EX-10.1
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v154766_ex10-1.htm
EXHIBIT
10.1
SHARE
ISSUANCE AGREEMENT
SHARE
ISSUANCE AGREEMENT dated for reference the 6th day of July, 2009,
AMONG:
BADEN
ENERGY GROUP LTD , Xxx xx Xxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx (hereinafter, the
"Subscriber"), AND:
COBRA OIL
AND GAS COMPANY, 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX, 00000
(hereinafter, the "Company")
NOW
THEREFORE THIS SHARE ISSUANCE AGREEMENT (“Agreement”) WITNESSES that the parties
hereto agree as follows:
ARTICLE 1
– INTERPRETATION
1.1.
Definitions. When used in this Agreement (including the recitals and schedules
hereto) or in any amendment hereto, the terms listed in Schedule A hereto shall,
unless otherwise expressly provided, have the meanings assigned to them
therein.
ARTICLE 2
- THE SHARE ISSUANCE
2.1.
Share Issuance. The Subscriber shall make available to the Company in accordance
with, and subject to the terms and conditions of, this Agreement, until July 6,
2010 (the "Completion Date"), up to $6,000,000 by way of Advances in accordance
with Sections 2.2, 2.3 and 2.4 of this Agreement. The Completion Date may be
extended for an additional term of up to six months at the option of the Company
or the Subscriber upon written notice on or before the Completion Date in
accordance with the notice provisions in Section of this Agreement.
2.2. The
Advances. On the terms and conditions set forth herein the Subscriber, from time
to time, on any Banking Day, prior to the Completion Date, agrees to make
advances to the Company ("Advances"). Each Advance shall be in an aggregate
amount of not less than $100,000 and in integral multiples of
$100,000.
2.3.
Making the Advances. Each Advance shall be made on or before five Banking Days
following notice from the Company. Each such notice shall be given by a notice
to the Subscriber in the form substantially the same as the form attached hereto
in Schedule B (each a "Notice") which shall specify therein (i) the requested
date of such Advance; (ii) the aggregate amount of such Advance.
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2.4.
Subscription Agreement. Upon making each Advance, the Subscriber shall provide
an executed Subscription Agreement, in a form acceptable to both parties to this
Agreement, to the Company.
2.5. Use
of Proceeds. The Company shall use all Advances to fund: (i) exploration
activities; and (ii) working capital and general corporate
activities.
ARTICLE 3
- REPRESENTATIONS AND WARRANTIES
3.1.
Representations and Warranties. The Company represents and warrants to the
Subscriber as outlined in Schedule C hereto.
ARTICLE 4
- COVENANTS OF THE COMPANY
4.1.
Affirmative Covenants. Until the Completion Date, the Company
shall:
(a)
Compliance with Laws, etc. Comply with all applicable laws, non-compliance with
which could have a material adverse effect on the Company;
(b)
Payment of Taxes and Claims. Pay and discharge before the same shall become
delinquent: (i) all taxes and assessments; and (ii) all lawful claims which, if
unpaid, might become a lien upon or in respect of the Company's assets or
properties;
(c)
Maintain Title. Maintain and, as soon as reasonably practicable, defend and
take, all action necessary or advisable at any time, and from time to time, to
maintain, defend, exercise or renew its right, title and interest in and to all
of its property and assets;
(d) Pay
Obligations to Subscriber and Perform Other Covenants. Make full and timely
payment of its obligations hereunder and duly comply with the terms and
covenants contained in this Agreement, all at the times and places and in the
manner set forth therein;
(e)
Further Assurances. At its cost and expense, upon request by the Subscriber,
duly execute and deliver, or cause to be duly executed and delivered, to the
Subscriber, such further instruments and do and cause to be done such other acts
as may be necessary or proper in the reasonable opinion of the Subscriber to
carry out more effectually the provisions and purposes of this
Agreement.
ARTICLE 5
– SHARE ISSUANCE
5.1 Share
Issuance. The Company shall issue, within five (5) Banking Days following the
date of the receipt by the Company of any Advance under this Agreement, units
(each a “Unit”) of the Company at the Unit Price. Each Unit shall consist of one
share (each a “Share”) of the common stock of the Company (the “Common Stock”)
and one share purchase warrant (each a “Warrant”). Each Warrant shall entitle
the Subscriber to purchase one additional share (each a “Warrant Share”) of
Common Stock, at an exercise price equal to 125% of the Unit Price at which the
Unit containing the Warrant being exercised was issued, for a period of three
(3) years from the date such Warrant is issued. Upon receipt of any Advance
under this Agreement, the Company shall promptly cause its registrar and
transfer agent to issue the certificates representing the Shares. If the
Subscriber exercises the Warrants, the Company shall promptly cause its
registrar and transfer agent to issue the certificates representing the Warrant
Shares.
