AMENDMENT AGREEMENT
EXHIBIT 16
AMENDMENT
AGREEMENT
(the
"Agreement"),
dated
as of December 29, 2006, by and among Apollo Resources International, Inc.,
a
Utah corporation, with its corporate headquarters located at 0000 Xxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Company"),
and
Castlerigg Master Investments Ltd. (the "Investor").
WHEREAS:
A.
The
Company and the Investor are parties to that certain Securities Purchase
Agreement, dated as of July 25, 2006 (the "Existing
Securities Purchase Agreement"),
pursuant to which, among other things, the Investors purchased from the Company
(i) certain shares (the "Existing
Common Shares")
of the
Company's common stock, par value $0.001 per share (the "Common
Stock")
and
(ii) Warrants (the "Existing
Warrants"),
which
are exercisable into shares of Common Stock (the "Existing
Warrant Shares"),
in
accordance with the terms thereof.
B.
Contemporaneously
with the execution and delivery of Existing Securities Purchase Agreement,
the
Company entered into that certain Registration Rights Agreement, dated July
25,
2006 (as amended prior to the date hereof, the "Existing
Registration Rights Agreement"),
by
and between the Company and the Investor, pursuant to which the Company agreed
to provide certain registration rights with respect to the Registrable
Securities (as defined in the Existing Registration Rights Agreement) under
the
Securities Act of 1933, as amended (the "1933
Act"),
and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
C.
The
Company has authorized a new series of senior secured convertible notes of
the
Company, in the form attached hereto as Exhibit
A
(the
"Notes"),
which
Notes shall be convertible into the Company's Common Stock (as converted, the
"Conversion
Shares"),
in
accordance with the terms of the Notes.
D.
The
Company and the Investor desires to enter into this Agreement, pursuant to
which, among other things, the Investor shall be issued Notes with a principal
amount of $8,296,752 (the "Principal
Amount"),
which
represents the sum of (i) $_8,052,632.00 and (ii) $244,120.00 of projected
Registration Delay Payments (as defined in the Registration Rights Agreement)
which has accrued and become payable to the Investor during the period
commencing on the Filing Deadline (as defined in the Amended Registration Rights
Agreement (as defined below)) and ending on the date hereof (the "Registration
Delay Amount"),
in
exchange for the delivery of its Existing Common Shares and the Existing
Warrants only upon the Covenant Satisfaction Date (as defined
below).
E.
The
exchange of the Existing Common Shares and Existing Warrants for the Notes
is
being made in reliance upon the exemption from registration provided by Section
3(a)(9) of the 1933 Act.
F.
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings ascribed to them in the Securities Purchase Agreement and the
Notes.
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises hereinafter
set
forth, the Company and the Investors hereby agree as follows:
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1.
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EXCHANGE
AND ISSUANCE OF NOTES.
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(a) Exchange
and Issuance of Notes.
Subject
to satisfaction (or waiver) of the conditions set forth in Sections 5 and 6
below, (i) the Investor shall surrender to the Company at the closing
contemplated by this Agreement (the "Closing")
the
Existing Common Shares and Existing Warrants of the Investor and (ii) the
Company shall issue and deliver to the Investor the Notes in an amount equal
to
the Principal Amount.
(b) Closing
Date.
The
date and time of the Closing (the "Closing
Date")
shall
be 10:00 a.m., New York Time, on December 29, 2006, subject to notification
of
satisfaction (or waiver) of the conditions to the Closing set forth in Sections
5 and 6 below (or such other time and date as is mutually agreed to by the
Company and the Investors). The Closing shall occur on the Closing Date at
the
offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(c) Form
of Payment.
On the
Closing Date, (i) the Company shall issue and deliver to the Investor, the
Investor's Notes, duly executed on behalf of the Company and registered in
the
name of the Investor. On the Covenant Satisfaction Date (as defined below),
the
Investor shall deliver to the Company the Investor's Existing Common Shares
and
Existing Warrants for cancellation.
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2.
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AMENDMENTS
TO TRANSACTION DOCUMENTS.
