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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of June 3,
1998, by and among CityView Energy Corporation Limited, an Australian
corporation, with headquarters located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ (the "COMPANY"), and the investor listed on the Schedule of
Buyers attached hereto (individually, a "BUYER" or collectively "Buyers").
WHEREAS:
A. The Company and the Buyers are executing and delivering this
Agreement in reliance upon the exemption from securities registration pursuant
to Australian Securities laws, Section 4(2) and/or Regulation D of the
Securities Act of 1933, as amended (the "1933 ACT"),
B. The Company is offering for sale to the Buyer 6% Convertible
Debentures (the "Debentures") of the Company, due on June 3, 2000, up to an
aggregate principal amount of $5,000,000. The terms of the Debentures, including
the terms on which the Debentures may be converted into the ordinary shares of
the Company (the "Conversion Shares" or "Common Stock") are set forth in the
Debenture, in substantially the form attached as Exhibit "A" hereto.
C. The Buyer wishes to purchase, upon the terms and conditions stated
in this Agreement, an aggregate principal amount of up to $5,000,000 of
Debentures in the respective amounts set forth opposite each Buyer's name on the
Schedule of Buyers;
D. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
substantially in the form attached hereto as Exhibit "B" (the "REGISTRATION
RIGHTS AGREEMENT") pursuant to which the Company has agreed to provide certain
registration rights under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws; and
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF DEBENTURES.
a. Purchase of Debentures. Subject to the satisfaction (or
waiver) of the conditions set forth in Sections 6 and 7 below, the
Company shall issue and sell to the Buyers and the Buyers shall
purchase from the Company an aggregate principal amount of U.S.
$1,000,000 Debentures, in the respective amounts set forth opposite
each Buyer's name on the Schedule of Buyers (the "CLOSING").
b. Closing Date. The date and time of the Closing (the
"Closing Date") shall be 10:00 a.m. Eastern Standard Time, within
five (5) business days following the date hereof, subject to
notification of satisfaction (or waiver) of the conditions to the
Closing set forth in Sections 6 and 7 below (or such later date as is
mutually agreed to by the Company and the
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Buyer). The Closing shall occur on the Closing Date at the offices of
AIBC Investment Services Corporation, Suite 4047, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
c. Form of Payment. On the Closing Date, (i) each Buyer shall
pay the Purchase Price to the Company for the Debentures to be issued
and sold to such Buyer at the Closing, by wire transfer of
immediately available funds in accordance with the Company's written
wire instructions, and (ii) the Company shall deliver to each Buyer,
certificates representing such Debentures which such Buyer is then
purchasing (as indicated opposite such Buyer's name on the Schedule
of Buyers), duly executed on behalf of the Company and registered in
the name of such Buyer or its designee (the "CERTIFICATES").
2. BUYER'S REPRESENTATIONS AND WARRANTEES.
Each Buyer represents and warrants with respect to only
itself that:
a. Investment Purpose. Such Buyer is acquiring the
Debentures, and upon conversion of the Debentures will acquire the
Conversion Shares then issuable, for its own account for investment
only and not with a view towards, or for resale in connection with,
the public sale or distribution thereof, except pursuant to sales
registered or exempted under the 1933 Act; provided, however, that by
making the representations herein, such Buyer does not agree to hold
any Debentures or Conversion Shares for any minimum or other specific
term and reserves the right to dispose of Debentures or Conversion
Shares at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act.
b. Accredited Investor Status. Such Buyer is an "accredited
investor" as that term is defined in Rule 501(a)(3) of Regulation D
("Regulation D") as promulgated by the United States Securities and
Exchange Commission (the "SEC"). Buyer is not a resident of Australia
and the offering of Debentures is not made in Australia.
c. Reliance on Exemptions. Such Buyer understands that the
Debentures and the Conversion Shares are being offered and sold to it
in reliance on specific exemptions from the registration requirements
of the United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and such
Buyer's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Buyer set forth herein in
order to determine the availability of such exemptions and the
eligibility of such Buyer to acquire such securities.
d. Information. Such Buyer and its advisors, if any, have
been furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer and
sale of the Debentures and the Conversion Shares, which have been
requested by such Buyer. Such Buyer and its advisors, if any, have
been afforded the opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its
representatives shall modify, amend or affect such Buyer's right to
rely on the Company's representations and
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warranties contained in Section 3 below. Such Buyer understands that
its investment in the Debentures and the Conversion Shares involves a
high degree of risk. Such Buyer has sought such accounting, legal and
tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Debentures
and the Conversion Shares.
e. No Governmental Review. Such Buyer understands that no
Australian or United States federal or state agency or any other
government or governmental agency has passed on or made any
recommendation or endorsement of the Debentures and the Conversion
Shares, or the fairness or suitability of the investment in the
Debentures and the Conversion Shares, nor have such authorities
passed upon or endorsed the merits of the offering of the Debentures
and the Conversion Shares.
