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EXHIBIT 10.2
REGULATION S SECURITIES SUBSCRIPTION AGREEMENT
FORTUNE PETROLEUM CORPORATION
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
BECAUSE THEY ARE BELIEVED TO BE EXEMPT FROM REGISTRATION UNDER REGULATION S
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THIS
SUBSCRIPTION AGREEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL NOR A SOLICITATION
OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL.
This Regulation S Securities Subscription Agreement (the "Agreement") is
executed by the undersigned (the "Subscriber") in connection with the offer and
the subscription of the undersigned to purchase an aggregate of 313,725 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of FORTUNE PETROLEUM CORPORATION, a Delaware corporation (the "Company"), at a
price of US $3.1875 per share (collectively, the "Initial Shares"). This
Subscription and, if accepted by the Company, the offer and sale of the Initial
Shares and the potential issuance of additional shares pursuant to the
provisions of Section 1 (the "Adjustment Shares") (collectively with the
Initial Shares, the "Securities"), are being made in reliance upon the
provisions of Regulation S ("Regulation S") under the Securities Act of 1933,
as amended (the "Act"). The Subscriber, in order to induce the Company to
enter into the transaction contemplated hereby and acknowledging that the
Company will rely thereon represents, warrants and agrees as follows:
1. Offer to Subscribe; Purchase Price. The Subscriber hereby
offers to purchase and subscribes for the Securities at a price
of $1,000,000. The Adjustment Shares, if any, shall be
distributed to the Subscriber following the expiration of the
Restricted Period (hereinafter defined) according to the
following formula:
(a) If the number of shares of Common Stock
obtained by dividing (i) $1,000,000 by the product of (x) .75
and (y) the average closing bid price of the Common Stock on
the American Stock Exchange as reported by the Bloomberg
Financial Market Commodities News over the 30 consecutive
calendar days commencing on the 40th day after the date of the
Closing and expiring on the 70th day thereafter), is greater
than 313,725, such excess number of Adjustment Shares shall be
delivered to the Subscriber within three business days after
the expiration of the 30-calendar day measuring period. All
such Adjustment Shares will be issued without any restrictive
legend or stop transfer instructions. The above calculation
will be adjusted accordingly to reflect the effect of any stock
dividends or stock splits which may occur after the Closing
Date.
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(b) If the result obtained from the calculation
described in clause (a) above is zero or a negative number, no
Adjustment Shares shall be issuable to the Subscriber.
The closing of the transactions contemplated hereby
(the "Closing") shall be deemed to occur when this Agreement
has been executed by both Subscriber and Company. Payment
shall be made at the Closing by delivering immediately
available funds in United States dollars by wire transfer for
simultaneous closing by delivery of securities versus payment.
The Company agrees to deliver certificates representing the
Securities subscribed for at the Closing. The date on which
the Closing occurs is hereafter referred to as the Closing
Date.
2. Subscriber Representations; Access to Information; Independent
Investigation
(a) Offshore Transaction. Subscriber represents
and warrants to the Company that (i) Subscriber is not a "U.S.
person" as that term is defined in Rule 902(o) of Regulation S;
(ii) the Subscriber is not, and on the Closing Date will not
be, an affiliate of the Company, (iii) at the same time of
execution of this Subscription Agreement, Subscriber was
outside the United States and no offer to purchase the
Securities was made in the United States; (iv) the Subscriber
agrees that all offers and sales of the Securities prior to the
expiration of a period commencing on the Closing of the
offering of the securities and ending forty (40) days
thereafter (the "Restricted Period") shall not be made to U.S.
persons or for the account or benefit of U.S. persons and shall
otherwise be made in compliance with the provisions of
Regulation S; (v) Subscriber is not a distributor or dealer;
(vi) the transactions contemplated hereby (a) have not been and
will not be pre-arranged by the Subscriber with a purchaser
located in the United States or a purchaser which is a U.S.
