HORIZON ENERGY ACQUISITION, LLC SUBSCRIPTION AGREEMENT
Exhibit 10.1
HORIZON ENERGY ACQUISITION, LLC
To the
Undersigned Purchaser:
Horizon
Energy Acquisition, LLC, a Delaware limited liability company (the
“Company”), hereby
confirms to you, as the undersigned purchaser identified in this
Subscription Agreement (this “Agreement”), the
following:
1.
Sale and Purchase of Limited Liability
Company Interest.
The
Company has been formed under the laws of the State of Delaware and
has proposed to enter into a Limited Liability Company Agreement
with you, in substantially the form provided to you
separately, with such
modifications as may be mutually agreed upon prior to execution
thereof and as the same may be modified in accordance with the
terms of any subsequent amendment thereto (the “Company Agreement”).
Capitalized terms used herein without definition have the meanings
set forth in the Company Agreement.
Subject
to the terms and conditions of this Agreement and in reliance upon
your representations and warranties:
(a) the
Company agrees to sell to you, and you irrevocably subscribe for
and agree to purchase from the Company, the number of Units set
forth on your signature page attached hereto (represented,
collectively, by the “Interests”);
and
(b) the
Company agrees that you shall be admitted as a Member, upon the
terms and conditions, and in consideration of your agreement to be
bound by the terms and provisions of the Company Agreement and this
Agreement, with a Capital Commitment in the amount set forth on
your signature page attached hereto which shall be due at Closing
(as defined below).
Subject
to the terms and conditions hereof and of the Company Agreement,
your obligation to subscribe and pay for your Interests at the time
contemplated therein shall be complete and binding upon the
execution and delivery of this Agreement.
2.
Execution of Company
Agreement.
You
hereby agree to become a party to, to be bound by, and to comply
with the provisions of the Company Agreement. To that end, prior to
Closing (as defined below), you shall execute and deliver to the
Company an executed signature page, in counterpart, to the Company
Agreement, which shall be deemed an original and, together with all
other counterparts, shall constitute one and the same
instrument.
3.
Capital
Contributions.
Subsequent to your
funding of your initial Capital Contribution, there are no future
Capital Contributions expected.
4.
Acquisition and Development of Certain Assets.
You
hereby acknowledge and agree that, upon consummation of the
transactions contemplated hereby, the Company shall utilize your
and the other purchasers’ Capital Contributions to acquire a
new 3D seismic survey, offshore in the North Sea in the United
Kingdom and as consideration to own interests in oil and gas
licenses.
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5.
Closing.
5.1 The
closing and effectiveness (the “Closing”)
of the sale to you, and the subscription for and purchase by you,
of the Interests, and your admission as a Member, shall take place
on such date and at such time as the Company shall designate
following your full execution of this Agreement and the
satisfaction of the conditions set forth in Sections 5.2 and 5.3
(the “Closing
Date”).
5.2 Your
obligation to consummate the transactions described herein is
subject to the satisfaction of the following
conditions:
(a) the
Company Agreement shall have been duly authorized, executed and
delivered by all parties thereto (other than you) and shall be in
full force and effect;
(b) the
Company’s representations and warranties being accurate and
true in all material respects as of the Closing Date (unless as of
a specific date therein in which case they shall be accurate and
true as of such date);
(c) the
performance in all material respects of all obligations, covenants
and agreements of Company that are required to be performed at or
prior to the Closing Date; and
5.3 The
Company’s obligation to consummate the transactions described
herein is subject to the satisfaction of the following
conditions:
(a) your
representations and warranties being accurate and true in all
material respects as of the Closing Date (unless as of a specific
date therein in which case they shall be accurate and true as of
such date);
(b) your
performance in all material respects of all obligations, covenants
and agreements that are required to be performed by you at or prior
to the Closing Date;
(c) you
shall have delivered, or caused to be delivered, your Capital
Contribution to the Company, by wire transfer of immediately
available funds, to an account designated by the Company in writing
to you; and
6.
Termination.
