EXHIBIT 10.27
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of the date of acceptance
set forth below, is entered into by and between EUROGAS, INC., a Utah
corporation, with headquarters located at 000 Xxxx 0000 Xxxxx, #000X,
Xxxxxxx, Xxxx 00000 (the "Company"), and ARKLEDUN DRIVE LLC, a Cayman
Islands limited liability corporation (the "Buyer").
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in accordance with and in reliance upon the exemption from
securities registration afforded, inter alia, by Rule 506 under
Regulation D ("Regulation D") as promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 Act"), and/or Section 4(2) of the 1933
Act; and
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to the
conditions of this Agreement, shares of 1999 Series C 6% Convertible
Preferred Stock, par value $0.001 per share, of the Company (the
"Convertible Preferred Stock") which shares will (i) have a liquidation
preference of $1,000 each and (ii) be convertible into newly-issued
shares of Common Stock, $0.001 par value per share, of the Company (the
"Company Common Stock") or outstanding shares of the Common Stock of Big
Horn Resources, Ltd. (the "Big Horn Common Stock") , upon the terms and
subject to the conditions of such Convertible Preferred Stock, and
subject to acceptance of this Agreement by the Company;
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
A. PURCHASE. The undersigned hereby agrees to purchase from the
Company 1,800 shares of the Convertible Preferred Stock having an
aggregate liquidation preference in the amount set forth on the
signature page of this Agreement (the "Preferred Stock"), out of a total
offering of shares of Convertible Preferred Stock having a liquidation
preference of $1,800,000, and having the terms and conditions set forth
in the Certificate of Designations of the Convertible Preferred Stock of
the Company attached hereto as ANNEX I (the "Certificate of
Designations"). The purchase price for the Preferred Stock (the
"Purchase Price") shall be as set forth on the signature page hereto and
shall be equal to the liquidation preference for the Preferred Stock.
B. CERTAIN DEFINITIONS. As used herein, each of the following terms
has the meaning set forth below, unless the context otherwise requires:
(i) "Closing Date" means the date of the closing of the purchase and
sale of the Preferred Stock, as provided herein.
(ii) "Common Stock" means the Company Common Stock or the Big Horn
Common Stock, as the case may be.
(iii) "Converted Shares" means the shares of the relevant Common Stock
issuable or transferable upon conversion of the Preferred Stock or in
lieu of dividends payable thereon.
(iv) "Initial Market Price" means the Market Price of the Common Stock
as of the Closing Date.
(v) "Market Price of the Common Stock" means the average closing price
of the relevant Common Stock for the five (5) trading days ending on the
trading day immediately before the relevant date indicated in the
relevant provision hereof (unless a different relevant period is
specified in the relevant provision), as reported by Bloomberg, LP or,
if not so reported, as reported on the over-the-counter market.
(vi) "Securities" means the Preferred Stock and the Converted Shares.
(vii) "Shares" means the shares of Common Stock representing any or all
of the Converted Shares or shares of Company Common Stock issued in lieu
of interest on the Preferred Stock.
(viii) "Transaction Agreements" means the Securities Purchase
Agreement, the Registration Rights Agreement (as defined below), the
terms of the Preferred Stock as reflected in the Certificate of
Designations, the Joint Escrow Instructions and the Share Escrow
Agreement (as those terms are defined below).
(viii) "Person" means any natural person or any entity, including,
but not limited to a corporation, partnership, trust or estate.
C. FORM OF PAYMENT; DELIVERY OF CERTIFICATES.
(i) The Buyer shall pay the Purchase Price for the Preferred Stock by
delivering immediately available good funds in United States Dollars to
the escrow agent (the "Escrow Agent") identified in the Joint Escrow
Instructions attached hereto as ANNEX II (the "Joint Escrow
Instructions") on the date prior to the Closing Date.
(ii) No later than the Closing Date, but in any event promptly following
payment by the Buyer to the Escrow Agent of the Purchase Price, the
Company shall deliver one or more certificates represented the Preferred
Stock to be issued hereunder (collectively, as executed, the
"Certificates"), each duly executed on behalf of the Company, to the
Escrow Agent.
(iii) By signing this Agreement, each of the Buyer and the Company,
subject to acceptance by the Escrow Agent, agrees to all of the terms
and conditions of, and becomes a party to, the Joint Escrow
Instructions, all of the provisions of which are incorporated herein by
this reference as if set forth in full.
D. METHOD OF PAYMENT. Payment into escrow of the Purchase Price shall
be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For credit to the account of Xxxxxxx & Xxxxxx, Esqs.
Account No.: ______________________
Re: Eurogas 10/99 Transaction
Not later than 5:00 p.m., New York time, on the date which is two (2)
New York Stock Exchange trading days after the Company shall have
accepted this Agreement and returned a signed counterpart of this
Agreement to the Escrow Agent by facsimile, the Buyer shall deposit with
the Escrow Agent the Purchase Price for the Preferred Stock in currently
available funds. Time is of the essence with respect to such payment,
and failure by the Buyer to make such payment, shall allow the Company
to cancel this Agreement.
E. ESCROW PROPERTY. The Purchase Price and the Certificates delivered
to the Escrow Agent as contemplated by Sections 1(c) and (d) hereof are
referred to as the "Escrow Property."
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees with, the
Company as follows:
A. Without limiting Buyer's right to sell the Common Stock pursuant to
the Registration Statement, the Buyer is purchasing the Preferred Stock
and will be acquiring the Shares for its own account for investment only
and not with a view towards the public sale or distribution thereof and
not with a view to or for sale in connection with any distribution
thereof; provided, however, that by making the representations herein,
Buyer does not agree to hold any of the Securities for any minimum or
other specific term and reserves the right to dispose of the Securities
at any time in accordance with U.S. federal and state securities laws
applicable to such disposition and any restrictions imposed on such
transfer by this Agreement or the instruments and documents executed in
connection with this Agreement. Buyer understands that the Securities
must be held indefinitely unless the Securities are subsequently
registered under the Securities Act or an exemption from registration is
available. Buyer has been advised or is aware of the provisions of Rule
144 promulgated under the Securities Act.
