EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT
("Agreement") is made as of the 15th day of November,
2000 by and between Americomm Resources Corporation,
a Delaware corporation (the "Company"), and Empire
Petroleum Corporation, a Delaware corporation (the
"Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Common Stock.
1.1 Sale and Issuance of Common Stock.
Subject to the terms and conditions of this Agreement,
the Purchaser agrees to purchase at the Closing, and the
Company agrees to sell and issue to the Purchaser at the
Closing, Three Hundred Seventy-Five Thousand (375,000)
shares of the Company's common stock, par value $.001 per
share (the "Shares"), at a purchase price of U.S. $0.40 per
share for a total purchase price of U.S. $150,000.
1.2 Closing. The purchase and sale of the
Shares shall take place at the offices of the Company,
First Place Tower, Suite 4000, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, at 10:00 a.m., on the later of November 15, 2000
or such date as soon as practicable after the conditions
described in Section 1.3 have been satisfied or have been
waived by the Company and the Purchaser (or at such other
time and place as the Company and the Purchaser mutually
agree upon, orally or in writing) (which time and place
are designated as the "Closing"). At the Closing, the
Company shall deliver to the Purchaser a certificate
representing the Shares against delivery to the Company
by the Purchaser of a check made payable to the Company
or wire transfer to an account designated by the Company
of the aggregate purchase price therefor.
1.3 Farmout Agreement. This Agreement is
entered into pursuant to and in connection with that
certain Farmout Agreement entered into or proposed to be
entered into by and among the Company and the other parties
named therein (the "Farmout Agreement") relating to certain
oil and gas leases covering approximately 100,000 acres of
land in Niobrara, Weston and Converse Counties in the State
of Wyoming. The Closing of this Agreement and the
obligations of the Company to sell, and of the Purchaser
to purchase, the Shares are expressly conditioned upon the
satisfaction or waiver, as described above, of the
following conditions: (i) the execution and delivery in
form acceptable to the Company of the Farmout Agreement
by all parties thereto and the effectiveness thereof and (
ii) the approval by the Bureau of Land Management of the
"Timber Draw Unit" as described in the Farmout Agreement.
2. Representations and Warranties of the Company.
The Company hereby represents and warrants to the Purchaser
as follows:
2.1 Organization, Good Standing and
Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as
proposed to be conducted. The Company is duly qualified to
transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have
a material adverse effect on its business or properties.
2.2 Capitalization. The authorized capital of
the Company consists of 50,000,000 shares of common stock, par
value $.001 per share, of which 14,879,589 shares are issued
and outstanding. Except for outstanding warrants, options or
other convertible securities for purchase of up to 1,659,996
shares of common stock, there are not outstanding any options,
warrants, rights (including conversion or preemptive rights)
or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital
stock.
2.3 Authorization. All corporate action on the
part of the Company, its officers, directors and shareholders
necessary for the authorization, execution and delivery of
this Agreement, the performance of all obligations of the
Company hereunder and the authorization, issuance and
delivery of the Shares has been taken or will be taken,
and this Agreement constitutes a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms.
2.4 Valid Issuance of Securities. The Shares
that are being issued to the Purchaser, when issued, sold and
delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable. Based in part upon the
representations of the Purchaser in this Agreement, the Shares
will be issued in compliance with applicable United States
federal and state securities laws.
3. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to the Company
as follows:
3.1 Organization, Good Standing and
Qualification. The Purchaser is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business
as now conducted and as proposed to be conducted. The
Purchaser is duly qualified to transact business and is
in good standing in each jurisdiction in which the failure
so to qualify would have a material adverse effect on its
business or properties.
3.2 Authorization. All corporate action on
the part of the Purchaser, its officers, directors and
shareholders necessary for the authorization, execution
and delivery of this Agreement and the performance of
all obligations of the Purchaser hereunder has been
taken or will be taken, and this Agreement constitutes
a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with
its terms.
