STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into effective
as of the _____ day of September, 2001, between
_______________________________________ ("Seller") and Blue Dolphin Energy
Company, a Delaware corporation("Blue Dolphin").
W I T N E S S E T H:
WHEREAS, Seller desires to sell to Blue Dolphin, and Blue Dolphin desires
to purchase from Seller, ________ shares of Series 1993 Preferred Stock, par
value $12.00 per share, of American Resources Offshore, Inc., a Delaware
corporation (the "Company"), on the terms and conditions herein set forth.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
and dependent promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Certain Definitions. As used in this Agreement, each parenthetically
capitalized term in the introduction, recitals and other Sections of this
Agreement has the meaning assigned to it, and other capitalized terms have the
meaning given them in Section 5.1.
1.2 Purchase and Sale of Stock in the Company. Subject to the terms and
conditions of this Agreement, Seller agrees to sell and convey to Blue Dolphin,
free and clear of all Encumbrances, and Blue Dolphin agrees to purchase and
accept from Seller, ________ shares of Series 1993 Preferred Stock, par value
$12.00 per share (the "Stock"), of the Company. In consideration of the sale of
the Stock, Blue Dolphin shall deliver to Seller _________ shares of common
stock, par value $0.01 per share (the "Blue Dolphin Stock"), of Blue Dolphin.
1.3 Closing. Consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at 9:00 a.m., Houston, Texas time, on
September ___, 2001 at the offices ------- of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The date upon which the Closing
occurs is referred to herein as the "Closing Date." ------------
1.4 Closing Deliveries. At the Closing, Seller shall deliver to Blue
Dolphin a duly and validly issued certificate representing the Stock, such
certificate to be duly endorsed in blank and in good form for transfer, or
accompanied by stock powers duly executed in blank sufficient and in good form
to properly transfer the Stock to Blue Dolphin and Blue Dolphin shall deliver to
Seller a duly and validly issued certificate representing the Blue Dolphin
Stock.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Blue Dolphin that as of the date hereof:
2.1 Authority and Consent. Seller has the absolute and unrestricted right,
power, legal capacity, and authority to enter into, and perform his obligations
under this Agreement, and no approval or consent of any person is necessary in
connection therewith. This Agreement constitutes a valid, legal and binding
obligation of Seller, and is enforceable against Seller in accordance with its
terms.
2.2 Title to Stock. Seller holds good, valid and marketable title to the
Stock, free and clear of all Encumbrances. Seller possesses full authority and
legal right to sell, transfer and assign to Blue Dolphin the Stock, free and
clear of all Encumbrances.
2.3 Purchase for Own Account, Etc. Seller is acquiring the Blue Dolphin
Stock for Seller's own account and not with a view towards the public sale or
distribution thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act") and/or sales registered under the Securities Act. Seller
understands that (i) Seller must bear the economic risk of this investment
indefinitely, unless resale of the Blue Dolphin Stock is registered pursuant to
the Securities Act and any applicable state securities or blue sky laws or an
exemption from such registration is available, and (ii) Blue Dolphin has no
present intention of registering the resale of any Blue Dolphin Stock other than
as contemplated herein. Notwithstanding anything in this Section 2.3 to the
contrary, by making the representations herein, the Seller does not agree to
hold the Blue Dolphin Stock for any minimum or other specific term and reserves
the right to dispose of the Blue Dolphin Stock at any time in accordance with or
pursuant to a registration statement or an applicable exemption from the
registration requirements under the Securities Act.
2.4 Reliance on Exemptions. Seller understands that the Blue Dolphin Stock
is being offered and sold to Seller in reliance upon specific exemptions from
the registration requirements of United States federal and state securities and
blue sky laws and that Blue Dolphin is relying upon the truth and accuracy of,
and Seller's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Seller set forth herein in order to
determine the availability of such exemptions and eligibility of Seller to
acquire the Blue Dolphin Stock.
2.5 Information.
(a) Seller has been furnished Blue Dolphin's (i)(A) Annual Report on
Form 10-K for the fiscal year ended December 31, 2000, as amended, and (B)
quarterly reports on Form 10-Q for the periods ended March 31, 2001 and June 30,
2001 (collectively, the "SEC Documents") and (ii) a draft of Blue Dolphin's
registration statement on Form S-4 (the "Registration Statement") relating to
the issuance of Blue Dolphin Stock in connection with the proposed merger
between Blue Dolphin and the Company. Seller has been afforded the opportunity
to ask questions of Blue Dolphin.
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(b) Seller understands that on August 30, 2001, Blue Dolphin and the
Company entered into an Agreement and Plan of Merger pursuant to which the
Company will become a wholly owned subsidiary of Blue Dolphin, as more fully
described in the Registration Statement.
2.6 Governmental Review. Seller understands that no United States federal
or state agency or any other government or governmental agency has passed upon
or made any recommendation or endorsement of the Blue Dolphin Stock.
