Exhibit 10.4
SUBSCRIPTION AGREEMENT
__________________________
THE SHARES OF COMMON STOCK REFERRED TO HEREIN HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE
SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE
DISPOSED OF UNTIL THE HOLDER THEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR
OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
This Subscription Agreement (this "Agreement") is made and entered into by
and between Xxxxxx Exploration Company, a Delaware corporation (the
"Corporation"), and the undersigned (the "Purchaser") who is subscribing hereby
for 370,370 shares (the "Shares") of the Corporation's common stock, par value
$.01 per share (the "Common Stock").
In consideration of the Corporation's agreement to sell the Preferred
Shares to the Purchaser, upon the terms and conditions set forth herein, the
Purchaser agrees and represents and warrants to the Corporation as follows:
A. Subscription.
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1. The Purchaser hereby subscribes for the Shares and for the total dollar
amount (the "Purchase Price") set forth on the signature page below, which
Purchase Price shall be payable in cash by check or by wire transfer (or by such
other form of cash payment as the Corporation desires to accept).
2. The Purchaser understands, acknowledges, and agrees that:
a. In reliance upon applicable exemptions, the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder or any state securities
laws and the rules and regulations thereunder.
b. No federal or state agency has made any finding or determination
as to the fairness of this Offering for investment or any recommendation or
endorsement of the Shares.
c. Since the Shares have not been registered under the Securities Act
or applicable state securities laws, the economic risk of the investment
must be borne
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indefinitely by the Purchaser, and the Shares cannot be sold,
pledged, hypothecated, or otherwise transferred unless subsequently
registered under the Securities Act and such laws, or an exemption from
such registration is available, and there is compliance with the
requirements of this Agreement; such registration under the Securities Act
and such laws is unlikely at any time in the future; and the Corporation is
not obligated to file a notification under Regulation A of the Securities
Act or a registration statement under the Securities Act or any state
securities laws.
d. No assignment, sale, pledge, hypothecation, transfer, exchange, or
other disposition, or offer, of the Shares can be made without the prior
written approval of the Corporation. No transfer will be permitted by the
Corporation, which, in the view of the Corporation, would jeopardize the
Corporation's compliance with federal or state securities laws.
e. The Shares are speculative investments which involve a high degree
of risk of loss by the Purchaser.
f. Due to the high degree of risk of loss, Shares only may be sold to
persons who understand the nature of the Corporation and who are
"Accredited Investors" (as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act).
B. Representations, Warranties, and Agreements.
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1. The Purchaser hereby represents, warrants, and agrees that:
a. The Purchaser is acquiring the Shares for his own account for
investment, and not with a view to distribution, resale, subdivision, or
fractionalization thereof; and the undersigned has no present plans to
enter into any contract, undertaking, agreement, or arrangement for
distribution, resale, subdivision, or fractionalization of any of the
Shares. In order to induce the Corporation to issue and sell the Shares
subscribed for hereby to the undersigned, it is agreed that the Corporation
will have no obligation to recognize the ownership, beneficial or
otherwise, of the Shares comprising such Shares by anyone but the
undersigned.
b. (i) The Purchaser can bear the economic risk of losing his entire
investment; (ii) his overall commitment to investments which are not
readily marketable is not disproportionate to his net worth, and his
investment in the Shares will not cause such overall commitment to become
excessive; (iii) he has adequate means of providing for his current needs
and personal contingencies and has no need for liquidity in his investment
in the Shares; and (iv) he has such knowledge and experience in financial
and business matters that he is capable of evaluating the risks and merits
of this investment.