B. The Buyer is (i) an "accredited investor" as that term is defined
in Rule 501 of the General Rules and Regulations under the 1933 Act by
reason of Rule 501(a)(3), (ii) experienced in making investments of the
kind described in this Agreement and the related documents, (iii) able,
by reason of the business and financial experience of its officers (if
an entity) and professional advisors (who are not affiliated with or
compensated in any way by the Company or any of its affiliates or
selling agents), to protect its own interests in connection with the
transactions described in this Agreement, and the related documents, and
(iv) able to afford the entire loss of its investment in the Securities.
C. All subsequent offers and sales of the Preferred Stock and the
Shares by the Buyer shall be made pursuant to registration of the Shares
under the 1933 Act or pursuant to an exemption from registration.
D. The Buyer understands that the Preferred Stock is being offered and
sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that
the Company is relying upon the truth and accuracy of, and the Buyer's
compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein in
order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Preferred Stock.
E. The Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Preferred
Stock and the offer of the Shares which have been requested by the
Buyer, including ANNEX V hereto. The Buyer and its advisors, if any,
have been afforded the opportunity to ask questions of the Company and
have received complete and satisfactory answers to any such inquiries.
Without limiting the generality of the foregoing, the Buyer has also had
the opportunity to obtain and to review the Company's (1) Annual Report
on Form 10-K for the fiscal year ended December 31, 1998, (2) Quarterly
Reports (as amended) on Form 10-Q for the fiscal quarters ended March
31, 1999 and June 30, 1999, (3) Current Report on Form 8-K as filed on
April 16, 1999 and amended on June 15, 1999 and July 20, 1999,
respectively, and (4) Post-Effective Amendment No. 2 to Registration
Statement on Form S-1, Registration Number 333-59715 (the "Company's SEC
Documents").
F. The Buyer understands that its investment in the Securities
involves a high degree of risk.
G. The Buyer understands that no United States federal or state agency
or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities.
H. The Buyer has full power and authority to enter into this
Agreement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms, subject
as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium and other similar laws affecting the enforcement
of creditors' rights generally.
I. Buyer is a Cayman Islands limited liability corporation. The offer
and sale of the Securities complies with the laws, regulations and
statutes of the Buyer=s jurisdiction, including (i) the legal
requirements of the Buyer's jurisdiction for the purchase of the
Preferred Stock, (ii) any foreign exchange restrictions applicable to
such purchase, (iii) any governmental or other consents that may need to
be obtained, and (iv) the income tax and other tax consequences, if any,
which may be relevant to the purchase, holding, redemption, sale or
transfer of the Preferred Stock. The Buyer=s subscription and payment
for, and the Buyer=s continued beneficial ownership of, the Preferred
Stock will not violate any applicable securities or other laws of the
Buyer=s jurisdiction.
3. COMPANY REPRESENTATIONS, ETC. The Company represents and warrants
to the Buyer as of the date hereof and as of the Closing Date that,
except as otherwise provided in ANNEX V hereto:
A. CONCERNING THE PREFERRED STOCK AND THE SHARES. The Preferred
Stock has been duly authorized, and when issued and paid for in
accordance with the terms of this Agreement, will be duly and validly
issued, fully paid and non-assessable and will not subject the holder
thereof to personal liability solely by reason of acquiring the
Preferred Stock hereunder. There are no preemptive rights of any
stockholder of the Company, as such, to acquire the Preferred Stock or
the Shares.
B. REPORTING COMPANY STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Utah and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The
Company is duly qualified as a foreign corporation to do business and is
in good standing in each jurisdiction where the nature of the business
conducted or property owned by it makes such qualification necessary,
other than those jurisdictions in which the failure to so qualify would
not have a material adverse effect on the business, operations or
financial condition or results of operation of the Company and its
subsidiaries taken as a whole. The Company has registered its Common
Stock pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the Common Stock is listed and traded
on The NASDAQ/Bulletin Board Market. The Company has received no
notice, either oral or written, with respect to the continued
eligibility of the Common Stock for such listing, and the Company has
maintained all requirements for the continuation of such listing.
C. AUTHORIZED SHARES. The authorized capital stock of the Company
consists of (i) 325,000,000 shares of Common Stock, $.001 par value per
share, of which as at November 4, 1999, 87,713,821 shares are
outstanding and (ii) 5,000,000 shares of preferred stock, par value
$0.001 per share, of which as at November 4, 1999, (a) 2,391,968 shares
are designated as 1995 Series Preferred Stock, and as at November 4,
1999, 2,391,968 such shares are outstanding, (b) 1,250,000 shares are
designated as 1996 Series Preferred Stock, and as at November 4, 1999,
no such shares are outstanding, (c) 20,000 shares are designated as 1997
Series A Convertible Preferred Stock, and as at November 4, 1999 no such
shares are outstanding, (d) 30,000 shares are designated as 1998 Series
B Convertible Preferred Stock and as at November 4, 1999 no such shares
are outstanding and (e) upon the filing of the certificate of
Designations with the Utah Division of Corporations and Commercial Code
(the "Division of Corporations") and the acceptance thereof by the
Division of Corporations, 1,800 shares will be designated as 1999 Series
C Convertible Preferred Stock, and as of November 4, 1999 no such shares
are outstanding. All issued and outstanding shares of Common Stock have
been duly authorized and validly issued and are fully paid and
nonassessable. The Company has sufficient authorized and unissued
shares of Common Stock as may be necessary to effect the issuance of the
Shares. The Shares have been duly authorized and, when issued upon
conversion of, or as dividends on, the Preferred Stock in accordance
with its terms, will be duly and validly issued, fully paid and
non-assessable and will not subject the holder thereof to personal
liability by reason of being such holder.