6.1 Termination.
Subject to the provisions of Section 6.2, this Agreement may be
terminated at any time prior to the Closing Date by any of the
following:
(a) by
the mutual written agreement of the Company and both of
you;
(b) by
the Company, by written notice to you, if there has been a material
violation or breach of any of your covenants or agreements made
herein, or if any representation or warranty of yours contained
herein is materially inaccurate or misleading or, following the use
of reasonable efforts by the Company, the Closing is not effected
by March 15, 2019; or
(c) by
you, by written notice to the Company, if there has been a material
violation or breach of any of the Company’s covenants or
agreements made herein, or if any representation or warranty of the
Company contained herein is materially inaccurate or misleading or,
following the use of reasonable efforts by the Company, the Closing
is not effected by March 15, 2019.
6.2 Effect
of Termination. If this
Agreement shall be terminated as provided in Section 6.1, then this
Agreement shall forthwith become void and there shall be no
continuing obligation on the part of the parties; provided, that no
party shall be relieved of any liability as a result of a breach of
any of such party’s representations, warranties, covenants or
agreements contained herein.
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7.
Representations and Warranties of the
Company.
7.1 The
Representations and Warranties.
The Company represents and warrants that each of the following
statements shall be true and correct as of the Closing
Date:
(a) Formation
and Standing. The Company is
duly formed and validly existing as a limited liability company
under the laws of the State of Delaware and, subject to applicable
law, has all requisite limited liability company power and
authority to carry on its business as proposed to be conducted in
the Company Agreement.
(b) Authorization
of Agreement, etc. The
execution and delivery of this Agreement and the Company Agreement
have been authorized by all necessary action on behalf of the
Company and this Agreement and the Company Agreement, when executed
and delivered by the Company, are legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms.
(c) Compliance
with Laws and Other Instruments. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not
conflict with or result in any violation of or default under any
provision of the Company Agreement, or any agreement or other
instrument to which the Company is a party or by which it or any of
its properties is bound, or any permit, franchise, judgment,
decree, statute, order, rule or regulation applicable to the
Company or its business or properties.
(d) Offer
of Interests. Neither the
Company nor anyone acting on its behalf has taken or will take any
action that would subject the issuance and sale of the Interests to
the registration requirements of the Securities Act of 1933, as
amended (the “Securities
Act”).
7.2 Survival
of Representations and Warranties. All representations and warranties made by the
Company in Section 7.1 shall survive the execution and delivery of
this Agreement, any investigation at any time made by you or on
your behalf and the issue and sale of
Interests.
8.
Representations and Warranties of the
Purchaser.
8.1 The
Representations and Warranties.
As to yourself only, you represent and warrant to the Company and
each other Person who is, or in the future becomes, a Member, that
each of the following statements shall be true and correct as of
the Closing Date:
(a) Representation
of Investment Experience and Ability to Bear
Risk. You (i) are knowledgeable
and experienced with respect to the financial, tax and business
aspects of the ownership of the Interests and of the business
contemplated by the Company and are capable of evaluating the risks
and merits of purchasing the Interests and, in making a decision to
proceed with this investment, have not relied upon any
representations, warranties or agreements, other than those set
forth in this Agreement and the Company Agreement, if any, and (ii)
can bear the economic risk of an investment in the Company for an
indefinite period of time, and can afford to suffer the complete
loss thereof.
(b) Accredited
Investor. You are an accredited
investor within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act.
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(c) The
Interests have not been and will not be registered under the
Securities Act, and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except
in accordance with the registration requirements of the Securities
Act or pursuant to an exemption from such registration
requirements. You hereby agree that any disposition of the
Interests, including the transactions contemplated hereunder, and
irrespective of whether the Interests are certificated, shall
include the following legend:
“THE
LIMITED LIABILITY COMPANY INTERESTS OF THE COMPANY (THE
“INTERESTS”) HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”)
OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY OTHER NATION OR
JURISDICTION AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS
THE SAME HAVE BEEN INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
HAS BEEN RENDERED TO THE COMPANY THAT AN EXEMPTION FROM
REGISTRATION UNDER APPLICABLE SECURITIES LAWS IS
AVAILABLE.