2.7 Restrictions on Transfer or Sale of Shares. Seller understands that the
Blue Dolphin Stock is a "restricted security" under applicable federal
securities laws and that the Securities Act and the rules of the Securities and
Exchange Commission (the "Commission") provide in substance that Seller may
dispose of the Blue Dolphin Stock only pursuant to an effective registration
statement under the Securities Act or an exemption from the registration
requirements of the Securities Act, and Seller understands that Blue Dolphin has
no obligation or intention to register any of the Blue Dolphin Stock, except for
the registration rights granted in Section 4.3.
2.8 Brokers. Neither Seller nor any of its Affiliates have employed any
broker, agent or finder, or incurred any liability for any brokerage fees,
agent's fees, commissions or finder's fees in connection with the transactions
contemplated herein.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BLUE DOLPHIN
Blue Dolphin hereby represents and warrants to Seller that as of the date
hereof:
3.1 Organization and Standing. Blue Dolphin is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware, has full requisite corporate power and authority to carry on its
business as it is presently conducted, and to own and operate the properties
owned and operated by it.
3.2 Authority and Consent.
(a) Blue Dolphin has the requisite corporate power and authority to
enter into, and perform its obligations under this Agreement, and no approval or
consent of any Person is necessary in connection therewith. This Agreement
constitutes a valid, legal and binding obligation of Blue Dolphin, and is
enforceable against Blue Dolphin, in accordance with its terms, subject to
bankruptcy, receivership, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors' rights generally and subject to
general principles of equity.
(b) Blue Dolphin has duly authorized the issuance and sale of the
Blue Dolphin Stock by all requisite corporate action, and when issued and paid
for, the Blue Dolphin Common Stock will represent validly authorized, duly
issued and fully paid and nonassessable shares of Blue Dolphin Stock, and the
issuance thereof will not conflict with the certificate of incorporation or
bylaws of Blue Dolphin, nor with any outstanding warrant, option, call,
preemptive right or commitment of any type relating to Blue Dolphin's capital
stock.
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3.3 SEC Documents. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Documents, when filed, 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.
3.4 Brokers. Neither Blue Dolphin nor any of its Affiliates has employed
any broker, agent, or finder, or incurred any liability for any brokerage fees,
agent's fees, commissions or finder's fees in connection with the transactions
contemplated herein.
ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 Restrictions on Transfer. Seller agrees (i) that he will not sell,
assign, pledge, give, transfer or otherwise dispose of the Blue Dolphin Stock or
any interest therein, or make any offer or attempt to do any of the foregoing,
except pursuant to a registration of the Blue Dolphin Stock, as applicable,
under the Securities Act and all applicable state securities and blue sky laws;
(ii) that the certificate(s) for the Blue Dolphin Stock will bear a legend
making reference to the foregoing restrictions; and (iii) that Blue Dolphin and
any transfer agent for the Blue Dolphin Stock shall not be required to give
effect to any purported transfer of such shares except upon compliance with the
foregoing restrictions.
4.2 Legends. Seller agrees that the certificates for the Blue Dolphin Stock
shall bear a restrictive legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"),
OR THE SECURITIES LAWS OF ANY STATE ("STATE ACT") AND MAY NOT BE
TRANSFERRED, SOLD, HYPOTHECATED OR OTHERWISE DISPOSED OF, UNLESS
(i) PURSUANT TO A REGISTRATION STATEMENT (AS SUCH TERM IS DEFINED
IN THE ACT) WHICH HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AND HAS BECOME EFFECTIVE, AND PURSUANT TO ANY
REGISTRATION OR QUALIFICATION REQUIRED PURSUANT TO ANY APPLICABLE
STATE ACT, OR (ii) AN EXEMPTION FROM REGISTRATION OR
QUALIFICATION UNDER THE ACT AND ANY APPLICABLE STATE ACT IS
AVAILABLE AND THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER WILL NOT BE
IN VIOLATION OF THE ACT AND SUCH STATE ACT.
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4.3 Registration Rights.
(a) Seller shall have the right at any time to request registration
(such request shall be in writing and shall state the number of shares of Blue
Dolphin Stock to be registered); provided that Blue Dolphin shall not be
obligated to file a registration statement pursuant to this Section 4.3 until
the earlier of (i) the consummation of the merger between Blue Dolphin and the
Company and (ii) March 31, 2002.
(b) If Blue Dolphin shall receive from Seller a written request that
Blue Dolphin effect a registration under this Section 4.3, Blue Dolphin shall
use its commercially reasonable best efforts to (i) effect, as soon as
practicable, the registration on Form S-3 under the Securities Act of all Blue
Dolphin Stock that Seller requests to be registered and (ii) keep such
registration effective until the earlier of (a) one year from the date hereof or
(b) the Seller can rely on Rule 144 of the Securities Act to sell his Blue
Dolphin Stock. In the event of such a shelf registration, Blue Dolphin shall be
entitled to require that Seller refrain from effecting any public sales or
distributions of the Blue Dolphin Stock pursuant to a registration statement, if
the Board of Blue Dolphin (the "Board") reasonably determines that such public
sales or distributions would interfere in any material respect with any
transaction involving Blue Dolphin that the Board reasonably determines to be
material to Blue Dolphin. The Board shall, as promptly as practicable, give
Seller written notice of any such development. In the event of a request by the
Board that Seller refrain from effecting any public sales or distributions of
the Blue Dolphin Stock, Blue Dolphin shall be required to lift such restrictions
regarding effecting public sales or distributions of the Blue Dolphin Stock as
soon as reasonably practicable after the Board shall reasonably determine public
sales or distributions by Seller shall not interfere with such transaction,
provided, that in no event shall any requirement that Seller refrain from
effecting public sales or distributions in the Blue Dolphin Stock extend for
more than 90 days.