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The
Existing Securities Purchase Agreement (as amended hereby, the "Amended
Securities Purchase Agreement")
and
the Existing Registration Rights Agreement (as amended hereby, the "Amended
Registration Rights Agreement")
are
each hereby amended as follows:
(a) All
references to "Warrants" shall mean, and are hereby replaced with, the "Notes
(as defined in that certain Amendment Agreement, dated December 29, 2006, by
and
between the Company and the Buyer (the "Amendment
Agreement")";
(b) All
references to "Warrant Shares" shall mean, and are hereby replaced with, the
"Conversion Shares (as defined in the Amendment Agreement)"; and
(c) The
defined term "Transaction Documents" is hereby amended
to
include this Agreement, the Notes and the Security Documents (as defined in
the
Amendment Agreement).
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3.
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REPRESENTATIONS
AND WARRANTIES
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(a) Investor
Bring Down.
The
Investor hereby represents and warrants to the Company with respect to itself
only as set forth in Section 2 of the Amended Securities Purchase Agreement
as
to this Agreement as if such representations and warranties were made as of
the
date hereof and set forth in their entirety in this Agreement. Such
representations and warranties in the Amended Securities Purchase Agreement
to
the transactions thereunder and the securities issued thereby are hereby deemed
for purposes of this Agreement to be references to the transactions hereunder
and the issuance of the securities hereby.
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(b) Company
Bring Down.
The
Company represents and warrants to the Investor as set forth in Section 3 of
the
Amended Securities Purchase Agreement as if such representations and warranties
were made as of the date hereof and set forth in their entirety in this
Agreement. Such representations and warranties in the Amended Securities
Purchase Agreement to the transactions thereunder and the securities issued
thereby are hereby deemed for purposes of this Agreement to be references to
the
transactions hereunder and the issuance of the securities hereby, and references
therein to "Closing Date" being deemed references to the Closing Date as defined
in Section 1(b) above.
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4.
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CERTAIN
COVENANTS AND AGREEMENTS
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(a) Disclosure
of Transactions and Other Material Information.
On or
before 8:30 a.m., New York City time, on the fourth Business Day following
the
date of this Agreement, the Company shall issue a press release and file a
Current Report on Form 8-K describing the terms of the transactions contemplated
by the Transaction Documents in the form required by the 1934 Act and attaching
the material Transaction Documents not previously filed (including, without
limitation, this Agreement (and all schedules to this Agreement) and the form
of
Note) as exhibits to such filing (including all attachments, the "8-K
Filing").
From
and after the filing of the 8-K Filing with the SEC, no Investor shall be in
possession of any material, nonpublic information received from the Company, any
of its Subsidiaries or any of its respective officers, directors, employees
or
agents, that is not disclosed in the 8-K Filing. The Company shall not, and
shall cause each of its Subsidiaries and its and each of their respective
officers, directors, employees and agents, not to, provide any Investor with
any
material, nonpublic information regarding the Company or any of its Subsidiaries
from and after the filing of the 8-K Filing with the SEC without the express
written consent of the Investor or as may be required under the terms of the
Transaction Documents. If the Investor has, or believes it has, received any
such material, nonpublic information regarding the Company or any of its
Subsidiaries, it shall provide the Company with written notice thereof. The
Company shall, within five (5) Trading Days (as defined in the Warrant) of
receipt of such notice, make public disclosure of such material, nonpublic
information. In the event of a breach of the foregoing covenant by the Company,
any of its Subsidiaries, or any of its or their respective officers, directors,
employees and agents, in addition to any other remedy provided herein or in
the
Transaction Documents, a Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of such material, nonpublic information without the prior approval by the
Company, its Subsidiaries, or any of its or their respective officers,
directors, employees or agents. No Investor shall have any liability to the
Company, its Subsidiaries, or any of its or their respective officers,
directors, employees, stockholders or agents for any such disclosure. Subject
to
the foregoing, neither the Company, its Subsidiaries nor the Investor shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall
be
entitled, without the prior approval of any Investor, to make any press release
or other public disclosure with respect to such transactions (i) in substantial
conformity with the 8-K Filing and contemporaneously therewith and (ii) as
is
required by applicable law and regulations (provided that in the case of clause
(i) the Investor shall be consulted by the Company in connection with any such
press release or other public disclosure prior to its release). Without the
prior written consent of the Investor, neither the Company nor any of its
Subsidiaries or affiliates shall disclose the name of the Investor in any
filing, announcement, release or otherwise, unless such disclosure is required
by law, regulation or the Principal Market.