Person, and (b) are not and will not be part of a plan or
scheme by the Subscriber to evade the registration provisions
of the Act; (vii) the Subscriber shall take all reasonable
steps to ensure its compliance with Regulation S and shall
promptly send to each purchaser (x) who acts as a distributor,
underwriter, dealer or other person participating pursuant to a
contractual arrangement in the distribution of the Securities
or receiving a selling concession, fee or other remuneration in
respect of any of the Securities, or (y) who purchases prior to
the expiration of the Restricted Period, a confirmation or
other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales as the
Subscriber pursuant to Section 903(c)(2)(iv) of Regulation S;
and (viii) none of the Subscriber, its affiliates or persons
acting on their behalf have conducted and shall not conduct any
"directed selling efforts" as that term is defined in Rule
902(b) of Regulation S; nor has the Subscriber, its affiliates
or persons acting on their behalf have conducted any general
solicitation relating to the offer and sale of any of the
Securities in the United States or elsewhere.
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(b) Beneficial Owner. Subscriber is purchasing
the Securities for its own account or for the account of
beneficiaries for whom Subscriber has full investment
discretion with respect to the Securities and whom Subscriber
has full authority to bind, so that each such beneficiary is
bound hereby as if such beneficiary were a direct Subscriber
hereunder and all representations, warranties and agreements
herein were made directly by such beneficiary.
(c) Directed Selling Efforts. Subscriber will not
engage in any activity for the purpose of, or that
could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the
Securities sold hereunder. To the best knowledge of the
Subscriber, neither the Company nor any person acting for the
Company has conducted any "directed selling efforts" as that
term is defined in Rule 902 of Regulation S.
(d) Short Position. Neither Subscriber nor any
of its affiliates will directly or indirectly maintain any
short position in any securities of the Company until after the
end of the Restricted Period.
(e) Independent Investigation. Subscriber in
electing to subscribe for the Securities hereunder, has
relied solely upon independent investigation made by it and its
representatives, if any, and Subscriber has been given no oral
or written representations or assurance from the Company or any
representation of the Company other than as set forth in this
Agreement or in a document executed by a duly authorized
representative of the Company making reference to this
Agreement.
(f) No Government Recommendation or Approval.
Subscriber understands that no United States federal or
state agency, or similar agency of any other country, has
passed upon or made any recommendation or endorsement of the
Company, this transaction or the purchase of the Securities.
3. The Company Represents, Covenants and Warrants the following:
(a) Reporting Company Status. The Company is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is
duly qualified as a foreign corporation in all jurisdictions in
which the failure to so qualify would have a material adverse
effect on the Company and its subsidiaries taken as a whole.
The Company is a "Reporting Issuer" as defined by Rule 902 of
Regulation S. The Company has registered its Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the Common Stock is listed
and trades on the American Stock Exchange. The Company has
filed all material required to be filed pursuant to all
reporting obligations under either Section 13(a) or 15(d) of
the Exchange Act for a period of
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at least twelve (12) months immediately preceding the
offer or sale of the Securities (or for such shorter period
that the Company has been required to file such material).
(b) Concerning the Securities. The issuance, sale
and delivery of the Securities are within the Company's
corporate powers and have been duly authorized by all required
corporate action on the part of the Company and its
stockholders and when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein,
will be duly and validly issued, fully paid and non-assessable.
There are no preemptive rights of any shareholder of the
Company.
(c) Offshore Transaction. The Company has not
offered or sold the Securities to any person in the United
States, or, to the best knowledge of the Company, any
identifiable groups of U.S. citizens abroad, or any U.S. person
as that term is defined in Regulation S. At the time the buy
order was originated the Company and/or its agents reasonably
believed Subscriber was outside the United States and was not a
U.S. person.
(d) Prearranged Sale. The Company and/or its
agents believe that the transaction contemplated hereby has not
been pre-arranged with a buyer in the United States.
(e) No Directed Selling Efforts. The Company has
not conducted any "directed selling efforts" as that term is
defined in Rule 902 of Regulation S nor has Company conducted
any general solicitation relating to the offer and sale of the
Securities to persons resident within the United States or any
other U.S. person as that term is defined in Rule 902 of
Regulation S.
(f) Subscription Agreement. This Agreement has
been duly authorized, validly executed and delivered on behalf
of the Company and is a valid and binding agreement enforceable
against the Company in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights generally.
(g) Non-contravention. The execution and delivery
of this Agreement and the consummation of the issuance of the
Securities and the transactions contemplated by this Agreement
do not and will not conflict with or result in a breach by the
Company of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or by-laws of the
Company, or any indenture, mortgage, deed of trust, or other
material agreement or instrument to which the Company is a
party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of
the United States of any State thereof or any applicable
decree, judgment or order of any Federal or State court,
Federal or State regulatory
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body, administrative agency or other United States governmental
body having jurisdiction over the Company or any of its
properties or assets.