f. Transfer or Resale. Such Buyer understands that except as
provided in the Registration Rights Agreement: (i) the Debentures and
the Conversion Shares have not been and are not being registered
under the 1933 Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (a)
subsequently registered thereunder, (b) such Buyer shall have
delivered to the Company an opinion of counsel, in a legally
acceptable form, to the effect that such securities to be sold,
assigned or transferred may be sold, assigned or transferred pursuant
to an exemption from such registration, or (c) such Buyer provides
the Company with reasonable assurance that such securities can be
sold, assigned or transferred pursuant to Rule 144 promulgated under
the 1933 Act (or a successor rule thereto); (ii) any sale of such
securities made in reliance on Rule 144 promulgated under the 1933
Act (or a successor rule thereto) ("RULE 144") may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any resale of such securities under circumstances in
which the seller (or the person through whom the sale is made) may be
deemed to be an underwriter (as that term is defined in the ▇▇▇▇ ▇▇▇)
may require compliance with some other exemption under the 1933 Act
or the rules and regulations of the SEC thereunder; and (iii) neither
the Company nor any other person is under any obligation to register
such securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder.
g. Legends. Such Buyer understands that the certificates or
other instruments representing the Debentures and, until such time as
the sale of the Conversion Shares have been registered under the 1933
Act as contemplated by the Registration Rights Agreement, the stock
certificates representing the Conversion Shares shall bear a
restrictive legend in substantially the following form (and a
stoptransfer order may be placed against transfer of such stock
certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD,
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TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A LEGALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE COMMON STOCK INTO WHICH THE SECURITIES
EVIDENCED IN THIS CERTIFICATE ARE CONVERTIBLE ARE ALSO
SUBJECT TO A REGISTRATION RIGHTS AGREEMENT.
The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of the
Debentures and the Conversion Shares, upon which it is stamped, if,
unless otherwise required by state securities laws, (i) the sale of
the Conversion Shares is registered under the 1933 Act, (ii) in
connection with a sale transaction, such holder provides the Company
with an opinion of counsel, in a generally acceptable form, to the
effect that a public sale, assignment or transfer of the Debentures
and the Conversion Shares may be made without registration under the
1933 Act, or (iii) such holder provides the Company with reasonable
assurances that the Debentures and the Conversion Shares can be sold
pursuant to Rule 144 without any restriction as to the number of
securities acquired as of a particular date that can then be
immediately sold.
h. Authorization, Enforcement. This Agreement has been duly
and validly authorized, executed and delivered on behalf of such
Buyer and is a valid and binding agreement of such Buyer enforceable
in accordance with its terms, subject as enforceability to general
principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
i. Residency. Such Buyer, if a natural person, is a resident
of that state and country specified in its address on the Schedule of
Buyers. Buyer is not a resident of Australia and the offering of
Debentures is not made in Australia.
3 . REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers
that:
a. Organization and Qualification. The Company and its
subsidiaries are corporations duly organized and validly existing in
good standing under the laws of the jurisdiction in which they are
incorporated, and have the requisite corporate power to own their
properties and to carry on their business as now being conducted. The
Company is a public limited Company possessing perpetual corporate
existence and the capacity to ▇▇▇ or
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be sued in its own name. Each of the Company and its subsidiaries is
duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
b. Authorization, Enforcement, Compliance with Other
Instruments. (i) The Company has the requisite corporate power and
authority to enter into and perform this Agreement, the Debenture,
the Registration Rights Agreement and any related agreements, and to
issue the Debentures and the Conversion Shares in accordance with the
terms hereof and thereof, (ii) the execution and delivery of this
Agreement, the Registration Rights Agreement and any related
agreements by the Company and the consummation by it of the
transactions contemplated hereby and thereby, including without
limitation the issuance of the Debentures and the reservation for
issuance and the issuance of the Conversion Shares issuable upon
conversion or exercise thereof, have been duly authorized by the
Company's Board of Directors and no further consent or authorization
is required by the Company, its Board of Directors or its
stockholders, (iii) this Agreement, the Debenture, and the
Registration Rights Agreement and any related agreements have been
duly executed and delivered by the Company, and (iv) this Agreement,
the Debenture, the Registration Rights Agreement and any related
agreements constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of creditors' rights and
remedies.
c. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 20,000,000 ordinary shares
of which, as of the date hereof, of which 12,607,068 shares were
issued and outstanding, and no preference shares or other classes of
stock were issued and outstanding. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. Except
as disclosed in Schedule 3(c), no shares of Common Stock or preferred
stock are subject to preemptive rights or any other similar rights or
any liens or encumbrances suffered or permitted by the Company.
Except as disclosed in Schedule 3(c), as of the effective date of
this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its subsidiaries, or
contracts, commitments, understandings or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its
subsidiaries or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of
the Company or any of its subsidiaries, (ii) there are no outstanding
debt securities and (iii) there are no agreements or arrangements
under which the Company or any of its subsidiaries is obligated to
register the sale of any of their securities under the 1933 Act
(except the Registration Rights Agreement). There are no securities
or instruments containing anti-dilution or similar provisions that
will
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be triggered by the issuance of the Debentures or the Conversion
Shares as described in this Agreement. The Company has furnished to
the Buyer true and correct copies of the Company's Articles of
Association, as amended and as in effect on the date hereof (the
"Articles of Association"), and the Company's By-laws, as in effect
on the date hereof (the "By-laws"), and the terms of all securities
convertible into or exercisable for Common Stock and the material
rights of the holders thereof in respect thereto.
d. Issuance of Securities. The Debentures are duly authorized
and, upon issuance in accordance with the terms hereof, shall be (i)
validly issued, fully paid and nonassessable, are free from all
taxes, liens and charges with respect to the issue thereof and are
entitled to the rights and preferences set forth in the Debentures.