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(b) Fees
and Expenses.
At the
Closing, the Company shall reimburse the Investor for its legal and due
diligence fees and expenses in connection with the preparation and negotiation
of this Agreement by paying any such amount to Xxxxxxx Xxxx & Xxxxx LLP (the
"Investor
Counsel Expense").
Except as otherwise set forth in this Agreement, each party shall pay the fees
and expenses of its advisers, counsel, accountants and other experts, if any,
and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all stamp and other taxes and duties levied in connection with the
issuance of the Notes.
(c) Collateral
Agent.
The
Investor hereby (a) appoints Castlerigg Master Investments Ltd., as the
collateral agent hereunder and under the other Security Documents (in such
capacity, the "Collateral
Agent"),
and
(b) authorizes the Collateral Agent (and its officers, directors, employees
and
agents) to take such action on the Investor's behalf in accordance with the
terms hereof and thereof. The Collateral Agent shall not have, by reason hereof
or any of the other Security Documents (as defined below), a fiduciary
relationship in respect of any holder of Notes. Neither the Collateral Agent
nor
any of its officers, directors, employees and agents shall have any liability
to
any holder of Notes for any action taken or omitted to be taken in connection
hereof or any other Security Document except to the extent caused by its own
gross negligence or willful misconduct, and each holder of Notes agrees to
defend, protect, indemnify and hold harmless the Collateral Agent and all of
its
officers, directors, employees and agents (collectively, the "Indemnitees")
from
and against any losses, damages, liabilities, obligations, penalties, actions,
judgments, suits, fees, costs and expenses (including, without limitation,
reasonable attorneys' fees, costs and expenses) incurred by such Indemnitee,
whether direct, indirect or consequential, arising from or in connection with
the performance by such Indemnitee of the duties and obligations of Collateral
Agent pursuant hereto or any of the Security Documents. The Collateral Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected
in so
acting or refraining from acting) upon the instructions of the holders of a
majority in principal amount of the Notes then outstanding, and such
instructions shall be binding upon all holders of Notes; provided,
however,
that
the Collateral Agent shall not be required to take any action which, in the
reasonable opinion of the Collateral Agent, exposes the Collateral gent to
liability or which is contrary to this Agreement or any other Transaction
Document or applicable law. The Collateral Agent shall be entitled to rely
upon
any written notices, statements, certificates, orders or other documents or
any
telephone message believed by it in good faith to be genuine and correct and
to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the other Transaction Documents
and its duties hereunder or thereunder, upon advice of counsel selected by
it.
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(d) Successor
Collateral Agent .
(i) The
Collateral Agent may resign from the performance of all its functions and duties
hereunder and under the other Transaction Documents at any time by giving at
least thirty (30) Business Days' prior written notice to the Company and each
holder of Notes. Such resignation shall take effect upon the acceptance by
a
successor Collateral Agent of appointment pursuant to clauses (ii) and (i)
below
or as otherwise provided below.
(ii) Upon
any
such notice of resignation, the holders of a majority in principal amount of
the
Notes then outstanding shall appoint a successor collateral agent. Upon the
acceptance of any appointment as collateral agent hereunder by a successor
agent, such successor collateral agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the collateral
agent, and the Collateral Agent shall be discharged from its duties and
obligations under this Agreement and the other Transaction Documents. After
the
Collateral Agent's resignation hereunder as the collateral agent, the provisions
of this Section 4(d) shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Collateral Agent under this Agreement
and the other Transaction Documents.
(iii) If
a
successor collateral agent shall not have been so appointed within said thirty
(30) Business Day period, the Collateral Agent shall then appoint a successor
collateral agent who shall serve as the collateral agent until such time, if
any, as the holders of a majority in principal amount of the Notes then
outstanding appoint a successor collateral agent as provided above.
(e) Post-Closing
Security Covenant.
