INVESTMENT REPRESENTATION AGREEMENT
Delta Petroleum Corporation
X/X 000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
1. Subscription. The Undersigned, EVERGREEN RESOURCES,
INC. ("Evergreen" or "Undersigned") and its designees, hereby
agrees to acquire from Delta Petroleum Corporation ("Delta" or
the "Company") 175,000 shares of the restricted and legended
common stock of Delta (collectively the "Securities") for an
aggregate of $350,000 in a private negotiated transaction
pursuant to Section 3(b) and/or 4(2) of the Act (and the
regulations promulgated thereunder) and/or other applicable
statute, rule and\or regulation. Closing, including delivery of
the Securities and payment therefore, shall take place as of
January 4, 2000.
2. Representations and Warranties. The Undersigned
warrants and represents to the Company that:
a. The Securities are being acquired by the
Undersigned for investment for its own account, and not with a
view to the offer or sale in connection therewith, or the
distribution thereof, and that the Undersigned is not now, and
will not in the future, participate, directly or indirectly, in
an underwriting of any such undertaking except in compliance with
applicable registration provisions of the Act.
b. The Undersigned will not take, or cause to be
taken, any action that would cause it to be deemed an underwriter
of the Securities, as defined in Section 2(11) of the Securities
Act of 1933, as amended (the "Act").
c. The Undersigned has been afforded an opportunity
to examine such documents and obtain such information concerning
the Company as it may have requested, including without
limitation all publicly available information, and has had the
opportunity to request such other information (and all
information so requested has been provided) for the purpose of
verifying the information furnished to it and for the purpose of
answering any question it may have had concerning the business
affairs of the Company and it has reviewed to the extent desired
by it the Articles, Bylaws and Minutes of the Company,
documentation concerning the Company's financial condition,
assets, liabilities, share ownership and capital structure,
operations, sales, management, public market, public filings,
litigation and other material contracts and matters.
d. The Undersigned (and its officers, directors and/or
agents, as applicable) have had an opportunity to personally ask
questions of, and receive answers from, one or more of the
officers and directors of the Company and/or the attorneys for
the Company to ascertain and verify the accuracy and completeness
of all material information regarding the Company, its business
and its officers, directors, and promoters. The Undersigned has
had an opportunity to ask questions of and receive answers from
duly designated representatives of the Company concerning the
terms and conditions pursuant to which the Securities are being
acquired by it.
e. The Undersigned understands that its acquisition of the
Securities from the Company is a negotiated private transaction.
f. By reason of the knowledge and experience of the
Undersigned (and that of its officers and directors and their
respective advisors and investment bankers) in financial and
business matters in general, and investments in particular, it is
capable of evaluating the merits and risks of an investment in
the Securities.
g. The Undersigned is capable of bearing the economic
risks of an investment in the Securities.
h. The Undersigned's present financial condition is such
that it is under no present or contemplated future need to
dispose of any portion of the Securities to satisfy any existing
or contemplated undertaking, need or indebtedness.
i. If required to do so, it has retained to advise it, as
to the merits and risks of a prospective investment in the
Securities, a purchaser representative, legal counsel, financial
and accounting advisors, investment bankers, etc.
j. The Undersigned hereby represents and warrants to the
Company that all of the representations, warranties and
acknowledgements contained in this agreement, and the agreements,
if any, to which this document is attached as an exhibit are
true, accurate and complete as of the date herein and
acknowledges that the Company, its officers, directors, agents,
and affiliates have relied on its representations and warranties
herein in consenting to the restricted issuance and/or transfer
of the Securities and the Undersigned hereby agrees to indemnify
and hold the Company (together with its officers, directors,
agents and affiliates) harmless with respect to any and all
expenses, claims or litigation (including without limitation
reasonable attorney's fees related thereto) arising from or
related to breach of this agreement including without limitation
breach of any warranty or representation herein.
3. Restrictions. The Undersigned acknowledges and
understands that the Securities are unregistered and must be held
indefinitely by the Undersigned and/or its assignees unless they
are subsequently registered under the Act or an exemption from
such registration is available. The Undersigned further
acknowledges that it is fully aware of the applicable limitations
on the resale of the Securities. For instance, Rule 144 (the
"Rule") permits sales of "Restricted Securities" held for not
less than two years and upon compliance with the requirements of
such Rule. Further, the Securities must be sold in an active
market and appropriate information relating to the Company must
be generally available in order to effectuate a transaction
pursuant to the Rule by an affiliate of the Company. Any and all
certificates representing the Securities and any and all
securities issued in replacement or conversion thereof or in
exchange thereof shall bear the following legend, or one
substantially similar thereto, which the Undersigned has read and
understands:
The Securities represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are "restricted securities" as that term is defined in Rule
144 under the Act. The Securities may not be offered for
sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act or pursuant
to an exemption from registration under the Act, the
availability of which is to be established to the
satisfaction of the Company.
4. Registration Rights. Subject to the approval of an
underwriter, if any, involved in a registration relating to a
public offering of the Company's securities, in the event that
the Company shall file a registration statement (or similar
document) with the U.S. Securities & Exchange Commission on a
form which would legally allow inclusion of the shares issued
pursuant hereto, the Company shall include such shares in such
registration statement, at the Company's sole cost.
5. Successors and Assigns. This agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and to the successors and assigns of the Company and to the
personal and legal representatives, heirs, guardians, successors
and permitted assignees of the Undersigned.
6. Applicable Law. This agreement shall be governed by
and construed in accordance with the laws of the State of
Colorado and, to the extent it involves any United States
statute, in accordance with the laws of the United States, and
jurisdiction and venue for any dispute related hereto shall be in
the District Court for the City and County of Denver, Colorado.
Evergreen Resources, Inc. By:s/Xxxx X. Xxxxxx
Typed or Printed Name Signature
Xxxx X. Xxxxxx
President & CEO for
Evergreen Resources, Inc.
00-0000000 0000 00xx Xxxxxx, Xxxxx 0000
Social Security or Tax Address
Identification Number
Xxxxxx, Xxxxxxxx 00000
City, State and Zip Code
ACCEPTED:
DELTA PETROLEUM CORPORATION
By:s/Xxxxxx X. Xxxxxx, Xx.
Dated: December 17, 1999
