Exhibit 10.13
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is entered into
this 9th day of September, 2003, by and between International Travel CD's Inc.,
a Colorado corporation ("ILCD") and Trident Growth Fund, L.P., a Delaware
limited partnership ("Trident").
WHEREAS, Trident owns Six Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (666,667) shares of Series A Convertible Preferred Stock of ILCD
(the "Shares"); and
WHEREAS, ILCD owns two units of limited partnership interest (the
"Interest") in Louisiana Shelf Partners, L.P., a Delaware limited partnership
("Louisiana Shelf"); and
WHEREAS, ILCD wishes to purchase from Trident, and Trident wishes to
sell to ILCD, the Shares in consideration of Trident hereby purchasing from
ILCD, and ILCD hereby selling to Trident, the Interest.
NOW, THEREFORE, in consideration of the premises hereof and the
agreements set forth herein below, and for other good and valuable
consideration, the receipt and sufficiency of which the parties hereto hereby
acknowledge, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Sale and Purchase of Shares and Interest. Subject to the terms and
conditions hereof, ILCD hereby sells and Trident hereby purchases the Interest
in consideration of Trident hereby selling to ILCD and ILCD hereby purchasing
from Trident the Shares.
2. Closing.
(a) The closing of the sale and purchase of the Shares, Interest
and Option (the "Closing") shall take place at the offices of ILCD at 000
Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000, upon execution of this Agreement.
(b) At the Closing: (i) Trident shall deliver to ILCD
certificate(s) evidencing the Shares duly endorsed for transfer; (ii) ILCD shall
deliver to Trident certificate(s) evidencing the Interest duly endorsed for
transfer; (iii) Trident and ILCD shall execute any and all documents,
certificates, consents and agreements necessary to effectuate the transfer of
the Interest and to transfer and assign any and all rights ILCD has as a result
of its ownership of the Interest under that certain Limited Partnership
Agreement of Louisiana Shelf Partners, L.P. dated December 31, 2002, attached
hereto as Exhibit A (the "LP Agreement") to Trident; and (iv) ILCD shall cause
any and all other persons, including but not limited to the general partner and
any limited partners of Louisiana Shelf, to execute any and all other documents,
certificates, consents and agreements necessary to effectuate the transfer of
the Interest to Trident.
3. Description of Shares and Interest.
(a) The Shares of Series A Preferred Stock shall have such rights,
preferences and designations as set forth in the Certificate of Designation of
Series A Convertible Preferred Stock.
(b) The Interest shall have such rights and obligations as set
forth in the LP Agreement.
4. Representations and Warranties of Trident. Trident represents and
warrants to ILCD as follows:
(a) Authority. Trident is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has all requisite partnership power and authority to carry on its business
as now conducted and as currently proposed to be conducted by it and to enter
into and perform this Agreement. All partnership action on the part of Trident
necessary for the authorization, execution, delivery and performance of all
obligations of Trident under the Agreement has been taken.
(b) Binding Obligation. Trident has the legal power and authority
to enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of Trident and constitutes a valid and legally
binding obligation of Trident, enforceable against Trident in accordance with
its terms.
(c) Title to Shares. Trident is the sole record and beneficial
owner of the Shares, free and clear of all liens or encumbrances of any kind or
nature, any preemptive rights, co-sale rights, rights of first refusal or any
other rights of any kind or nature which limit, condition, or restrict in any
way Trident's right to transfer and sell the Shares.
(d) Absence of Litigation. There is no litigation or proceeding
pending or, to the best of Trident's knowledge, threatened against Trident that
would have an effect on the validity or performance of this Agreement.
(e) No Brokers Fees. No person has or will receive from Trident
or, to Trident's knowledge, from any other person, any compensation as a broker,
finder or advisor, or in any other capacity in connection with the sale and
purchase of the Shares or the Interest.
(f) Investment Intent. Trident understands, acknowledges and
represents, to the extent applicable, that:
(i) The Interest has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under any state
securities or blue sky laws, and the transfer of the Interest is intended to be
exempt from registration under the Securities Act based, in part, upon the
representations, warranties and covenants of Trident contained herein.
(ii) Neither the United States Securities and Exchange
Commission nor any state securities commission has (i) approved the transfer of
the Interest or passed upon or endorsed the merits of the Interest, or (ii)
confirmed the accuracy of, determined the adequacy of, or reviewed any
documentation regarding ILCD or Louisiana Shelf.
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(iii) It has such knowledge, sophistication and experience in
financial, tax and business matters in general, and investments in securities in
particular, so that it is capable of evaluating the merits and risks of an
investment in the Interest, it has made such investigations in connection
herewith as it has deemed necessary or desirable so as to make an informed
investment decision without relying on ILCD for legal or tax advice related to
this investment, and it has had the opportunity to obtain additional information
as desired in order to evaluate the merits of and the risks inherent in an
investment in the Interest and has received all such information requested and
has had all such questions answered to its satisfaction.
(iv) The Interest is being purchased in a private transaction
separately negotiated by Trident, for its own account, for investment purposes
only and not with a view to distribution, and it was unaware of, and did not
rely upon, and did not become aware of the offering of the Interest through or
as a result of, any form of general solicitation or general advertising
including, without limitation, any article, notice, advertisement or other
communication published in any newspaper, magazine or similar media, or
broadcast over television or radio, in connection with the offer and sale of the
Interest.