3.3 Purchase for Own Account; Substantial Risk
and Absence of Liquidity. The Purchaser is acquiring the
Shares solely for the Purchaser's own account, for
investment purposes only and not with a view to, or
for, subdivision, resale, distribution, or
fractionalization thereof, or for the account, in whole
or in part, of others. The Purchaser recognizes the
restrictions on the transferability of the Shares, and is
able to bear the substantial economic risk of an
investment in the Shares, including a complete loss
thereof, for an indefinite period of time.
The Purchaser has no need for liquidity in this investment
and has no reason to anticipate any change in circumstances,
financial or otherwise, or other particular occasion or
event which might cause or require the Purchaser to attempt
to sell or transfer any of the Shares.
3.4 Restrictions on Transfer. The Purchaser
understands that the sale of the Shares to the Purchaser is
intended to be exempt from registration under the Securities
Act of 1933, as amended (the "Securities Act"), by virtue of
Section 4(2) of the Securities Act and applicable state
securities laws. The Purchaser will not sell, hypothecate
or otherwise transfer any or all of the Shares other than
in accordance with the following provisions:
(a) Pursuant to a specific exemption from
registration under the Securities Act and applicable
state securities laws, but only upon the Purchaser first
having delivered to the Company a favorable reasoned
written opinion of counsel for the Purchaser, reasonably
satisfactory in form and substance to the Company, to the
effect that the proposed sale or transfer is exempt from
registration under the Securities Act and any applicable
state securities laws; or
(b) Pursuant to a registration statement under
the Securities Act which has become effective, and a
prospectus related thereto which is current, with respect
to the securities to be disposed of, and if required, a
registration statement under applicable state securities
laws.
3.5 Not Registered. The Purchaser
understands that the Shares are not registered under the
Securities Act or applicable state securities laws and
such securities must be held indefinitely, unless the
subsequent disposition thereof is registered under the
Securities Act and applicable state securities laws or
an exemption from such registration is available.
Except as provided in Section 4 hereof, the Company
has not undertaken to register the Shares pursuant
to the Securities Act and, except as provided therein,
will have no obligation to effect on behalf of the
Purchaser any registration under the Securities Act or
to assist the Purchaser in complying with any exemption
from registration under the Securities Act or any state
securities laws.
3.6 Legends. The Purchaser acknowledges
that the certificates representing the Shares, and any
substitutions or replacements thereof, may bear one or
all of the following legends:
(a) "The Shares represented by this
certificate have not been registered under the
Securities Act of l933, as amended, and may not be sold,
hypothecated or otherwise transferred or disposed of in
the absence of such registration, unless an exemption
from the requirement of such registration is available
under the circumstances at the time obtaining and the
Company has received an opinion of counsel satisfactory
to the Company to such effect."
(b) Any legend required by the applicable
securities laws of any state to the extent such laws are
applicable to the certificate so legended.
3.7 Informed Decision; Access to
Information. The Purchaser further represents and
warrants that in order to make an informed decision
in connection with the purchase of the Shares:
(a) The Purchaser has reviewed the merits
and risks of an investment in the Shares with tax and
legal counsel and with an investment advisor to the
extent deemed advisable by the Purchaser;
(b) The Purchaser recognizes that an
investment in the Shares involves a number of significant
risks, including, without limitation, the risks inherent
in oil and natural gas exploration and development, the
Company's limited operating resources, the limited market
in the Company's common stock and other risks described
in the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1999 as filed with the United
States Securities and Exchange Commission. The
Purchaser, or the Purchaser's agent or representative,
has such knowledge and experience in financial and
business matters as to be capable of evaluating the
merits and risks of an investment in the Shares; and
(c) The Purchaser, or the Purchaser's
agent or representative, (i) has been provided with or
been permitted access to sufficient information with
respect to the Company and its business and properties,
including, without limitation, the Company's Annual
Report on Form 10-KSB for the year ended December 31,
1999, the Company's Quarterly Reports on Form 10-QSB,
as amended, for the quarters ended March 31, 2000 and
June 30, 2000 and the Company's Quarterly Report on
Form 10-QSB for the quarter ended September 30, 2000
as filed with the United States Securities and Exchange
Commission; (ii) has been provided with such additional
information with respect to the Company and its business
and properties as the Purchaser or the Purchaser's agent
or representative has requested; and (iii) has had the
opportunity to discuss such information with members of
the management of the Company and any questions that the
Purchaser had with respect thereto have been answered to
the full satisfaction of the Purchaser.