(h) Litigation. There is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of
the Company, threatened, against or affecting the Company, or
any of its properties, which might result in any material
adverse change in the condition (financial or otherwise) or in
the earnings, business affairs or business prospects of the
Company, or which might materially and adversely affect the
properties or assets thereof.
(i) No Default. The Company is not in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust or other material instrument or
agreement to which it is a party or by which it or its property
may be bound, and neither the execution, nor the delivery by
the Company, nor the performance by the Company of its
obligations under this Agreement or the Securities will
conflict with or result in the breach or violation of any of
the terms or provisions of, or constitute a default or result
in the creation or imposition of any lien or charge on any
assets or properties of the Company under, any material
indenture, mortgage, deed of trust or other material agreement
or instrument to which the Company is a party or by which it is
bound or any statute or the Certificate of Incorporation or
Bylaws of the Company, or any decree, judgment, order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or its properties.
(j) SEC Filings. None of the Company's filings
with the Securities and Exchange Commission since January 1,
1995 contains any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statement therein in light of the
circumstances under which they were made, not misleading. The
Company has since January 1, 1995 timely filed all requisite
forms, reports and exhibits thereto with the Securities and
Exchange Commission.
(k) Full Disclosure. There is no fact known to the
Company (other than general economic conditions known to the
public generally) that has not been disclosed in writing to the
Subscriber that (i) could reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise) or in the earnings, business affairs, business
prospects, properties or assets of the Company or (ii) could
reasonably be expected to materially and adversely affect the
ability of the Company to perform its obligations pursuant
to this Agreement.
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4. Covenants of the Company. For a period of two years following
the Closing or for so long as any Securities held by
the Subscriber remain outstanding, whichever is less, the
Company covenants and agrees with the Subscriber that:
(a) It will maintain the listing of its Securities
on the American Stock Exchange.
(b) It will not issue stop transfer instructions to
its transfer agent with respect to and, except as otherwise
expressly provided herein, will not place a restrictive legend
on the certificates representing the Securities.
5. Securities to be Issued Without Restrictive Legend. After
the expiration of the Restricted Period, all Securities
issued pursuant to this Agreement shall be issued without
restrictive legend or stop transfer instructions, in the name
of the Subscriber or such non-U.S. Persons as may be designated
by the Subscriber prior to the Closing. The Company warrants
that no instructions with respect to transfers to U.S. Persons
of the certificates representing such Securities have been
given or will be given and that the Securities shall be freely
transferable on the books and records of the Company. Nothing
in this Section 5, however, shall affect in any way the
Subscriber's obligations and agreements to comply with all
applicable securities laws upon resale of the Securities.
Prior to the expiration of the Restricted Period, all
certificates representing the Securities shall bear the
following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES COMMISSION OF ANY STATE UNDER ANY STATE
SECURITIES LAW. THEY ARE BEING OFFERED PURSUANT TO A SAFE
HARBOR FROM REGISTRATION UNDER REGULATION S ("REGULATION
S") PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE UNITED
STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN
REGULATION S) UNLESS THE SECURITIES ARE REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS, OR SUCH
OFFERS, SALES AND TRANSFERS ARE MADE PURSUANT TO AVAILABLE
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND THOSE LAWS."
Following the expiration of the Restricted Period, the
Subscriber shall be entitled to obtain replacement certificates
representing the Securities without any restrictive legend,
such replacement certificates to be issued within three
business days of delivery of the original certificates to the
Company.
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6. Legal Opinion. On or before the date hereof, the Company has
delivered to the Subscriber a form of legal opinion from
the Company's counsel (the "Legal Opinion") which, upon
the expiration of the Restricted Period, the Company will cause
its counsel to deliver to the Company's transfer agent which
authorizes the issuance of Securities free of any restrictive
legend or stop transfer instructions in accordance with the
provisions of the foregoing paragraph.
7. Reliance on Representations. The Subscriber understands that
the offer and sale of the Securities are not being registered
under the Act. The Company and the Subscriber are relying
on the rules governing offers and sales made outside the
United States pursuant to Regulation S.
8. Resales. Subscriber acknowledges and agrees that the
Securities may only be resold (a) in compliance with
Regulation S; (b) pursuant to a Registration Statement under
the Act; or (c) pursuant to an exemption from registration
under the Act other than Regulation S.