D. SECURITIES PURCHASE AGREEMENT; REGISTRATION RIGHTS AGREEMENT AND
STOCK. This Agreement and the Registration Rights Agreement, the form
of which is attached hereto as ANNEX IV (the "Registration Rights
Agreement"), and the transactions contemplated thereby, have been duly
and validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company and this Agreement is, and the
Registration Rights Agreement, when executed and delivered by the
Company, will be, valid and binding agreements of the Company
enforceable in accordance with their respective terms, subject as to
enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement
of creditors' rights generally; and, when issued and paid for in
accordance with the terms of this Agreement, the Preferred Stock will be
duly and validly authorized and will be a valid and binding obligation
of the Company in accordance with its terms, subject to general
principles of equity and to bankruptcy, insolvency, moratorium, or other
similar laws affecting the enforcement of creditors= rights generally.
E. NON-CONTRAVENTION. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company, the issuance of
the Preferred Stock and the Company Common Stock comprising the Shares,
and the consummation by the Company of the other transactions
contemplated by this Agreement, the Registration Rights Agreement, and
the Preferred Stock do not and will not conflict with or result in a
breach by the Company of any of the terms or provisions of, or
constitute a default under (i) the articles of incorporation or by-laws
of the Company, each as currently in effect, (ii) any indenture,
mortgage, deed of trust, or other material agreement or instrument to
which the Company is a party or by which it or any of its properties or
assets are bound, except as herein set forth, or (iii) to its knowledge,
any existing applicable law, rule, or regulation or any applicable
decree, judgment, or order of any court, United States federal or state
regulatory body, administrative agency, or other governmental body
having jurisdiction over the Company or any of its properties or assets,
except such conflict, breach or default which would not have a material
adverse effect on the business, operations or financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, or on the transactions contemplated herein.
F. APPROVALS. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or
stock exchange or market or the stockholders of the Company is required
to be obtained by the Company for the issuance and sale or transfer of
the Securities to the Buyer as contemplated by this Agreement, except
such authorizations, approvals and consents that have been obtained.
G. SEC FILINGS. None of the Company=s SEC Documents contained, at the
time they were filed, any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements made therein in light of the circumstances under
which they were made, not misleading. The Company has since September
1, 1998 timely filed all forms, reports and exhibits thereto required to
be filed with the SEC under the 1934 Act and the regulations promulgated
thereunder
H. ABSENCE OF CERTAIN CHANGES. Since December 31, 1998, there has
been no material adverse change and no material adverse development in
the business, operations or condition (financial or otherwise) or
results of operation of the Company and its subsidiaries taken as a
whole, except as disclosed in the Company=s SEC Documents. Since
December 31, 1998, except as provided in the Company=s SEC Documents,
the Company has not (i) incurred or become subject to any liabilities
(absolute or contingent) except liabilities incurred in the ordinary
course of business consistent with past practices or liabilities which
management of the Company does not anticipate will have a material
adverse effect on the Company=s business, operations, condition
(financial or otherwise) or results of operations; (ii) discharged or
satisfied any lien or encumbrance or paid any material obligation or
liability (absolute or contingent), other than current liabilities paid
in the ordinary course of business consistent with past practices; (iii)
declared or made any payment or distribution of cash or other property
to stockholders with respect to its capital stock, or purchased or
redeemed, or made any agreements to purchase or redeem, any shares of
its capital stock; (iv) sold, assigned or transferred any other tangible
assets, or canceled any debts or claims, except in the ordinary course
of business consistent with past practices; (v) suffered any substantial
losses or waived any rights of material value, whether or not in the
ordinary course of business, or suffered the loss of any material amount
of existing business; (vi) made any changes in employee compensation,
except in the ordinary course of business consistent with past
practices; or (vii) experienced any material problems with labor or
management in connection with the terms and conditions of their employment.
I. FULL DISCLOSURE. There is no fact known to the Company (other than
general economic conditions known to the public generally or as
disclosed in the Company=s SEC Documents) that has not been disclosed in
writing to the Buyer that (i) would reasonably be expected to have a
material adverse effect on the business, operations or financial
condition of the Company or results of operations of the Company and its
subsidiaries, taken as a whole, (ii) would reasonably be expected to
materially and adversely affect the ability of the Company to perform
its obligations pursuant to this Agreement or any of the other
Transaction Agreements, or (iii) would reasonably be expected to
materially and adversely affect the value of the rights granted to the
Buyer in the Transaction Agreements.
J. ABSENCE OF LITIGATION. Except as set forth in the Company=s SEC
Documents, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or,
to the knowledge of the Company, threatened against or affecting the
Company, wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the properties, business, operations or
financial condition, or results of operation of the Company and its
subsidiaries taken as a whole or the transactions contemplated by any of
the Transaction Agreements or which would adversely affect the validity
or enforceability of, or the authority or ability of the Company to
perform its obligations under, any of the Transaction Agreements.
K. ABSENCE OF EVENTS OF DEFAULT. The Company is not in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material indenture, mortgage,
deed of trust or other material instrument or agreement to which it is a
party or by which it or its property is bound. Except as set forth in
Section 3(e) hereof, no Event of Default (or its equivalent term), as
defined in the respective agreement to which the Company is a party, and
no event which, with the giving of notice or the passage of time or
both, would become an Event of Default (or its equivalent term) (as so
defined in such agreement), has occurred and is continuing, which would
have a material adverse effect on the business, operations or the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
L. PRIOR ISSUES. Except as described in the Company=s SEC Documents,
during the twelve (12) months preceding the date hereof, the Company has
not issued any convertible securities.
M. NO UNDISCLOSED LIABILITIES OR EVENTS. The Company has no
liabilities or obligations other than those disclosed in the Company's
SEC Documents or those incurred in the ordinary course of the Company's
business since December 31, 1998, and which individually or in the
aggregate, do not or would not have a material adverse effect on the
properties, business, operations, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole. No
event or circumstance has occurred or exists with respect to the Company
or its properties, business, operations, financial condition, or results
of operations, which, under applicable law, rule or regulation, requires
public disclosure or announcement prior to the date hereof by the
Company but which has not been so publicly announced or disclosed.
