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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
Dated as of February 15, 2002
By and Among
Fortune Natural Resources Corporation, a Delaware Corporation
and
Renaissance Capital Growth & Income Fund III, INC. and
Renaissance US Growth & Income Trust PLC
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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This SERIES B PREFERRED STOCK PURCHASE AGREEMENT, dated as of February
_____, 2002 (this "Agreement"), is by and among Fortune Natural Resources
Corporation, a Delaware Corporation, ("Fortune") presently located at One
Commerce Green, 000 X. Xxxxxx Xx., Xxxxx 000, Xxxxxxx, Xxxxx, 00000; Renaissance
Capital Growth & Income Fund and Renaissance US Growth & Income Trust PLC
(collectively "Purchaser").
WHEREAS, Fortune wishes the Purchaser to make an investment in Fortune;
WHEREAS, Purchaser wishes, subject to the terms and conditions set forth
herein, to make an investment in Fortune through the purchase of Series B
Preferred Stock of Fortune ("Series B Stock" ), with the voting powers,
designations, preferences, rights and qualifications, limitations and
restrictions as set forth in the Certificate of Designation, attached hereto as
EXHIBIT A;
WHEREAS, as an inducement to Purchaser to enter into this Agreement and to
make the investment hereunder, Fortune has agreed to issue Purchaser a warrant
to purchase certain shares of Fortune's common stock in accordance with the
terms hereof; and
WHEREAS, as an inducement to Purchaser to enter into this Agreement and to
make the investment hereunder, Fortune has agreed to grant to Purchaser an
option to require Fortune to purchase currently held shares of Fortune's common
stock in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Sale of Shares; Issuance of Warrants; Put Option.
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1.1 SALE OF SHARES. Subject to the terms and conditions set forth herein,
effective as of the date hereof, Fortune shall: (i) sell and issue to each
Purchaser, and each Purchaser shall purchase and accept from Fortune 120,000
shares of Series B Stock for $120,000, which shall be payable by wire transfer
to Fortune ("Purchase Price"); (ii) issue to each Purchaser, a warrant (the
"Warrant") to purchase the shares (subject to adjustment and readjustment from
time to time as provided in the Warrant Agreement as attached hereto as "EXHIBIT
B,") of Common Shares as provided in Section 1.2 below; and (iii) grant to each
Purchaser an option to require Fortune to purchase shares of Fortune Common
Shares currently held by each Purchaser, pursuant to the terms of that certain
Put Option agreement (the "Put") attached hereto as "EXHIBIT C."
1.2 WARRANT. In further consideration of the value received from
Purchaser, Fortune hereby covenants to issue to each Purchaser, pursuant to the
terms of the Warrant, at the earlier of (i) 180 days after the date of issuance
of the Series B to Purchaser, or (ii) the funding of the Private Placement of
the Corporation's Series A Convertible Participating Preferred Stock ("Series
A"), Three-Year Common Stock Purchase Warrants in accordance with the following
table:
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Number of Warrants to be issued Exercise Price as
Date of issuance of expressed as percentage of the percentage of "market
Warrants after date hereof value of the redemption rights price of common stock"
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Less than 76 days 20% 150%
76-105 days 30% 140%
106-140 days 40% 130%
141-170 days 50% 120%
More than 170 days 60% 110%
"Market price of common stock" shall mean the average of the last reported sales
prices on each of the ten trading days prior to the date hereof or, in the event
no reported sale takes place on such day, the last previously reported sales
price, in either case on the over-the-counter bulletin board, principal exchange
on which the common stock is listed, or as reported by the National Association
of Securities Dealers, Inc. through NASDAQ or similar organization.
1.3 PUT OPTION. In further consideration of the value received from
Purchaser, Fortune hereby covenants to grant to each Purchaser the option to
require Fortune to purchase shares of Fortune Common Shares currently held by
such Purchaser, pursuant to the terms of the Put. The Put shall not be
exercisable if the Series B Preferred Shares, together with all dividends
accrued thereon, are fully paid in accordance with the redemption obligations of
Fortune. In addition, if the Series B Preferred Shares are timely called for
redemption and the certificate shall not have been surrendered for cancellation,
on and after such redemption date, all shares so called for redemption shall no
longer be deemed outstanding and all rights with respect to the Put shall
forthwith on such redemption date cease and terminate, except only the right of
the holders thereof to receive the amount payable on redemption thereof.
2. Representations and Warranties of Fortune.
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Fortune hereby represents and warrants to Purchaser as of the date hereof
and as of the Closing as follows:
2.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. Fortune is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware. Fortune has all requisite corporate power and authority to own
and operate its properties and assets and to carry on its business as presently
conducted and as proposed to be conducted. Fortune is qualified to do business
as a foreign corporation or as otherwise necessary in every jurisdiction in
which the failure to be so qualified would have a material adverse effect on
Fortune's business as now conducted or as proposed to be conducted.