The Conversion Shares issuable upon conversion of the Debentures have
been duly authorized and reserved for issuance. Upon conversion or
exercise in accordance with the Debentures, the Conversion Shares
will be validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of
Common Stock.
e. No Conflicts. Except as disclosed in Schedule 3(e), the
execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a violation of the Articles of
Association or By-laws or (ii) conflict with or constitute a default
(or an event which with notice or lapse of time or both would become
a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement,
indenture or instrument to which the Company or any of its
subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including Australian or United
States federal and state securities laws and regulations and the
rules and regulations of the principal market or exchange on which
the Common Stock is traded or listed) applicable to the Company or
any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries is bound or affected. Except as
disclosed in Schedule 3(e), neither the Company nor its subsidiaries
is in violation of any term of or in default under its Articles of
Association or Bylaws or their organizational charter or by-laws,
respectively, or any material contract, agreement, mortgage,
indebtedness, indenture, instrument, judgment, decree or order or any
statute, rule or regulation applicable to the Company or its
subsidiaries. The business of the Company and its subsidiaries is not
being conducted, and shall not be conducted in violation of any law,
ordinance or regulation of any governmental entity. Except as
specifically contemplated by this Agreement and as required under the
1933 Act and any applicable United States securities laws, the
Company is not required to obtain any consent, authorization or order
of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform
any of its obligations under or contemplated by this Agreement or the
Registration Rights Agreement in accordance with the terms hereof or
thereof. Except as disclosed in Schedule 3(e), all consents,
authorizations, orders, filings and registrations which the Company
is required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the date
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hereof. The Company and its subsidiaries are unaware that any facts
or circumstances have occurred or exist which might reasonably be
expected to give rise to any of the foregoing.
f. SEC Documents: Financial Statements. Since December
1996, the Company had filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC as a
foreign private issuer pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "1934 ACT") (all of
the foregoing filed prior to the date hereof and all exhibits
included therein and financial statements and schedules thereto and
documents incorporated by reference therein, being hereinafter
referred to as the "SEC DOCUMENTS"). As of their respective dates,
the SEC Documents complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of
the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. As of their respective dates,
the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may
be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of
its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the
Company to the Buyer which is not included in the SEC Documents,
including, without limitation information referred to in Section 2(d)
of this Agreement, contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which they
are or were made, not misleading.
g. Absence of Certain Changes. Except as disclosed in
Schedule 3(g) and in the SEC documents, since January 1, 1996, there
has been no material adverse change and no material adverse
development in the business, properties, operations, financial
condition, results of operations or prospects of the Company or its
subsidiaries. The Company has not taken any steps, and does not
currently expect to take any steps, to seek protection pursuant to
any bankruptcy law nor does the Company or its subsidiaries have any
knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy proceedings.
h. Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
subsidiaries, threatened against or affecting the Company, the Common
Stock or any of the Company's subsidiaries, wherein an unfavorable
decision, ruling or finding would (i) have a material adverse effect
on the transactions contemplated hereby (ii) adversely affect the
validity or
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enforceability of, or the authority or ability of the Company to
perform its obligations under, this Agreement or any of the documents
contemplated herein or (iii), except as expressly set forth in the
SEC Documents or in Schedule 3(h), have a material adverse effect on
the business, operations, properties, financial condition or results
of operation of the Company and its subsidiaries taken as a whole.
i. Acknowledgment Regarding Buyer's Purchase of Debentures.
The Company acknowledges and agrees that the Buyer is acting solely
in the capacity of an arm's length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company
further acknowledges that the Buyer is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement and the transactions contemplated hereby
and any advice given by the Buyer or any of their respective
representatives or agents in connection with this Agreement and the
transactions contemplated hereby is merely incidental to such Buyer's
purchase of the Debentures or the Conversion Shares. The Company
further represents to the Buyer that the Company's decision to enter
into this Agreement has been based solely on the independent
evaluation by the Company and its representatives.
j. No Undisclosed Events, Liabilities, Developments or
Circumstances. No known event, liability, development or circumstance
has occurred or exists, or is contemplated to occur, with respect to
the Company or its subsidiaries or their respective business,
properties, prospects, operations or financial condition, which could
be material but which has not been publicly announced or disclosed in
writing to the Buyer.
k. No General Solicitation. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the ▇▇▇▇ ▇▇▇) in connection
with the offer or sale of the Debentures or the Conversion Shares.
l. No Integrated Offering. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that
would require registration of the Debentures or the Conversion Shares
under the 1933 Act or cause this offering of Debentures or the
Conversion Shares to be integrated with prior offerings by the
Company for purposes of the 1933 Act or any applicable stockholder
approval provisions.
m. Employee Relations. Neither the Company nor any of its
subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company or any of its subsidiaries, is any such dispute
threatened. None of the Company's or its subsidiaries' employees is a
member of a union and the Company and its subsidiaries believe that
their relations with their employees are good.
n. Intellectual Property Rights. To the best of the Company's
knowledge, the Company and its subsidiaries own or possess adequate
rights or licenses to use all trademarks,
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trade names, service marks, service ▇▇▇▇ registrations, service
names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights
necessary to conduct their respective businesses as now conducted.