9. Confidentiality. Each of the Company and the Subscriber agrees
to keep confidential and not to disclose to or use for the
benefit of any third party the terms of this Agreement or any
other information which at any time is communicated by the
other party as being confidential without the prior written
approval of the other party, provided, however, that this
provision shall not apply to information which, at the time of
disclosure, is already part of the public domain (except by
breach of this Agreement) and information which is required to
be disclosed by law.
10. Indemnification. Each of the Company and the Subscriber agrees
to indemnify the other and to hold the other harmless from
and against any and all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) which the other
may sustain or incur in connection with the breach by the
indemnifying party of any representation, warranty or covenant
made by it in this Agreement.
11. Issuance of Additional Securities. Until the expiration of
the 70th day following the Closing, the Company will not
issue any shares of Common Stock pursuant to Regulation S
which, when aggregated with the Securities (excluding the
Adjustment Shares), would upon issuance thereof (or conversion
thereof in the case of convertible securities) exceed 1,300,000
shares.
12. Registration. After the expiration of the Restricted Period,
if the Company fails to issue to the Subscriber or the
Subscriber's transferees certificates for shares of Common
Stock bearing no restrictive legend for any reason other than
the Company's reasonable good faith belief that the
representations and warranties made by the Subscriber in this
Agreement were untrue when made, then the Company shall be
required, at the request of the Subscriber and at the Company's
expense, to effect the
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registraton of the Securities under the Act, and relevant Blue
Sky laws as promptly as is practicable. The Company and the
Subscriber shall cooperate in good faith in connection with the
furnishing of information required for such registration and
the taking of such other actions as may be legally or
commercially necessary in order to effect such registration.
The Company shall file a registration statement within 30 days
of Subscriber's written demand therefor and shall use its best
efforts to cause such registration statement to become
effective as soon as practicable thereafter. Such best efforts
shall include, but not be limited to, promptly responding to
all comments received from the staff of the Securities and
Exchange Commission, providing Subscriber's counsel with a
contemporaneous copy of all written communications from and to
the staff of the Securities and Exchange Commission with
respect to such registration statement and promptly preparing
and filing amendments to such registration statement and which
are responsive to the comments received from the staff of the
Securities and Exchange Commission. Once declared effective by
the Securities and Exchange Commission, the Company shall cause
such registration statement to remain effective until the
earlier of (i) the sale by the Subscriber of all Securities
registered or (ii) 120 days after the effective date of such
registration statement. In the event that the Company is
required to effect a registration pursuant to the provisions of
this Section but has not registered the Securities under the
Act and relevant Blue Sky Laws within 90 days after the date of
the Subscriber's demand therefor, the Company shall pay to the
Subscriber by wire transfer, as liquidated damages for such
failure and not as a penalty, an amount in cash equal to
$100,000. Such payment shall be made to the Subscriber
immediately upon expiration of the 90-day period referenced in
the preceding sentence if the registration of the Securities is
not effected by such date; provided, however, that the payment
of such liquidated damages shall not relieve the Company from
its obligations to register the Securities pursuant to this
Section 12.
13. Notices. Any notice to be given or to be served upon any party
to this Agreement in connection with this Agreement must be in
writing and will be deemed to have been given and received one
(1) day after it has been submitted for delivery by Federal
Express or an equivalent carrier, charges prepaid and addressed
to the following addresses with a confirmation of delivery or
upon confirmation of receipt if sent by facsimile transmission
to the following fax numbers:
The Company:
Fortune Petroleum Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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The Subscriber:
T.H.C. Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇
Any party may, at any time by giving notice to the other party,
designate any other address in substitution of an address
established pursuant to the foregoing to which such notice will
be given.
14. Multiple Counterparts. This Agreement may be executed in
several counterparts, each of which will be deemed to be an
original but all of which will constitute one in the same
instrument. However, in enforcing any party's rights under this
Agreement it will be necessary to produce only one copy of this
Agreement signed by the party to be charged.