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c. The Purchaser has carefully read or reviewed and is familiar with
the Corporation's (i) Annual Report on Form 10-K for the year ended
December 31, 1999 (the "10-K") and (ii) Quarterly Report on Form 10-Q for
the three months ended March 31, 2000. The Corporation has made available
to the Purchaser and/or his attorney and/or his accountant all agreements,
documents, records, and books that he or they have requested relating to an
investment in the Corporation. The Purchaser and/or his attorney and/or
his accountant all have had an opportunity to ask questions of and receive
answers from the Corporation, or a person or persons acting on its behalf,
concerning the terms and conditions of this investment, and answers have
been provided to all of his or their questions concerning an investment in
the Corporation. In evaluating the suitability of an investment in the
Corporation, the Purchaser has not been furnished and has not relied upon
any representations or other information (whether oral or written) other
than as contained in any documents, information, or answers to questions so
furnished to him by the Corporation.
d. The Purchaser recognizes that investment in the Corporation
involves certain risks, and he has taken full cognizance of and understands
all of the risk factors related to the purchase of the Shares, including,
but not limited to, those set forth under the caption "Risk Factors" in the
10-K.
e. The Purchaser has discussed with his professional legal, tax, and
financial advisors the suitability of the investment in the Corporation for
his particular tax and financial situation. All information which the
Purchaser has provided to the Corporation concerning himself and his
financial position is correct and complete as of the date set forth below,
and, if there should be any material change in such information prior to
the acceptance of the Purchaser's subscription and the sale of the Shares,
he will immediately provide such information to the Corporation.
f. If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust, pension plan, estate, or other entity, (i)
the person signing this Agreement on behalf of such entity has been duly
authorized to execute and deliver this Agreement and all other instruments
executed and delivered on behalf of such partnership, corporation, trust,
pension plan, estate, or other entity in connection with the purchase of
the Shares; (ii) the signature of the person signing this Agreement is
binding upon such partnership, corporation, trust, pension plan, estate, or
other entity; and (iii) the Purchaser was not organized for the specific
purpose of acquiring the Shares.
g. The address set forth below is the Purchaser's true and correct
residence or principal place of business, and the Purchaser has no present
intention of becoming a resident of any other state or jurisdiction or
moving its principal place of business.
h. The undersigned Purchaser is an "Accredited Investor" (as defined
in Rule 501(a) of Regulation D promulgated under the Securities Act).
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i. The undersigned understands and agrees, and acknowledges that it
has been disclosed to him, that the following restrictions and limitations
are applicable to the undersigned's purchase and resales, pledges,
hypothecations, or other transfers of the Shares, and, therefore, that the
undersigned must bear the economic risk of investment in the Shares for an
indefinite period of time as described in subparagraph A. 4. h.:
(i) The Shares have not been registered, as described in
subparagraph A. 4. f. above and, therefore, cannot be sold, pledged,
hypothecated, or otherwise transferred unless they are registered
under the Securities Act and applicable state securities laws, or an
exemption from such registration is available.
(ii) A legend has been placed on the certificates representing the
Shares in substantially the following form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR
SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER,
SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION WILL NOT VIOLATE
APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
(iii) Stop transfer instructions have been or will be placed with
respect to the Shares so as to restrict the resale, pledge,
hypothecation, or other transfer thereof.
(iv) The legend and stop transfer instructions described in
subparagraphs (ii) and (iii) above will be placed with respect to any
new certificate issued upon presentment by the undersigned of a
certificate for transfer for so long as such legend and instructions
are deemed advisable by the Corporation.
j. It has never been represented, guaranteed or warranted to the
undersigned by the Corporation, its agents or employees, or any other
person, expressly or by implication, any of the following:
(i) The appropriate or exact length of time that the undersigned
will be required to remain as owner of the undersigned's Shares.
OR
--
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(ii) The percentage of profit and/or amount or type of
consideration, profit, or loss (including tax writeoffs and/or tax
benefits) to be realized, if any, as a result of this investment.
k. If the undersigned Purchaser is an individual, initial below:
----- (i) The net worth (i. e., total assets minus total
Initial if liabilities) at the date hereof of the undersigned, or joint
Applicable net worth with the undersigned's spouse, exceeds $ 1,000,000.