The
date the covenants in this Section 4(e) have been satisfied in full shall be
referred to herein as the "Covenant
Satisfaction Date".
(i) Securitization.
Within
thirty (30) days following the date hereof, the Company shall cause the
restructuring of OGC Pipeline, LLC (the "Collateral
Subsidiary")
such
that (i) the Collateral Subsidiary shall be a bankruptcy remote entity, (ii)
the
Collateral Subsidiary shall not be permitted to incur or suffer to exist any
Indebtedness (as defined in the Note) without the prior written consent of
the
Collateral Agent, (iii) in the event of a bankruptcy of any direct or indirect
parent of the Collateral Subsidiary, such Collateral Subsidiary would not be
subject to substantive consolidation, as evidenced by a legal opinion of a
law
firm reasonably satisfactory to the Collateral Agent to that effect and (iv)
the
Collateral Subsidiary and the Company shall be subject to such other
restrictions customary to securitization transactions.
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(ii) Assignment
of Earth Biofuels, Inc. Note.
Within
ten (10) days following the date hereof, (x) the Company shall cause Earth
Biofuels, Inc., a Delaware corporation ("EBOF"),
to
issue to the Company a promissory note, in form and substance as the Notes
(other than the omission of any conversion rights therein and EBOF as the
issuer), mutatis
mutandis
(the
"EBOF
Note"),
with
an aggregate principal amount of $2,750,000, (y) the Company shall enter into
an
agreement with the Investor, in form and substance reasonably satisfactory
to
the Investor (the "EBOF
Assignment Agreement"),
whereby the Company shall assign the EBOF Note to the Investor and (z) the
Company shall deliver to the Investor such other documents reasonably requested
by the Investor relating to the EBOF Assignment Agreement and the EBOF Note,
including, without limitation, an acknowledgement by EBOF to such assignment
(such documents, collectively with the EBOF Assignment Agreement, the
"Assignment
Documents").
(iii) Security
Documents.
Within
thirty (30) days following the date hereof, (x) the Company shall enter into
(A)
a Security Agreement (the "Securities
Agreement")
with
the Collateral Agent, in form and substance reasonably satisfactory to the
Collateral Agent, with respect to the Collateral Agent's security interest
in
the Oil and Gas Properties and (B) a Pledge Agreement (the "Pledge
Agreement")
with
the Collateral Agent, in form and substance reasonably satisfactory to the
Collateral Agent, with respect to the pledge of the membership interests in
the
Collateral Subsidiary to the Collateral Agent and (y) the Collateral Agent
and
any direct or indirect parent of the Collateral Agent (other than the Company)
(collectively, the "Guarantors"),
shall
enter a guaranty agreement (the "Guaranty
Agreement"),
with
respect to the several guarantee by each Guarantor of all of the obligations
of
the Company under the Notes, in form and substance reasonably satisfactory
to
the Collateral Agent.
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(iv) Mortgages.
(x)
within thirty (30) days following the date hereof, the Company shall cause
to be
filed of record, in the applicable real property records of each jurisdiction
in
which the Oil and Gas Properties are located, a fee or leasehold mortgage,
deed
of trust or deed to secure debt, in form and substance reasonably satisfactory
to the Collateral Agent, in favor of the Collateral Agent for the benefit of
the
Buyers, securing the Notes and covering all of the Oil and Gas Properties (each,
a "Mortgage"
and
together with the Security Agreement, the Pledge Agreement, the Guaranty
Agreement, the EBOF Note, the Assignment Documents and such other security
documents evidencing the Collateral Agent's security interest in the Oil and
Gas
Properties, the "Security
Documents");
(y)
within sixty (60) days following the date hereof, the Company shall furnish
title opinions, dated and reflecting the state of title as of a date no earlier
than the date of filing of the applicable Mortgages in form and substance and
issued by counsel reasonably satisfactory to the Collateral Agent, confirming
to
Collateral Agent's reasonable satisfaction that (A) the Company has good and
defensible title to the quantity of interest represented herein in and to all
of
the Oil and Gas Properties, and (B) all of such Company's interest in all of
the
Oil and Gas Properties is subject to a valid, perfected and enforceable Mortgage
lien in favor of the Collateral Agent subject only to Permitted Liens (as
defined in the Notes); and (z) upon request the Company will provide to the
Collateral Agent copies from its files of all contracts and documents affecting