3.8 Independent Advice. The Purchaser is
not relying on the Company with respect to the economic,
tax and other considerations to the Purchaser relating to
this investment. With respect to such considerations, the
Purchaser has relied on the advice of the Purchaser's own
qualified advisors to the extent the Purchaser has deemed
appropriate.
3.9 Suitability. The Purchaser represents
and warrants that the Purchaser is either an "accredited
investor" as that term is defined in Rule 501 promulgated
under the Securities Act or the Purchaser, and its
shareholders, each has substantial knowledge and
experience in the oil and gas industry or in the making
of investments of the type contemplated by this
Agreement.
3.10 No Inconsistent Representations. No
oral or written representations have been made or oral
or written information furnished to the Purchaser or the
Purchaser's advisors in connection with the purchase of
the Shares which were in any way inconsistent with the
information provided to the Purchaser.
3.11 Forward-Looking Statements. The
Purchaser understands and acknowledges that the
contents of any discussions with Company management
and the matters included in any information provided by
the Company to the Purchaser may include
"forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. As
such, those statements involve known and unknown risks
and uncertainties which may cause the actual results in
future periods to be materially different from any future
performance that the Company presently anticipates or
predicts. The Purchaser has been cautioned not to place
undo reliance on any forward-looking statements.
3.12 No Governmental Review. The Purchaser
recognizes that no governmental agency has passed upon
the issuance of the Shares or made any finding or
determination as to the fairness of the transactions
contemplated hereby.
3.13 No General Solicitation. The Purchaser
is not purchasing the Shares as a result of or subsequent
to any advertisement, article, notice or other
communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or
presented at any seminar or meeting, or any solicitation
of a subscription by a person not previously known to the
Purchaser in connection with investments in securities
generally.
4. Registration Rights.
4.1 Definitions. For purposes of this
Section 4, the following terms shall have the following
respective meanings:
(a) "Commission" shall mean the United
States Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
(b) The term "holder or holders of Registrable
Stock" shall mean the holders of Shares issued pursuant to
this Agreement.
(c) The terms "register," "registered" and
"registration" refer to a registration effected by preparing
and filing a registration statement or similar document
in compliance with the Securities Act, and the declaration
or ordering of effectiveness of such registration statement
or document by the Commission.
(d) The term "Registration Period" shall mean
the period commencing on the ninetieth day following the
Closing and ending on the fifth anniversary of such date.
(e) The term "Registrable Stock" means (i)
the Shares issued to the Purchaser pursuant to this
Agreement, and (ii) any common stock of the Company
issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to or
in exchange for or in replacement of, such Common Stock
of the Company; provided, however, that shares of
Registrable Stock shall cease to be Registrable Stock if
they are sold or transferred pursuant to a registered
public offering or other transaction which does not
result in restrictions on resale being imposed on the
transfer by virtue of Federal or state securities laws;
and provided further that Registrable Stock shall cease
to be Registrable Stock if the holder could sell or
transfer all such Registrable Stock held by such holder
in one transaction pursuant to Rule 144 promulgated
under the Securities Act.
(f) "Securities Act" shall mean the United
States Securities Act of 1933, as amended, or any similar
Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect
at the time.
