EXHIBIT 10.3
AMENDMENT NUMBER ONE TO
PURCHASE & SALE AGREEMENT
This Amendment Number One to Purchase & Sale Agreement (this "Amended
Agreement") dated effective as of the 14th day of June, 2004, is by and among
XXXXXX XXXX XXXXX, L.L.C., a privately-held limited liability company
organized and existing under the laws of the State of Nevada and qualified to
do business in the States of Colorado and California ("EMD, LLC"), EMD
Colorado One, Inc., a Nevada corporation ("EMD Colorado") (collectively EMD,
LLC and EMD Colorado are the "Seller"), and DELTA PETROLEUM CORPORATION, a
publicly-held corporation organized and existing under the laws of the State
of Colorado and qualified to do business in the states of Colorado and
California (the "Buyer"). Seller and Buyer are referred to herein
individually as a "Party" and collectively as the "Parties."
WHEREAS, Buyer and Seller are parties to that certain Purchase and Sale
Agreement dated effective as of the 14th day of June, 2004 (the "June 14th
Agreement"); and
WHEREAS, the Parties now wish to amend and restate the June 14th
Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the June 14th Agreement is hereby
amended and restated in its entirety to read as follows:
1. California Xxxxx:
Seller, subject to the terms of that certain Farmout agreement with
Petrogulf Corporation dated May 30, 2003, (which is attached hereto and made a
part hereof as if fully set forth as Exhibit "A" and which Seller represents
is in full force and effect and that Seller is not in material breach
thereof), will deliver a 70% net revenue interest based on a 100% working
interest in the gas xxxxx and lands as described on Schedule A-1 attached
hereto (the "California Xxxxx").
Seller's delivery of the California Xxxxx is made on an "as is, where is"
basis and with all faults and defects and without warranties whatsoever with
respect to any interest herein assigned or conveyed, either expressed or
implied, except by, through and under Seller. To the extent that Seller has
any warranty or other claims regarding the California Xxxxx, such rights and
claims are hereby assigned to Buyer.
The California Xxxxx will continue to be operated by, through and under
Seller for two (2) months after the date of the June 14th Agreement, or longer
if necessary and requested by Buyer. Buyer shall bear and be responsible for
all expenses of the operation of the California Xxxxx. Buyer shall reimburse
Seller for its bonds, to the extent said bonds are cash bonds and are
transferred to Buyer, upon execution of this Agreement or within 35 days after
the submission of the assignment. Buyer shall become the operator of the
California Xxxxx, subject to compliance with all applicable governing law and
the approval of the assignment to Buyer by Petrogulf Corporation and cause all
Seller's bonds to be released (if Buyer has reimbursed Seller for the bonds,
then the Seller shall immediately refund such funds to Buyer upon release).
Pending the assignment, Buyer may operate by, through and under Seller;
provided, however, that Buyer shall indemnify Seller from liability for any
and all third party claims during such period of operation to the extent that
such claims are not alleged to be the proximate result of any act or failure
to act by Seller.
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2. Tap Field:
Seller will deliver all its right, title and interest being 50.00%
working interest and 40% net revenue interest effective as of June 1, 2004, in
and to all oil and gas leasehold interest as described on Schedule A-2
attached hereto(hereinafter referred to as the "Tap Field Assets"). The Tap
Field Assets being assigned are made on an "as is, where is" basis and with
all faults and defects and without warranties whatsoever with respect to any
interest herein assigned or conveyed, either expressed or implied, except by,
through and under Seller. To the extent that Seller has any warranty or other
claims regarding the Tap Field, such rights and claims are hereby assigned to
Buyer.
3. Hyde Field:
Seller will deliver all its right, title and interest being 100.00%
working interest and 75% or 80% net revenue interest as described on Schedule
A-3 attached hereto (hereinafter referred to as the "Hyde Field Assets"). The
Hyde Field Assets being assigned are made on an "as is, where is" basis and
with all faults and defects and without warranties whatsoever with respect to
any interest herein assigned or conveyed, either expressed or implied, except
by, through and under Seller. To the extent that Seller has any warranty or
other claims regarding the Hyde Field, such rights and claims are hereby
assigned to Buyer.
