Exhibit 10.6
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "Agreement") is made and entered into
this ____ day of __________, 2002, by and between GLOBAL ENERGY GROUP, INC.
(the "Company"), a Delaware corporation and XXXXXX X. XXXXX (the "Investor"),
an individual with a principal residence in Springfield, MO.
BACKGROUND INFORMATION
The Company needs additional working capital to support its
operations. The Company desires the Investor to provide such working capital,
and the Investor desires to provide such working capital, subject to the terms
and conditions of this Agreement, in the form of one or more loans to the
Company.
OPERATIVE PROVISIONS
ARTICLE I
THE LOANS
1.1. Loan Schedule. During each period indicated in the following
table (each a "Loan Period"), the Company may request in writing that the
Investor lend the Company an amount of money, which amount shall not exceed the
corresponding maximum loan amount ("Maximum Loan Amount for the Period")
indicated in such table. On or before the last day in each Loan Period, the
Investor shall lend, or cause an affiliate of the Investor to lend, to the
Company the amount requested (each a "Loan"), not to exceed the Maximum Loan
Amount for the Period. The initial principal amounts of all the Loans shall not
exceed $761,000 in total.
MAXIMUM LOAN
LOAN PERIOD AMOUNT FOR THE PERIOD
---------------------------------- ---------------------
Effective date of this Agreement $115,000
through April 10, 2002
April 11, 2002 through May 10, 2002 $200,000
May 11, 2002 through June 10, 2002 $206,000
June 11, 2002 through July 10, 2002 $240,000
1.2. Promissory Notes. Each Loan shall be made pursuant to and
reflected by a promissory note (individually a "Note," and together the
"Notes") each in the form attached to this Agreement as Exhibit A.
1.3. Closings. At the closing of each Loan (the "Closings"), the
Company shall execute and deliver to the Investor (or, as the case may be, the
affiliate of the Investor making such Loan) a Note in the amount of the Loan
then made.
1.4. Warrants. As additional consideration for each Loan, and as
an inducement to the Investor to make or cause to be made each Loan, at each
Closing, simultaneously with the execution and delivery to the Investor of each
Note, the Company shall execute and deliver to the Investor a warrant
("Warrant") in the form of Exhibit B, which Warrant shall cover a number of
shares of the Company's common stock, par value $.001 per share, equal to the
amount of the related Loan, in dollars, divided by 1.5 (meaning, for example,
that upon receiving from the Investor a Loan of $150,000 the Company shall
execute and deliver to the Investor a Note in such amount and a Warrant
covering 100,000 shares of the Company's common stock).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor as follows:
2.1. Organization and Standing. The Company is duly organized,
existing and in good standing status under the laws of the State of Delaware,
and has all requisite power and authority, and all contract rights, to own its
assets and to carry on and engage in its business affairs as now conducted.
2.2. Entity Power and Authority. The Company has the power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a valid and binding obligation of the Company, enforceable in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws affecting the rights of creditors
generally.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
The Investor represents and warrants to the Company as follows:
3.1. Organization and Standing. Any entity making a Loan is duly
organized, existing and in good standing status under the laws of the state of
its organization, and has all requisite power and authority, and all contract
rights, to own its assets and to carry on and engage in its business affairs as
now conducted.
3.2. Power and Authority. The Investor has the power and authority
to execute, deliver and perform this Agreement, and this Agreement is a valid
and binding obligation of the Investor, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws affecting the rights of creditors
generally.
3.3. Investment Intent. The Investor (and any applicable affiliate
of the Investor) is making the Loans and acquiring the Notes solely for the
Investor's own account, for private investment, with no view to and not in
connection with any resale or distribution, and with no present intention of
reselling or distributing the Notes or any part thereof.
Investment Agreement Page 2
The Investor has no contract, understanding or arrangement with any person to
sell, transfer or pledge to such person, or anyone else, the Notes or any
portion thereof and has no present plans or intentions to enter into any such
contract, understanding or arrangement.