2.2 ORGANIZATIONAL POWER. Fortune has all requisite legal and
organizational power to execute and deliver this Agreement, to sell and issue
the Series B Stock, the Warrant, and the Put, and to carry out and perform its
obligations under the terms of this Agreement and the agreements referenced
herein.
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2.3 AUTHORIZATION. All corporate and other organizational action on the
part of Fortune, its officers and directors necessary for the authorization,
execution, delivery and performance by Fortune of this Agreement, the
authorization, issuance, sale and delivery of the Series B Stock, the issuance
of the Warrant, the Put, and the performance of all of Fortune's obligations
hereunder has been taken or will be taken prior to the respective Closing. This
Agreement, when executed and delivered by Fortune, will constitute a valid and
legally binding obligation of Fortune, enforceable in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief and other equitable remedies. The Series B Stock, when issued
in compliance with the provisions of this Agreement, will be validly authorized
and issued, fully paid and non-assessable and will have the rights, preferences,
privileges and restrictions described in the Certificate of Designation. The
Series B Stock will be free of any liens or encumbrances, other than any liens
or encumbrances created by or imposed upon the holders thereof through no action
of Fortune; provided, however, that the Series B Stock will be subject to
restrictions on transfer under state and/or federal securities laws as set forth
herein.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. In order to induce Fortune to
accept this Agreement, each Purchaser hereby represents and warrants to Fortune,
solely with regard to itself, as follows:
3.1 INVESTMENT INTENT. Purchaser is acquiring Series B Stock for its own
account for investment and not with a view to any distribution thereof.
3.2 INDEPENDENT INVESTIGATION. In making its decision to purchase Series
B Stock, Purchaser has relied solely upon independent investigations made by
Purchaser, its representatives and agents.
3.3 NO REPRESENTATION. Purchaser acknowledges and agrees that Fortune has
made no representation or warranty to Purchaser or any of its affiliates,
employees or agents in connection with Purchaser's purchase of Series B Stock
and the other transactions described herein, except as expressly set forth
herein.
4. CLOSING.
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4.1 CLOSING. The Closing shall take place on February 15, 2002 (the
"Closing") at such time and place as the parties may mutually agree upon.
4.2 DELIVERIES BY FORTUNE. At the Closing, Fortune shall deliver to
Purchaser: (I) all certificates representing the Series B Shares, duly endorsed
for transfer to Purchaser; and (II) executed originals of the agreements
referenced herein.
4.3 DELIVERIES BY PURCHASER. At Closing, Purchaser shall deliver to
Fortune: (I) the Purchase Price by wire transfer of immediately available funds
to an account designated by Fortune, minus an amount to cover the reasonable
expenses and legal fees incurred with respect to the negotiation and execution
of this Agreement; and (II) executed originals of the agreements referenced
herein.
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5. General Provisions.
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5.1 ENTIRE AGREEMENT. This Agreement is the entire agreement between the
parties with respect to the subject matter hereof and cancels and supersedes any
and all prior agreements, whether written or oral, regarding the subject matter
hereof between the parties. This Agreement and any of the terms hereof may not
be altered, modified, changed, waived or discharged except in writing signed by
each of the parties.
5.2 ATTORNEY'S FEES. In the event that any action or proceeding,
including arbitration, is commenced by any party hereto for the purpose of
enforcing any provision of this Agreement, the successful or prevailing party
shall recover reasonable attorneys' fees and other reasonable costs incurred
in such action or proceeding.
5.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail, return receipt requested; or telecopy
transmission with confirmation of receipt:
(i) If to Fortune, to:
One Commerce Green, 000 X. Xxxxxx Xx.
Xxxxx 000
Xxxxxxx, Xxxxx, 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: XXXXXX X. XXXXXXXXX, Chairman
and Chief Executive Officer
(ii) If to a Purchaser, to:
Renaissance Capital Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000, XX-00
Xxxxxx, Xxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxx Xxxxxx
(with a copy to)
Xxxxxxxxxxx & Xxxxxxxx LLP
3100 Bank One Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Xxxxxx Xxxxxx
Such names and addresses may be changed by written notice to each person listed
above.
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5.4 EXPENSES. Upon closing, Fortune shall pay the all the expenses and
legal fees incurred with respect to the negotiation and execution of this
Agreement and the consummation of the transactions contemplated hereby, which
amount shall be paid upon Closing.
5.5 COUNTERPARTS; FACSIMILES. This Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed an original, and all of
which together shall constitute one (1) and the same instrument. Delivery of an
executed counterpart of a signature page to this agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this Agreement.
5.6 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
5.7 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICT OF LAWS
PRINCIPLES.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
FORTUNE NATURAL RESOURCES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX, Chairman
and Chief Executive Officer
RENAISSANCE CAPITAL GROWTH
& INCOME FUND III, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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RENAISSANCE US GROWTH &
INCOME TRUST PLC
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President, Renaissance
Capital Group, Inc.
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