INVESTMENT REPRESENTATION AGREEMENT
REGARDING OFFSHORE SUBSCRIPTIONS
Delta Petroleum Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
1. Subscription. Effective March 3, 1998, the undersigned
GLOBEMEDIA AG, has acquired the options ("Options") listed on the
attached Exhibit "A" from Delta Petroleum Corporation ("Seller",
"Delta" or "Company"). The undersigned has acquired the Options
and, if exercised, will acquire common stock of Delta Petroleum
Corporation (collectively the "Securities"), for the prices set
forth in Exhibit "A" in private negotiated transactions pursuant
to the U.S. Securities and Exchange Commission Regulation S
and/or other applicable statute, rule and\or regulation. The
exercise of any Option and the delivery of the certificates
representing the Securities and the payment therefore in
certified funds shall take place prior to the expiration of the
Options.
2. Representations and Warranties. The undersigned
warrants and represents to the Company that:
a. Offshore Transaction.
(i) Undersigned is not a U.S. person as that term
is defined under Regulation S as promulgated by the Securities
and Exchange Commission ("SEC") under authority of the Securities
Act of 1993, as amended ("Act").
(ii) At the time the buy order was originated,
undersigned was outside the United States.
(iii) Undersigned is purchasing for its own account
and not on behalf of any U.S. Person, and the sale has not been
pre-arranged with a buyer in the United States.
(iv) Each distributor participating in the
offering of the Securities, if any, has agreed in writing that
all offers and sales of the Securities prior to the expiration of
a period commencing on the Closing Date of the transaction and
ending the later of one year thereafter or as set forth in the
legend at Paragraph 3 herein shall be made in compliance with the
Issuer Safe Harbor, pursuant to registration of Securities under
the Act or pursuant to an exemption from such registration
requirements.
(v) The undersigned represents and warrants and
hereby agrees that all offers and sales of the Securities of the
Company acquired hereby prior to the expiration of a period
commencing on the Closing Date of the transaction and ending the
later of one year thereafter or as set forth in the legend at
Paragraph 3 herein shall be made in compliance with the Issuer
Safe Harbor, pursuant to registration of Securities under the Act
or pursuant to an exemption from registration.
(iv) All offering documents received by the
undersigned include statements to the effect that the Securities
have not been registered under the Act and may not be offered or
sold in the United States or to U.S. persons during a period
commencing on the Closing Date of the transaction and ending the
later of one year thereafter or as set forth in the legend at
Paragraph 3 herein unless the Securities are registered under the
Act or an exemption from the registration requirements is
available.
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 Act. The
Purchaser is acquiring the Shares for its own account, for
investment purposes only and without the intent toward the
further resale or distribution thereof.
c. The undersigned has been afforded and has utilized
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 questions 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, relationship between Amber
Resources Company and Delta Petroleum Corporation; all documents,
comment letters and responses thereto relating to the Company's
S-3 Registration Statement; the existing but thinly traded public
market; public filings; litigation; leases and lease-related
obligations (and the geology and related properties of such
leases), and other material contracts and matters and all
documents filed with the SEC to date.
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 its knowledge and experience (and
that of its officers and directors and/or advisors and investment
bankers) in financial and business matters in general, and
investments in particular, the undersigned 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. 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. The undersigned is an accredited investor
within the meaning of Rule 501 promulgated under the Act.
h. If required to do so, the undersigned 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.
i. The undersigned understands that no federal or
state agency of either the U.S. or Germany or any other
jurisdiction has passed on or made any recommendation or
endorsement of the Securities.
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
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 any
warranty or representation herein.
3. Restrictions. The undersigned acknowledges and
understands that the Securities are unregistered and must be held
indefinitely unless they are subsequently registered under the
Act or an exemption from such registration is available.
There is a limited trading market in Securities of the
Company as of this date on the small cap NASDAQ Stock Market and
there is no assurance such trading market will develop further
or, if developed, will continue or be substantial or liquid if it
continues.
Any and all certificates representing the Securities and any
and all Securities issued in replacement or conversion thereof or
in exchange thereof shall bear either the transfer agent's usual
restrictive legend for restricted shares or the following legend,
or one substantially similar thereto, which the undersigned has
read and understands:
The shares represented by this certificate ("Shares") have been
issued pursuant to Regulation S promulgated under the Securities
Act of 1933, as amended ("Act") and certain contractual
agreements. These shares may be sold without restriction and
freely transferred to foreign nationals or companies by the
registrar of the Company's shares. However, no United States
national or company can buy or transfer any of the shares prior
to (a date will be inserted here which is one year subsequent to
the payment for and delivery of the shares) in the absence of an
effective registration statement pursuant to the Act and other
applicable Securities laws of the United States, or exemption
therefrom.
The undersigned further agrees that the Company shall have
the right to issue transfer instructions to its transfer agent,
if any, or to note a transfer instruction in its stockholder
records, as per the legend above, and it acknowledges that the
Company has informed it of its intention to issue such
instructions when and if necessary.
4. Company's Representations.
a. Reporting Company Status. The Company is a
reporting company as defined by Rule 902 of Regulation S. The
Company is in full compliance with all reporting obligations
under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended.
b. Offshore Transaction.