3.4. Investigations. The Investor acknowledges receipt from the
Company of all of the information concerning the Company which the Investor
considers to be material in making the investment decision regarding the
Company and the Loans. The Investor has had full access to personnel and the
books and records of the Company for the purpose of obtaining and verifying
such information. The Investor has had a full and fair opportunity to meet with
officers, directors and other representatives of the Company and to ask
questions and receive answers regarding the business of the Company and its
financial condition, results of operations, assets and liabilities, prospects,
risk factors, contingencies and uncertainties and any other matters of concern
to the Investor about the Company as the Investor has felt necessary or
appropriate to assist in an evaluation of the merits and risks of investing in
the Company and the Notes. All material documents and information pertaining to
the Company and the investment therein as may have been requested were made
available to the Investor. In entering into this transaction, the Investor is
not relying upon any information, other than the information received from the
Company, and the results of the Investor's own independent investigation. The
Investor has obtained sufficient information to evaluate the merits and risks
of this investment and to make an informed investment decision.
3.5 Loss of Investment. The Investor understands that this
investment in the Company involves substantial risks. The Investor is able to
bear the economic risk of such investment and could afford the complete loss of
such investment without impairing the Investor's ability to provide for himself
and his family in the same manner as he is able to do at the present time.
3.6 Investment Experience; Accredited Investor. The Investor,
without regard to any advice provided by any investment or other advisor, has
the requisite knowledge and experience in financial and business matters to
have enabled the Investor to evaluate the merits and risks of investing in the
Company and the Notes. The Investor is familiar with the term "accredited
investor" as defined under SEC Regulation D and the investor is an accredited
investor.
ARTICLE IV
CONDITIONS TO CLOSING BY THE INVESTOR
The obligation of the Investor to consummate the transactions herein
contemplated is subject to the satisfaction, at or prior to each Closing, of
each of the following conditions:
4.1. Certificates. The Investor shall have received (a) from the
Company a certificate, dated as of the Closing, executed by the Company's
President and attested to by its Secretary, stating that the representations
and warranties of the Company made
Investment Agreement Page 3
herein are correct and complete as of the Closing, and (b) from the Delaware
Department of State a recently dated certificate evidencing the Company's
active status under the corporation laws of Delaware.
4.2. Truthfulness of Representations and Warranties. Each of the
representations and warranties of the Company contained in this Agreement shall
be true and correct as of each Closing with the same effect as though such
representations and warranties had been made on and as of such date.
4.3 The Company shall have filed a Registration Statement on Form
SB-2 with respect to the resale of an aggregate of 996,749 shares issued to
Xxxxxx Xxxxxx (403,200), Xxxxx Xxxxx (583,549) and Xxxx X. Xxxxxx (10,000) as
part of a certain private placement of the Company's securities. If the
Registration Statement shall have become effective as of such time, the company
shall have fully complied with all filing requirements of Rule 424 under the
Securities Act of 1933. No stop order preventing or, if the Registration
Statement shall have become effective as of such time, suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened or, to
the knowledge of the Company, shall be contemplated by the SEC; and the Company
shall have complied with or be making diligent efforts to comply with any
request of the SEC for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
4.4 (a) The Company shall not be in violation or breach of, or in
default with respect to, any term of its certificate of incorporation or
by-laws, and, (b) to the best knowledge of the Company, the Company shall not
be in (i) violation in any material respect of any law, statute, regulation,
ordinance, rule, order, judgment or decree of any court or any governmental or
regulatory authority applicable to it, or (ii) default in any material respect
in the performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other material agreement or instrument to
which it is a party or by which it or any of its property may be bound or
subject, and no event shall have occurred which with notice, lapse of time or
both would constitute such a default.
4.5 The Company shall be current in its 1934 Act filings with the
Securities and Exchange Commission.
4.6 The Company shall not
(a) be in default in the payment of any indebtedness when due,
after expiration of any applicable grace period;
(b) be in breach of this Agreement;
(c) be subject to a final judgment in an amount greater than
$25,000, which amount remains unpaid;
Investment Agreement Page 4
(d) be subject to an injunction or order against the Company or
any of its assets, which injunction or order has remained
undischarged for a period of 30 days during which execution
shall have been effectively stayed;
(e) since the date of this Agreement, have been the subject of
the appointment of a receiver, conservator, custodian,
trustee, or similar person, officer or committee of, or for
any property of the Company, which appointment shall not have
been dismissed within 30 days of such appointment;
(f) since the date of this Agreement, have been the subject of
any insolvency, dissolution, or bankruptcy proceeding, or
have made an assignment for the benefit of creditors or a
bulk transfer of its assets, or have granted a security
interest in any of its assets other than as contemplated by
this Agreement or any promissory note issued as contemplated
by this Agreement;
(g) since the date of this Agreement, have commenced any
proceeding, suit or actions under any provisions of the U.S.