IN
ADDITION, TRANSFER OR OTHER DISPOSITION OF THE INTERESTS IS
RESTRICTED AS PROVIDED IN THE LIMITED LIABILITY COMPANY AGREEMENT
OF THE COMPANY.”
(d) Transfers
and Transferability. You
understand and acknowledge that the Interests have not been
registered under the Securities Act or any state securities laws
and are being offered and sold in reliance upon exemptions provided
in the Securities Act and state securities laws for transactions
not involving any public offering and, therefore, cannot be resold
or transferred unless they are subsequently registered under the
Securities Act and such applicable state securities laws or unless
an exemption from such registration is available. You also
understand that the Company does not have any obligation or
intention to register the Interests for sale under the Securities
Act, any state securities laws or of supplying the information
which may be necessary to enable you to sell Interests; and that
you have no right to require the registration of the Interests
under the Securities Act, any state securities laws or other
applicable securities regulations. You also understand that sales
or transfers of Interests are further restricted by the provisions
of the Company Agreement.
You
represent and warrant further that you have no contract,
understanding, agreement or arrangement with any person to sell or
transfer or pledge to such person or anyone else any of the
Interests for which you hereby subscribe (in whole or in part); and
you represent and warrant that you have no present plans to enter
into any such contract, undertaking, agreement or
arrangement.
You
understand that, subject to Section 12.1(a) of the Company
Agreement, the Interests cannot be sold or transferred without
Board Approval and Member Approval, which approval may be withheld
in their sole and absolute discretion and which approval will be
withheld if any such transfer could cause the Company to become
subject to regulation under federal law as an investment company or
would subject the Company to adverse tax consequences or adverse
consequences under ERISA.
You
understand that there is no public market for the Interests; any
disposition of the Interests may result in unfavorable tax
consequences to you.
You are
aware and acknowledge that, because of the substantial restrictions
on the transferability of the Interests, it may not be possible for
you to liquidate your investment in the Company readily, even in
the case of an emergency.
(e) Residence.
You maintain your domicile or principal place of business at the
address shown in the signature page of this Agreement and you are
not merely transient or temporarily resident
there.
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(f) Awareness
of Risks; Taxes. You represent
and warrant that you are aware (i) that the Company has no
operating history; (ii) that the Interests involve a substantial
degree of risk of loss of your entire investment and that there is
no assurance of any income from your investment; (iii) that any
federal, state, or foreign income tax benefits which may be
available to you may be lost through the adoption of new laws or
regulations, to changes to existing laws and regulations and to
changes in the interpretation of existing laws and regulations; and
(iv) any disposition of Interests may result in unfavorable tax
consequences to you. You further represent that you are relying
solely on your own conclusions or the advice of your own counsel or
investment representative with respect to tax aspects of any
investment in the Company.
(g) Power,
Authority; Valid Agreement. (i)
You have all requisite power and authority to execute, deliver and
perform your obligations under this Agreement and the Company
Agreement and to subscribe for and purchase or otherwise acquire
your Interests; (ii) your execution of this Agreement and the
Company Agreement has been authorized by all necessary corporate or
other action on your behalf; and (iii) this Agreement and the
Company Agreement are each valid, binding and enforceable against
you in accordance with their respective terms.
(h) No
Conflict; No Violation. The
execution and delivery of this Agreement and the Company Agreement
by you and the performance of your duties and obligations hereunder
and thereunder (i) do not and will not result in a breach of any of
the terms, conditions or provisions of, or constitute a default
under (A) any charter, bylaws, trust agreement, partnership
agreement or other governing instrument applicable to you, (B) (1)
any indenture, mortgage, deed of trust, credit agreement, note or
other evidence of indebtedness, or any lease or other agreement or
understanding, or (2) any license, permit, franchise or
certificate, in either case to which you or any of your affiliates
is a party or by which you or any of them is bound or to which your
or any of their properties are subject; (ii) do not require any
authorization or approval under or pursuant to any of the
foregoing; and (iii) do not violate any statute, regulation, law,
order, writ, injunction or decree to which you or any of your
affiliates is subject.
