Exhibit 10.2
SERIES B PURCHASE AGREEMENT
THIS SERIES B PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 30th day of January, 2004, by and between GLOBAL ENERGY GROUP, INC.
(the "Company"), a Delaware corporation, and GLOBAL ENERGY ACQUISITION GROUP,
L.L.C. ("GEAG"), an Oklahoma limited liability company. Reference is made to
that certain Series B Purchase Agreement dated on or about January 9, 2004 (the
"Prior Agreement") between the parties to this Agreement. This Agreement
supersedes and replaces the Prior Agreement. The Prior Agreement is hereby
terminated and of no further force or effect.
BACKGROUND INFORMATION
The Company needs additional capital to support its operations and
desires GEAG to provide such capital in the form of an equity investment in the
Company. GEAG is willing to provide such investment in the Company in the form
of purchases of shares of the Company's 6% Redeemable Preferred Stock, Series B
("Series B Preferred").
ARTICLE I
SERIES B PURCHASES
Section 1.1. Old Money Purchase.
(a) The parties acknowledge that GEAG has made and may continue to
make certain loans ("Old Loans") to the Company with respect to which GEAG has
been and may be issued promissory notes ("Old Notes") and stock purchase
warrants ("Old Warrants"). The parties agree that, as of the date hereof, the
aggregate amount owed by the Company to Purchaser with respect to the Old Loans
is $562,573.04 ($552,500.00 principal amount plus $10,073.04 accrued interest)
and the number of shares of Common Stock covered by the Old Warrants is
4,420,000.
(b) On the earliest practicable date (the "Effective Date") on or
after the first date as of which the Certificate of Designation for the Series B
Preferred has been filed with the Secretary of State of the State of Delaware,
GEAG shall purchase, and the Company shall issue and sell to GEAG, at a price of
$1.00 per share, a number of shares of Series B Preferred equal to the aggregate
number of dollars (rounded to the nearest whole dollar) then owed to GEAG under
and with respect to all Old Notes, including accrued but unpaid interest. The
purchase price for such shares shall be paid by delivery for cancellation of all
Old Notes, such notes to be valued for these purposes at the amount owing
thereunder, including accrued but unpaid interest, and the number of shares of
Series B Preferred issued and sold under this paragraph shall be the maximum
number of shares that can be purchased in exchange for the Old Notes valued as
provided above. In connection with such purchases, the Old Warrants will remain
outstanding and unaffected. Of the shares purchased pursuant to this Section
1.1, the number of shares with an aggregate purchase price equal to the
outstanding principal balance of the Old Notes shall be referred to as the
"Principal Shares," and the remaining shares shall be referred to as the
"Interest Shares."
Section 1.2. New Money Purchases.
(a) On or before the date ten (10) days after the Effective Date,
at such specific times as are reasonably agreed upon by GEAG and the Company,
GEAG shall purchase from the Company not less than 500,000 shares of Series B
Preferred, including all Principal Shares (but not including Interest Shares)
purchased pursuant to Section 1.1. The proceeds to the Company from all
purchases pursuant to Section 1.1 (including the Interest Shares) shall be used
for the expenses referred to in paragraph (b) below and to repay accrued but
unpaid obligations of the Company, as well as for working capital and other
general business purposes.
(b) Subject to paragraph (d) below, during each of the first
eighteen months during which this Agreement is in effect, GEAG shall purchase
from the Company, and the Company shall issue and sell to GEAG, a number of
shares of Series B Preferred that shall provide net proceeds the Company,
including any proceeds to the Company from the Old Loans and from purchases of
Series B Preferred pursuant to the preceding paragraph (a), an amount not less
than the sum of all the following (but not to exceed $2,500,000 in the
aggregate):
(i) The Company's normal operating costs and expenses for
the month;
(ii) Royalty payments payable by the Company and its
subsidiaries for the month;
(iii) The Company's obligations for the month with respect
to management and consulting services;
(iv) Required debt service for secured and unsecured
obligations of the Company;
(v) Pay all dividends and all redemption prices required
to be paid on, for or with respect to shares of
Series B Preferred and/or shares of the Company's 6%
Redeemable Preferred Stock, Series A ("Series A
Preferred"); and
(vi) Compensation previously deferred by employees of the
Company.