the Oil and Gas Properties, and at the Collateral Agent's option, upon
reasonable notice and during normal business hours, the Company shall make
its
files and personnel available in the Company's offices and otherwise cooperate
with the Collateral Agent in the title verification and due diligence program
to
be conducted by the Collateral Agent, which shall be at the Company's expense,
to confirm the ownership and value of the Oil and Gas Properties. The title
opinions provided by the Company may be based on such records and prior title
certificates, abstracts, runsheets, title policy plant records and opinions
as
are customarily relied upon by providers of mortgage financing to purchasers
of
properties similar to the Oil and Gas Properties. Without limiting the
generality of the foregoing, subject to the approval of local Oklahoma and
Kansas counsel appointed by the Collateral Agent, which approval shall not
be
unreasonably withheld and shall be consistent with what is customarily relied
upon by providers of mortgage financing to purchasers of properties similar
to
the Oil and Gas Properties, with respect to those Oil and Gas Properties now
owned by the Company an update through the date of the recordation of the
applicable Mortgages of the title opinions previously obtained by the Company
with respect to such properties, shall satisfy the requirements of this
subsection. As used here, "Oil
and Gas Properties"
means
Hydrocarbon Interests; the personal property and/or real property now or
hereafter pooled or unitized with Hydrocarbon Interests; all presently existing
or future unitization, pooling agreements and declarations of pooled units
and
the units created thereby (including without limitation all units created under
orders, regulations and rules of any Governmental Authority having jurisdiction)
which may affect all or any portion of the Hydrocarbon Interests; all pipelines,
gathering lines, compression facilities, tanks and processing plants; all oil
xxxxx, gas xxxxx, water xxxxx, injection xxxxx, platforms, spars or other
offshore facilities, casings, rods, tubing, pumping units and engines, Christmas
trees, derricks, separators, gun barrels, flow lines, gas systems (for
gathering, treating and compression), and water systems (for treating, disposal
and injection); all interests held in royalty trusts whether presently existing
or hereafter created; all Hydrocarbons in and under and which may be produced,
saved, processed or attributable to the Hydrocarbon Interests, the lands covered
thereby and all Hydrocarbons in pipelines, gathering lines, tanks and processing
plants and all rents, issues, profits, proceeds, products, revenues and other
incomes from or attributable to the Hydrocarbon Interests; all tenements,
hereditaments, appurtenances and personal property and/or real property in
any
way appertaining, belonging, affixed or incidental to the Hydrocarbon Interests,
and all rights, titles, interests and estates described or referred to above,
including any and all real property, now owned or hereafter acquired, used
or
held for use in connection with the operating, working or development of any
of
such Hydrocarbon Interests or personal property and/or real property and
including any and all surface leases, rights-of-way, easements and servitude
together with all additions, substitutions, replacements, accessions and
attachments to any and all of the foregoing; all Hydrocarbon leasehold, fee
and
term interests, all overriding royalty interests, mineral interests, royalty
interests, net profits interests, net revenue interests, oil and gas payments,
production payments, carried interests, leases, subleases, farmouts and any
and
all other interests in Hydrocarbons; in each case whether now owned or hereafter
acquired directly or indirectly. As used herein, "Hydrocarbon
Interests"
means
all rights, titles, interests and estates now owned or hereafter acquired in
and
to Hydrocarbon leases, Hydrocarbon or mineral fee or lease interests, farm-ins,
overriding royalty and royalty interests, net profit interests, oil payments,
production payment interests and similar mineral interests, including any
reserved or residual interest of whatever nature. "Hydrocarbons"
means
oil, gas, coal seam gas, casinghead gas, condensate, distillate, liquid
hydrocarbons, gaseous hydrocarbons, all products refined, separated, settled
and
dehydrated therefrom and all products refined therefrom, including, without
limitation, kerosene, liquefied petroleum gas, refined lubricating oils, diesel
fuel, drip gasoline, natural gasoline, helium, sulfur and all other gaseous
or
liquid minerals.