Except as set forth on Schedule 3(n), none of the Company's
trademarks, trade names, service marks, service ▇▇▇▇ registrations,
service names, patents, patent rights, copyrights, inventions,
licenses, approvals, government authorizations, trade secrets or
other intellectual property rights have expired or terminated, or are
expected to expire or terminate in the near future. The Company and
its subsidiaries do not have any knowledge of any infringement by the
Company or its subsidiaries of trademark, trade name rights, patents,
patent rights, copyrights, inventions, licenses, service names,
service marks, service ▇▇▇▇ registrations, trade secret or other
similar rights of others, and except as set forth on Schedule 3(n),
there is no claim, action or proceeding being made or brought
against, or to the Company's knowledge, being threatened against, the
Company or its subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service
marks, service ▇▇▇▇ registrations, trade secret or other
infringement; and the Company and its subsidiaries are unaware of any
facts or circumstances which might give rise to any of the foregoing.
The Company and its subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of
their intellectual properties.
o. Environmental Laws. The Company and its subsidiaries are
(i) in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval.
p. Title. The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in each
case free and clear of all liens, encumbrances and defects except
such as are described in Schedule 3(p) or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries. Any real property and facilities held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries.
q. Insurance. The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the
Company believes to be prudent and customary in the businesses in
which the Company and its subsidiaries are engaged. Neither the
Company nor any such subsidiary has been refused any insurance
coverage sought or applied for and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to
renew its existing
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insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
r. Regulatory Permits. The Company and its subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and neither the
Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit.
s. Internal Accounting Controls. The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
t. No Materially Adverse Contracts, Etc. Neither the Company
nor any of its subsidiaries is subject to any charter, corporate or
other legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Company's officers has or is
expected in the future to have a material adverse effect on the
business, properties, operations, financial condition, results of
operations or prospects of the Company or its subsidiaries. Neither
the Company nor any of its subsidiaries is a party to any contract or
agreement which in the judgment of the Company's officers has or is
expected to have a material adverse effect on the business,
properties, operations, financial condition, results of operations or
prospects of the Company or its subsidiaries.
u. Tax Status. Except as set forth on Schedule 3(u), the
Company and each of its subsidiaries has made or filed all federal
and state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject (unless and only
to the extent that the Company and each of its subsidiaries has set
aside on its books provisions reasonably adequate for the payment of
all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set
aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for
any such claim.
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v. Certain Transactions. Except as set forth on Schedule 3(v)
and in the SEC Documents and except for arm's length transactions
pursuant to which the Company makes payments in the ordinary course
of business upon terms no less favorable than the Company could
obtain from third parties and other than the grant of stock options
disclosed on Schedule 3(c), none of the officers, directors, or
employees of the Company is presently a party to any transaction with
the Company (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any corporation, partnership,
trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director,
trustee or partner.
w. Dilutive Effect. The Company understands and acknowledges
that the number of Conversion Shares issuable upon conversion of the
Debentures will increase in certain circumstances. The Company
further acknowledges that its obligation to issue Conversion Shares
upon conversion of the Debentures in accordance with this Agreement
and the Debentures is absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership
interests of other stockholders of the Company.
x. Fees and Rights of First Refusal. The Company is not
obligated to offer the securities offered hereunder on a right of
first refusal basis or otherwise to any third parties including, but
not limited to, current or former shareholders of the Company,
underwriters, brokers, agents, or other third parties.
y. NASD Listing. The Company has not received any notice from
the National Association of Securities Dealers, Inc. (the "NASD")
indicating that the Company's shares of Common Stock will or may be
eligible for delisting from the NASDAQ SmallCap Market.
z. Since January 1, 1997, the Company raised $0 in Regulation
D and Regulation S transactions of which none remains unconverted.
aa. In the event the Company does not issue its Common Stock
after receipt of a Notice of Conversion because of the NASD 20% Rule,
or any Australian stock exchange rules, then in such event the
Company shall pay to the Buyer 133% of the principal balance
remaining on the Debentures plus all accrued interest. Said amount
shall be paid to the Buyer within five (5) business days of the
receipt of the faxed Notice of Conversion from Buyer.
4. COVENANTS.
a. Best Efforts. Each party shall use its best reasonable
efforts timely to satisfy each of the conditions to be satisfied by
it as provided in Sections 6 and 7 of this Agreement.