(c) Between the Effective Date and the date eighteen months
thereafter, inclusive, at such specific times as are reasonably agreed upon by
GEAG and the Company, GEAG shall purchase from the Company, and the Company
shall issue and sell to GEAG, including all shares purchased pursuant to Section
1.1 and the preceding paragraphs (a) and (b), not less than 2,500,000 shares of
Series B Preferred plus the number of Interest Shares.
(d) Notwithstanding anything to the contrary, GEAG shall not be
obligated under this Agreement to purchase from the Company, in the aggregate,
more than 2,500,000 shares of Series B Preferred plus the number of Interest
Shares.
(e) Upon the occurrence of any Material Adverse Condition (as
defined below), if such Material Adverse Condition continues unabated for a
period of thirty (30) days or more, GEAG shall have the right and option, upon
written notice to the Company, to terminate its
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obligation to make any further purchases of Series B Preferred hereunder. For
the purposes of this Agreement, "Material Adverse Condition" means any
condition, change, development, circumstance, event or effect, or any two or
more thereof, that, individually or in the aggregate, have had, or are
reasonably likely to have, a materially adverse change in the business, assets,
liabilities, prospects, results of operations or financial condition of the
Company and its subsidiaries, taken as a whole; provided, however, that none of
the following shall be deemed to constitute or to have resulted in a Material
Adverse Condition: (a) any level of or change in the market price or trading
volume of the capital stock of the Company after the date hereof, (b) the
suspension of trading in the Company's securities, (c) any condition, change,
development, circumstance, event or effect arising from or relating to (1) any
matter actually known to GEAG or its representatives as of the date hereof, (2)
any matter within the reasonable control of GEAG, its representatives or
affiliates, or its nominees to the Company's Board of Directors, (3) general
business or economic conditions, (4) the industries in which the Company
operates, unless materially and disproportionately affecting the Company
(relative to other similar companies), (5) this Agreement or any action or
transaction contemplated hereby, (6) any change in U.S. generally accepted
accounting principles ("GAAP") which the Company is required to adopt, or (7)
the availability (or non) or cost of financing.
Section 1.3. Optional Additional Purchases. At its option, at any time and
from time to time after GEAG has purchased from the Company all shares of Series
B Preferred referred to in Sections 1.1 and 1.2 and before September 15, 2008,
GEAG may make one or more additional purchases of Series B Preferred from the
Company, the aggregate amount of which shall not exceed 2,000,000 shares. The
purchase price for each share of Series B Preferred purchased pursuant to this
Section 1.3 shall be $1.00, payable in cash at the time of such purchase.
Section 1.4. Share Certificates. With respect to each purchase of shares
pursuant to this Agreement, GEAG shall be entitled to receive a certificate, in
the form approved by the Company's Board of Directors, representing such shares,
each such certificate to be issued at or promptly after the closing of the
related purchase (each a "Closing").
Section 1.5. New Warrants.
(a) As additional consideration for each purchase of Principal
Shares (but not Interest Shares) pursuant to Section 1.1, and as an inducement
to GEAG to make or cause to be made each such purchase, at the Closing for each
such purchase, the Company shall execute and deliver to GEAG a warrant ("New
Warrant") in the form of Exhibit B, which New Warrant shall cover a number of
shares ("New Warrant Shares") of the Company's common stock, par value $.001 per
share ("Common Stock"), equal to two (2) times the number of shares then being
purchased by GEAG.
(b) As additional consideration for each purchase of shares
pursuant to Section 1.2 or 1.3, and as an inducement to GEAG to make or cause to
be made each such purchase, at the Closing for each such purchase, the Company
shall execute and deliver to GEAG a New Warrant, which New Warrant shall cover a
number of New Warrant Shares equal to ten (10) times the number of shares then
being purchased by GEAG.
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Section 1.6. Use of Proceeds. The Company and GEAG shall cause the Company
to use and apply the proceeds of purchases hereunder for the benefit of the
Company and its shareholders, in support of the Company's business, including
but not limited to capital improvements, acquisition of machinery and equipment,
working capital and other general business purposes.