4.2 Demand Registration.
(a) Upon the written request of any holder
or holders ("Initiating Holders") of at least 175,000 shares
(adjusted as provided in Section 4.1) of Registrable Stock
(the "Initiating Number"), which request shall be given
during the Registration Period, shall state the intended
method of disposition by such Initiating Holders and shall
request that the Company effect the registration of all or
part of the Registrable Stock under the Securities Act, the
Company shall promptly give written notice of such requested
registration to all other holders, if any, of Registrable
Stock. If, after the expiration of thirty days from the
mailing of such notice to the holders of Registrable Stock,
the Company shall have received written requests to register
a minimum of 175,000 shares of Registrable Stock (as adjusted
and provided in Section 4.1) which requests shall state the
intended method of disposition of such securities by such
holders, the Company shall use all reasonable efforts to
prepare and file with the Commission a post-effective
amendment to a registration statement, a new registration
statement, if then required, and such other documents,
including an amended or supplemented prospectus, as may
be necessary to permit a public offering and sale of
such Registrable Stock in the United States in
compliance with the provisions of the Securities Act,
all to the extent requisite to permit the disposition
(in accordance with the intended methods thereof as
aforesaid) by the holders of the Registrable Stock
so to be registered. If such sale of Registrable
Stock is to be pursuant to an underwritten offering,
the underwriter shall be selected by the Initiating
Holders and shall be reasonably acceptable to the
Company. If the underwriter selected determines
that the number of shares so to be included is
required to be limited due to market conditions or
otherwise, the holders of Registrable Stock proposing
to sell their shares in such underwritten registration
shall share pro rata (according to the number of shares
requested to be registered) in the number of shares being
underwritten (as determined by such underwriter) and
registered for their account. The Company shall only be
required to effect one registration pursuant to this
Section 4.2.
(b) The Company shall not be required to
effect any registration under this Section 4.2 within nine
months after the completion of any public offering of
its securities pursuant to which the holders of
Registrable Stock were afforded the right to register
as many shares of their Registrable Stock as requested
nor within six months after any other public offering
by the Company.
(c) The Company shall have the right to
include in any registration statement or post-effective
amendment filed pursuant to this Section 4.2 other
securities of the Company then proposed to be
distributed, except that, to the extent consistent
with the rights of other holders of the Company's
securities, if and to the extent that the underwriter
or underwriters acting with respect of such public
offering reasonably determine that the inclusion of
such other securities may substantially prejudice or
hinder the offering of Registrable Stock, the number
of such other securities shall be reduced or eliminated
prior to any reduction in the number of shares of
Registrable Stock so to be registered.
(d) If the registration under this paragraph
(b) is effected on a Form S-3 (or any successor form thereto),
and the effectiveness of such registration statement can
be maintained without significant additional expense to
the Company, then the Company agrees to maintain the
effectiveness of such registration statement for a
period of one year after its initial effective date.
4.3 Incidental Registration.
(a) If, during the Registration Period, the
Company proposes to register shares of Common Stock or
securities convertible into or exercisable for Common
Stock under the Securities Act (other than pursuant to
a registration statement on Form S-4 or S-8 or any
successor form, or filed in connection with an exchange
offer or an offering of securities solely to the existing
shareholders or employees of the Company,) whether for
sale for its own account or for the account of any other
person holding registration rights with respect to the
securities of the Company, then the Company shall give
written notice of such proposed filing to the holders
of Registrable Stock at least twenty days before the
anticipated filing date, and such notice shall offer
the holders of Registrable Stock the opportunity to
register such number of shares of Registrable Stock
as the holders of Registrable Stock may request. The
Company shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten
offering to permit the holders of Registrable Stock to
include such securities in such offering on the same
terms and conditions as any similar securities of the
Company included therein; provided, however, that if
the managing underwriter or underwriters of such offering
delivers an opinion to the holders of Registrable Stock
that the total amount or kind of securities which it or
the Company, and any other persons or entities, intend
to include in such offering is such as to materially
and adversely affect the success of such offering,
then the amount or kind of securities to be offered
for the accounts of each of the holders of Common
Stock or securities convertible into or exercisable
for Common Stock proposed to be registered (other
than the Company and any persons exercising demand
registration rights) shall be reduced or limited in
proportion to their respective values to the extent
necessary to reduce the total amount of securities
to be included in such offering to the amount
recommended by such managing underwriter. For
purposes of this Section 4.3, value shall mean
principal amount with respect to debt securities
and the proposed offering price per share with respect
to equity securities. Notwithstanding the foregoing,
if, at any time after giving written notice of its
intention to register Common Stock or other securities
convertible into or exercisable for Common Stock and
prior to the effectiveness of the registration
statement filed in connection with such registration,
the Company determines for any reason either not to
effect such registration or to delay such registration,
the Company may, at its election, by delivery or written
notice to the holders of Registrable Stock, (i) in the
case of a determination not to effect registration,
relieve itself of its obligations to register any
Registrable Stock in connection with such registration,
or (ii) in the case of determination to delay the
registration, delay the registration of such
Registrable Stock for the same period as the delay in
the registration of such other shares of Common Stock or
other securities convertible into or exercisable for
Common Stock.