There are no proposals currently under consideration or currently
anticipated to be under consideration by the Board of Directors or the
executive officers of the Company which proposal would (x) change the
certificate or articles of incorporation or by-laws of the Company, each
as currently in effect, with or without shareholder approval, which
change would reduce or otherwise adversely affect the rights and powers
of the shareholders of the Company Common Stock or (y) materially or
substantially change the business, assets or capital of the Company,
including its interests in subsidiaries.
M. NO INTEGRATED OFFERING. Except as disclosed in the Company=s SEC
Documents, neither the Company nor any of its affiliates nor any person
acting on its or their behalf has, directly or indirectly, at any time
since September 1, 1998, made any offer or sales of any security or
solicited any offers to buy any security under circumstances that would
eliminate the availability of the exemption from registration under Rule
506 of Regulation D in connection with the offer and sale of the
Securities as contemplated hereby.
N. DILUTION. The number of Shares issuable upon conversion of the
Preferred Stock may increase substantially in certain circumstances,
including, but not necessarily limited to, the circumstance wherein the
trading price of the Common Stock declines prior to the conversion of
the Preferred Stock. The Company's executive officers and directors
have studied and fully understand the nature of the Securities being
sold hereby and recognize that they have a potential dilutive effect.
The board of directors of the Company has concluded, in its good faith
business judgment, that such issuance is in the best interests of the
Company. The Company specifically acknowledges that its obligation to
issue the Shares upon conversion of the Preferred Stock is binding upon
the Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company.
O. BROKERS, FINDERS. Except for payment of fees to Spinneret
Financial Systems, Ltd. (the "Placement Agent"), payment of which is
the sole responsibility of the Company, the Company has taken no action
which would give rise to any claim by any person for brokerage
commission, finder's fees or similar payments by Buyer relating to this
Agreement or the transactions contemplated hereby. Buyer shall have no
obligation with respect to such fees or with respect to any claims made
by or on behalf of other Persons for fees of a type contemplated in this
Section 3(O) that may be due in connection with the transactions
contemplated hereby. The Company shall indemnify and hold harmless each
of Buyer, its employees, officers, directors, agents, and partners, and
their respective affiliates, from and against all claims, losses,
damages, costs (including the costs of preparation and attorney's fees)
and expenses suffered in respect of any such claimed or existing fees,
as and when incurred.
P. TAX STATUS. The Company and its subsidiaries have made or filed
all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject and has
paid all taxes and other governmental assessments and charges that are
material in amount, shown or determined to be due on such returns,
reports, declarations, except those being contested in good faith and
has set aside on its books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports, or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any
such claim.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
A. TRANSFER RESTRICTIONS. The Buyer acknowledges that (1) the
Preferred Stock has not been and is not being registered under the
provisions of the 1933 Act and, except as provided in the Registration
Rights Agreement, the Shares have not been and are not being registered
under the 1933 Act, and may not be transferred unless (A) subsequently
registered thereunder or (B) the Buyer shall have delivered to the
Company an opinion of counsel, reasonably satisfactory in form, scope
and substance to the Company, to the effect that the Securities to be
sold or transferred may be sold or transferred pursuant to an exemption
from such registration; (2) any sale of the Securities made in reliance
on Rule 144 promulgated under the 1933 Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any unregistered resale of such Securities under
circumstances in which the seller, or the person through whom the sale
is made, may be deemed to be an underwriter, as that term is used in the
1933 Act, will require compliance with some other exemption under the
1933 Act and the rules and regulations of the SEC thereunder; (3)
neither the Company nor any other person is under any obligation to
register the Securities (other than pursuant to the Registration Rights
Agreement) under the 1933 Act or to comply with the terms and conditions
of any exemption thereunder; and (4) except as provided in the Share
Escrow Agreement, the Company makes no representation or warranty with
respect to the Big Horn Common Stock, other than the Company=s ownership
of 14,100,000 shares thereof (in particular, but without limiting the
foregoing, the Company makes no representation or warranty regarding the
Buyer=s ability to sell, transfer or dispose of the shares of Big Horn
Common Stock which may be transferred to the Buyer pursuant to the terms
of this Agreement).
B. RESTRICTIVE LEGEND. The Buyer acknowledges and agrees that the
Preferred Stock and, until such time as the Company Common Stock has
been registered under the 1933 Act as contemplated by the Registration
Rights Agreement and sold in accordance with an effective Registration
Statement, certificates and other instruments representing any of the
Preferred Stock or shares of the Company Common Stock shall bear a
restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of any such Securities):
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF
COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
The legend set forth above shall be promptly removed, and the Company
shall issue a certificate without such legend to the holder of any
shares of Preferred Stock or Company Common Stock upon which such legend
is stamped, if, unless otherwise required by state securities laws, (i)
such Securities are registered for resale under the Securities Act, or
(ii) such holder provides the Company with reasonable assurances that
such Securities can be sold pursuant to Rule 144(k) promulgated under
the Securities Act. The Company shall bear the reasonable cost of the
removal of any legend as anticipated by this Section 4.
C. FILINGS. The Company undertakes and agrees to make all necessary
filings in connection with the sale of the Securities to the Buyer under
applicable provisions of the 1933 Act, the 1934 Act and the regulations
promulgated thereunder, or required by any domestic securities exchange
or trading market, and to provide a copy thereof to the Buyer promptly
after such filing.
D. REPORTING STATUS. So long as the Buyer beneficially owns any of
the Securities, (i) the Company shall file all reports required to be
filed with the SEC pursuant to Section 13 or 15(d) of the 1934 Act,
shall take all reasonable actions under its control to ensure that
adequate current public information with respect to the Company, as
required in accordance with Rule 144(c)(2) of the 1933 Act, is publicly
available, and shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would permit such termination and (ii) the
Company will take all reasonable actions under its control to continue
quotation of the Company Common Stock in the over-the-counter market
maintained by the National Association of Securities Dealers, Inc.