ARTICLE II
COMPANY REPRESENTATIONS AND WARRANTIES
The Company does hereby represent and warrant to GEAG as follows:
Section 2.1. Organization. The Company is duly organized, validly existing
and in good standing under the laws of the State of Delaware, has all requisite
corporate power to own, lease and operate its properties and to carry on its
business as now being conducted.
Section 2.2. Authority; No Conflict; Required Filings and Consents.
(a) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by the Company have been
duly authorized by all necessary corporate action on the part of the Company.
This Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (the "Bankruptcy and Equity Exception").
(b) Except as has been disclosed by the Company or its
representatives to GEAG prior to execution of this Agreement, the execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby and thereby will not, (i) conflict with, or result in any
violation or breach of, the Certificate of Incorporation or Bylaws of the
Company, (ii) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
material benefit) under, or require a consent or waiver under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, loan,
credit agreement, contract or other agreement, instrument or obligation to which
the Company is a party or by which the Company or any of its properties or
assets may be bound, or (iii) conflict with, violate, or cause the termination
of any instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Company or
any of its properties or assets, except, in the case of (ii) and (iii), for any
such conflicts, violations, defaults, terminations, cancellations or
accelerations which are not, individually or in the aggregate, reasonably likely
to have a material adverse effect on the Company or its assets, financial
condition, results of operations, and prospects (a "Material Adverse Effect").
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality ("Governmental
Entity") is required by or with respect to the Company in connection with the
execution and delivery of this Agreement or the consummation of the
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transactions contemplated hereby except for such consents, authorizations,
filings, approvals and registrations which, if not obtained or made, would not
be reasonably likely to have a Material Adverse Effect.
Section 2.3. SEC Filings; Financial Statements.
(a) During the last twelve months, and except to the extent that
the failure to do so would not be reasonably likely to have a Material Adverse
Effect, the Company has filed all forms, reports, registration statements,
prospectuses, schedules, statements and documents, including the exhibits
thereto, required to be filed by the Company with the U. S. Securities and
Exchange Commission ("SEC") under the Securities Act or the Exchange Act,
including without limitation the Exchange Act Filings (these forms, reports,
registration statements, prospectuses, schedules, statements and documents,
including the exhibits thereto, are referred to collectively as "Company SEC
Reports"). Each Company SEC Report (i) at the time filed complied in all
material respects with the applicable requirements of the Securities Act and the
Exchange Act, as the case may be, and (ii) did not at the time filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated in such Company SEC Report or
necessary in order to make the statements in such Company SEC Report, in the
light of the circumstances under which they were made, not misleading. The
Company shall be deemed for all purposes to have disclosed to GEAG, a reasonable
period of time prior to the execution of this Agreement, all information
contained in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in
each case, any related notes) contained in the Company SEC Reports, as of the
date of the applicable Company SEC Report (collectively, the "Company SEC
Financial Statements") complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, were
prepared in accordance with U.S. generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes to such financial statements or in the Company SEC
Reports or, in the case of unaudited interim financial statements, as permitted
by Form 10-QSB of the SEC) and fairly presented the consolidated financial
position of the Company and its subsidiaries as of the dates and the
consolidated results of its operations and cash flows for the periods indicated.
Section 2.4. Capital Structure. The authorized capital stock of the Company
is as set forth in the Company SEC Reports. As of the date of execution of this
Agreement by the Company, (1) 13,800,707 shares of Common Stock are issued and
outstanding, (2) all such issued and outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and nonassessable, (3) there are issued
and outstanding options and warrants to purchase up to an additional 10,922,158
shares of Common Stock, and (4) no other shares of capital stock of the Company
(or rights to purchase any such capital stock) are outstanding. The shares of
Series B Preferred to be issued under this Agreement, when issued pursuant to
the terms of this Agreement, and the shares of Series A Preferred to be issued
to those certain Series A Purchase Agreements of even date herewith, when issued
pursuant to the terms of such agreements, will be duly authorized, validly
issued, fully paid and nonassessable.