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5.2
Fractional Shares. Notwithstanding any other provisions of this Agreement, no
certificate for fractional shares of the Shares or the Warrant Shares shall be
issued to the Subscriber. In lieu of any such fractional shares, if the
Subscriber would otherwise be entitled to receive a fraction of a share of the
Shares or Warrant Shares following a Share Issuance or exercise of a Warrant, as
applicable, the Subscriber shall be entitled to receive from the Company a stock
certificate representing the nearest whole number of shares of the
Company.
ARTICLE 6
- MISCELLANEOUS
6.1.
Notices, etc. Except as otherwise expressly provided herein, all notices,
requests, demands, directions and communications by one party to the other shall
be sent by hand delivery or registered mail, and shall be effective when hand
delivered or when delivered by the relevant postal service, as the case may be.
All such notices shall be addressed to the President of the notified party at
its address given on the signature page of this Agreement, or in accordance with
any unrevoked written direction from such party to the other party.
6.2. No
Waiver; Remedies. No failure on the part of the Subscriber or the Company to
exercise, and no delay in exercising, any right under this Agreement shall
operate as a waiver thereof. The remedies herein provided are cumulative and not
exclusive of any remedies provided by Law.
6.3.
Jurisdiction. (1) Each of the parties hereby irrevocably attorns to the
non-exclusive jurisdiction of the Courts of the State of
Nevada in any action or
proceeding arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law; and (2) nothing in this Section 7.3 shall affect the right of
the Subscriber to serve legal process in any other manner permitted by Law or
affect the right of the Subscriber to bring any action or proceeding against the
Company or its property in the courts of other jurisdictions.
6.4.
English Version. The parties hereby represent, warrant, acknowledge and agree
that: (i) they have agreed that this Agreement be drawn up in the English
language; and (ii) the English version of this Agreement shall govern for all
purposes.
6.5.
Successors and Assigns. The Company shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Subscriber, which consent may be arbitrarily withheld.
6.6.
Severability. If one or more provisions of this Agreement be or become invalid,
or unenforceable in whole or in part in any jurisdiction, the validity of the
remaining provisions of this Agreement shall not be affected. The parties hereto
undertake to replace any such invalid provision without delay with a valid
provision which as nearly as possible duplicates the economic intent of the
invalid provision.
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6.7.
Counterparts. This Agreement may be executed in counterparts and by different
parties in separate counterparts, each of which when so executed shall be deemed
an original and all of which, taken together, shall constitute one and the same
instrument.
6.8.
Syndication/Participation. The Subscriber may not sell, transfer, assign,
participate, syndicate or negotiate to one or more third parties, in whole or in
part, the Commitment and its rights under this Agreement, without the prior
written consent of the Company, which consent may not be arbitrarily
withheld.
6.9.
Exclusivity. The Company and it’s Management may not discuss, solicit,
negotiate, nor engage in any investment or corporate finance agreements for a
period of twenty-four (24) months from the date of this Agreement, without the
prior written consent of the Subscriber, which consent may not be arbitrarily
withheld. The Subscriber shall retain first right of refusal, relating to any
future financing of the Company. If for any reason the Subscriber chooses not to
fund any request for funding under section 6.10, this section will not be
operative for the duration of the term of this agreement.
6.10
Unfavorable Market Conditions. The Subscriber may, at its sole discretion, deem
market conditions to be unfavorable for further investment and the Subscriber
may waive some or all of the provisions with regards to
Exclusivity.
6.11
Debt. The Company is bound to the Subscriber for a period of twenty-four (24)
months, that it may only engage in any investment or corporate finance, which is
accepted in return for equity in the Company. The Company may not accept any
investment or corporate finance within the above named period, which would be a
debt for the Company.
6.12
Option. The Subscriber may, at their discretion, take the option to subscribe up
to a further $4,000,000, when the total subscription from this agreement has
been received by the Company. The Subscriber shall have first right of refusal
if the Company seeks further financing, and the Company should abide by clause
6.9, in regards to exclusivity, for any subsequent investment or financing, thus
meaning they may not solicit elsewhere without written consent from the
Subscriber.
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IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
THE
SUBSCRIBER: Baden Energy Group Ltd
| | | | | | |
| Per:
|
/s/
Xxxxxxxx Xxxx
| | |
| |
| |
| | |
| |
| Authorized
Signing Officer | | |
| |
THE
COMPANY: Cobra Oil & Gas Company
| | | | | | |
| Per:
|
/s/
Massimiliano Pozzoni
| | |
| |
| |
| | |
| |
| Authorized
Signing Officer | | |
| |
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SCHEDULE
A
DEFINITIONS
“Banking
Day” shall mean any day other than a Saturday, Sunday, public holiday under the
laws of the State of
Nevada or other day on which banking institutions are
authorized or obligated to close in
Nevada.