E. USE OF PROCEEDS. The Company will use the proceeds from the sale
of the Preferred Stock (excluding amounts paid by the Company for legal
fees, finder's fees and escrow agent fees in connection with the sale
of the Preferred Stock) for general Company purposes and acquisitions,
but shall not, directly or indirectly, use such proceeds for investment
in any other affiliate or to repay debt to affiliates.
F. CERTAIN AGREEMENTS.
(i) The Company covenants and agrees that it will not, without the
prior written consent of the Buyer, enter into any subsequent or further
offer or sale of Common Stock or securities convertible into Common
Stock (collectively, "New Common Stock") with any third party on any
date which is earlier than one hundred twenty (120) days after the
Effective Date.
(ii) In the event the Company breaches the provisions of this Section
4(f), the Conversion Price (as defined in the Certificate of
Designations) shall be amended to be equal to (x) 90% of (y) the amount
determined in accordance with the provisions of the Certificate of
Designations without regard to this provision, and the Buyer may require
the Company to immediately redeem all outstanding Preferred Stock in
accordance with Section 4(i)(y) hereof.
G. FIRST RIGHT. Each time during the one year period following the
Closing Date that the Company proposes to sell securities convertible
into or exercisable for shares of Company Common Stock in a capital
raising transaction, prior to closing any such transaction, the Company
shall first notify the Buyer in writing stating (i) its bona fide intent
to sell such securities, (ii) a detailed description of the price and
terms upon which the Company intends to sell such securities, and (iii)
the number or amount of the securities proposed to be sold. The Buyer
shall have five business days to inform the Company in writing that the
Buyer wishes to purchase all, but not a part, of the securities proposed
to be sold by the Company on the terms and for the price set forth in
the Company=s notice. If the Buyer shall not exercise such right in
full, the Company may proceed to sell such securities for the price and
on the terms set forth in its notice. If such transaction is not closed
within 60 days of the Company=s notice to the Investors, the Buyer=s
right set forth in this Section 4(G) shall be deemed to be revived and
such securities shall not be sold unless reoffered to the Buyer in
accordance herewith.
H. AVAILABLE SHARES. The Company shall have at all times authorized
and reserved for issuance, free from preemptive rights, shares of
Company Common Stock sufficient to yield two hundred percent (200%) of
the number of shares of Company Common Stock issuable at conversion as
may be required to satisfy the conversion rights of the Buyer pursuant
to the terms and conditions of the Preferred Stock or represent payment
of dividends on the Preferred Stock.
I. LIMITATION ON ISSUANCE OF SHARES. The Company may be limited in the
number of shares of Company Common Stock it may issue by virtue of (i)
the number of authorized shares or (ii) the applicable rules and
regulations of the principal securities market on which the Company
Common Stock is listed or traded, including, but not necessarily limited
to, Nasdaq Rule 4310(c)(25)(H)(i)(d)(2) (collectively, the ACap
Regulations@). Without limiting the other provisions thereof, the
Certificate of Designations shall provide that (i) the Company will take
all steps reasonably necessary to be in a position to issue shares of
Company Common Stock on conversion of the Preferred Stock without
violating the Cap Regulations and (ii) if, despite taking such steps,
the Company still cannot issue such shares of Company Common Stock
without violating the Cap Regulations, the holder of shares of
Preferred Stock which cannot be converted as result of the Cap
Regulations (each such share of Preferred Stock, an "Unconverted
Preferred Share") shall have the option, exercisable in such holder=s
sole and absolute discretion, to elect either of the following remedies:
(x) if permitted by the Cap Regulations, require the
Company to issue shares of Company Common Stock in
accordance with such holder's notice of conversion at a
conversion purchase price equal to the average of the
closing price per share of Company Common Stock for any
five (5) consecutive trading days (subject to certain
equitable adjustments for certain events occurring during
such period) during the sixty (60) trading days
immediately preceding the date of notice of conversion; or
(y) require the Company to redeem each Unconverted
Preferred Share for an amount (the "Redemption Amount"),
payable in cash, equal to:
V x M
CP
where:
"V" means the liquidation value of an Unconverted
Preferred Share plus any accrued but unpaid dividends
thereon;
"CP" means the Conversion Price in effect on the date of
redemption (the ARedemption Date@) specified in the notice
from the holder of the Unconverted Preferred Share
electing this remedy; and
"M" means the highest closing ask price per share of the
Company Common Stock during the period beginning on the
Redemption Date and ending on the date of payment of the
Redemption Amount.
A holder of more than one Unconverted Preferred Share may elect one of
the above remedies with respect to some of such holder=s Unconverted
Preferred Shares and the other remedy with respect to other portions of
the Unconverted Preferred Shares. The Certificate of Designations
shall not contain any provisions inconsistent with the above terms. The
provisions of this paragraph are not intended to limit the scope of the
provisions otherwise included in the Certificate of Designations.