OR
--
----- (ii) The undersigned had individual income (not including
Initial if spouse's income) in excess of $200,000 in each of the two
Applicable most recent years or joint income with spouse in excess of
$300,000 in each of those years and reasonably expects to
reach the same income level in the current year.
The undersigned's United States social security number is ---_____________.
l. If the undersigned Purchaser is an entity, initial below:
----- (i) Each of the equity owners of the undersigned is an
Initial if individual and satisfies at least one of the tests set forth
Applicable in subparagraphs (k)(i) or (k)(ii) above. (If this item has
been initialed, have each of such equity owners execute and
furnish a Certificate of Financial Position in the form of
Schedule 1 hereto).
OR
--
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----- (ii) The entity is an organization described in section
Initial if 501(C)(3) of the Internal Revenue Code of 1986, as amended,
Applicable corporation, a Massachusetts or similar business trust, or a
partnership, not formed for the specific purpose of acquiring
the Shares, with total assets in excess of $5,000,000.
The undersigned's United States employer identification number is
____________________. The undersigned's place of incorporation or organization
is ___________________.
2. The foregoing representations and warranties are true and accurate as
of the date hereof and shall be true and accurate as of the date of the
acceptance hereof by the Corporation and the sale of the Shares to the
Purchaser. If in any respect such representations and warranties shall not be
true and accurate prior thereto, the Purchaser will give written notice of such
fact to the Corporation specifying which representations and warranties are not
true and accurate and the reasons therefor.
C. Miscellaneous.
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1. All pronouns and any variations thereof used herein shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural as the identity of
the person or persons may require.
2. Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or when
sent by registered or certified mail, return receipt requested, (i) if to the
Purchaser, at the address set forth on the signature page hereof, and (ii) if to
the Corporation, at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, as
either of such addresses may be changed from time to time by notice given in
accordance with this paragraph.
3. Failure of the Corporation to exercise any right or remedy under this
Agreement or any other agreement between the Corporation and the Purchaser, or
otherwise, or delay by the Corporation in exercising same, will not operate as a
waiver thereof. No waiver by the Corporation will be effective unless and until
it is in writing and signed by the Corporation.
4. This Agreement shall be enforced, governed, and construed in all
respects in accordance with the laws of the State of Delaware. This Agreement
and the rights, powers, and duties set forth herein shall be binding upon the
Purchaser, his heirs, estate, legal representatives, successors, and assigns and
shall inure to the benefit of the Corporation, its successors, and assigns. In
the event that any
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provision of this Agreement is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof
which may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof.
5. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may be amended only by a
writing executed by all parties.
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_________________
Subscription Agreement
SIGNATURE PAGE
IN WITNESS WHEREOF, the Purchaser has executed this Agreement as of the
11th day of July, 2000.
Number of Preferred Shares Ecco Investments, L.L.C.
subscribed for at ------------------------------------
$1.35 per Share: Print name(s) of Purchaser(s)
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370,370
Total Purchase Price: By:
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Signature(s) of
$499,999.50 ------------------------------------
------------------------------------
Xxxxxx X. Xxxxx, Member
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Print title of person signing, if
signing as an authorized
representative of Purchaser
Make check payable to the order of: Address of Purchaser's residence or
Xxxxxx Exploration Company principal place of business (Please
print or type):
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------------------------------------
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___ Individual Ownership ___ Trust
___ Separate Property ___ Corporation
___ Community Property ___ Pension Plan
___ Joint Tenancy(1) ___ Estate
___ Tenancy in Common(1)(2) X Other (please
___
indicate L.L.C.
______
----------------------
(1) Each person involved is be required to be an "Accredited Investor."
(2) Both husband and wife must sign.
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Subscription for 370,370 Shares at $1.35 per Share, for a total of $499,999.50,
accepted as of July 11, 2000.
