final payment of the Accrued Amount, the Company
shall:
(a) pay to Xxxxxx Three Hundred Thousand Dollars ($300,000) in cash on
the date hereof; and
(b) issue to Xxxxxx One Hundred Seventeen Thousand seven hundred and
thirty three ($117,733) shares of common stock of the Company, $.001 par value
per share (the "Shares"), at the rate of $1.00 per Share. The Company shall
issue the Shares to Xxxxxx as soon as is practicably possible.
2. Representations by Xxxxxx.
2.1 Xxxxxx understands and agrees that the Company is relying and may
rely upon the following representations, warranties and acknowledgments made by
Xxxxxx in entering into this Agreement:
(a) Xxxxxx represents and warrants that the Shares to be acquired
pursuant to the terms hereof are being acquired for Xxxxxx'x own account, for
investment and not for distribution or resale to others. Xxxxxx will not sell,
assign, transfer, encumber or otherwise dispose of any of such Shares unless (i)
a registration statement under the Securities Act of 1933, as amended (the
"Securities Act") with respect thereto is in effect and the prospectus included
therein meets the requirements of Section 10 of the Securities Act, or (ii) the
Company has received a written opinion of its counsel that, after an
investigation of the relevant facts, such counsel is of the opinion that such
proposed sale, assignment, transfer, encumbrance or disposition does not require
registration under the Securities Act.
(b) Xxxxxx represents that he is an "accredited investor," as such term
is defined in Rule 501 of Regulation D promulgated under the Securities Act.
(c) Xxxxxx represents and warrants that he alone, or with his purchaser
representative, if any, has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of the
acquisition of the Shares contemplated hereby. Xxxxxx will execute and deliver
to the Company such documents as the Company may reasonably request in order to
confirm the accuracy of the foregoing.
(d) Xxxxxx hereby represents that he has reviewed all of the Company's
reports, registration statements, proxy and for information statements which the
Company has filed with the Securities and Exchange Commission via the Electronic
Data Gathering and Retrieval system (XXXXX) since October 1, 2002 and he has
been furnished by the Company with all information regarding the Company which
he had requested or desired to know; that all documents which could be
reasonably provided have been made available for his inspection and review; that
he attests to the accuracy of such information that has been filed and that he
has been afforded the opportunity to ask questions of and receive answers from
duly authorized representatives of the Company concerning the terms and
conditions of the offering, and any additional information which he and it had
requested; and that he has had the opportunity to consult with his own tax or
financial advisor concerning an investment in the Company.
(e) Xxxxxx understands that the Shares are not being registered under
the Securities Act in part on the ground that the issuance thereof is exempt
under Section 4(2) of the Securities Act as a transaction by an issuer not
involving any public offering and that Company's reliance on such exemption is
predicated in part on the foregoing representations and warranties of Xxxxxx.
(f) Xxxxxx understands that since the Shares are not being registered
under the Securities Act, they may not be sold, assigned, transferred,
encumbered, or disposed of unless they are subsequently registered thereunder or
an exemption from such registration is available. Accordingly, the following
restrictive legend will be placed on any instrument, certificate or other
document evidencing the Shares:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933.
These shares have been acquired for investment and
not for distribution or resale. They may not be sold,
assigned, mortgaged, pledged, hypothecated or
otherwise transferred or disposed of without an
effective registration statement for such shares
under the Securities Act of 1933 or an opinion of
counsel for the Company that registration statement
is not required under such Act."
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(g) Xxxxxx has the power and authority to execute, deliver and perform
this Agreement, and this Agreement constitutes the valid and binding obligation
of Xxxxxx, and it is enforceable according to its terms;
(h) that neither the execution of this Agreement nor performance
hereunder will (i) violate, conflict with or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under the terms, conditions or
provisions of any contract, agreement or other instrument or obligation to which
Xxxxxx is a party, or by which he may be bound, or (ii) violate any order,
judgment, writ, injunction or decree applicable to him.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to Xxxxxx:
(a) the Company is a corporation duly organized validly existing and in
good standing under the laws of the state of its incorporation and it has
qualified to do business as a foreign corporation in the jurisdictions, if any,
outside of such state, in which it does business and is required to so qualify;
(b) the Company has corporate power and authority to execute and
deliver this Agreement and to perform the duties and responsibilities
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of the Company, enforceable according to its terms;
(c) the execution, delivery and performance of this Agreement has been
duly authorized by the Company's Board of Directors, and no other corporate
approvals are necessary;
(d) that neither the execution of this Agreement nor performance
hereunder or thereunder will (i) violate, conflict with or result in a breach of
any provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under the terms, conditions
or provisions of the Company's Certificate of Incorporation or By-Laws or any
contract, agreement or other instrument or obligation to which it is a party, or
by which it may be bound, or (ii) violate any order, judgment, writ, injunction
or decree applicable to it.
(e) the Shares issued hereunder shall be issued for good valuable and
sufficient consideration, the receipt of which is hereby acknowledged, and upon
issuance, such Shares shall constitute duly authorized, validly issued, fully
paid and non-assessable Shares of common stock of the Company.
4. Miscellaneous.
4.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and hand delivered or sent by first class mail, postage
prepaid, or overnight mail, addressed to the Company, 0000 Xxxxx XxxxxXxxx
Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx, Chief
Operating Officer and to Xxxxxx at 0000 Xxxxx Xxxx Xxxxx, Xxxxxx Xxxx, XX 00000.
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Notices shall be deemed to have been given on the date of mailing, except
notices of change of address, which shall be deemed to have been given when
received.
4.2 This Agreement shall not be changed, modified or amended except by
a writing signed by the party to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
4.3 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and to their respective permitted successors and assigns.
This Agreement sets forth the entire agreement and understanding between the
parties as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature between them.
4.4 This Agreement and its validity, construction and performance shall
be governed in all respects by the laws of the State of Delaware, applicable to
agreements to be performed wholly within the State of Delaware.
4.5 This Agreement may be executed in counterparts.
4.6 Facsimile signatures hereon are deemed to be original signatures.
Remainder of page intentionally left blank. Signature page follows.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
Social Security No.
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XXXXXXXXX ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Chief Operating Officer
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