15. Governing Law. This Agreement will be construed and enforced
in accordance with and governed by the laws of the State of New
York, except for matters arising under the Act or the Exchange
Act, without reference to principles of conflicts of law. Each
of the parties consents to the jurisdiction of the federal
courts whose districts encompass any part of the State of New
York or the state courts of the State of New York in connection
with any dispute arising under this Agreement and hereby waives,
to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of
any such proceeding in such jurisdictions. Each party hereby
agrees that if another party to this Agreement obtains a
judgment against it in such a proceeding, the party which
obtained such judgment may enforce same by summary judgment in
the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby
waives any defenses available to it under local law and agrees
to the enforcement of such a judgment. Each party to this
Agreement irrevocably consents to the service of process in any
such proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such party at its address
set forth herein. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The undersigned hereby subscribes 313,725 of Initial Shares and pay
herewith funds in the amount of One Million Dollars ($1,000,000).
The undersigned acknowledges that this subscription shall not be
effective unless accepted by the Company as indicated below.
Dated this 8th day of December, 1995
T.H.C. INC.
By: /s/
--------------------------
Name:
Title:
THIS SUBSCRIPTION IS ACCEPTED BY THE COMPANY ON THE 8TH DAY OF
DECEMBER, 1995.
FORTUNE PETROLEUM CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name:
Title: President & CEO
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REGULATION S SECURITIES SUBSCRIPTION AGREEMENT
FORTUNE PETROLEUM CORPORATION
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
BECAUSE THEY ARE BELIEVED TO BE EXEMPT FROM REGISTRATION UNDER REGULATION S
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THIS
SUBSCRIPTION AGREEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL NOR A SOLICITATION
OF AN OFFER TO BUY THE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL.
This Regulation S Securities Subscription Agreement (the "Agreement")
is executed by the undersigned (the "Subscriber") in connection with the offer
and the subscription of the undersigned to purchase an aggregate of 313,725
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of FORTUNE PETROLEUM CORPORATION, a Delaware corporation (the
"Company"), at a price of US $3.1875 per share (collectively, the "Initial
Shares"). This Subscription and, if accepted by the Company, the offer and
sale of the Initial Shares and the potential issuance of additional shares
pursuant to the provisions of Section 1 (the "Adjustment Shares")
(collectively with the Initial Shares, the "Securities"), are being made in
reliance upon the provisions of Regulation S ("Regulation S") under the
Securities Act of 1933, as amended (the "Act"). The Subscriber, in order to
induce the Company to enter into the transaction contemplated hereby and
acknowledging that the Company will rely thereon represents, warrants and agrees
as follows:
1. Offer to Subscribe; Purchase Price. The Subscriber hereby
offers to purchase and subscribes for the Securities at a price
of $1,000,000. The Adjustment Shares, if any, shall be
distributed to the Subscriber following the expiration of the
Restricted Period (hereinafter defined) according to the
following formula:
(a) If the number of shares of Common Stock
obtained by dividing (i) $1,000,000 by the product of (x) .75
and (y) the average closing bid price of the Common Stock on
the American Stock Exchange as reported by the Bloomberg
Financial Market Commodities News over the 30 consecutive
calendar days commencing on the 40th day after the date of the
Closing and expiring on the 70th day thereafter), is greater
than 313,725, such excess number of Adjustment Shares shall be
delivered to the Subscriber within three business days after
the expiration of the 30-calendar day measuring period. All
such Adjustment Shares will be issued without any restrictive
legend or stop transfer instructions. The above calculation
will be adjusted accordingly to reflect the effect of any stock
dividends or stock splits which may occur after the Closing
Date.
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(b) If the result obtained from the calculation
described in clause (a) above is zero or a negative number, no
Adjustment Shares shall be issuable to the Subscriber.
The closing of the transaction contemplated hereby (the
"Closing") shall be deemed to occur when this Agreement has
been executed by both Subscriber and Company. Payment
shall be made at the Closing by delvering immediately available
funds in United States dollars by wire transfer for
simultaneous closing by delivery of securities versus payment.
The Company agrees to deliver certificates representing the
Securities subscribed for at the Closing. The date on which
the Closing occurs is hereafter referred to as the Closing
Date.