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b. Form D. The Company agrees to file a Form D with respect
to the Debentures and the Conversion Shares as required under
Regulation D and to provide a copy thereof to each Buyer promptly
after such filing. The Company shall, on or before the Closing Date,
take such action as the Company shall reasonably determine is
necessary to qualify the Debentures and the Conversion Shares for, or
obtain exemption for the Debentures and the Conversion Shares for,
sale to the Buyers at the Closing pursuant to this Agreement under
applicable securities or "Blue Sky" laws of the states of the United
States, and shall provide evidence of any such action so taken to the
Buyers on or prior to the Closing Date. The Company agrees to timely
provide information or filings requested or required to be filed from
time to time by the Australian Stock Exchange ("ASX") arising from or
relating to this transaction, including, but not limited to, the
immediate listing of the Conversion Shares with the ASX if the Buyer
determined to sell the Conversion Shares on the ASX. Copies of any
such filings to be made shall be sent to the Buyer in advance by
telecopy for its review and prior approval.
c. Reporting Status. Until the earlier of (i) the date as of
which the Investors (as that term is defined in the Registration
Rights Agreement) may sell all of the Conversion Shares without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act
(or successor thereto), or (ii) the date on which (A) the Investors
shall have sold all the Conversion Shares and (B) none of the
Debentures is outstanding (the "Registration Period"), the Company
shall file all reports required to be filed with the SEC pursuant to
the 1934 Act, and the Company shall not terminate its status as an
issuer required to file reports under the 1934 Act even if the 1934
Act or the rules and regulations thereunder would otherwise permit
such termination.
d. Use of Proceeds. The Company will use the proceeds from
the sale of the Debentures for substantially the same purposes and in
substantially the same amounts as indicated in Schedule 4(d).
e. Financial Information. The Company agrees to send the
following to each Buyer who still holds Debentures or Conversion
Shares during the Registration Period: (i) within five (5) days after
the filing thereof with the SEC, a copy of its Annual Reports on Form
20-F, its Reports on Form 6-K, and any registration statements or
amendments filed pursuant to the 1933 Act; (ii) within one (1) day
after release thereof, copies of all press releases issued by the
Company or any of its subsidiaries and (ii) copies of the same
notices and other information given to the stockholders of the
Company generally, contemporaneously with the giving thereof to the
stockholders.
f. [LEFT INTENTIONALLY BLANK]
g. Listings. The Company shall promptly secure the listing of
the Conversion Shares upon the ASX, the NASDAQ SmallCap Market, and
each national securities exchange or automated quotation system, if
any, upon which shares of Common Stock are then listed (subject to
official notice of issuance) and shall maintain, so long as any other
shares of
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Common Stock shall be so listed, such listing of all Conversion
Shares from time to time issuable under the terms of this Agreement
and the Registration Rights Agreement. The Company shall use its best
reasonable efforts to maintain the Common Stock's authorization for
quotation in the NASDAQ SmallCap Market and Australian Stock
Exchange. The Company shall promptly provide to each Buyer copies of
any notices it receives regarding the continued eligibility of the
Common Stock for trading on the NASDAQ Small Cap Market, the ASX, and
or any trading market.
h. Expenses. Each of the Company and the Buyer shall pay all
costs and expenses incurred by such party in connection with the
negotiation, investigation, preparation, execution and delivery of
this Agreement and the Registration Rights Agreement. The costs and
expenses of AIBC Investment Services Corp. and its counsel shall be
paid for by the Company at Closing.
i. Authorized Shares of Common Stock, Reservation of Shares.
The Company shall at all times, so long as any of the Debentures are
outstanding, reserve and keep available out of its authorized and
unissued Common Stock, solely for the purpose of effecting the
conversion of the Debentures, such number of shares of Common Stock
equal to or greater than 150% of the number of shares of Common Stock
for which are issuable upon conversion of all of the then outstanding
Debentures which are then outstanding or which could be issued at any
time under this Agreement or the Debentures.
j. Corporate Existence. So long as any Debentures remain
outstanding, the Company shall not directly or indirectly consummate
any merger, reorganization, restructuring, consolidation, sale of all
or substantially all of the Company's assets or any similar
transaction or related transactions (each such transaction, a "Sale
of the Company") except if the surviving or successor entity in such
transaction (i) expressly assumes, in writing, the Company's
obligations hereunder and under the Registration Rights Agreement,
the Debentures and any other agreements and instruments entered into
or delivered by the Company in connection herewith and (ii) is a
publicly traded corporation whose Common Stock is listed for trading
on the Australian Stock Exchange or the NASDAQ SmallCap Market or
electric bulletin board.
k. Transactions With Affiliates. So long as any Debentures
are outstanding, the Company shall not, and shall cause each of its
subsidiaries not to, enter into, amend, modify or supplement, or
permit any subsidiary to enter into, amend, modify or supplement any
agreement, transaction, commitment, or arrangement with any of its or
any subsidiary's officers, directors, persons who were officers or
directors at any time during the previous two years, stockholders who
beneficially own 5% or more of the Common Stock, or affiliates or
with any individual related by blood, marriage, or adoption to any
such individual or with any entity in which any such entity or
individual owns a 5% or more beneficial interest (each a"RELATED
PARTY"), except for (a) customary employment arrangements and benefit
programs on reasonable terms, (b) any agreement, transaction,
commitment, or arrangement on an arms-length basis on terms no less
favorable than terms which would have been obtainable
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from a person other than such Related Party, (c) any agreement
transaction, commitment, or arrangement which is approved by a
majority of the disinterested directors of the Company. For purposes
hereof, any director who is also an officer of the Company or any
subsidiary of the Company shall not be a disinterested director with
respect to any such agreement, transaction, commitment, or
arrangement. "Affiliate" for purposes hereof means, with respect to
any person or entity, another person or entity that, directly or
indirectly, (i) has a 5% or more equity interest in that person or
entity, (ii) has 5% or more common ownership with that person or
entity, (iii) controls that person or entity, or (iv) shares common
control with that person or entity. "Control" or "controls" for
purposes hereof means that a person or entity has the power, direct
or indirect, to conduct or govern the policies of another person or
entity.
