EXHIBIT 4.7
EXCHANGE AGREEMENT
This Exchange Agreement (this "AGREEMENT") is dated as of the 28th day
of February, 2005, and is between GulfWest Energy Inc., a Texas corporation (the
"PARENT") and GulfWest Oil & Gas Company, a Texas corporation (the "COMPANY").
RECITALS
WHEREAS, the Company has 7,950 outstanding shares of its Series A
Cumulative Exchangeable Preferred Stock, par value $0.01 per share (the
"PREFERRED STOCK"); and
WHEREAS, the Company and the holders of the Preferred Stock have
amended its terms to provide that shares of the Preferred Stock are convertible
into shares of Series H Convertible Preferred Stock, par value $0.01 per share,
of Parent (the "SERIES H PREFERRED STOCK"); and
WHEREAS, Parent desires that shares of the Preferred Stock be converted
into shares of the Series H Preferred Stock; and
WHEREAS, as a condition to issuing the Series H Preferred Stock, the
holders of preferred stock would be required to execute an Omnibus and Release
Agreement (the OMNIBUS AGREEMENT"), attached as an exhibit to the Statement of
Resolution governing the Series H Preferred Stock; and
WHEREAS, to the extent a holder of Preferred Stock did not execute an
Omnibus Agreement, such holder's shares of Preferred Stock would be exchanged
for Class A Common Stock of the Company ("COMMON STOCK").
NOW, THEREFORE, in consideration of the representations, covenants and
agreement contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. EXCHANGE. The Parent hereby agrees to exchange the Preferred Stock
for its Series H Preferred Stock or Common Stock, as applicable, in accordance
with the terms of the Statement of Resolution, as amended pursuant to the
amendment attached as EXHIBIT A (as so amended, the "STATEMENT OF RESOLUTION").
The shares of Series H Preferred Stock and Common Stock to be issued upon
exchange (the "EXCHANGE SHARES") shall be issued by the Parent once the holder
of Preferred Stock to be exchanged tenders the certificates evidencing such
shares of Preferred Stock to the Company for cancellation.
2. EXERCISE PRICE. Each share of Preferred Stock shall be exchangeable
into either (a) one share of Series H Preferred Stock or (ii) that number of
shares of Common Stock contemplated by the Statement of Resolution.
3. DELIVERY OF STOCK CERTIFICATES ON EXCHANGE. The exchange of the
Preferred Stock shall be deemed to have been effected at such time or times as
set forth in the Statement of Resolution. At such time, the person or persons in
whose name or names any certificate or certificates for Exchange Shares shall be
issued upon such exchange shall be deemed to have become the holder or holders
of record of the shares of the applicable Exchange Shares. As soon as
practicable after the exchange of Preferred Stock for Exchange Shares, and in
any event within ten days thereafter, the Parent at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of, and delivered to the exchanging holder, a certificate or certificates for
the number of fully paid and nonassessable Exchange Shares to which such holder
shall be entitled upon such exchange. Unless the Exchange Shares have been
registered under the Securities Act of 1933, such securities, when issued, shall
have the appropriate legend, in addition, in the case of the Series H Preferred
Stock, such certificate shall bear a legend noting that the Series is subject to
the Omnibus and Release Agreement.
4. NOTICES. Any notice, consent or other communication to be given
under this Agreement by any party to any other party shall be in writing and
shall be either (a) personally delivered, (b) mailed by registered or certified
mail, postage prepaid with return receipt requested, (c) delivered by overnight
express delivery service or same-day local courier service, or (d) delivered by
telex or facsimile transmission, as follows:
If to the Parent or Company GulfWest Energy Inc. or
GulfWest Oil & Gas Company
000 X. Xxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: President
Fax: (000) 000-0000
or at such other address as may be designated by the parties from time to time
in accordance with this Section 4. Notices delivered personally, by overnight
express delivery service or by local courier service shall be deemed given as of
actual receipt. Mailed notices shall be deemed given five business days after
mailing. Notices delivered by telex or facsimile transmission shall be deemed
given upon receipt by the sender of the answerback (in the case of a telex) or
transmission confirmation (in the case of a facsimile transmission).
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by written agreement of
the Parent and the Company.
6. GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be governed
by and construed under the laws of the State of Texas without regard to
principles of conflict of laws. The parties irrevocably consent to the
jurisdiction and venue of the state and federal courts located in Houston, Texas
in connection with any action relating to this Agreement.
7. SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement, and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
-2-
8. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement constitutes the
entire agreement between the parties about its subject and supersedes all prior
agreements. This Agreement may be executed in two or more counterparts, which
together shall constitute one instrument.
9. CAPTIONS; REFERENCES. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof. Wherever the context shall so require, all words
herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural, and all plural words shall
include the singular.
10. THIRD PARTY BENEFICIARIES. The holders of the Preferred Stock shall be the
express third party beneficiaries of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PARENT:
GULFWEST ENERGY INC.
By: /S/ XXXX X. XXXXX
------------------------
Its: CEO
COMPANY:
GULFWEST OIL & GAS COMPANY
By: /S/ XXXX X. XXXXX
------------------------
Its: CEO
-3-