4.4 Obligations of the Company. Whenever
required under this Section 4 to effect the registration
of any Registrable Stock, the Company shall, as
expeditiously as is reasonably possible:
(a) Prepare and file with the Commission a
registration statement with respect to such Registrable
Stock and use its best efforts to cause such registration
statement to become effective.
(b) Prepare and file with the Commission
such amendments and supplements to such registration
statement and prospectus used in connection with such
registration statement as may be necessary to comply
with the provisions of the Securities Act with respect
to the disposition of all securities covered by such
registration statements.
(c) Furnish to the holders of Registrable
Stock such numbers of copies of a prospectus, including
a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other
documents as the shareholders may reasonably request
in order to facilitate the disposition of Registrable
Stock owned by the holders of Registrable Stock.
(d) Use its best efforts to register and
qualify the securities covered by such registration
statement under such other securities or blue sky laws
of such United States jurisdictions as shall be reasonably
requested by the holders of Registrable Stock, provided
that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do
business or to file a general consent to service of
process in any such states or jurisdictions. Anything
in this Agreement to the contrary notwithstanding with
respect to the bearing of expenses, if any jurisdiction
in which the securities shall be qualified shall require
that expenses incurred in connection with the
qualification of the securities in that jurisdiction
be borne by selling shareholders, then such expenses
shall be payable by the holder or holders of Registrable
Stock pro rata to the extent required by such
jurisdiction.
(e) In the event of any underwritten
public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering.
The holders of Registrable Stock shall also enter into
and perform their obligations under such an agreement.
(f) Notify the holders of Registrable Stock,
at any time when a prospectus relating to Registrable
Stock covered by such registration statement is required
to be delivered under the Securities Act, of the
happening of any event as a result of which the
prospectus included in such registration statement,
as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances
then existing.
(g) Furnish to the holders of Registrable
Stock, on the date that shares of Registrable Stock are
delivered to the underwriters for sale in connection with
a registration pursuant to this Section 4, if such
securities are being sold by underwriters, or, on the
date that the registration statement with respect to
such securities becomes effective, (i) an opinion, dated
such date, of counsel representing the Company for the
purposes of such registration, in form and substance as
is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any,
and to the holders of Registrable Stock and (ii) a letter
dated such date, from the independent certified public
accountants of the Company, in form and substance as is
customarily given by independent certified public
accountants to underwriters in an underwritten public
offering, addressed to the underwriters, and to the
holders of Registrable Stock.
4.5 Furnish Information. The holders of
Registrable Stock shall furnish to the Company such
reasonable information regarding the holders of
Registrable Stock, the Registrable Stock, and the
intended method of disposition of such securities as
shall be required to effect the registration of
Registrable Stock as to which the holders of Registrable
Stock have requested registration.