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(v) UCC
Searches.
Within
twenty (20) days following the date hereof, the Company shall have delivered
or
caused to be delivered to the Investor (i) true copies of UCC search results,
listing all effective financing statements which name as debtor the Company
or
any of its Subsidiaries filed in the prior five years to perfect an interest
in
any assets thereof, together with copies of such financing statements, none
of
which, except as otherwise agreed in writing by the Investor, shall cover any
of
the Collateral (as defined in the Security Documents) and the results of
searches for any tax lien and judgment lien filed against such Person or its
property, which results, except as otherwise agreed to in writing by the
Investor shall not show any such Liens (as defined in the Notes) other than
Permitted Liens (as defined in the Notes); and (ii) a perfection certificate,
duly completed and executed by the Company and each of its Subsidiaries, in
form
and substance satisfactory to the Investor.
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5.
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CONDITIONS
TO COMPANY'S OBLIGATIONS HEREUNDER.
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The
obligations of the Company to the Investor hereunder are subject to the
satisfaction of each of the following conditions, provided that these conditions
are for the Company's sole benefit and may be waived by the Company at any
time
in its sole discretion by providing the Investor with prior written notice
thereof:
(a) The
Investor shall have executed this Agreement and delivered the same to the
Company.
(b) The
representations and warranties of the Investor shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and as of the Closing Date
as
though made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct as of such specific
date)
and the Investor shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the
Investor at or prior to the Closing Date.
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6.
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CONDITIONS
TO INVESTOR'S OBLIGATIONS
HEREUNDER.
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The
obligations of the Investor hereunder are subject to the satisfaction of each
of
the following conditions, provided that these conditions are for the Investor's
sole benefit and may be waived by the Investor at any time in its sole
discretion by providing the Company with prior written notice
thereof:
(a) The
Company shall have executed this Agreement and delivered the same to the
Investor.
(b) The
Company shall have executed and delivered to the Investor the Notes being issued
to such Investor at the Closing.
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(c) The
Company shall have delivered to the Investor such Investor's Investor Counsel
Expense by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Investor.
(d) The
Company shall have delivered to the Company's transfer agent, with a copy to
the
Investors, a letter stating that the
Irrevocable Transfer Agent Instructions dated July __, 2006 shall also apply
to
the Conversion Shares.
(e) The
Investor shall have received the opinions of Xxxxxx & Xxxxx, LLP, the
Company's outside counsel, dated as of the Closing Date, in substantially the
form of Exhibit D
attached
hereto.
(f) The
Company shall have delivered to the Investor a certificate, in the form attached
hereto as Exhibit E,
executed
by the Secretary of the Company and dated as of the Closing Date, as to (i)
the
resolutions approving the transactions contemplated hereby as adopted by the
Board in a form reasonably acceptable to the Investor, (ii) the Certificate
of
Incorporation and (iii) the Bylaws, each as in effect as of the
Closing.
(g) The
representations and warranties of the Company under the Securities Purchase
Agreement and each other Transaction Document shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and as of the Closing Date
as
though made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct as of such specific
date)
and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company
at or prior to the Closing Date. The Investor shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as of the Closing
Date, to the foregoing effect and as to such other matters as may be reasonably
requested by the Investor in the form attached hereto as Exhibit
F.
(h) The
Common Stock (I) shall be designated for quotation or listed on the Principal
Market and (II) shall not have been suspended, as of the Closing Date, by the
SEC or the Principal Market from trading on the Principal Market nor shall
suspension by the SEC or the Principal Market have been threatened, as of the
Closing Date, either (A) in writing by the SEC or the Principal Market or (B)
by
falling below the minimum listing maintenance requirements of the Principal
Market.
(i) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities, including,
without limitation, any approvals or notifications required by the Principal
Market.
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7.
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TERMINATION.
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In
the
event that the Closing does not occur by December 29, 2006, due to the Company's
or the Investors’ failure to satisfy the conditions set forth in Sections 5 and
6 hereof (and the nonbreaching party's failure to waive such unsatisfied
conditions(s)), the nonbreaching party shall have the option to terminate this
Agreement at the close of business on such date without liability of any party
to any other party; provided,
however,
this if
this Agreement is terminated by a non-breaching Investor pursuant to this
Section 8, the Company shall remain obligated to reimburse the non-breaching
Investor for the expenses described in Section 4(e) above. Upon such
termination, the terms hereof shall be null and void and the parties shall
continue to comply with all terms and conditions of the Transaction Documents,
as in effect prior to the execution of this Agreement.
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8.
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MISCELLANEOUS.
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(a) Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
(b) Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(c) Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(d) Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
10
(e) No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
(f) Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(g) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
(h) Entire
Agreement; Effect on Prior Agreements; Amendments.
Except
for the Transaction Documents (to the extent any such Transaction Document
is
not amended by this Agreement), this Agreement supersedes all other prior oral
or written agreements between the Investor, the Company, their affiliates and
Persons acting on their behalf with respect to the matters discussed herein,
and
this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor the Investor makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may
be
amended other than by an instrument in writing signed by the Company and the
Investor and to the extent that Other Investors may be affected thereby, by
the
Required Holders. No provision hereof may be waived other than by an instrument
in writing signed by the party against whom enforcement is sought. No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties to the
Transaction Documents or holders of Notes as the case may be. The Company has
not, directly or indirectly, made any agreements with any of the Investors
relating to the terms or conditions of the transactions contemplated by the
Transaction Documents except as set forth in the Transaction
Documents.
(i) Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with an overnight courier service,
in
each case properly addressed to the party to receive the same. The addresses
and
facsimile numbers for such communications shall be:
11
If
to the
Company:
Apollo
Resources International, Inc.
0000
Xxxx
Xxxxxx, Xxxxx 000,
Xxxxxx,
Xxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Chief
Executive Officer
Copy
to
(for informational purposes only):
Xxxxxx
& Stone, LLP
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxx
X.
Xxxxx, Esq.
If
to the
Investor, to its address and facsimile number set forth in the Securities
Purchase Agreement, with copies to the Investor's representatives as set forth
on the Securities Purchase Agreement or on the signature page to this Agreement,
with
a
copy (for informational purposes only) to:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxx, Esq.
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
(j) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns in accordance with the terms of the
Securities Purchase Agreement.
(k) Survival.
Unless
this Agreement is terminated under Section 8, the representations and warranties
of the Company and the Investor contained herein and the agreements and
covenants set forth herein shall survive the Closing.
12
(l) Remedies.
The
Investor and each holder of the Securities shall have all rights and remedies
set forth in the Transaction Documents and all rights and remedies which such
holders have been granted at any time under any other agreement or contract
and
all of the rights which such holders have under any law. Any Person having
any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it fails to perform, observe, or discharge any or all
of
its obligations under this Agreement, any remedy at law may prove to be
inadequate relief to the Investor. The Company therefore agrees that the
Investor shall be entitled to seek temporary and permanent injunctive relief
in
any such case without the necessity of proving actual damages and without
posting a bond or other security.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF,
each
Investor and the Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written above.
|
COMPANY:
|
||
|
APOLLO
RESOURCES INTERNATIONAL, INC.
|
||
|
By:
|
/s/
Xxxxxx X. XxXxxxxxxx, III
|
|
|
Name:
Xxxxxx X. XxXxxxxxxx, III
|
||
|
Title:
Chief Executive Officer
|
||
[Signature
Page to Amendment and Exchange Agreement]
IN
WITNESS WHEREOF,
each
Investor and the Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written above.
|
INVESTORS:
|
||
|
CASTLERIGG
MASTER INVESTMENTS, LTD.
|
||
|
By:
XXXXXXX ASSET MANAGEMENT CORP.
|
||
|
By:
|
/s/
Xxxxxxx X'Xxxxx
|
|
|
Name:
Xxxxxxx X'Xxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
Copy
to:
|
||
|
Xxxxxxx
Xxxx & Xxxxx LLP
|
||
|
000
Xxxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Telephone:
(000) 000-0000
|
||
|
Facsimile:
(000) 000-0000
|
||
|
Attention:Xxxxxxx
X. Xxxxx, Esq.
|
||
[Signature
Page to Amendment and Exchange Agreement]