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Section 2.5. No Undisclosed Liabilities. Except as has been disclosed to
GEAG in prior to execution of this Agreement, and except for normal or recurring
liabilities incurred since the date of the financial statements included in the
Company's most recent quarterly report on Form 10-QSB filed with the SEC, the
Company does not have any liabilities, either accrued, contingent or otherwise
(whether or not required to be reflected in financial statements in accordance
with GAAP), and whether due or to become due, which individually or in the
aggregate, have had or will have a Material Adverse Effect.
Section 2.6. Absence of Certain Changes or Events. Except as disclosed in
the Company SEC Reports that have been filed and are publicly available prior to
the date hereof, since the date of the financial statements included in the
Company's most recent quarterly report on Form 10-QSB filed with the SEC, the
Company has conducted its business only in the ordinary course and in a manner
consistent with recent past practice and, since such date, there has not been
(i) any change in the financial condition, results of operations, business,
prospects, assets or properties of the Company and its subsidiaries, taken as a
whole, that has had, or will have, a Material Adverse Effect; (ii) any damage,
destruction or loss (whether or not covered by insurance) with respect to the
Company or any of its subsidiaries that has had, or will have, a Material
Adverse Effect; (iii) any material change by the Company in its accounting
methods, principles or practices; or (iv) any revaluation by the Company of any
of its assets or liabilities that has had, or will have, a Material Adverse
Effect.
ARTICLE III
GEAG REPRESENTATIONS AND WARRANTIES
GEAG does hereby represent and warrant to the Company as follows:
Section 3.1. Organization. GEAG is duly organized, validly existing and in
good standing under the laws of the State of Oklahoma.
Section 3.2. Authority; No Conflict; Required Filings and Consents.
(a) GEAG has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by GEAG have been duly
authorized by all necessary action on the part of GEAG. This Agreement has been
duly executed and delivered by GEAG and constitutes the valid and binding
obligation of GEAG, enforceable against GEAG in accordance with its terms,
subject to the Bankruptcy and Equity Exception.
(b) Except as has been disclosed by GEAG or its representatives to
the Company prior to execution of this Agreement, the execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and thereby will not, (i) conflict with, or result in any violation or
breach of, the organizational documents of GEAG, (ii) result in any violation or
breach of, or constitute (with or without notice or lapse of time, or both) a
default (or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any material benefit) under, or require a consent or
waiver under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, loan, credit agreement, contract or other
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agreement, instrument or obligation to which GEAG is a party or by which GEAG or
any of its properties or assets may be bound, or (hi) conflict with, violate, or
cause the termination of any instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to GEAG or any of its properties or assets, except, in the case of (ii) and
(iii), for any such conflicts, violations, defaults, terminations, cancellations
or accelerations which are not, individually or in the aggregate, material.
(c) No material consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to GEAG in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
Section 3.3. Investor Matters. The securities to be received by GEAG will
be acquired for investment for GEAG's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof GEAG has
no present intention of selling or otherwise distributing, and does not have any
contract, undertaking, agreement or arrangement with any person with respect to
any sale or other transfer of, any such securities. GEAG and/or its controlling
persons are investors in securities of companies in the development stage, and
GEAG acknowledges that it is able to protect its own interests, can bear the
economic risk of the loss of its entire investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Company and the securities being
purchased hereunder. GEAG has received all documents and information desired by
it in connection with an investment in the Company, has had ample opportunity to
ask questions of and receive answers from management of the Company, and has
otherwise performed its due diligence investigation of the Company.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Severability. If any term or other provision of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal or incapable
of being enforced in any particular. respect or under any particular
circumstance, such term or provision shall nevertheless remain in full force and
effect in all other respects and under all other circumstances, and all other
terms, conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner, to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
Section 4.2. Waiver. The failure of any party to insist upon strict
performance of any of the terms or conditions of this Agreement will not
constitute a waiver of any of its rights hereunder.