2. Subscriber Representations; Access to Information; Independent
Investigation
(a) Offshore Transaction. Subscriber represents and
warrants to the Company that (i) Subscriber is not a "U.S.
person" as that term is defined in Rule 902(o) of Regulation S;
(ii) the Subscriber is not, and on the Closing Date will not be,
an affiliate of the Company, (iii) at the same time of
execution of this Subscription Agreement, Subscriber was
outside the United States and no offer to purchase the
Securities was made in the United States; (iv) the Subscriber
agrees that all offers and sales of the Securities prior to the
expiration of a period commencing on the Closing of the
offering of the Securities and ending forty (40) days
thereafter (the "Restricted Period") shall not be made to U.S.
persons or for the account or benefit of U.S. persons and shall
otherwise be made in compliance with the provisions of
Regulation S; (v) Subscriber is not a distributor or dealer;
(vi) the transactions contemplated hereby (a) have not been and
will not be pre-arranged by the Subscriber with a purchaser
located in the United States or a purchaser which is a U.S.
Person, and (b) are not and will not be part of a plan or
scheme by the Subscriber to evade the registration provisions
of the Act; (vii) the Subscriber shall take all reasonable
steps to ensure its compliance with Regulation S and shall
promptly send to each purchaser (x) who acts as a distributor,
underwriter, dealer or other person participating pursuant to a
contractual arrangement in the distribution of the Securities
or receiving a selling concession, fee or other remuneration in
respect of any of the Securities, or (y) who purchases prior to
the expiration of the Restricted Period, a confirmation or
other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales as the
Subcriber pursuant to Section 903(c)(2)(iv) of Regulation S;
and (viii) none of the Subscriber, its affiliates or persons
acting on their behalf have conducted and shall not conduct any
"directed selling efforts" as that term is defined in Rule
902(b) of Regulation S; nor has the Subscriber, its affiliates
or persons acting on their behalf have conducted any general
solicitation relating to the offer and sale of any of the
Securities in the United States or elsewhere.
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(b) Beneficial Owner. Subscriber is purchasing the
Securities for its own account or for the account of
beneficiaries for whom Subscriber has full investment
discretion with respect to the Securities and whom Subscriber
has full authority to bind, so that each such beneficiary is
bound hereby as if such beneficiary were a direct Subscriber
hereunder and all representations, warranties and agreements
herein were made directly by such beneficiary.
(c) Directed Selling Efforts. Subscriber will not
engage in any activity for the purpose of, or that could
reasonably be expected to have the effect of, conditioning the
market in the United States for any of the Securities sold
hereunder. To the best knowledge of the Subscriber, neither
the Company nor any person acting for the Company has conducted
any "directed selling efforts" as that term is defined in Rule
902 of Regulation S.
(d) Short Position. Neither Subscriber nor any of
its affiliates will directly or indirectly maintain any short
position in any securities of the Company until after the end
of the Restricted Period.
(e) Independent Investigation. Subscriber in
electing to subscribe for the Securities hereunder, has relied
solely upon independent investigation made by it and its
representatives, if any, and Subscriber has been given no oral
or written representations or assurance from the Company or any
representation of the Company other than as set forth in this
Agreement or in a document executed by a duly authorized
representative of the Company making reference to this
Agreement.
(f) No Government Recommendation or Approval.
Subscriber understands that no United States federal or state
agency, or similar agency of any other country, has passed upon
or made any recommendation or endorsement of the Company, this
transaction or the purchase of the Securities.
3. The Company Represents, Covenants and Warrants the following:
(a) Reporting Company Status. The Company is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly
qualified as a foreign corporation in all jurisdictions in
which the failure to so qualify would have a material adverse
effect on the Company and its subsidiaries taken as a whole.
The Company is a "Reporting Issuer" as defined by Rule 902 of
Regulation S. The Company has registered its Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the Common Stock is listed
and trades on the American Stock Exchange. The Company has
filed all material required to be filed pursuant to all
reporting obligations under either Section 13(a) or 15(d) of
the Exchange Act for a period of
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14
at least twelve (12) months immediately preceding the
offer or sale of the Securities (or for such shorter period
that the Company has been required to file such material).
(b) Concerning the Securities. The issuance, sale
and delivery of the Securities are within the Company's
corporate powers and have been duly authorized by all required
corporate action on the part of the Company and its
stockholders and when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein,
will be duly and validly issued, fully paid and non-assessable.
There are no preemptive rights of any shareholder of the
Company.
(c) Offshore Transaction. The Company has not
offered or sold the Securities to any person in the United
States, or, to the best knowledge of the Company, any
identifiable group of U.S. citizens abroad, or any U.S. person
as that term is defined in Regulation S. At the time the buy
order was originated the Company and/or its agents reasonably
believed Subscriber was outside the United States and was not a
U.S. person.