J. REIMBURSEMENT. If (i) the Buyer, other than by reason of its gross
negligence or willful misconduct or violation of any applicable law,
rule or regulation, becomes involved in any capacity in any action,
proceeding or investigation brought by any stockholder of the Company,
in connection with or as a result of the consummation of the
transactions contemplated by Transaction Agreements, or is impleaded in
any such action, proceeding or investigation, or (ii) the Buyer, other
than by reason of its gross negligence or willful misconduct or by
reason of its trading of the Company=s securities in a manner that is
illegal under the federal securities laws, rules or regulations or by
reason of its violation of any other law, becomes involved in any
capacity in any action, proceeding or investigation brought by the
Commission against or involving the Company or in connection with or as
a result of the consummation of the transactions contemplated by the
Transaction Agreements, or is impleaded in any such action, proceeding
or investigation by any person, then in any such case, the Company will
reimburse the Buyer for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in
connection therewith, as such expenses are incurred. In addition, other
than with respect to any matter in which the Buyer is a named party or
is impleaded, the Company will pay the Buyer the charges, as reasonably
determined by the Buyer, for the time of any officers or employees of
the Buyer devoted to appearing and preparing to appear as witnesses,
assisting in preparation for hearings, trials or pretrial matters, or
otherwise with respect to inquiries, hearing, trials, and other
proceedings relating to the subject matter of this Agreement. The
reimbursement obligations of the Company under this paragraph shall be
in addition to any liability which the Company may otherwise have, shall
extend upon the same terms and conditions to any affiliates of the Buyer
who are actually named in such action, proceeding or investigation, and
partners, directors, agents, employees and controlling persons (if any),
as the case may be, of the Buyer and any such affiliate, and shall be
binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Company, the Buyer and any such
affiliate and any such Person. The Company also agrees that neither the
Buyer nor any such affiliate, partners, directors, agents, employees or
controlling persons shall have any D RAFT -3 10/28/99
liability to the Company or any person asserting claims on behalf of or
in right of the Company in connection with or as a result of the
consummation of the Transaction Agreements except to the extent that any
losses, claims, damages, liabilities or expenses incurred by the Company
result from (x) the gross negligence or willful misconduct or violation
of law, rule or regulation by the Buyer or (y) the Company=s use of any
information provided by the Buyer for inclusion in any registration
statement filed by the Company under the 1933 Act.
5. TRANSFER AGENT INSTRUCTIONS.
A. Promptly following the delivery by the Buyer of the Purchase Price
in accordance with Section 1(c) hereof, the Company will irrevocably
instruct its transfer agent to issue Company Common Stock from time to
time upon conversion of the Preferred Stock in such amounts as specified
from time to time by the Company to the transfer agent, bearing the
restrictive legend specified in Section 4(b) of this Agreement prior to
registration of the Shares under the 1933 Act, registered in the name of
the Buyer or its nominee and in such denominations to be specified by
the Buyer in connection with each conversion of the Preferred Stock.
The Company warrants that no instruction inconsistent with the
instructions referred to in this Section 5 and the stop transfer
instructions to give effect to Section 4(a) hereof prior to registration
and sale of the Shares under the 1933 Act will be given by the Company
to the transfer agent with respect to the Shares and that the Shares
shall otherwise be freely transferable on the books and records of the
Company as and to the extent provided in this Agreement, the
Registration Rights Agreement, and applicable laws and regulations.
Nothing in this Section shall affect in any way the Buyer's obligations
and agreement to comply with all applicable securities laws upon resale
of the Securities. If the Buyer provides the Company with an opinion of
counsel reasonably satisfactory to the Company that registration of a
resale by the Buyer of any of the Securities in accordance with clause
(1)(B) of Section 4(a) of this Agreement is not required under the 1933
Act, the Company shall (except as provided in clause (2) of Section 4(a)
of this Agreement) permit the transfer of the Securities and, in the
case of the Converted Shares, promptly instruct the Company's transfer
agent to issue one or more certificates for Company Common Stock without
legend in such name and in such denominations as specified by the Buyer.
B. (i) The Company will permit the Buyer to exercise its right to
convert the Preferred Stock by telecopying or delivering an executed and
completed Notice of Conversion to the Company in accordance with the
provisions of the Certificate of Designations.
(ii) The term "Conversion Date" means, with respect to any conversion
elected by the holder of the Preferred Stock, the date specified in the
Notice of Conversion, provided the copy of the Notice of Conversion is
telecopied to or otherwise delivered to the Company in accordance with
the provisions hereof so that it is received by the Company on or before
such specified date.
(iii) The Company will transmit the certificates representing the
Converted Shares issuable upon conversion of any Preferred Stock
(together with, unless otherwise instructed by the Buyer, one or more
certificates representing the Preferred Stock not being so converted if
the certificates submitted in connection with such conversion
represented more shares than then being converted) to the Buyer at the
address specified in the Notice of Conversion (which may be the Buyer=s
address for notices as contemplated by Section 11 hereof or a different
address) via recognized express or overnight courier, by electronic
transfer or otherwise, within three (3) business days (such third
business day, the "Delivery Date") after (A) the business day on which
the Company has received or has possession of both of the Notice of
Conversion (by facsimile or other delivery) and the certificate of the
Preferred Stock being converted (and if the same are not delivered to
the Company on the same date, the date of delivery of the second of such
items) or (B) the date a dividend payment on the Preferred Stock which
the Company has elected to pay by the issuance of Common Stock, as
contemplated by the Preferred Stock, was due. If, at any time, the
Buyer directs the Company or its counsel, its transfer agent or another
designated agent to hold the Preferred Stock on behalf of the Buyer,
such possession shall satisfy the Buyer=s delivery obligation in
connection with any conversion. Such possession shall be for solely and
exclusively for the benefit of Buyer and shall not represent any other
interest of the Company in the Preferred Stock. The original
certificates of the unconverted Preferred Stock shall be returned to the
Buyer at any time immediately upon direction from the Buyer.
C. The Company understands that a delay in the delivery of the Shares
of Common Stock beyond the Delivery Date could result in economic loss
to the Buyer. As compensation to the Buyer for such loss, the Company
agrees to pay payments to the Buyer for late issuance of the shares in
accordance with the following schedule (where "No. Business Days Late"
is defined as the number of business days beyond two (2) business days
from the Delivery Date):
Late Payment For Each $10,000
of Liquidation Preference or Dividend No. Business
Days Late Amount Being Converted
1 $100
2 $200
3 $300
4 $400
5 $500
6 $600
7 $700
8 $800
9 $900
10 $1,000
>10
$1,000 +
additional $200
for each Business
Day Late in excess
of 10 days
The Company shall pay any payments incurred under this Section in
immediately available funds upon demand. Nothing herein shall limit the
Buyer=s right to pursue actual damages for the Company's failure to
issue and deliver the Common Stock to the Buyer. Furthermore, in
addition to any other remedies which may be available to the Buyer, in
the event that the Company fails for any reason to effect delivery of
such shares of Common Stock by the Delivery Date, the Buyer will be
entitled to revoke the relevant Notice of Conversion by delivering a
notice to such effect to the Company whereupon the Company and the Buyer
shall each be restored to their respective positions immediately prior
to delivery of such Notice of Conversion.