XXXXXX EXPLORATION COMPANY
By: _______________________
Name:_______________________
Title:______________________
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INDIVIDUAL, JOINT
OR PARTNER ACKNOWLEDGMENT
STATE OF _______________________
COUNTY OF ______________________
The undersigned Notary Public does hereby certify that on this _____ day of
_______________, 2000, personally appeared _________________________* known to
me to be the person whose name is subscribed to the foregoing instrument, who,
being by me duly sworn, declared and acknowledged to me that the same was his
free act and deed and that he executed and delivered same for the purposes and
consideration therein expressed and in the capacity therein stated, and that the
statements therein contained are true.
-----------------------------
Notary Public
My Commission Expires:
-------
----------
* Insert name of individual or joint tenant or partner executing on behalf of
partnership.
ACKNOWLEDGMENT BY HUSBAND AND WIFE AS TENANTS IN COMMON
STATE OF _______________________
COUNTY OF ______________________
The undersigned Notary Public does hereby certify that on this _____ day of
________________, 2000, personally appeared __________________________ and
_________________________* known to me to be the persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, declared
and acknowledged to me that the same were their free acts and deeds and that
they executed and delivered such instrument for the purposes and consideration
therein expressed and in the capacity therein stated, and that the statements
contained therein are true.
-----------------------------
Notary Public
My Commission Expires:
-------
----------
* Insert names of husband and wife.
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LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF _______________________
COUNTY OF ______________________
On this 11th day of July, 2000, before me appeared Xxxxxx X. Xxxxx to me
personally known, who, being by me duly sworn, declared and acknowledged to me
that he is a member of Ecco Investments, L.L.C. and that the foregoing
instrument was executed and delivered on behalf of said limited liability
company by authority of the members and said Xxxxxx X. Xxxxx acknowledged said
instrument to be the free act and deed of said limited liability company, and
that the statements therein contained are true.
-----------------------------
Notary Public
My Commission Expires:
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TRUST, PENSION PLAN, OR ESTATE ACKNOWLEDGMENT
STATE OF _______________________
COUNTY OF ______________________
On this _____ day of ________________, 2000, before me appeared
__________________________* to me personally known, who, being by me duly sworn,
declared and acknowledged to me that he is the Trustee, Administrator, or
Executor of the _________________________** and that the foregoing instrument
was executed and delivered on behalf of said Trust, Pension Plan, or Estate by
authority of its Trustee, Administrator, or Executor and said
__________________________* acknowledged said instrument to be the free act and
deed of said Trust, Pension Plan, or Estate, and that the statements therein
contained are true.
-----------------------------
Notary Public
My Commission Expires:
-------
----------
* Insert name of Trustee, Administrator, or Executor.
** Insert name of Trust, Pension Plan, or Estate.
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SCHEDULE 1
CERTIFICATE OF FINANCIAL POSITION
This Certificate of Financial Position is provided by the undersigned pursuant
to subparagraph B.1.1.(i) of the Subscription Agreement (the "Subscription
Agreement") executed by the Purchaser named below relating to a subscription for
Xxxxxx Exploration Company, a Delaware corporation (the "Corporation").
The undersigned represents and warrants to the Corporation that:
----- (i) The net worth (i.e., total assets minus total liabilities)
Initial if at the date hereof of the undersigned, or joint net worth with
Applicable the undersigned's spouse, exceeds $1,000,000. The undersigned
undertakes to inform the Corporation immediately if such net
worth is less than $1,000,000 prior to the acceptance by the
Corporation of the Purchaser's subscription.
OR
--
----- (ii) The undersigned had individual income (not including
Initial if spouse's income) in excess of $200,000 in each of the two most
Applicable recent years or joint income with spouse in excess of $300,000
in each of those years and reasonably expects to reach the same
income level in the current year. The undersigned undertakes
to inform the Corporation immediately if this representation
and warranty becomes untrue prior to the acceptance by the
Corporation of the Purchaser's subscription.
Dated:
-----
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(Signature)
Name:
------------------------
(Please Print)
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Relationship to Purchaser
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Name of Purchaser
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