l. Shareholder Approval. The Company's shareholders have
approved at its Annual General Shareholders Meeting on May 6, 1998, a
proposal for ratification and/or approval of the issuance of the
Debentures and the Conversion Shares, as required by the rules of the
NASD, ASX, and other laws, rules, and regulations applicable to the
transaction.
m. Buyer covenants to resell Debentures and Conversion Shares
in compliance with applicable securities laws.
n. The Company agrees immediately upon request from any Buyer
who has elected to receive Conversion Shares tradeable on the ASX to
instruct its Australian transfer agent (currently Corporate Registry
Services Pty. Ltd.) to instruct the U.S. transfer agent to issue a
letter of instructions to cause the U.S. Transfer Agent (currently
American Securities Transfer & Trust, Inc.) to, within five (5)
business days of such request by the Buyer, issue ordinary shares to
such Buyer in an equivalent number subject to the restrictive legend
limitation contained in the Irrevocable Transfer Agent Instructions
described in Section 5 below. In the event that the U.S. transfer
agent does not make delivery of certificates within five (5) business
days of such Buyer's request, then the Company shall pay the Buyer an
amount equal to the penalties calculated in accordance with Section
4(e) of the Debenture.
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall issue irrevocable instructions to each of
its transfer agents, Corporate Registry Services Pty. Ltd. and American
Securities Transfer and Trust, Inc. to issue certificates, registered in the
name of the Buyer or its respective nominee(s), for the Conversion Shares in
such amounts as specified from time to time by the Buyer to the Company upon
conversion of the Debentures (the "Irrevocable Transfer Agent Instructions").
Upon conversion, at the option of the Buyer, the Conversion Shares may be resold
on the Australian Stock Exchange, the NASD SmallCap Market or as otherwise
determined by the Buyer. Prior to registration of the Conversion Shares under
the 1933 Act, all such certificates issued in the U.S. shall bear the
restrictive legend specified in Section 2(g) of this Agreement. The Company
warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 5, and stop transfer instructions to
give effect to Section 2(f) hereof (in the case of the Conversion Shares, prior
to registration of
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such shares under the ▇▇▇▇ ▇▇▇) will be given by the Company to its transfer
agent and that the Debentures and the Conversion Shares shall otherwise be
freely transferable on the books and records of the Company as and to the extent
provided in this Agreement and the Registration Rights Agreement. Nothing in
this Section 5 shall affect in any way the Buyer's obligations and agreement to
comply with all applicable securities laws upon resale of the Debentures or
Conversion Shares. If the Buyer provides the Company with an opinion of counsel,
reasonably satisfactory in form, and substance to the Company, that registration
of a resale by the Buyer of any of the Debentures or Conversion Shares is not
required under the 1933 Act in the case of Conversion Shares to be sold in the
United States, or that registration of a resale by the Buyer of any of the
Debentures or Conversion Shares is not required by the ASX, the Company shall
permit the transfer, and, in the case of the Conversion Shares, promptly
instruct its transfer agents to issue one or more certificates in such name and
in such denominations as specified by the Buyer without a restrictive legend.
The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Buyer by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 5 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 5, that the Buyer shall be entitled,
in addition to all other available remedies, to an injunction restraining any
breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell
the Debentures to the Buyer at the Closing is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion:
a. The Buyer shall have executed this Agreement and the
Registration Rights Agreement and delivered the same to the Company.
b. The Buyer shall have delivered to the Company the
Purchase Price for the Debentures being purchased by the Buyer at the
Closing by wire transfer of immediately available funds pursuant to
the wire instructions provided by the Company.
c. The representations and warranties of the Buyer shall be
true and correct in all material respects as of the date when made
and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and
the Buyer shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the Closing Date.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer hereunder to purchase the
Debentures at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided
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that these conditions are for the Buyer's sole benefit and may be waived by the
Buyer at any time in its sole discretion:
a. The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to the Buyer.
b. The Common Stock shall be authorized for quotation on
the ASX and the NASDAQ SmallCap Market, trading in the Common Stock
shall not have been suspended for any reason.
c. The representations and warranties of the Company shall
be true and correct in all material respects (except to the extent
that any of such representations and warranties is already qualified
as to materiality in Section 3 above, in which case, such
representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall
have performed, satisfied and complied in all material respects with
the covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Company at or
prior to the Closing Date. The Buyer shall have received a
certificate, executed by the Chief Executive Officer of the Company,
dated as of the Closing Date, to the foregoing effect and as to such
other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Closing Date regarding the
representation contained in Section 3(c) above.