D. If, by the Delivery Date, the Company fails for any reason to
deliver the Shares to be issued upon conversion of shares of Preferred
Stock and thereafter the holder of the Preferred Stock being converted
(a "Converting Holder") purchases, in an arm=s-length open market
transaction or otherwise, shares of Common Stock (the "Covering Shares")
in order to make delivery in satisfaction of a sale of Common Stock by
the Converting Holder (the "Sold Shares"), which delivery such
Converting Holder anticipated to make using the Shares to be issued upon
such conversion (a "Buy-In"), the Company shall pay to the Converting
Holder, in addition to all other amounts contemplated in other
provisions of the Transaction Agreements, and not in lieu thereof, the
Buy-In Adjustment Amount (as defined below). The "Buy-In Adjustment
Amount" is the amount equal to the excess, if any, of (x) the Converting
Holder's total purchase price (including brokerage commissions, if any)
for the Covering Shares over (y) the net proceeds (after brokerage
commissions, if any) received by the Converting Holder from the sale of
the Sold Shares. The Company shall pay the Buy-In Adjustment Amount to
the Converting Holder in immediately available funds immediately upon
demand by the Converting Holder. By way of illustration and not in
limitation of the foregoing, if the Converting Holder purchases shares
of Common Stock having a total purchase price (including brokerage
commissions) of $11,000 to cover a Buy-In with respect to shares of
Common Stock it sold for net proceeds of $10,000, the Buy-In Adjustment
Amount which Company will be required to pay to the Converting Holder
would be $1,000.
E. In lieu of delivering physical certificates representing the
shares of Company Common Stock issuable upon conversion, provided the
Company=s transfer agent is participating in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program, upon request
of the Buyer and its compliance with the provisions contained in this
paragraph, so long as the certificates therefor do not bear a legend and
the Buyer thereof is not obligated to return such certificate for the
placement of a legend thereon, the Company shall use its best efforts to
cause its transfer agent to electronically transmit the shares of
Company Common Stock issuable upon conversion to the Buyer by crediting
the account of Buyer's Prime Broker with DTC through its Deposit
Withdrawal Agent Commission system.
F. If, at any time (i) the Company challenges, disputes or denies the
right of a holder of Preferred Stock to effect a conversion of the
Preferred Stock into Common Stock or otherwise dishonors or rejects any
Conversion Notice delivered in accordance with the terms of this
Agreement or the Certificate of Designations or (ii) any third party who
is not and has never been an Affiliate of such holder commences any
lawsuit or proceeding or otherwise asserts any claim before any court or
public or governmental authority, which lawsuit, proceeding or claim
seeks to challenge, deny, enjoin, limit, modify, delay or dispute the
right of such holder to effect the conversion of the Preferred Stock
into Common Stock, then such holder shall have the right, by written
notice to the Company, to require the Company to promptly redeem the
Preferred Stock for cash at a redemption price (the "Mandatory Purchase
Amount") equal to (x) one hundred thirty-five percent (135%) of the
liquidation preference of the unconverted Preferred Stock held by such
holder plus (y) all accrued but unpaid dividends on the Preferred Stock
through the date of payment of the Mandatory Purchase Amount. Under any
of the circumstances set forth above, the Company shall be responsible
for the payment of all costs and expenses of such holder, including, but
not necessarily limited to, reasonable legal fees and expenses, as and
when incurred in connection with such holder's disputing any such action
or pursuing such holder's rights hereunder (in addition to any other
rights such holder may have hereunder or otherwise). The Mandatory
Purchase Amount will be payable to such holder in cash within five (5)
business days from the date such holder gives the Company written notice
that it is exercising its rights under this paragraph.
G. To the extent permitted by applicable laws and regulations, the
holder of any Preferred Stock shall be entitled to exercise its
conversion privilege with respect to the Preferred Stock notwithstanding
the commencement of any case under 11 U.S.C. '101 et seq. (the
"Bankruptcy Code"). In the event the Company is a debtor under the
Bankruptcy Code, the Company hereby waives, to the fullest extent
permitted, any rights to relief it may have under 11 U.S.C. '362 in
respect of the conversion of the Preferred Stock. The Company agrees,
without cost or expense to any holder, to take or to consent to any and
all actions permitted under applicable laws and regulations and
reasonably necessary or requested by the Buyer to effectuate relief
under 11 U.S.C. '362 in such circumstances.
H. The Company will authorize its transfer agent to give information
relating to the Company directly to the Buyer or the Buyer=s
representatives upon the request of the Buyer or any such
representative. The Company will provide the Buyer with a copy of the
authorization so given to the transfer agent.
6. CLOSING DATE.
A. The Closing Date shall occur on the date which is the first
trading day on New York Stock Exchange after each of the conditions
contemplated by Sections 7 and 8 hereof shall have either been satisfied
or been waived by the party in whose favor such conditions run.
B. The closing of the purchase and issuance of the Preferred Stock
shall occur on the Closing Date at the offices of the Escrow Agent and
shall take place no later than 3:00 P.M., New York time, on such day or
such other time as is mutually agreed upon by the Company and the Buyer.
C. Notwithstanding anything to the contrary contained herein, the
Escrow Agent will be authorized to release the Escrow Funds to the
Company and to others and to release the other Escrow Property on the
Closing Date upon satisfaction of the conditions set forth in Sections 7
and 8 hereof and as provided in the Joint Escrow Instructions.