Bankruptcy Act, as amended, or any similar statute, for
adjudication as a bankrupt, reorganization, composition,
extension, arrangement, receivership, liquidation or
dissolution by or against the Company which has not been
discharged within 30 days thereafter;
(h) since the date of this Agreement, have terminated or
suspended its usual business operations for a period of five
(5) consecutive business days.
4.7 The Company's common stock price shall be quoted either on
the OTC-Bulletin Board, NASDAQ, a National Stock Exchange, or another
established public securities trading market.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1. Entire Agreement; Amendments. This Agreement, and the other
documents referenced herein, constitute the entire understanding of the parties
hereto with respect to the subject matter hereof, and no amendment,
modification or alteration of the terms hereof shall be binding unless the same
shall be in writing, dated subsequent to the date hereof and duly approved and
executed by each party.
5.2. Exhibits. Each Exhibit referred to herein is incorporated
into this Agreement by such reference.
5.3. Severability. If any term or other provision of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal
or incapable of being enforced in any
Investment Agreement Page 5
particular respect or under any particular circumstance, such term or provision
shall nevertheless remain in full force and effect in all other respects and
under all other circumstances, and all other terms, conditions and provisions
of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner, to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
5.4. Waiver. The failure of any party to insist upon strict
performance of any of the terms or conditions of this Agreement will not
constitute a waiver of any of its rights hereunder.
5.5. Binding Agreements; No Third Party Beneficiaries; No
Assignability. Each of the provisions and agreements herein contained shall be
binding upon and inure to the benefit of the respective parties hereto, as well
as their successors, but no statement contained herein is intended to confer
upon any person or entity, other than the parties hereto and their successors
in interest and permitted assignees, any rights or remedies under or by reason
of this Agreement unless so stated to the contrary. No right under this
Agreement shall be assignable nor any duty delegable by any party, except as
expressly authorized in this Agreement, without the prior consent of the other
party.
5.6. Application of Florida Law. This Agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the laws of the State of Florida.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts, by means of multiple signature pages each containing less than
all required signatures, and by means of facsimile signatures, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
5.8. Payment of Fees and Expenses. Each party shall be responsible
for the payment of its own expenses, including fees of legal counsel, in
connection with the negotiation, execution, performance and enforcement of this
Agreement.
5.9. Legal Fees and Costs in Case of Dispute. If a legal action is
initiated by a party to this Agreement arising out of or relating to the
alleged performance or non-performance of any right or obligation established
hereunder, or any dispute concerning the same, any and all fees, costs and
expenses reasonably incurred by the prevailing party or his, her or its legal
counsel in investigating, preparing for, prosecuting, defending against, or
providing evidence, producing documents or taking any other action in respect
of, such action shall be paid or reimbursed by the non-prevailing party.
Investment Agreement Page 6
5.10. Brokerage Fee. Each of the parties hereto represents and
warrants to the others that it or he has not engaged or authorized any broker
or finder to act in a representative capacity or otherwise in connection with
the transactions contemplated by this Agreement
5.11. Construction. As used herein, unless the context otherwise
requires: (i) references to "Article" or "Section" are to an article or section
hereof; (ii) all references to "Exhibits" are to Exhibits attached hereto and
are incorporated herein by reference and made a part hereof; (iii) "include",
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
(iv) the headings of the various articles, sections and other subdivisions
hereof are for convenience of reference only and are in no way intended to, and
shall not be deemed to, describe, interpret, define, modify or limit the scope,
extent or intent of this Agreement or any of the terms or provisions of this
Agreement; and (v) words of gender used herein may be read as masculine,
feminine, or neuter, as required by context, and words of number may be read as
singular or plural, as similarly required.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GLOBAL ENERGY GROUP, INC.