d. The Buyer shall have received the opinion of the
Company's Australian and United States counsel dated as of the
Closing Date, in form, scope and substance reasonably satisfactory to
the Buyer and in substantially the form of Exhibit "D" attached
hereto.
e. The Company shall have executed and delivered to the
Buyer the Certificates (in such denominations as the Buyer shall
request) for the Debentures being purchased by the Buyer at the
Closing.
f. The Board of Directors of the Company shall have adopted
the resolutions in substantially the form of Exhibit "E" attached
hereto.
g. As of the Closing Date, the Company shall have reserved
out of its authorized and unissued Common Stock, solely for the
purpose of effecting the conversion of the Debentures, such number of
shares of Common Stock equal to or greater than 150% of the number of
shares of Common Stock for which are issuable upon conversion of all
of the Debentures which could be issued (based upon a conversion
effective as of the day before the Closing Date) under this Agreement
or the Debentures.
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h. The Irrevocable Transfer Agent Instructions, in form and
substance satisfactory to the Buyer, shall have been delivered to and
acknowledged in writing by each of the Company's transfer agents.
i The Company is eligible to utilize Form F-3 to cover the
resale of the Conversion Shares issued upon conversion of the
Debentures in the United States.
j. The Company shall have obtained an irrevocable voting
proxy from Malaysia Mining Corporation, the controlling shareholder
of the Company voting in favor of the issuance of the Debentures and
the Conversion Shares pursuant to Australian Stock Exchange Listing
Rule 7.1 and related transactions contemplated thereby in the Form of
Exhibit "F" attached hereto.
8. INDEMNIFICATION.
In consideration of the Buyer's execution and delivery of
this Agreement and acquiring the Debentures and the Conversion Shares hereunder
and in addition to all of the Company's other obligations under this Agreement,
the Company shall defend, protect, indemnify and hold harmless the Buyer and
each other holder of the Debentures and the Conversion Shares and all of their
officers, directors, employees and agents (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "INDEMNITEES") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys' fees and disbursements (the
"INDEMNIFIED LIABILITIES"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to (a) any misrepresentation or breach
of any representation or warranty made by the Company in this Agreement, the
Debentures or the Registration Rights Agreement or any other certificate,
instrument or document contemplated hereby or thereby, (b) any breach of any
covenant, agreement or obligation of the Company contained in this Agreement,
the Debentures or the Registration Rights Agreement or any other certificate,
instrument or document contemplated hereby or thereby, or (c) any cause of
action, suit or claim brought or made against such Indemnitee by any third party
which arises out of or results from the execution, delivery, performance or
enforcement of this Agreement or any other instrument, document or agreement
executed pursuant hereto by any of the Indemnities, any transaction financed or
to be financed in whole or in part, directly or indirectly, with the proceeds of
the issuance of the Debentures or the status of the Buyer or holder of the
Debentures or the Conversion Shares, as an investor in the Company. To the
extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
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9. GOVERNING LAW: MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York
without regard to the principles of conflict of laws. Any dispute or
controversy between the parties arising in connection with this
agreement or the subject matter contemplated by this agreement shall
be resolved by arbitration before a three-member panel of the
American Arbitration Association in accordance with the commercial
arbitration rules of said forum and the Federal Arbitration Act, 9
U.S.C. 1, et seq., with the resulting award being final and
conclusive. Said arbitrators shall be empowered to award all forms of
relief and damages claimed, including, but not limited to, attorney's
fees, expenses of litigation and arbitration, exemplary damages, and
prejudgment interest. Notwithstanding the foregoing, Holder may at
any time and at its option, whether or not an arbitration action is
then pending, initiate a civil action for temporary and permanent
injunctive and other equitable relief against Company. Company
acknowledges that upon any breach of Holder's conversion rights
hereunder, Holder's resulting injury may not be adequately
compensated by a remedy at law. Accordingly, upon such breach,
Holder, at its election and without limitation of its other remedies,
shall be entitled to pursue a claim for specific performance of this
Agreement, and Company hereby waives the right to assert any defense
thereto that Holder has an adequate remedy at law. The parties
further agree that any arbitration action between them shall be heard
in New York, New York, and expressly consent to the jurisdiction and
venue of the Supreme Court of New York County, New York, and the
United States District Court for the Southern District of New York
for the adjudication of any civil action asserted pursuant to this
Paragraph.
b. Counterparts. This Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and
the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party. In the
event any signature page is delivered by facsimile transmission, the
party using such means of delivery shall cause four (4) additional
original executed signature pages to be physically delivered to the
other party within five (5) days of the execution and delivery
hereof.
c. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
d. Severability. 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 in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other
jurisdiction.
e. Entire Agreement, Amendments. This Agreement supersedes
all other prior oral or written agreements between the Buyer, the
Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the
instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein,
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neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument
in writing signed by the party to be charged with enforcement.
f. Notices. Any notices consents, waivers or other
communications required or permitted to be given under the terms of
this Agreement must be in writing and will be deemed to have been
delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile, provided a copy is mailed by U.S.