4.6 Expenses of Registration. All expenses
incident to the Company's performance of or compliance
with this Section 4 including, without limitation, all
registration and filing fees, fees and expenses of
complying with State securities or blue sky laws, printing
expenses and fees and disbursements of counsel for the
Company and of independent public accountants (including
the expense of any special audit), but excluding
underwriting commissions and discounts and the fees
and disbursements of counsel for the holders of
Registrable Stock, shall be borne by the Company.
The holders of Registrable Stock shall bear their own
pro rata share (calculated according to the number of
their shares as a fraction of the total number of shares
covered by such registration statement) of all underwriting
commissions and discounts incurred in connection with
any offering of Registrable Stock with respect to a
registration pursuant to this Section 4, as well as
their expenses if they have counsel separate from
counsel for the Company.
4.7 Indemnification and Contribution.
In the event any shares of Registrable Stock are included
in a registration statement under Section 4.2 or Section
4.3 hereof:
(a) To the extent permitted by law, the
Company will indemnify and hold harmless the holders of
Registrable Stock, any underwriter (as defined in the
Securities Act), any other person or entity selling
securities in such registration statement, and each
director and officer of, and person, if any, who
controls such underwriter or such other person or
entity within the meaning of the Securities Act or
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any losses, claims, damages,
or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated
therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act,
any state securities law or any rule or regulations
promulgated under the Securities Act, the Exchange
Act or any state securities law; provided, however,
that the indemnity agreement contained in this subsection
(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the
Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly
for use in connection with such registration by, or which
results from the bad faith or gross negligence of, the
holder or holders of Registrable Stock, any underwriter
for holder or holders of Registrable Stock or controlling
person of the holder or holders of Registrable Stock.
(b) To the extent permitted by law, the
holder or holders of Registrable Stock will indemnify and
hold harmless the Company, each of its directors, each of
its officers who have signed the registration statement,
each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, any other
person or entity selling securities in such registration
statement, and each director and officer of, and person,
if any, who controls such underwriter or such other person
or entity, against any losses, claims, damages or
liabilities (joint or several) to which the Company or
any such director, officer, controlling person, or
underwriter or controlling person, or such other person
or entity or director, officer or controlling person may
become subject, under the Securities Act, the Exchange
Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only
to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished
by the holder or holders of Registrable Stock expressly
for use in connection with such registration or results
from the bad faith or gross negligence of the holder or
holders of Registrable Stock, or any underwriter for the
holder or holders of Registrable Stock; provided, however,
that the indemnity agreement contained in this subsection
shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement
is effected without the consent of the holder or holders
of Registrable Stock, which consent shall not be
unreasonably withheld.
(c) Promptly after receipt by an indemnified
party under this Section 4.7 of notice of the commencement
of any action (including any governmental action), such
indemnified party will deliver to the indemnifying party
a written notice of the commencement thereof and the
indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually
satisfactory to the parties. An indemnified party shall
have the right to retain its own counsel, however, but
the fees and expenses of such counsel shall be at the
expense of the indemnified party, unless (i) the employment
of such counsel has been specifically authorized in writing
by the indemnifying party, (ii) the indemnifying party has
failed timely to assume the defense and employ counsel, or
(iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and
the indemnifying party, and the indemnified party shall
have been advised by such counsel that there may be one
or more legal defenses available to it which are different
from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not have
the right to assume the defense of such action on behalf
of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with
any one such action or separate substantially similar or
related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one
separate firm of attorneys for all indemnified parties).
The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section
4.7, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any
liability that it may have to any indemnified party
otherwise than under this Section 4.7.
(d) If the indemnification provided for in
subsection (a) and (b) of this Section 4.7 is unavailable or
insufficient to hold harmless an indemnified party under such
subsection in respect of any losses, claims, damages or
liabilities or action in respect thereof or referred to
therein, then each indemnifying party shall in lieu of
indemnifying such indemnified party contribute to the
amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or
actions in such proportion as is appropriate to reflect
the relative fault of the Company, on the one hand, and
the holder or holders of Registrable Stock, on the other,
in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities
or actions as well as any other relevant equitable
considerations, including the failure to give the notice
required under such subsections. The relative fault
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the
Company on the one hand, or the holder or holders of
Registrable Stock, on the other hand, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and the holder or holders of
Registrable Stock agree that it would not be just and
equitable if contribution pursuant to this Section 4.7(d)
were determined by pro rata allocation or by any other
method of allocation which did not take account of the
equitable considerations referred to above in this
subsection. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f)
of the Securities Act), shall be entitled to
contribution from any person who is not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company and the
holder or holders of Registrable Stock under this Section
4.7 shall survive the completion of any offering of
Registrable Stock in a registration statement under
this Section 4.
4.8 Successors and Assigns. The agreements
of the Company in this Section 4 shall inure to the benefit
of and be enforceable by any holder of holders at the time
of any Registrable Stock, whether so expressed or not,
provided that the termination of registration rights in
respect of any shares of Registrable Stock by reason of
the operation of Section 4.2 or otherwise shall be binding
upon any transferee of such shares, and, in the event such
termination applies to only a portion of the shares of
Registrable Stock at the time held by any holder thereof,
in the absence of contrary agreement between such holder
and any transferee of such shares, upon the transfer of
less than all of the shares by such holder after such
termination, such termination shall apply pro rata to
the shares so transferred and the shares retained by
such holder, or any subsequent transferee. Upon the
request of any such holder, the Company will confirm
in writing to any transferee of such holder's Registrable
Stock the Company's continuing obligation to afford such
transferee the benefits of the Company's agreements
contained in this Section 4, but no failure of the
Company to confirm such obligations shall in any way
impair such transferee's rights under this Section 4.
4.9 Amendment. Anything herein to the
contrary notwithstanding, the provisions of this Section
4 may be amended by an instrument in writing signed by
the Company and the holders of not less than 50% of the
Registrable Stock.
5. Miscellaneous.
5.1 Further Assurances. Each party agrees
to cooperate fully with the other parties and to execute
such further instruments, documents and agreements and to
give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the
purchase and sale of the Shares and to carry into effect
the intents and purposes of this Agreement.
5.2 Transfer; Successors and Assigns. The
terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party
other than the parties hereto or their respective
successors and assigns any right, remedies, obligations,
or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
5.3 Governing Law. This Agreement shall
be governed by and construed under the laws of the
State of Oklahoma without giving effect to its conflict
of law principles.
5.4 Counterparts; Effectiveness. This
Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.
5.5 Titles and Subtitles. The titles and
subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or
interpreting this Agreement.
5.6 Notices. Any notice required or
permitted under this Agreement shall be given in writing
and shall be deemed effectively given upon personal
delivery to the party to be notified, upon delivery by
a nationally recognized overnight courier service, or
upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and
addressed (i) if to the Company, to the offices of
the Company at First Place Tower, Suite 4000, ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and (ii)
if to Purchaser, to the address set forth on the
signature page hereto, or, in each case, at such other
address as such party may designate by written notice.
5.7 Amendments and Waivers. Other than
as provided in Section 4 hereof, neither this Agreement
nor any of its provisions shall be waived, modified,
discharged or terminated except by an instrument in
writing signed by the party against whom any such
waiver, modification, discharge or termination is sought.
5.8 Severability. If one or more
provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement
shall be interpreted as if such provision were so excluded
and shall be enforceable in accordance with its terms.
5.9 Entire Agreement. This Agreement
constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and
supercedes any all other written or oral agreements
existing between the parties hereto relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first above written.
COMPANY:
AMERICOMM RESOURCES
CORPORATION,
a Delaware corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇▇▇, Chairman
and
Chief Executive Officer
PURCHASER:
EMPIRE PETROLEUM CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
Address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