By:
------------------------------------
Name:
Its:
---------------------------------------
XXXXXX X. XXXXX
Investment Agreement Page 7
EXHIBITS
Exhibit A - Form of Promissory Note
Exhibit B - Form of Warrant
Investment Agreement Page 8
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND OTHER APPLICABLE SECURITIES LAWS, OR A DETERMINATION SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER APPLICABLE LAW.
PROMISSORY NOTE
$___________.00 ______________, 2002
Maturity Date: Six months from date(s) of
Funding or Upon Equity Infusion
FOR VALUE RECEIVED, GLOBAL ENERGY GROUP, INC., a Delaware corporation
("Maker"), promises to pay to the order of Xxxxxx X. Xxxxx, an individual with
a principal residence in Springfield, MO. ("Holder"), the sum of
_______________________________ DOLLARS ($___________.00) together with
interest on the outstanding principal balance remaining unpaid from time to
time until paid at eight percent (8%) per annum.
1. PAYMENTS. The principal amount of this Note shall be due and payable
in full six months from the date(s) of funding or upon equity infusion (the
"Maturity Date"), together with all accrued and unpaid interest and any unpaid
principal.
2. APPLICATION OF PAYMENTS. All payments shall apply first to accrued
interest and the remainder, if any, to reduction of principal as permitted
herein.
3. PREPAYMENT. Prior to the Maturity Date, Maker shall have the right to
prepay any part or all of the principal of this Note at any time and from time
to time, in each case without prior consent of Holder and without penalty.
4. NO CONVERSION RIGHT. This Note is not convertible and does not confer
upon Holder, as such, any right whatsoever as a shareholder of Maker.
5. EVENTS OF DEFAULT. The occurrence of any events or conditions
described in this Section shall constitute an Event of Default hereunder:
a. Maker shall fail to make any payments of principal of or
interest on any amount due hereunder when due.
b. Maker shall default in connection with any agreement for
borrowed money or other credit with any creditor other than Holder which
entitles said creditor to accelerate the maturity thereof and such default is
not cured within the grace period provided thereunder or within 10 business
days after such default, whichever is later; provided, however, that for such
purposes, the default shall be deemed to occur on the date the default event
occurs without taking into account any grace period provided in such other
agreement or credit arrangement.
c. Maker shall file a voluntary petition in bankruptcy or a
voluntary petition or answer seeking liquidation, reorganization, arrangement,
readjustment of its debts, or for any other relief under the Bankruptcy Code,
or under any other act or law pertaining to insolvency or debtor relief,
whether state, Federal, or foreign, now or hereafter existing; Maker shall
enter into any agreement indicating its consent to, approval of, or
acquiescence in, any such petition or proceeding; Maker shall apply for or
permit the appointment by consent or acquiescence of a receiver, custodian or
trustee of Maker for all or a substantial part of its property; Maker shall
make an assignment for the benefit of creditors; or Maker shall be unable or
shall fail to pay its debts generally as such debts become due, or Maker shall
admit, in writing, its inability or failure to pay its debts generally as such
debts become due.
d. There shall have been filed against Maker an involuntary
petition in bankruptcy or seeking liquidation, reorganization, arrangement,
readjustment of its debts or for any other relief under the Bankruptcy Code, or
under any other act or law pertaining to insolvency or debtor relief, whether
State, Federal or foreign, now or hereafter existing; Maker shall suffer the
involuntary appointment of a receiver, custodian or trustee of Maker or for all
or a substantial part of its property or an action for such appointment shall
be commenced against Maker; or Maker shall suffer the issuance of a warrant of
attachment, execution or similar process against all or any substantial part of
the property of Maker or an action seeking the issuance of such a warrant,
execution or similar process shall be commenced against Maker.
e. One or more judgments or decrees shall be entered against
Maker involving in the aggregate a liability (not paid or fully covered by
insurance) of $25,000 or more and the same is not stayed, fully bonded off or
cured within ten (10) days thereafter.
6. ACCELERATION. Upon the occurrence of any Event of Default (as defined
herein) the whole indebtedness (including principal and accrued interest)
remaining unpaid, shall, at the option of Holder, become immediately due,
payable, and collectible.