4. 7.5% Reversionary Working Interest:
The "South Tongue Interests" is a defined term in that certain Purchase
and Sale Agreement dated as of August 1, 2003, as amended, by and among XXXXXX
XXXX XXXXX, an unmarried man ("Xxxxx"), XXXXXX XXXX XXXXX, L.L.C., a
privately-held limited liability company organized and existing under the laws
of the State of Nevada ("Xxxxx LLC") (collectively, Xxxxx and Xxxxx LLC are
the "Seller" [with EMD Colorado One, Inc. called "South Tongue Seller"]), and
DELTA PETROLEUM CORPORATION, a publicly-held corporation organized and
existing under the laws of the state of Colorado ("Buyer") (the "August 1,
2003 Agreement"). For the purposes of this Agreement, the August 1, 2003
Agreement is incorporated herein by this reference.
South Tongue Seller agrees to decrease South Tongue Seller's reversionary
interest at payout in the South Tongue Interests which include all additional
oil and gas leases purchased, but exclude any reduction for purchased
production acquired in the South Tongue after the date of execution of the
August 1, 2003 Agreement from forty-two and one half percent (31.875% NRI) to
thirty five percent (26.250% NRI) being a 7.5% Reversionary Working Interest
and a 5.625% Net Revenue Interest, as set forth in Amendments to Section 2.5
of the August 1, 2003 Agreement. The decrease in South Tongue Seller's South
Tongue Interests does not include voting rights for all purposes with South
Tongue Seller retaining voting rights to 50% Working Interest (37.5% NRI).
Seller is selling to Buyer and Buyer agrees to buy from Seller the
Seller's Interest in and to the California Xxxxx, the Tap Field Assets, the
Hyde Field Assets and the 7.5% Reversionary Working Interest.
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5. Consideration:
In consideration of the sale of the Seller's Interest in and to the
California Xxxxx, Tap Field Assets, Hyde Field Assets and 7.5% Reversionary
Working Interest, Buyer agrees to deliver to Seller, Seven Hundred Sixty
Thousand (760,000) shares of Buyer's common stock ("Shares") (the "Purchase
Price"), the value of which shall be allocated as set forth on Schedule B-1
attached hereto.
The purchase and sale of the California Xxxxx, Tap Field Assets, Hyde
Field Assets and the 7.5% Reversionary Working Interest pursuant to this
Agreement and receipt of the Purchase Price shall be on or before 5:00 p.m.
Mountain Daylight Savings Time, on July 7, 2004. Buyer delivers to Seller
Buyer's common stock (the Shares) as set forth below with all registrations as
provided below.
6. Registration of Shares:
Buyer agrees that within three (3) business days of the execution of this
Agreement, Buyer will cause a final draft amendment to the existing Form S-3
that was filed by the Buyer with the SEC on June 3, 2004 (SEC File Number
333-116111) that includes the Shares (the "Amended SEC Filing") to be
presented to its independent auditing firm for its review and that, within one
business day after Buyer receives the written consent of its independent
auditing firm, it will cause the Amended SEC Filing to be filed with the SEC.