8.2 Survival
of Representations and Warranties. All representations and warranties made by you
in Section 8.1 of this Agreement shall survive the execution and
delivery of this Agreement, as well as any investigation at any
time made by or on behalf of the Company and the issue and sale of
Interests.
8.3 Reliance.
You acknowledge that your representations, warranties,
acknowledgments and agreements in this Agreement will be relied
upon by the Company in determining your suitability as a purchaser
of Interests.
8.4 Further
Assurances. You agree to
provide, if requested, any additional information that may be
requested or required to determine your eligibility to purchase the
Interests.
9.
General Contractual
Matters.
9.1 Amendments
and Waivers. This Agreement may
be amended and the observance of any provision hereof may be waived
(either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of
you and the Company.
9.2 Assignment.
You agree that neither this Agreement nor any rights which may
accrue to you hereunder may be transferred or
assigned.
9.3 Notices.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given to
any party when delivered by hand, when mailed, first-class postage
prepaid, or when emailed, (a) if to you, to you at the physical or
email address set forth below your signature, or to such other
address as you shall have furnished to the Company in writing, and
(b) if to the Company, to Horizon Energy Acquisition, LLC, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or to such other address or addresses,
as the Company shall have furnished to you in writing, provided
that any notice to the Company (a) shall be effective only if and
when received by the Company and (b) shall not be delivered by
email.
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9.4 GOVERNING
LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS (EXCEPT INSOFAR AS AFFECTED BY THE SECURITIES OR
“BLUE SKY” LAWS OF THE STATE OR SIMILAR JURISDICTION IN
WHICH THE OFFERING DESCRIBED HEREIN HAS BEEN MADE TO
YOU).
9.5 Submission
to Jurisdiction. Each party
irrevocably consents and agrees that any legal action or proceeding
with respect to this Agreement and any action for enforcement of
any judgment in respect thereof may be brought in the courts of the
State of Delaware or the United States federal courts for the State
of Delaware, and, by execution and delivery of this Agreement, each
party hereby submits to and accepts for itself and in respect of
its property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts and appellate courts from any
appeal thereof. Each party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in
connection with this Agreement brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum. Nothing in this section shall be deemed to constitute a
submission to jurisdiction, consent or waiver with respect to any
matter not specifically referred to herein.
9.6 Waiver
of Trial by Jury. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY MATTER ARISING HEREUNDER.
9.7 Descriptive
Headings. The descriptive
headings in this Agreement are for convenience of reference only
and shall not be deemed to alter or affect the meaning or
interpretation of any provision of this
Agreement.
9.8 Entire
Agreement. This Agreement
contains the entire agreement of the parties with respect to the
subject matter of this Agreement, and there are no representations,
covenants or other agreements except as stated or referred to
herein.
9.9 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together
shall constitute one and the same instrument.
9.10 Circular
230 Notice. To ensure
compliance with Treasury Department Circular 230, you are hereby
notified that:
(a) any
discussion of Federal tax issues in this Agreement is not intended
or written to be used, and cannot be used, by a Member for the
purpose of avoiding penalties that may be imposed on such Member
under the Code;
(b) any
such discussion is written to support the promotion or marketing of
the transactions or matters addressed in this Agreement;
and
(c) each
Member should seek advice based on its particular circumstances
from and independent advisor.
If
you are in agreement with the foregoing, please sign the enclosed
counterpart of this Agreement and return such counterpart of this
Agreement to the Company.
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HORIZON ENERGY ACQUISITION, LLC
By:
/s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chief
Executive Officer
The
foregoing Subscription Agreement is hereby agreed by the
undersigned on this 25 day of February, 2019.
Petro River Oil Corporation
By: /s/ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, Executive
Chairman
▇▇
▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Email address:
▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Capital
Contribution:
$400,000
Total Units:
145.454
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