7. NO WAIVER BY HOLDER. No delay or failure on the part of Holder in
exercising any power or right under this Note shall operate as a waiver of any
power or right, nor shall any single or partial exercise of any power or right
preclude further exercise of that power or right. The rights and remedies
specified in this Note are cumulative and not exclusive of any right or
remedies that Holder may otherwise possess.
Promissory Note Page 2
8. WAIVER OF PRESENTMENT, COLLECTION COSTS, ETC. Maker waives presentment
for payment, protest, notice of dishonor or default and notice of protest and
nonpayment of this Note. Should it become necessary to collect this Note
through an attorney, by legal proceedings, or otherwise, Maker promises to pay
all costs of collection, including costs incurred in connection with probate
proceedings or bankruptcy or other creditors' rights proceedings. Such costs of
collection shall in all cases include the reasonable fees and disbursements of
attorneys, paralegals or other legal advisors, whether prior to or at trial, or
in appellate proceedings.
9. ASSIGNMENT. The provisions of this Note bind, and are for the benefit
of, the respective successors and assigns of Holder, jointly and severally.
This Note may not be assigned by Maker without the written consent of Holder.
10. NOTICES. All notices, requests, demands and other communications which
are required or may be given hereunder shall be in writing and shall be deemed
to have been duly given when received if personally delivered; when transmitted
if transmitted by telecopy or similar electronic transmission method; one day
after it is sent, if sent by recognized expedited delivery service; and five
days after it is sent, if mailed, first class mail, postage prepaid and
telecopies simultaneous with such mailing. In each case notice shall be sent to
the address set forth in the books and records of Maker or to such other
address as such party shall have specified by notice in writing to the other
parties.
11. APPLICATION OF FLORIDA LAW. This Note, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Florida.
12. SECURITY. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Maker hereby grants to Holder, as
security for the payment and performance of this Note, a security interest in
certain property described in Schedule 1 "Description of Collateral" attached
hereto, said security interest and pledge to include a lien on all proceeds,
products, accessions and substitutions of the property (such property,
proceeds, products, accessions and substitutions, are hereinafter sometimes
collectively referred to as the "Collateral").
IN WITNESS WHEREOF, Maker has executed and delivered this Note the
date stated above.
GLOBAL ENERGY GROUP, INC.
By:
---------------------------------------------
Name:
----------------------------------------
Its:
-----------------------------------------
Promissory Note Page 3
SCHEDULE 1
Description of Collateral
The security interest granted under this Note covers the following types (or
items of property):
1. All of the Maker's presently existing and hereafter arising accounts,
contract rights, instruments, documents, chattel paper, and all other
forms of obligations owing to the Maker arising out of the sale or
lease of goods or the rendition of services by the Maker whether or
not earned by performance, and any and all credit insurance,
guaranties and other security therefor, as well as all merchandise
returned to or reclaimed by the Maker.
2. All of the Maker's present and hereafter acquired equipment, including
without limitation, motor vehicles, furniture, fixtures, dies, tools,
jigs, office equipment and other tangible personal property of the
Maker, and all machine tools, equipment, fixtures, office equipment,
furniture, furnishings, motors, motor vehicles, tools, dies, parts,
jigs, goods and any and all attachments, accessories, accessions,
replacements, substitutions, additions and improvements thereto,
wherever located.
3. All of the Maker's present and future general intangibles and other
personal property (including, without limitation, all choses or things
in action, contract rights, goodwill, patents, trade names,
trademarks, blueprints, drawings, purchase orders, computer programs,
computer discs, computer tapes, literature, reports, catalogs, deposit
accounts and tax refunds) other than goods and accounts.
4. All of the Maker's present and future inventory in which the Maker has
any interest, including, but not limited to, goods, held by the Maker
for sale or lease or to be furnished under a contract of service and
all of the Maker's present and future raw materials, work in process,
finished goods, and packing and shipping materials, wherever located,
and any documents of title representing any of the above.
5. All books and records of the Maker, including, but not limited to,
minute books, ledgers, records indicating, summarizing or evidencing
Maker's assets, liabilities, accounts and all information relating
thereto, records indicating, summarizing or evidencing Maker's
business operations or financial condition, all computer programs,
disc or tape files, printouts, runs and other computer prepared
information and the equipment containing such information.