With respect to the Registration Statement (as defined below), the Buyer
will:
(a) cause the Amended SEC Filing to become and remain effective
(the "Registration Statement") as soon as reasonably practicable after the
filing thereof (provided, that before filing the Registration Statement or
prospectus or any amendments or supplements thereto, Buyer will furnish copies
of all such documents proposed to be filed to Seller covered by such
Registration Statement for review by Seller, its attorney(s), accountant(s) or
other professionals retained by Seller);
(b) prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective until the
earlier of (1) such time as all of such Shares covered by such Registration
Statement have been sold (but not before the expiration of the applicable
prospectus delivery period) or (2) 180 days after the effective date of such
Registration Statement;
(c) notify Seller promptly after Buyer causes the Registration
Statement to be filed with the SEC;
(d) furnish to Seller, such number of copies of the Registration
Statement, each amendment and supplement thereto, the prospectus included in
the Registration Statement (including, without limitation, each preliminary
prospectus) and such other documents as Seller may reasonably request in order
to facilitate the disposition of the Shares owned by Seller (it being
understood that Buyer consents to the use of the prospectus and any amendment
or supplement thereto by Seller);
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(e) register or qualify the Shares under such other securities or
blue-sky laws of such jurisdictions within the United States as Seller
reasonably requests, to keep such registration or qualifications in effect for
so long as such Registration Statement remains in effect, and do any and all
other acts and things that may be reasonably necessary or advisable to enable
the Seller to consummate the disposition in such jurisdictions of the Shares
owned by Seller;
(f) notify Seller, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event (including those set forth herein) that requires the making of any
change in the prospectus included in such Registration Statement, so that such
document will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and at the request of Seller, the Buyer
will promptly prepare and furnish to Seller, a reasonable number of copies of
a supplement or amendment to such prospectus so that such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(g) notify Seller promptly, and (if requested by Seller) confirm
such notice in writing, (1) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
under the Securities Act and each applicable state law, (2) of any request by
the SEC or any other federal or state governmental authority for amendments or
supplements to a Registration Statement or related prospectus or for
additional information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (4) if at any time the representations or
warranties of Buyer or any subsidiary contained in any agreement (including
any underwriting agreement) contemplated hereby cease to be true and correct
in any material respect, (5) of the receipt by the Buyer of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (6) of the
Buyer's reasonable determination that a post-effective amendment to a
registration statement would be appropriate;
(h) use its reasonable best efforts to immediately cause all such
Shares to be listed on each securities exchange or exchanges, automated
quotation system or over-the-counter market upon which securities of the Buyer
of the same class are then listed;
(i) enter into such customary agreements (including, without
limitation, underwriting agreements in customary form, substance and scope)
and take all such other action as Seller reasonably requests in order to
expedite or facilitate the disposition of the Shares;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and applicable state securities
authorities;
(k) in the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of the Shares included in such Registration Statement for sale in any
jurisdiction, Buyer will use its reasonable best efforts promptly to obtain
the withdrawal of such order;
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(l) use its reasonable best efforts to cause the Shares covered by
such Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable Seller to
consummate the disposition of the Shares;
(m) deliver such documents and corporate resolutions demonstrating
that the Shares were duly authorized, validly issued, fully paid and
non-assessable;
(n) make available for inspection by Seller and any attorney,
accountant or other professional retained by Seller (in this subsection
collectively referred to as "inspectors"), all financial and other records,
pertinent corporate documents and properties of the Buyer as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Buyer's officers, directors and employees to
supply all information reasonably requested by any such inspectors in
connection with such Registration Statement;
(o) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Buyer) for all the Shares covered
by the Registration Statement from and after a date not later than the
effective date of such registration, and pay all expenses and costs in
connection with the Registration Statement that are incident to the
performance by the Buyer of its obligation to register the Shares under this
Amended Agreement, including, without limitation: (i) all SEC and NASD
registration and filing fees; (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws; (iii) all
expenses of printing and distributing any Registration Statement, any
Prospectus, and any amendments or supplements thereto; (iv) the fees and
disbursements of counsel for the Buyer and of the independent public
accountants of the Buyer; and (v) all expenses and costs for any and all
opinions that Seller is required to obtain in connection with the sale of the
Shares. Buyer shall not, however, be obligated to pay the cost of Seller's
counsel and Seller shall bear all underwriting discounts, selling commissions,
sales concessions and similar expenses applicable to any sale of the Shares
sold by Seller.
A fax copy of this Amended Agreement shall be deemed the same as an
original.
Accepted and agreed to as of the 7th Accepted and agreed to as of the 7th
day of July, 2004. day of July, 2004.
Xxxxxx Xxxx Xxxxx, L.L.C. Delta Petroleum Corporation
By:/s/ Xxxxxx Xxxx Xxxxx By:/s/ Xxxxx X. Xxxxxx
Xxxxxx Xxxx Xxxxx, Manager Xxxxx X. Xxxxxx, President & CEO
South Tongue Seller: South Tongue Seller:
EMD Colorado One, Inc. Xxxxxx Xxxx Xxxxx
By:/s/ Xxxxxx Xxxx Xxxxx By:/s/ Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx Xxxxx, President Xxxxxx Xxxx Xxxxx
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