EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into this
24th day of March, 2004, by and among FEQ GAS, LLC, a Delaware Limited Liability
Company ("FEQ"), TOUCHSTONE RESOURCES USA, INC., a Delaware Corporation
("Touchstone"), XXXX GAS, LLC, a Delaware Limited Liability Company ("Xxxx
Gas"), and XXXX MISS, LLC, a Delaware Limited Liability Company ("Xxxx Miss").
WHEREAS, FEQ is a member of Xxxx Gas and holds 94 of the Membership
Interests of Xxxx Gas;
WHERAS, Xxxx Gas owns a 1% interest (the "Interest") in Xxxx Miss, the
general partner of Xxxx Miss Partners, L.P., a Delaware limited partnership;
WHEREAS, Touchstone desires to purchase from FEQ, and FEQ desires to sell
to Touchstone, 75 Membership Interests in Xxxx Gas (the "Membership Interests")
and Touchstone desires to purchase from Xxxx Gas and Xxxx Gas desires to sell to
Touchstone, the Interest in consideration for which Touchstone shall assume
FEQ's obligation to make $5,000,000 in capital contributions to Xxxx Gas.
NOW, THEREFORE, in consideration of the premises hereof and the agreements
set forth herein below, and for other good and valuable consideration, the
receipt and sufficiency of which the parties hereto do hereby acknowledge, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Sale and Purchase of Interest and Membership Interests. Subject to the
terms and conditions hereof, FEQ hereby sells to Touchstone and Touchstone
hereby purchases the Membership Interests, and Xxxx Gas hereby sells to
Touchstone and Touchstone hereby purchases the Interest, in consideration for
which Touchstone shall assume FEQ's obligation to make $5,000,000 in capital
contributions to Xxxx Gas (the "Purchase Price"). Payment of the Purchase Price
shall be made as follows:
a. $500,000 upon execution of this Agreement;
b. $500,000 on March 27, 2004;
c. $1,000,000 on or before April 27, 2004;
d. $1,000,000 on or before June 27, 2004
e. $2,000,000 on or before August 27, 2004.
2. Closing.
The purchase and sale of the Membership Interests (the "Closing") shall
take place at the offices of the Company at 000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx,
XX 00000, upon execution of this Agreement.
At the Closing (i) Xxxx Gas shall deliver an amended Operating Agreement
of Xxxx Gas to the Parties evidencing Touchstone's ownership of 75 Membership
Interests of Xxxx Gas and (ii) Xxxx Miss shall deliver an amended Operating
Agreement of Xxxx Miss to the Parties evidencing Touchstone's ownership of a 1%
interest in Xxxx Miss.
3. Representations and Warranties of FEQ. FEQ represents and warrants to
Touchstone as follows:
(a) Authority. FEQ is a limited liability company, validly existing
and in good standing under the laws of the state of Delaware and has all
requisite power and authority to carry on its business as now conducted and as
currently proposed to be conducted by it and to enter into and perform this
Agreement. All organizational action on the part of FEQ necessary for the
authorization, execution, delivery and performance of all obligations of FEQ
under the Agreement has been taken.
(b) Binding Obligation. FEQ has the legal power and authority to
enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of FEQ and constitutes a valid and legally binding
obligation of FEQ, enforceable against FEQ in accordance with its terms.
(c) Title to the Membership Interests. FEQ is the sole record and
beneficial owner of the Membership Interests, free and clear of all liens and
encumbrances of any kind and nature, any preemptive rights, co sale rights,
rights of first refusal or any other rights of any kind or nature which limit,
condition, or restrict in any way FEQ's right to transfer and sell the
Membership Interests. FEQ has the sole power and authority to transfer the
Membership Interests.
(d) Absence of Litigation. There is no litigation or proceeding
pending or, to the best knowledge of FEQ, threatened, against FEQ, which would
have an effect on the validity or performance of this Agreement.
(e) No Brokers Fees. No person has or will receive from FEQ, or to
FEQ's knowledge, from FEQ or any other person, any compensation as a broker,
finder, adviser or in any other capacity in connection with the purchase and
sale of the Membership Interests.
4. Representations and Warranties of Touchstone. Touchstone hereby
represents and warrants to FEQ as follows:
(a) Authority. Touchstone is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware and has
all requisite corporate power and authority to carry on its business as now
conducted and as currently proposed to be conducted by it and to enter into and
perform this Agreement. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of all
obligations of the Company under the Agreement has been taken.
(b) Binding Obligation. Touchstone has the legal power and authority
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of Touchstone and constitutes a valid and legally
binding obligation of Touchstone, enforceable against the Touchstone in
accordance with its terms.