6. All proceeds (as defined in the UCC) of all of the foregoing,
including, but not limited to proceeds of insurance, and any and all
accounts, equipment, general intangibles, inventory, money, deposit
accounts or other tangible and intangible property resulting from the
sale or other deposition of any of the items in paragraph 1 through 5
above, and the proceeds thereof.
The above descriptions are, in each case, subject to any prior
agreement of Maker that would preclude the granting of any security
interest in any particular items otherwise included in the Collateral.
Promissory Note Page 4
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE REGISTERED HOLDER OF THIS WARRANT HAS AGREED THAT NO SALE,
PLEDGE OR OTHER TRANSFER OF THIS WARRANT OR ANY OF SAID SHARES MAY BE
MADE WITHOUT REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAW, UNLESS THE HOLDER SHALL DELIVER TO THE ISSUER AN
OPINION (IN FORM SATISFACTORY TO THE ISSUER) OF COUNSEL SATISFACTORY
TO THE ISSUER THAT NO SUCH REGISTRATION IS REQUIRED.
GLOBAL ENERGY GROUP, INC.
COMMON STOCK PURCHASE WARRANT
________ Shares
This certifies that, for value received,
XXXXXX X. XXXXX,
an individual with a principal residence in ________________, _______________,
or assigns, is entitled, subject to the terms and conditions hereinafter set
forth, at or before 5:00 p.m., New York time, on the date three (3) years after
the date of this Warrant (the "Termination Date"), but not thereafter, to
purchase up to ___________ shares (the "Shares") of Common Stock, par value
$0.001 per share ("Common Stock"), of Global Energy Group, Inc., a Delaware
corporation (the "Company"). The purchase price payable upon the exercise of
this Warrant shall initially be $1.50 per share (the "Warrant Price").
Upon delivery of this Warrant with written notice of exercise duly
executed in form and substance reasonably satisfactory to the Company, together
with payment of the Warrant Price for the shares of Common Stock thereby
purchased, at the principal office of the Company or at such other address as
the Company may designate by notice in writing to the registered holder hereof
(the "Holder"), the Holder shall be entitled to receive a certificate or
certificates for the Shares so purchased. All Shares issued upon the exercise
of this Warrant will, upon issuance, be fully paid and nonassessable and free
from all taxes, liens and charges with respect thereto.
This Warrant is subject to the following terms and conditions:
SECTION 1. TERM OF WARRANT; EXERCISE OF WARRANT
Subject to the terms of this Warrant, the Holder shall have the right,
at any time during the period commencing at 9:00 a.m., New York time, on the
date hereof, until 5:00 p.m.,
New York time, on the Termination Date, to purchase from the Company the number
of fully paid and nonassessable Shares to which the Holder may at the time be
entitled to purchase pursuant to this Warrant, upon surrender, to the Company
at this principal office, of this Warrant certificate, together with the
Purchase Form attached hereto duly completed and signed, and upon payment to
the Company of the Warrant Price for the number of Shares in respect of which
this Warrant is then being exercised. Payment of the aggregate Warrant Price
shall be made in cash or by certified or cashier's check, or a combination
thereof.
SECTION 2. REGISTRATION AND TRANSFER
2.1. Registration. This Warrant is registered on the books of the
Company. The Company shall be entitled to treat the Holder as the sole owner of
this Warrant for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in this Warrant on the part of any other person,
and shall not be liable for any registration of transfer of this Warrant which
is to be registered in the name of a fiduciary or the nominee of a fiduciary
unless made with actual knowledge that a fiduciary or nominee is committing a
breach of trust in requesting such registration of transfer.
2.2. Transfer. This Warrant shall be transferable only on the
books of the Company maintained at its principal office, wherever located, upon
delivery of this Warrant either duly endorsed by the Holder or by the Holder's
duly authorized attorney or representative, or accompanied by proper evidence
of succession, assignment, or authority to transfer. In all cases of transfer
by an attorney, the original letter of attorney, duly approved, or an official
copy thereof, duly certified, shall be deposited and remain with the Company.