(i) The Company has not offered these Securities
to any person in the United States or to any U.S. person as that
term is defined in Regulation S.
(ii) At the time the buy order was originated, the
Company and/or its agent reasonably believed undersigned was
outside of the United States and was not a U.S. person.
(iii) The Company and/or its agent reasonably
believe that the transaction has not been pre-arranged with a
buyer in the United States.
5. Exemption: Reliance on Representations. Undersigned
understands that the Securities are not being registered under
the Act. The Company is relying on the rules governing offers
and sales made outside the United States pursuant to Regulation S
Rules 901 through 904 of Regulation S apply to this transaction.
6. Conditions to the Seller's Obligation to Sell the
Shares. The obligations of the Company under this Agreement are
subject, in the discretion of the Company, to the satisfaction at
or prior to the Closing Date of the following conditions.
(a) The Company's receipt of the Purchase Price for
the Shares, as described in paragraph 1 of this agreement.
(b) The representations and warranties made by the
Purchaser in this agreement were true when made and shall be true
as at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing
Date.
(c) All of the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or
prior to the Closing Date shall have been fully complied with and
performed.
(d) Purchaser shall have provided the Company with a
certified copy of resolutions of the Board of Directors of the
Purchaser authorizing the purchase of the Shares and the
transactions contemplated herein.
7. Conditions to the Purchaser's Obligation to Buy the
Shares. The obligations of the Purchaser under this Agreement
are subject in the discretion of the Purchaser, to the
satisfaction at or prior to the Closing Date of the following
conditions:
(a) Delivery of the Shares to the Purchaser together
with a certified copy of resolutions of the Board of Directors of
the Company, authorizing the sale of the Shares and the
transactions contemplated herein.
(b) The representations and warranties made by the
Company in this Agreement were true when made and shall be true
as at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing
Date.
(c) All of the terms, covenants and conditions of this
Agreement to be complied with and performed by the Company on or
prior to the Closing Date shall have been fully complied with and
performed.
(d) The Company's legal counsel shall have supplied
the Company's transfer agent with instructions, based upon an
opinion of purchaser's legal counsel, that the legend set forth
on the certificates evidencing the Shares can be removed upon the
effectuation of the sale of the Shares contemplated herein to
Purchaser in accordance with Regulation S and all stop transfer
order notations with respect to the Shares have been removed from
the transfer agent's books and records with respect thereto.
8. Notices. Any notices or other communications required
or permitted hereby shall be sufficiently given if sent by
registered or certified mail, postage prepaid, return receipt
requested, and, if to the Company, at the address to which this
agreement is addressed, and if to the undersigned, at the address
set forth below its signature hereto, or to such other addresses
as either you or the undersigned shall designate to the other by
notice in writing.
9. 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.
10. 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.
11. Counterparts. This agreement may be executed in any
number of counterparts, including facsimile signatures which
shall be deemed as original signatures. All executed
counterparts shall constitute one Agreement, notwithstanding that
all signatories are not signatories to the original or the same
counterparts.
By:
Typed or Printed Name Signature
Address
City, State and Zip Code
SELLER:
DELTA PETROLEUM CORPORATION
By:
Authorized Officer
Dated: , 1998
EXHIBIT "A"
to Investment Representation Agreement Regarding
Offshore Subscription
Options granted to GlobeMedia AG:
NUMBER
PRICE OF OPTIONS DURATION
$2.50/share 25,000 90 days
2.75/share 25,000 90 days
3.00/share 50,000 90 days
3.25/share 50,000 90 days
3.50/share 50,000 90 days
3.75/share 50,000 90 days
4.00/share 50,000 6 mos.
4.50/share 50,000 6 mos.
5.00/share 50,000 9 mos.
5.50/share 50,000 1 yr.
6.00/share 50,000 1 yr.
Total 500,000
The shares underlying the options listed above have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), shall bear an appropriate restrictive legend,
and are being offered and subsequently may be sold in accordance
with Regulation "S", provided, however, that for any resales of
such securities into the United States, all of the shares
underlying the options shall be treated as "restricted
securities" within the meaning of Rule 144 (with the result that
unregistered public resales of such securities into the United
States generally could not be made for a least one year).
GlobeMedia agrees to comply in all material respects with
Regulation "S" and to execute and deliver such documents as the
Company may reasonably request in order to ensure compliance with
Regulation "S".
All Options granted shall vest immediately. The periods
indicated under the column headed "Duration" shall commence upon
the effectiveness of a registration statement filed with the SEC
covering the shares underlying the Options. Notwithstanding the
duration of the periods indicated, all unexercised Options shall
expire on March 31, 1999 regardless of whether or not the
underlying shares have been or are then covered by an effective
registration statement. The Company, at its own cost, will file
a registration statement with the SEC within ninety (90) days of
the execution hereof covering the shares underlying the Options.
The Company will use commercially reasonable efforts to cause the
registration so filed to become effective. GlobeMedia confirms
that it is neither a U.S. person nor owned by U.S. persons as the
term is defined in Regulation "S".