(c) Absence of Litigation. There is no litigation or proceeding
pending or, to the best knowledge of the Company, threatened, against Touchstone
which would have an effect on the validity or performance of this Agreement.
(d) Investment Intent. Touchstone understands, acknowledges and
represents that:
(i) The Membership Interests have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), or under any
state securities or blue sky laws and the transfer of the Membership Interests
is intended to be exempt from registration under the Securities Act based, in
part, upon the representations, warranties and covenants of FEQ contained
herein;
(ii) Neither the United States Securities and Exchange
Commission nor any state securities commission has approved the transfer of the
Membership Interests.
(iii) Touchstone has such knowledge, sophistication and
experience in financial, tax and business matters in general, and investments in
securities in particular, so that it is capable of evaluating the merits and
risks of an investment in the Membership Interests. Touchstone has made such
investigations in connection herewith as it has deemed necessary or desirable so
as to make an informed investment decision without relying on FEQ for legal or
tax advice related to this investment and has had the opportunity to obtain
additional information as desired in order to evaluate the merits of and the
risks inherent in an investment in the Membership Interests and has received all
such information requested and has had all such questions answered to its
satisfaction;
(iv) Touchstone is an "Accredited Investor" as that term is
defined in the Securities Act and the rules and regulations promulgated
thereunder; and
(v) Touchstone is purchasing the Membership Interests in a
private transaction separately negotiated with FEQ, for its own account, for
investment purposes and not with a view to distribution and in electing to make
such a purchase was unaware of, and did not rely on, and did not become aware of
the offering of the Membership Interests through or as a result of, any form of
general solicitation or general advertising including, without limitation, any
article, notice, advertisement or other communication published in any
newspaper, magazine or similar media, or broadcast over television or radio, in
connection with the offer and sale of the Membership Interests.
5. Representations and Warranties of Xxxx Gas. Xxxx Gas represents and
warrants to Touchstone as follows:
(a) Authority. Xxxx Gas is a limited liability company, validly
existing and in good standing under the laws of the state of Delaware and has
all requisite power and authority to carry on its business as now conducted and
as currently proposed to be conducted by it and to enter into and perform this
Agreement. All organizational action on the part of Xxxx Gas necessary for the
authorization, execution, delivery and performance of all obligations of Xxxx
Gas under the Agreement has been taken.
(b) Binding Obligation. Xxxx Gas has the legal power and authority
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of Xxxx Gas and constitutes a valid and legally
binding obligation of Xxxx Gas, enforceable against Xxxx Gas in accordance with
its terms.
(c) Title to the Membership Interests. Xxxx Gas is the sole record
and beneficial owner of the Interest, free and clear of all liens and
encumbrances of any kind and nature, any preemptive rights, co sale rights,
rights of first refusal or any other rights of any kind or nature which limit,
condition, or restrict in any way Xxxx Gas' right to transfer and sell the
Interest. Xxxx Gas has the sole power and authority to transfer the Interest.
(d) Absence of Litigation. There is no litigation or proceeding
pending or, to the best knowledge of Xxxx Gas, threatened, against Xxxx Gas,
which would have an effect on the validity or performance of this Agreement.
6. Consents.
(a) By executing below Xxxx Gas hereby consents to the assignment of
the Membership Interests by FEQ to Touchstone and to the admission of Touchstone
as a member of Xxxx Gas.
(b) By executing below Xxxx Miss hereby consents to the assignment
of the Interest by Xxxx Gas to Touchstone and to the admission of Touchstone as
a member of Xxxx Miss.
7. Confidentiality. The existence and contents of this Agreement and the
transactions contemplated hereby are confidential and shall not be disclosed to
any person for any reason.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
conflict of laws principles.
9. Sections and Other Headings. The section and other headings contained
in this Agreement are for the convenience of reference only, do not constitute
part of this Agreement or otherwise affect any of the provisions hereof.
10. Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior and contemporaneously made written or oral agreements between the
parties relating to the subject matter hereof.
11. Counterpart Signatures. This Agreement may be delivered via facsimile
and executed in counterpart both of which shall be deemed to be an original and
to be one and the same instrument.
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto have
executed this Agreement as of the date first above written.
FEQ GAS, LLC.
By: FEQ Investments, Inc., Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxx, President
TOUCHSTONE RESOURCES USA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx, President
XXXX GAS, LLC
By: PHT Gas, LLC, Manager
By: /s/ Xxxx X. Xxxx
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XXXX MISS, LLC
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, Manager