(c) Blue Dolphin shall be obligated to effect one such demand
egistration pursuant to this Section 4.3.
(d) All expenses incurred in connection with any registration
pursuant to this Section 4.3 shall be borne by Blue Dolphin, except fees and
expenses of counsel to Seller, if any, which shall be borne by Seller. Seller
shall bear its proportionate share (based on the total number of shares sold in
such registration other than for the account of Blue Dolphin) of all discounts,
commissions or other amounts payable to underwriter(s) or brokers in connection
with such offering by the Seller.
(e) Seller agrees to furnish, in writing, to Blue Dolphin information
regarding Seller, the Blue Dolphin Stock held by him and such other information
as shall be reasonably requested by Blue Dolphin in connection with the
registration statement.
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ARTICLE 5
MISCELLANEOUS
5.1 Certain Definitions. As used in this Agreement, each of the following
terms has the meanings set forth below:
(a) "Affiliate" when used to indicate a relationship with any Person,
means: (i) any corporation or organization of which such Person is an officer,
director or partner or is directly or indirectly the beneficial owner of at
least 10% of the outstanding shares of any class of equity securities or
financial interest therein; (ii) any trust or other estate in which such Person
has a beneficial interest or as to which such Person serves as trustee or in any
similar fiduciary capacity; or (iii) any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, or is acting as agent on behalf of, or as an officer or
director of, such Person. As used in the definition of Affiliate, the term
"control" (including the terms "controlling," "controlled by" or "under common
control with") means the possession, direct or indirect, of the power to direct,
cause the direction of or influence the management and policies of a Person,
whether through the ownership of voting securities, by contract, through the
holding of a position as a director or officer of such Person, or otherwise.
(b) "Encumbrance" means any security interest, mortgage, deed of
trust, pledge, lien, adverse claim, or other encumbrance of any nature
whatsoever.
(c) "Person" means an individual, corporation, limited liability
company, partnership, limited partnership, joint venture, joint stock company,
firm, company, syndicate, trust, estate, association, governmental authority,
business, organization or any other incorporated or unincorporated entity.
5.2 Further Assurances. From time to time, as and when requested by any
party hereto, any other party hereto shall execute and deliver, or cause to be
executed and delivered, such documents and instruments and shall take, or cause
to be taken, such further or other actions as may be reasonably necessary to
effectuate the transactions contemplated hereby, including, without limitation,
the transfer to Blue Dolphin of the entire legal and beneficial ownership of the
Stock.
5.3 Expenses. Each of Blue Dolphin and Seller shall bear their own legal
and accounting fees, and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement, and consummation of the
transactions contemplated hereby.
5.4 Certain References. Whenever the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter. References
to Articles or Sections shall be to Articles or Sections of this Agreement
unless otherwise specified. The headings and captions used in this Agreement are
solely for convenient reference and shall not affect the meaning or
interpretation of any article, section or paragraph herein, or this Agreement.
The terms "hereof," "herein" or "hereunder" shall refer to this Agreement as a
whole and not to any particular article, section or paragraph. The terms
"including" or "include" are used herein in an illustrative sense and not to
limit a more general statement.
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5.5 Successors and Assigns. This Agreement shall bind, inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns, and if an individual, by his executors, administrators, and
beneficiaries of his estate by will or the laws of descent and distribution.
This Agreement and the rights and obligations hereunder shall not be assignable
or delegable by any party.
5.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and of the United States
applicable in Texas. Each party hereto hereby acknowledges and agrees that it
has consulted legal counsel in connection with the negotiation of this Agreement
and that it has bargaining power equal to that of the other party hereto in
connection with the negotiation and execution of this Agreement. Accordingly,
the parties hereto agree that the rule that an agreement shall be construed
against the draftsman shall have no applica tion in the construction or
interpretation of this Agreement.
5.7 Amendment and Entirety. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto. This
Agreement sets forth the entire agreement and understanding of the parties with
respect to the transactions contemplated hereby and supersedes all prior
agreements, arrangements, and understandings relating to the subject matter
hereof.
5.8 Rights of Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any Persons other than the parties hereto and their respective
successors and assigns, nor shall any provision give any third Persons any right
of subrogation or action over or against any party to this Agreement. Without
limiting the generality of the foregoing, it is expressly understood that this
Agreement does not create any third party beneficiary rights.
5.9 Execution and Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. Delivery of an executed counterpart of the signature
page of this Agreement by facsimile shall be equally as effective as delivery of
a manually executed counterpart of this Agreement.
5.10 Time of Essence. Time is of the essence in the performance of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Stock Purchase Agreement is executed and delivered
as of the date first above written.
SELLER:
----------------------------
BLUE DOLPHIN ENERGY COMPANY:
By:
----------------------------
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