In case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced, and may be required to be deposited and remain with the Company in
its discretion. Upon any registration of transfer, the Company shall execute
and deliver a new Warrant to the person entitled thereto.
SECTION 3. EXCHANGE OF WARRANT CERTIFICATE
This Warrant certificate may be exchanged for another certificate or
certificates entitling the Holder to purchase a like aggregate number of Shares
as this certificate then entitles the Holder to purchase. Any Holder of this
Warrant desiring to exchange this Warrant certificate shall make such request
in writing delivered to the Company, and shall surrender this certificate,
properly endorsed, to the Company. Thereupon, the Company shall execute and
deliver to the person entitled thereto a new Warrant certificate or
certificates, as the case may be, as so requested.
SECTION 4. PAYMENT OF TAXES
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of Shares upon the exercise of this Warrant; provided
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in such issuance.
SECTION 5. MUTILATED OR MISSING WARRANT
In case the certificate evidencing this Warrant shall be mutilated,
lost, stolen or destroyed, the Company may, in its discretion, issue and
deliver in exchange and substitution for and upon cancellation of this
certificate if it is mutilated, or in lieu of and substitution for this
certificate if it is lost, stolen or destroyed, a new Warrant certificate of
like tenor and representing an equivalent right or interest, but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of this Warrant and indemnity, if requested, also satisfactory to
the Company. Applicants for such substitute Warrant certificate shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company may prescribe.
SECTION 6. RESERVATION OF SHARES
There have been reserved, and the Company shall at all times keep
reserved, out of its authorized Common Stock a number of shares of Common Stock
sufficient to provide for the exercise of the rights of purchase represented by
this Warrant. Any transfer agent for the Common Stock or for any other shares
of the Company's capital stock issuable upon the exercise of any of the rights
of purchase aforesaid will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be requisite for such
purpose.
SECTION 7. PURCHASE BY THE COMPANY
The Company shall have the right, except as limited by law, other
agreements or herein, to purchase or otherwise acquire this Warrant at such
times, in such manner and for such consideration as it may deem appropriate and
as shall be agreed with the Holder of this Warrant.
SECTION 8. ADJUSTMENT OF WARRANT
If the Company shall at any time subdivide or combine its outstanding
shares of Common Stock, or if the Common Stock issuable upon exercise of this
Warrant shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification, or otherwise, or if at any time there shall be a capital
reorganization of the Company's Common Stock or merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
this Warrant shall thereafter evidence the right to purchase the number of
shares of Common Stock or other securities or other property that would have
been issuable as a result of that change with respect to the Shares of Common
Stock which were purchasable under this Warrant immediately before that
subdivision or combination.
SECTION 9. FRACTIONAL INTERESTS
The Company shall not be required to issue fractional Shares on the
exercise of this Warrant. If any fraction of a Share would, except for the
provisions of this Section 9, be issuable on the exercise of this Warrant (or
specified portion thereof), the Company shall pay an amount
in cash equal to the current fair market value of a Share, as reasonably
determined by the Company, multiplied by such fraction.
SECTION 10. NO RIGHT AS STOCKHOLDERS; NOTICES TO HOLDER
Nothing contained in this Warrant shall be construed as conferring
upon the Holder or the Holder's transferees the right to vote or to receive
dividends or to consent or to receive notice as stockholders in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as stockholders of the Company, except
and unless to the extent specifically stated herein.
SECTION 11. SUPPLEMENTS AND AMENDMENTS
The Company may from time to time supplement or amend this Warrant,
without the approval of the Holder, in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not be inconsistent with the provisions
of this Warrant and which shall not adversely affect the interest of the
Holder. Any other amendment to this Warrant may be made only by a written
instrument executed by the Company and the Holder.
SECTION 12. SUCCESSORS
All the covenants and provisions of this Warrant by or for the benefit
of the Company or the Holder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 13. APPLICABLE LAW
This Warrant shall be deemed to be a contract made under the laws of
the State of Florida and for all purposes shall be construed in accordance with
the laws of said state.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer and its corporate seal to be affixed thereto.
Date: __________, 20____
GLOBAL ENERGY GROUP, INC.
By:
-------------------------------
Name:
Title:
