STOCK PURCHASE AGREEMENT Dated as of August 29, 2005 by and between HARKEN ENERGY CORPORATION and ALEXANDRA GLOBAL MASTER FUND LTD. SERIES J CONVERTIBLE PREFERRED STOCK
Exhibit
Number 10.1
Dated
as of August 29, 2005
by
and between
HARKEN
ENERGY CORPORATION
and
ALEXANDRA
GLOBAL MASTER FUND LTD.
__________________________________
SERIES
J CONVERTIBLE PREFERRED STOCK
HARKEN
ENERGY CORPORATION
SERIES
J CONVERTIBLE PREFERRED STOCK
TABLE
OF CONTENTS
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Page
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| 1. Definitions |
3
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| 2. Purchase and Sale; Purchase Price |
4
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(a)
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Purchase
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4
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(b)
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Form
of Payment
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4
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(c)
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Closing
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5
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| 3. Representations, Warranties, Covenants, etc. of the Holder |
5
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(a)
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5
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| 4. Representations, Warranties, Covenants, etc. of the Company |
5
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(a)
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Corporate
Authorization
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5
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(b)
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Non-contravention.
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5
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(c)
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Approvals,
Filings, Etc.
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6
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| 5. Certain Waiver |
6
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| 6. Conditions to the Company’s Obligation to Purchase |
6
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| 7. Conditions to the Holder’s Obligation to Sell |
7
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| 8. Miscellaneous |
7
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(a)
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Governing
Law
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7
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(b)
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Headings
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7
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(c)
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Severablity
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(d)
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Notices
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7
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(e)
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Counterparts
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8
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(f)
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Entire
Agreement; Benefit
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8
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(g)
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Waiver
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8
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(h)
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Amendment
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8
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(i)
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Further
Assurances
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8
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(j)
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Expenses
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9
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(k)
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Survival
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9
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(l)
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Construction
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9
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2
THIS
STOCK PURCHASE AGREEMENT,
dated as
of August 29, 2005 (this “Agreement”), by and between HARKEN
ENERGY CORPORATION,
a
Delaware corporation, (the “Company”), and ALEXANDRA
GLOBAL MASTER FUND LTD.,
a
British Virgin Islands international business company (the
“Holder”).
W I T N E S S E T H:
WHEREAS,
the
Holder is the holder of 50,000 shares of the Preferred Stock (such capitalized
term and all other capitalized terms used in this Agreement having the meanings
provided in Section 1); and
WHEREAS,
the
Company wishes to purchase from the Holder and the Holder wishes to sell to
the
Company, upon the terms and subject to the conditions of this Agreement, 50,000
Preferred Shares for the Purchase Price.
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. Definitions.
(a) As
used
in this Agreement, the terms “Agreement”, “Company” and “Holder” shall have the
respective meanings assigned to such terms in the introductory paragraph of
this
Agreement.
(b) All
the
agreements or instruments herein defined shall mean such agreements or
instruments as the same may from time to time be supplemented or amended or
the
terms thereof waived or modified to the extent permitted by, and in accordance
with, the terms thereof and of this Agreement.
(c) The
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
“Certificate
of Designations” means the Company’s Certificate of Designations of Series J
Convertible Preferred Stock as filed with the Secretary of State of the State
of
Delaware on April 28, 2004.
“Claim”
means any loss, claim, damage, liability or expense (joint or several), incurred
by a Person.
“Closing
Date” means 12:00 noon, New York City time, on August 31, 2005 or such other
time or date mutually agreed by the Company and the Holder.
“Common
Stock” means the Common Stock, par value $0.01 per share, of the
Company.
“Indemnified
Person” means the Holder and its investment adviser and their respective
directors, officers, and members and each Person, if any, who controls the
Holder or its investment adviser within the meaning of the Securities Act of
1933, as amended, or the Securities Exchange Act of 1934 Act, as
amended.
3
“Optional
Redemption Event” shall have the meaning provided in the Certificate of
Designations.
“Person”
means any natural person, corporation, partnership, limited liability company,
trust, incorporated organization, unincorporated association, or similar entity
or any government, governmental agency or political subdivision.
“Preferred
Shares” means the shares of Preferred Stock owned by the Holder.
“Preferred
Stock” means the Company’s Series J Convertible Preferred Stock, par value $1.00
per share.
“Purchase
Price” means $5,000,000.00.
“Registration
Event” shall have the meaning provided in the Subscription
Agreement.
“Subscription
Agreement” shall have the meaning provided in the Certificate of
Designations.
“Subsidiary”
means any corporation or other entity of which a majority of the capital stock
or other ownership interests having ordinary voting power to elect a majority
of
the board of directors or other persons performing similar functions are at
the
time directly or indirectly owned by the Company.
“Transaction
Documents” shall have the meaning provided in the Certificate of
Designations.
2. Purchase
and Sale; Purchase Price.
(a) Purchase.
Upon
the
terms and subject to the conditions of this Agreement, the Company hereby agrees
to purchase from the Holder, and the Holder hereby agrees to sell to the
Company, on the Closing Date, 50,000 Preferred Shares for the Purchase Price,
free and clear of all liens, claims and encumbrances.
(b) Form
of Payment. Payment
by the Company of the Purchase Price to the Holder on the Closing Date shall
be
made by wire transfer of immediately available funds to:
ABA
Number 000-000-000
SWIFT
Address XXXXXX0X
CHIPS
Member Number 001
TELEX
Addresses: 62763 BONYUW and 232241 ITNYUR
For
credit to the account of Credit Suisse First Boston (Europe) Ltd.
(XXXXXX0X)
Account
Number 000-0000-000
For
further credit to the account of Alexandra 04V5
4
(c) Closing.
The
purchase of the Preferred Shares shall occur on the Closing Date at the Law
Offices of Xxxxx X Xxxxx, Penthouse Suite, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx. At the closing, upon the terms and subject to the conditions of this
Agreement, the Holder shall deliver to the Company one or more certificates
for
the Preferred Shares to be purchased, duly endorsed for transfer or accompanied
stock powers, against payment by the Company to the Holder of an amount equal
to
the Purchase Price, and the Company shall pay to the Holder an amount equal
to
the Purchase Price against delivery by the Holder to the Company of the one
or
more certificates for the Preferred Shares to be purchased, duly endorsed for
transfer or accompanied stock powers.
3. Representations,
Warranties, Covenants, etc. of the Holder.
The
Holder represents and warrants to, and covenants and agrees with, the Company
as
follows:
(a) Stock
Purchase Agreement. The
Holder has all requisite power and authority, corporate or otherwise, to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; and this Agreement has been
duly and validly authorized and duly executed and delivered by the Holder and,
assuming due execution and delivery by the Company, is a valid and binding
agreement of the Holder enforceable in accordance with its terms, except as
the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to or affecting creditors’ rights generally and general
principles of equity, regardless of whether enforcement is considered in a
proceeding in equity or at law.
(b)
Title to the Preferred Shares. The Holder has good and marketable
record and beneficial ownership of the Preferred Shares, free and clear of
all
liens, claims and encumbrances.
(c)
Holder's Knowledge. The Holder has had access to such information, or
opportunity to ask such questions, as it has deemed necessary with respect
to
the value of the Preferred Shares (it being acknowledged that the Holder is
not
relying upon any representation of warranty by the Company with respect to
such
matters of value that accordingly no such representations or warranties are
made
4. Representations,
Warranties, Covenants, etc. of the Company.
The
Company represents and warrants to, and covenants and agrees with, the Holder
as
follows:
(a) Corporate
Authorization. This
Agreement has been duly and validly authorized by the Company; this Agreement
has been duly executed and delivered by the Company and, assuming due execution
and delivery by the Holder, this Agreement is the legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except
as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now
or
hereafter in effect relating to or affecting creditors’ rights generally and
general principles of equity, regardless of whether enforcement is considered
in
a proceeding in equity or at law.
(b) Non-contravention.
The
execution and delivery of this Agreement by the Company and the consummation
by
the Company of the transactions contemplated hereby do not and will not, with
or
without the giving of notice or the lapse of time, or both, (i) result in any
violation of any provision of the certificate of incorporation or by-laws or
similar instruments of the Company or any Subsidiary, (ii) conflict with or
result in a breach by the Company or any Subsidiary of any of the terms or
provisions of, or constitute a default under, or result in the modification
of,
or result in the creation or imposition of any lien, security interest, charge
or encumbrance upon any of the properties or assets of the Company pursuant
to,
any indenture, mortgage, deed of trust or other agreement or instrument to
which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or any of their respective properties or assets are bound or affected
which would have a material adverse effect on the business, properties,
operations, condition (financial or other), results of operations or prospects
of the Company and the Subsidiaries, taken as a whole, (iii) violate or
contravene any 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 Subsidiary or any of their respective properties or assets which
would have a material adverse effect on the business, properties, operations,
condition (financial or other), results of operations or prospects of the
Company and the Subsidiaries, taken as a whole, or (iv) have any material
adverse effect on any permit, certification, registration, approval, consent,
license or franchise necessary for the Company or any Subsidiary to own or
lease
and operate any of its properties and to conduct any of its business or the
ability of the Company or any Subsidiary to make use thereof.
5
(c) Approvals,
Filings, Etc. No
authorization, approval or consent of, or filing with, 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 or made
by
the Company or any Subsidiary in connection with the execution, delivery and
performance of this Agreement by the Company.
5. Certain
Waiver.
(a) Waiver.
Effective upon the closing on the Closing Date, the Holder hereby waives its
right to partial liquidated damages under Section 8(a)(2) of the Subscription
Agreement, and any interest thereon, which right arose from a Registration
Event
consisting of the event or circumstance described in clause (ii) of the
definition of the term Registration Event with respect to the Company’s
Registration Statement on Form S-3 (Registration No. 333-115939). The Holder
further represents that it has not assigned to any third party any interest
in
such claim to partial liquidated damages.
6. Conditions
to the Company’s Obligation to Purchase.
The
Company’s obligations to purchase the Preferred Shares from the Holder on the
Closing Date as provided in Section 2(a) and to pay the Purchase Price to the
Holder is conditioned upon satisfaction of the following conditions precedent
on
or before the Closing Date (any or all of which may be waived by the Company
in
its sole discretion):
(a) On
the
Closing Date, no legal action, suit or proceeding shall be pending or threatened
which seeks to restrain or prohibit the transactions contemplated by this
Agreement; and
(b) The
representations and warranties of the Holder contained in this Agreement shall
have been true and correct on the date of this Agreement and on the Closing
Date
as if made on the Closing Date and on or before the Closing Date the Holder
shall have performed all covenants and agreements of the Holder required to
be
performed by the Holder on or before the Closing Date.
6
7. Conditions
to the Holder’s Obligation to Sell.
The
Holder’s obligation to sell the Preferred Shares to the Company on the Closing
Date as provided in Section 2(a) is conditioned upon satisfaction of the
following conditions precedent on or before the Closing Date (any or all of
which may be waived by the Holder in its sole discretion):
(1)
On the
Closing Date, no legal action, suit or proceeding shall be pending or threatened
which seeks to restrain or prohibit the transactions contemplated by this
Agreement;
(2) The
representations and warranties of the Company contained in this Agreement shall
have been true and correct on the date of this Agreement and shall be true
and
correct on the Closing Date as if given on and as of the Closing Date and on
or
before the Closing Date the Company shall have performed all covenants and
agreements of the Company contained herein required to be performed by the
Company on or before the Closing Date; and
(3) No
event
which would constitute an Optional Redemption Event or, with the giving of
notice or the passage of time, or both, would constitute an Optional Redemption
Event shall have occurred and be continuing.
8. Miscellaneous.
(a) Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
(b) Headings.
The
headings, captions and footers of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(c) Severablity. 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.
(d) Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be in writing and shall be sent by mail, personal delivery, by telephone
line facsimile transmission or courier and shall be effective five days after
being placed in the mail, if mailed, or upon receipt, if delivered personally,
by telephone line facsimile transmission or by courier, in each case addressed
to a party at such party’s address (or telephone line facsimile transmission
number) shown in the introductory paragraph or on the signature page of this
Agreement or such other address (or telephone line facsimile transmission
number) as a party shall have provided by notice to the other party in
accordance with this provision. In
the
case of any notice to the Company, such notice shall be addressed to the Company
at the following address: 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx, 00000.
Attention: General Counsel (telephone line facsimile transmission number (000)
000-0000), and in the case of any notice to the Holder, addressed to the Holder
at the following address: c/o Alexandra Investment Management, LLC, 000 Xxxxx
Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Chief Investment Officer (telephone line
facsimile transmission number (000) 000-0000).
7
(e) Counterparts.
This
Agreement may be executed in counterparts and by the parties hereto on separate
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. A telephone line
facsimile transmission of this Agreement bearing a signature on behalf of a
party hereto shall be legal and binding on such party.
(f) Entire
Agreement; Benefit. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and sets forth the terms agreed to by
the
parties on the date hereof. There are no restrictions, promises, warranties,
or
undertakings, other than those set forth or referred to herein and therein.
This
Agreement supersedes all prior agreements and understandings, whether written
or
oral, between the parties hereto with respect to the subject matter hereof.
This
Agreement and the terms and provisions hereof are for the sole benefit of only
the Company, the Holder and their respective successors and permitted assigns
and in no event shall the Holder have any liability to any stockholder or
creditor of the Company or any other Person (other than the Company) in any
way
relating to or arising from this Agreement or the transactions contemplated
hereby. Except as expressly modified hereby, the Transaction Documents shall
remain in full force and effect.
(g) Waiver.
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, or course of dealing
between the parties, shall not operate as a waiver thereof or an amendment
hereof, nor shall any single or partial exercise of any such right or power,
or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or exercise of any other right
or
power.
(h) Amendment.
No
amendment, modification, waiver, discharge or termination of any provision
of
this Agreement nor consent to any departure by the Holder or the Company
therefrom shall in any event be effective unless the same shall be in writing
and signed by the party to be charged with enforcement, and then shall be
effective only in the specific instance and for the purpose for which given.
No
course of dealing between the parties hereto shall operate as an amendment
of
this Agreement.
(i) Further
Assurances. Each
party to this Agreement will perform any and all acts and execute any and all
documents as may be necessary and proper under the circumstances in order to
accomplish the intents and purposes of this Agreement and to carry out its
provisions.
8
(j) Expenses.
Each
of
the Company and the Holder shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
(k) Survival.
The
respective representations, warranties, covenants and agreements of the Company
and the Holder contained in this Agreement and the documents delivered in
connection with this Agreement shall survive the execution and delivery of
this
Agreement and the closing hereunder and delivery of and payment for the
Preferred Shares, and shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Holder or any Person
controlling or acting on behalf of the Holder or by the Company or any Person
controlling or acting on behalf of the Company.
(l) Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
[Signature
Page Follows]
9
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed by their respective
officers or other representatives thereunto duly authorized as of the date
first
set forth above.
| HARKEN ENERGY CORPORATION | ||
| |
|
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| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President
|
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| ALEXANDRA GLOBAL MASTER FUND LTD. | ||
| |
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| By: |
ALEXANDRA
INVESTMENT
MANAGEMENT, LLC, its Investment
Advisor
|
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Chairman and Chief Executive
Officer
|
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10