certified mail, return receipt requested; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv)
one (1) day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
CityView Energy Corporation Limited
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Attn: President
Telephone: (011) (▇▇-▇) ▇▇▇▇-▇▇▇▇
Facsimile: (011) (▇▇-▇) ▇▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LL.B
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (011) (▇▇-▇) ▇▇▇▇▇▇▇▇
Facsimile: (011) (▇▇-▇) ▇▇▇▇▇▇▇▇
If to the Transfer Agents:
American Securities Transfer & Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Corporate Registry Services Pty. Ltd
▇▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
If to the Buyer, to its address and facsimile number on the Schedule
of Buyers, with copies to the Buyer's counsel as set forth on the
Schedule of Buyers. Each party shall provide five (5) days' prior
written notice to the other party of any change in address or
facsimile number.
g. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns. The Company shall not assign this Agreement
or any rights or obligations hereunder without the prior written
consent of the Buyer. The Buyer may assign its rights hereunder
without the consent of the Company, provided, however, that any such
assignment shall not release the Buyer from its obligations hereunder
unless such obligations are assumed by such assignee and the Company
has consented to such assignment and assumption.
h. No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
i. Survival. Unless this Agreement is terminated under
Section 9(l), the representations and warranties of the Company and
the Buyer contained in Sections 2 and 3, the agreements and covenants
set forth in Sections 4, 5 and 9, the indemnification provisions set
forth in Section 8, shall survive the Closing. The Buyer shall be
responsible only for its own representations, warranties, agreements
and covenants hereunder.
j. Publicity. The Company and the Buyer shall have the
right to approve before issuance any press releases or any other
public statements with respect to the transactions contemplated
hereby; provided, however, that the Company shall be entitled,
without the prior approval of the Buyer, to make any press release or
other public disclosure with respect to such transactions as is
required by applicable law and regulations (although the Buyer shall
be consulted by the Company in connection with any such press release
or other public disclosure prior to its release and shall be provided
with a copy thereof).
k. Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
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1. Termination. In the event that the Closing shall not
have occurred with respect to the Buyer on or before five (5)
business days from the date hereof due to the Company's or the
Buyer's failure to satisfy the conditions set forth in Sections 6 and
7 above (and the nonbreaching party's failure to waive such
unsatisfied condition(s)), the nonbreaching party shall have the
option to terminate this Agreement with respect to such breaching
party at the close of business on such date without liability of any
party to any other party - provided, however, that if this Agreement
is terminated pursuant to this Section 9(l), the Company shall remain
obligated to reimburse the Buyer for the expenses described in
Section 4(h) above.
m. Finder. The Company acknowledges that it has not engaged a
Finder in connection with the sale of the Debentures, which placement
agent may have formally or informally engaged other agents on its
behalf. The Company shall be responsible for the payment of any
Finder's fees (which includes cash and warrants to purchase Common
Stock) relating to or arising out of the transactions contemplated
hereby.
n. No Strict 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.
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IN WITNESS WHEREOF, the Buyer and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date first written
above.
"COMPANY"
CITYVIEW ENERGY CORPORATION LIMITED
By:
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: Chief Executive Officer
"BUYER"
HRH PRINCESS MONIRAH BINT SULTAN BIN ABDULAZIZ
AL SAUD
By:
------------------------------------------
Name: HRH Princess Monirah Bint Sultan Bin
Abdulaziz Al Saud
Title:
---------------------------------------
"BUYER"
HRH ▇▇▇▇▇▇ ▇▇▇▇▇▇ BIN ▇▇▇▇▇▇ BIN ▇▇▇▇▇ BIN
ABDULAZIZ
By:
------------------------------------------
Name: HRH ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bin Faisal Bin Fahad
Bin Abdulaziz
Title:
---------------------------------------
22
23
SCHEDULE OF BUYERS
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BUYER'S NAME ADDRESS AND FACSIMILE NUMBER OF BUYER FACE AMOUNT OF DEBENTURES
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HRH Princess Monirah Bint Sultan Bin Abdulaziz Al Saud c/o ▇▇. ▇▇▇▇▇ Abu Nayyan $500,000
P. O. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 01196612130861
-------------------------------------------------------------------------------------------------------------------------------
HRH ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bin Faisal Bin Fahad Bin Abdulaziz c/o ▇▇. ▇▇▇▇▇ Abu Nayyan $500,000
P. O. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 01196612130861
-------------------------------------------------------------------------------------------------------------------------------
24
SCHEDULE 3(c)
CAPITALIZATION
a) 50,000 options exercisable at A $2.25 at any time on or before
January 31, 1999, and
2) 50,000 options exercisable at A $2.25 at any time on or before
January 31, 2000.
25
SCHEDULE 3(e)
CONFLICTS
None.
26
SCHEDULE 3(h)
LITIGATION
None.
27
SCHEDULE 3(n)
INTELLECTUAL PROPERTY
Not Applicable.
28
SCHEDULE 3(p)
LIENS
No liens on property.
29
SCHEDULE 3(u)
TAX STATUS
None.
30
SCHEDULE 3(v)
CERTAIN TRANSACTIONS
None.
31
SCHEDULE 4(d)
USE OF PROCEEDS
Working capital and acquisition of contracts.