Section 4.3. Binding Agreements; No Third Party Beneficiaries; No
Assignability. Each of the provisions and agreements herein contained shall be
binding upon and inure to the benefit of the respective parties hereto, as well
as their successors, but no statement contained herein is
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intended to confer upon any person or entity, other than the parties hereto and
their successors in interest and permitted assignees, any rights or remedies
under or by reason of this Agreement unless so stated to the contrary. No right
under this Agreement shall be assignable nor any duty delegable by any party,
except as expressly authorized in this Agreement, without the prior consent of
each other party.
Section 4.4. Counterparts. This Agreement may be executed in any number of
counterparts, by means of multiple signature pages each containing less than all
required signatures, and by means of facsimile signatures, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Section 4.5. Construction. As used herein, unless the context otherwise
requires: (i) references to "Article" or "Section" are to an article or section
hereof; (ii) all references to "Exhibits" are to Exhibits attached hereto and
are incorporated herein by reference and made a part hereof; (iii) "include",
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
(iv) the headings of the various articles, sections and other subdivisions
hereof are for convenience of reference only and are in no way intended to, and
shall not be deemed to, describe, interpret, define, modify or limit the scope,
extent or intent of this Agreement or any of the terms or provisions of this
Agreement; and (v) words of gender used herein may be read as masculine,
feminine, or neuter, as required by context, and words of number may be read as
singular or plural, as similarly required.
Section 4.6. Modification. Any modification or waiver of any provision of
this Agreement, or any consent to any departure by any party from the terms
hereof, shall not be effective in any event unless the same is in writing and
signed by all the parties hereto, and then such modification, waiver or consent
shall be effective only in the specific instance and for the specific purpose
given. Any notice to or demand on any party hereto in any event not specifically
required hereunder shall not entitle the party receiving such notice or demand
to any other or further notice or demand in the same, similar or other
circumstances unless specifically required hereunder.
Section 4.7. Further Assurances. Each party to this Agreement promptly will
execute and deliver such further instruments and agreements and do such further
acts and things as may be reasonably requested in writing by any other party
hereto that may be necessary or desirable in order to effect fully the purposes
of this Agreement.
Section 4.8. Notices. Unless otherwise specifically provided herein, any
notice delivered under this Agreement shall be in writing addressed to the
respective party at the address on file with the Company and may be personally
served, telecopied or sent by overnight courier service and shall be deemed to
have been given (a) if delivered in person, when delivered; (b) if delivered by
telecopy, on the date of transmission if transmitted on a business day before
4:00 p.m. (Tampa, Florida time) or, if not, on the next succeeding business day;
or (c) if delivered by overnight courier, one business day after delivery to
such courier properly addressed. Notice to any party shall be addressed to such
party at the address on file with the Company, or to such other address as the
party addressed shall have previously designated by written "notice to the
serving party, given in accordance with this Section.
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Section 4.9. Applicable Law. This Agreement shall be governed by and shall
be construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to conflicts of law principles.
Section 4.10. Consent to Jurisdiction. Each party consents to the
jurisdiction of any state or federal court sitting in Dallas, Texas. Each party
expressly submits and consents to the jurisdiction of the aforesaid courts and
waives any defense of forum non conveniens. Each party hereby waives personal
service of any and all process and agrees that all such service of process may
be made upon it by certified or registered mail, return receipt requested,
addressed to the parties at their respective addresses set forth in this
Agreement.
Section 4.11. Opportunity to Cure Defaults. Upon any breach of or default
under this Agreement by any party, no action shall be taken with respect thereto
against the breaching or defaulting party unless and until such breach or
default remains uncured thirty (30) days after written notice thereof to the
party in breach or default.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GLOBAL ENERGY GROUP, INC. GLOBAL ENERGY ACQUISITION GROUP,
L.L.C.
By: _______________________ By: ______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:
Its: EVP and CFO Its:
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EXHIBIT A
FORM OF CERTIFICATE OF DESIGNATION
[REMOVE THIS PAGE AND INSERT COPY OF
SERIES B CERTIFICATE OF DESIGNATION.]
EXHIBIT B
FORM OF STOCK PURCHASE WARRANT
[REMOVE THIS PAGE AND INSERT COPY OF
STOCK PURCHASE WARRANT FOR SERIES B PURCHASERS.]