“Charter
Documents” means constating documents and by-laws, and all amendments
thereto;
“Consent”
means any permit, license, approval, consent, order, right, certificate,
judgment, writ, injunction, award, determination, direction, decree,
authorization, franchise, privilege, grant, waiver, exemption and other
concession or by-law, rule or regulation;
"Unit
Price" means a price equal to 80% of the volume weighted average of the closing
price (the "VWAP") of Common Stock, for the ten (10) Banking Days immediately
preceding the date of the Notice, as quoted on Yahoo! Finance at
xxxx://xxxxxxx.xxxxx.xxx/, or other source of stock quotes as agreed to by the
parties.
“Dollar”
or “$” means the currency of the United States of America.
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SCHEDULE
B
NOTICE
(To be
executed by the Company in order to request an Advance)
To: Baden
Energy Group Ltd.(the “Subscriber”)
The
undersigned, Cobra Oil and Gas Company (the “Company”) hereby requests an
advance of $__________, in accordance with the terms and conditions set forth in
the Share Issuance Agreement dated July 6th, 2009,
between the Subscriber and the Company and as of the Date of Notice written
below.
Date of
Notice:
Remaining
amount to be advanced under the Share Issuance:
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SCHEDULE
C
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
All
undefined capitalized terms used herein shall have the meanings set out in the
Share Issuance Agreement (the “Agreement”) between Baden Energy Group Ltd. the
“Subscriber”) and Cobra Oil & Gas Company (the “Company”).
(a) Organization
and Corporate Power. The Company has been duly incorporated and organized and is
validly subsisting and in good standing under the laws of its jurisdiction and
has full corporate right, power and authority to enter into and perform its
obligations under the Agreement to which it is or shall be a party and has full
corporate right, power and authority to own and operate its properties and to
carry on its business;
(b) Conflict
with Other Instruments. The execution and delivery by the Company of the
Agreement and the performance by the Company of its obligations thereunder, do
not and will not: (i) conflict with or result in a breach of any of the terms,
conditions or provisions of: (A) the charter documents of the Company; (B) any
law applicable to or binding on the Company; or (C) any contractual restriction
binding on or affecting the Company or its properties the breach of which would
have a material adverse effect on the Company; or (ii) result in, or require or
permit: (A) the imposition of any lien on or with respect to the properties now
owned or hereafter acquired by the Company; or (B) the acceleration of the
maturity of any debt of the Company, under any contractual provision binding on
or affecting the Company;
(c) Consents,
Official Body Approvals. The execution and delivery of the Agreement and the
performance by the Company of its obligations thereunder have been duly
authorized by all necessary action on the part of the Company, and no Consent
under any applicable law and no registration, qualification, designation,
declaration or filing with any official body having jurisdiction over the
Company is or was necessary therefore. The Company possesses all Consents, in
full force and effect, under any applicable Law, which are necessary in
connection with the operation of its business, the non-possession of which could
reasonably be expected to have a material adverse effect on the
Company;
(d) Execution
of Binding Obligation. The Agreement has been duly executed and delivered by the
Company and, when duly executed by the Company and delivered for value, the
Agreement will constitute legal, valid and binding obligations of the Company,
enforceable against the Company, in accordance with its terms;
(e) No
Litigation. There are no actions, suits or proceedings pending or, to the
knowledge of the Company, after due inquiry, threatened against or affecting the
Company (nor, to the knowledge of the Company, after due inquiry, any basis
therefore) before any official body having jurisdiction over the Company which
purport to or do challenge the validity or propriety of the transactions
contemplated by the Share Issuance the Company, which if adversely determined
could reasonably be expected to have a material adverse effect on the
Company;
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(f) No
Defaults. The Company is not in breach of or in default under, in any respect:
(i) its charter documents; (ii) any applicable law; (iii) any contract or
agreement binding on or affecting it or its property or assets (including,
without limitation, the Agreement); (iv) any material indenture, mortgage, deed
of trust; or (v) any writ, judgment, determination or award binding on it or
affecting it where such breach or defect could, in the case of (ii), (iii), (iv)
or (v) above, have a material adverse effect on the Company;
(g) Title
to Assets. The Company has good and marketable title to all of its properties
and assets;
(h) Absence
of Changes. Since the date of the most recently delivered financial statements
of the Company, the Company has carried on its business, operations and affairs
only in the ordinary and normal course consistent with past
practice.
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