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell the
Preferred Stock to the Buyer pursuant to this Agreement on the Closing
Date is conditioned upon:
A. The execution and delivery of this Agreement and the other
Transaction Agreements by the Buyer;
B. Delivery by the Buyer to the Escrow Agent of good funds as payment
in full of an amount equal to the Purchase Price in accordance with this
Agreement;
C. The accuracy on the Closing Date of the representations and
warranties of the Buyer contained in this Agreement, each as if made on
such date, and the performance by the Buyer on or before such date of
all covenants and agreements of the Buyer required to be performed on or
before such date; and
D. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or
requiring any consent or approval which shall not have been obtained.
8. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the
Preferred Stock to the Buyer pursuant to this Agreement on the Closing
Date is conditioned upon:
A. The execution and delivery of this Agreement and the other
Transaction Agreements, including the Share Escrow Agreement
substantially in the form of ANNEX VI attached hereto (the "Share Escrow
Agreement"), by the Company;
B. The due adoption and execution of the Certificate of Designations
by all required corporate action and, to the extent required for the
Preferred Stock to be authorized, the filing of the Certificate of
Designations with the appropriate state office;
C. The delivery by the Company to the Escrow Agent of the
Certificates in accordance with this Agreement;
D. The accuracy in all material respects on the Closing Date of the
representations and warranties of the Company contained in this
Agreement. each as if made on such date, and the performance by the
Company on or before such date of all covenants and agreements of the
Company required to be performed on or before such date;
E. On the Closing Date, the Buyer shall have received an opinion of
counsel for the Company, dated such Closing Date, in form, scope and
substance reasonably satisfactory to the Buyer, substantially to the
effect set forth in ANNEX III attached hereto;
F. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or
requiring any consent or approval which shall not have been obtained;
G. From and after the date hereof to and including the Closing Date,
the trading of the Common Stock shall not have been suspended by the SEC
or the NASD and trading in securities generally on the New York Stock
Exchange or The NASDAQ/Bulletin Board Market shall not have been
suspended or limited, nor shall minimum prices been established for
securities traded on The NASDAQ/Bulletin Board Market, nor shall there
be any outbreak or escalation of hostilities involving the United States
or any material adverse change in any financial market that in either
case in the reasonable judgment of the Buyer makes it impracticable or
inadvisable to purchase the Preferred Stock.
9. GOVERNING LAW: MISCELLANEOUS.
A. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York for contracts to be wholly
performed in such state and without giving effect to the principles
thereof regarding the conflict of laws. Each of the parties consents to
the jurisdiction of the federal courts whose districts encompass any
part of the City of New York or the state courts of the State of New
York sitting in the City of New York in connection with any dispute
arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum
non conveniens, to the bringing of any such proceeding in such
jurisdictions. To the extent determined by such court, the Company shall
reimburse the Buyer for any reasonable legal fees and disbursements
incurred by the Buyer in enforcement of or protection of any of its
rights under any of the Transaction Agreements.
B. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
C. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto.
D. All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
E. A facsimile transmission of this signed Agreement shall be legal
and binding on all parties hereto.
F. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original.
G. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this
Agreement.
H. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement or the validity or enforceability of this Agreement in any
other jurisdiction.
I. This Agreement may be amended only by an instrument in writing
signed by the party to be charged with enforcement thereof.
J. This Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof.
10. NOTICES. Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be deemed
effectively given on the earliest of
(a) the date delivered, if delivered by personal delivery as
against written receipt therefor or by confirmed facsimile
transmission,
(b) the seventh business day after deposit, postage prepaid,
in the United States Postal Service by registered or
certified mail, or
(c) the third business day after mailing by international
express courier, with delivery costs and fees prepaid,
in each case, addressed to each of the other parties thereunto entitled
at the following addresses (or at such other addresses as such party may
designate by ten (10) days= advance written notice similarly given to
each of the other parties hereto):
COMPANY: EUROGAS, INC..
At its address at the head of this Agreement
Attn: Chief Executive Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and with a copy to:
Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attn: Xxxxx Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
BUYER: At the address set forth on the signature page of this
Agreement.
with a copy to:
Xxxxxxx & Prager, Esqs.
000 Xxxxx Xxxxxx
Attn: Xxxxxx Xxxxxxx, Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
ESCROW AGENT: Xxxxxxx & Prager, Esqs.
000 Xxxxx Xxxxxx
Attn: Xxxxxx Xxxxxxx, Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Company's and the
Buyer's representations and warranties herein shall survive the
execution and delivery of this Agreement, the delivery of the
Certificates and the payment of the Purchase Price for a period of two
years beyond the Closing Date, and shall inure to the benefit of the
Buyer and the Company and their respective successors and assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, this Agreement has been duly executed by the Buyer
by one of its officers thereunto duly authorized as of the date set
forth below.
LIQUIDATION PREFERENCE OF PREFERRED STOCK: $
NO. OF SHARES OF PREFERRED STOCK:
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities
Purchase Agreement to be duly executed on its behalf this
day of , 1999.
________________________________ ARKLEDUN DRIVE LLC
Address Printed Name of Subscriber
________________________________
By:
Telephone No. __________________ (Signature of Authorized Person)
_____________________________________
Telecopier No. __________________ Printed Name and Title
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this
Agreement and represents that the foregoing statements are true and
correct and that it has caused this Securities Purchase Agreement to be
duly executed on its behalf.
EUROGAS, INC.
By:
Title:
Date: ,1999
DRAFT -3 10/28/99
ANNEX I FORM OF CERTIFICATE OF
DESIGNATIONS
ANNEX II JOINT ESCROW INSTRUCTIONS
ANNEX III OPINION OF COUNSEL
ANNEX IV REGISTRATION RIGHTS AGREEMENT
ANNEX V COMPANY DISCLOSURE MATERIALS
ANNEX VI SHARE ESCROW AGREEMENT
ANNEX V
TO
SECURITIES PURCHASE AGREEMENT
COMPANY DISCLOSURE
[TO BE PROVIDED BY COMPANY]