(v) It is able to bear the economic risks of an investment in the
Interest and its overall commitment to investments that are not readily
marketable is not disproportionate to its net worth.
(vi) It must bear the substantial economic risks of the investment
in the Interest indefinitely, as the Interest is a "restricted security" as that
term is defined in Regulation D under the Securities Act and may not be sold,
hypothecated or otherwise disposed of unless registered under the Securities Act
and applicable state securities laws or an exemption from such registration is
available. Legends shall be placed on the certificates evidencing the Interest
to the effect that the Interest has not been registered under the Securities Act
or any applicable state securities laws.
(vi) Any information that the undersigned has heretofore furnished
or furnishes herewith to ILCD is complete and accurate and may be relied upon by
ILCD in determining the availability of an exemption from registration under
federal and state securities laws (including, but not limited to, the Securities
Act) in connection with the purchase of the Interest hereunder.
5. Representations and Warranties of ILCD. ILCD hereby represents and
warrants to Trident as follows:
(a) Authority. ILCD is a corporation duly organized, validly
existing and in good standing under the laws of the state of Colorado and has
all requisite corporate power and authority to carry on its business as now
conducted and as currently proposed to be conducted by it and to enter into and
perform this Agreement. All corporate action necessary on the part of ILCD for
the authorization, execution, delivery and performance of all obligations of
ILCD under the Agreement has been taken.
(b) Binding Obligation. ILCD has the legal power and authority to
enter into and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by and on behalf of ILCD and constitutes a valid and legally binding
obligation of ILCD, enforceable against ILCD in accordance with its terms.
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(c) Title to Interest. ILCD is the sole record and beneficial
owner of the Interest, free and clear of all liens or encumbrances of any kind
or nature, any preemptive rights, co-sale rights, rights of first refusal or any
other rights of any kind or nature which limit, condition, or restrict in any
way ILCD's right to transfer and sell the Interest.
(d) Absence of Litigation. There is no litigation or proceeding
pending or, to the best of ILCD's knowledge, threatened against ILCD that would
have an effect on the validity or performance of this Agreement.
(e) No Brokers Fees. No person has or will receive from ILCD or,
to ILCD's knowledge, from any other person, any compensation as a broker, finder
or advisor, or in any other capacity in connection with the sale and purchase of
the Shares or the Interest.
6. Confidentiality. The existence and contents of this Agreement and
the transactions contemplated hereby are confidential and shall not be disclosed
to any person for any reason. Trident understands that certain information
conveyed to it by ILCD in connection with the conversion of the Notes may be
regarded as material non-public information under Regulation FD under the
Securities Act of 1933, as amended. Trident hereby acknowledges that it remains
bound by its prior express agreement to maintain the confidentiality of such
information and to not disclose such information to any person. Trident
understands that Federal law provides severe civil and criminal penalties for
trading in the public market on the basis of material non-public information.
7. General Release. Trident, for itself and on behalf of its equity
owners, directors, officers, managers, affiliates, successors and assigns, does
hereby fully and irrevocably remise, release and forever discharge ILCD and each
of its directors, officers, shareholders, affiliates, employees, agents,
attorneys, accountants, successors and assigns, of and from any and all manner
of claims, actions, causes of action, grievances, liabilities, obligations,
promises, damages, agreements, rights, debts and expenses (including claims for
attorneys' fees and costs) (collectively, "Claims"), of every kind, either in
law or in equity, whether contingent, mature, known or unknown, or suspected or
unsuspected, including, without limitation, any Claims arising under any
federal, state, local or municipal law, common law or statute, whether arising
in contract or in tort, and any claims arising under any other laws or
regulations of any nature whatsoever, which the undersigned ever had, now has or
may have, for or by reason of any cause, matter or thing whatsoever, from the
beginning of the world to the date hereof.
Trident further agrees and covenants not to xxx or to bring, or assign
to any third person, any claims or charges against ILCD or any of their
directors, officers, shareholders, affiliates, employees, agents, attorneys,
accountants, successors or assigns, with respect to any matter covered by the
release set forth in the previous paragraph, and to not assert against ILCD, or
any of its directors, officers, affiliates, employees, agents, attorneys,
accountants, successors or assigns, any action, grievance, suit, litigation or
proceeding for any matter covered by the release set forth in the previous
paragraph.
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8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
conflict of laws principles.
9. Consent of General Partner. LS Gas, LLC, the general partner of
Louisiana Shelf, hereby consents to the transfer of the Interest by ILCD
pursuant to the terms of this Agreement.
10. Sections and Other Headings. The section and other headings
contained in this Agreement are for the convenience of reference only, do not
constitute part of this Agreement or otherwise affect any of the provisions
hereof.
11. Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior and contemporaneously made written or oral agreements between the
parties relating to the subject matter hereof.
12. Counterpart Signatures. This Agreement may be delivered via
facsimile and executed in counterpart each of which shall be deemed to be an
original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have executed this Agreement as of the date first above written.
TRIDENT GROWTH FUND, L.P.
By: Trident Management, LLC, its general partner
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Authorized Member
INTERNATIONAL TRAVEL CD'S, INC.
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: President
LS GAS, LLC, solely for the purpose of Section
9 hereof
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Managing Member
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