(d) Prearranged Sale. The Company and/or its
agents believe that the transaction contemplated hereby has not
been pre-arranged with a buyer in the United States.
(e) No Directed Selling Efforts. The Company has
not conducted any "directed selling efforts" as that term is
defined in Rule 902 of Regulation S nor has Company conducted
any general solicitation relating to the offer and sale of the
Securities to persons resident within the United States or any
other U.S. person as that term is defined in Rule 902 of
Regulation S.
(f) Subscription Agreement. This Agreement has
been duly authorized, validly executed and delivered on behalf
of the Company and is a valid and binding agreement enforceable
against the Company in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights generally.
(g) Non-contravention. The execution and delivery
of this Agreement and the consummation of the issuance of the
Securities and the transactions contemplated by this Agreement
do not and will not conflict with or result in a breach by the
Company of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or by-laws of the
Company, or any indenture, mortgage, deed of trust, or other
material agreement or instrument to which the Company is a
party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of
the United States of any State thereof or any applicable decree
judgment or order of any Federal or State court, Federal or
State regulatory
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15
body, administrative agency or other United States governmental
body having jurisdiction over the Company or any of its
properties or assets.
(h) Litigation. There is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of
the Company, threatened, against or affecting the Company, or
any of its properties, which might result in any material
adverse change in the condition (financial or otherwise) or in
the earnings, business affairs or business prospects of the
Company, or which might materially and adversely affect the
properties or assets thereof.
(i) No Default. The Company is not in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust or other material instrument or
agreement to which it is a party or by which it or its property
may be bound; and neither the execution, nor the delivery by
the Company, nor the performance by the Company of its
obligations under this Agreement or the Securities will
conflict with or result in the breach or violation of any of
the terms or provisions of, or constitute a default or result
in the creation or imposition of any lien or charge on any
assets or properties of the Company under, any material
indenture, mortgage, deed of trust or other material agreement
or instrument to which the Company is a party or by which it is
bound or any statute or the Certificate of Incorporation or
Bylaws of the Company, or any decree, judgment, order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or its properties.
(j) SEC Filings. None of the Company's filings
with the Securities and Exchange Commission since January 1,
1995 contains any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statement therein in light of the
circumstances under which they were made, not misleading. The
Company has since January 1, 1995 timely filed all requisite
forms, reports and exhibits thereto with the Securities and
Exchange Commission.
(k) Full Disclosure. There is no fact known to the
Company (other than general economic conditions known to the
public generally) that has not been disclosed in writing to the
Subscriber that (i) could reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise)or in the earnings, business affairs, business
prospects, properties or assets of the Company or (ii) could
reasonably be expected to materially and adversely affect the
ability of the Company to perform its obligations pursuant to
this Agreement.
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4. Covenants of the Company. For a period of two years
following the Closing or for so long as any Securities
held by the Subscriber remain outstanding, whichever is less,
the Company covenants and agrees with the Subscriber that:
(a) It will maintain the listing of its Securities
on the American Stock Exchange.
(b) It will not issue stop transfer instructions to
its transfer agent with respect to and, except as otherwise
expressly provided herein, will not place a restrictive legend
on the certificates representing the Securities.
5. Securities to be Issued Without Restrictive Legend. After
the expiration of the Restricted Period, all Securities
issued pursuant to this Agreement shall be issued without
restrictive legend or stop transfer instructions, in the name
of the Subscriber or such non-U.S. Persons as may be designated
by the Subscriber prior to the Closing. The Company warrants
that no instructions with respect to transfers to U.S. Persons
of the certificates representing such Securities have been
given or will be given and that the Securities shall be freely
transferable on the books and records of the Company. Nothing
in this Section 5, however, shall affect in any way the
Subscriber's obligations and agreements to comply with all
applicable securities laws upon resale of the Securities.
Prior to the expiration of the Restricted Period, all
certificates representing the Securities shall bear the
following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES COMMISSION OF ANY STATE UNDER ANY STATE
SECURITIES LAW. THEY ARE BEING OFFERED PURSUANT TO A SAFE
HARBOR FROM REGISTRATION UNDER REGULATION S ("REGULATION
S") PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE UNITED
STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN
REGULATION S) UNLESS THE SECURITIES ARE REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS, OR SUCH
OFFERS, SALES AND TRANSFERS ARE MADE PURSUANT TO AVAILABLE
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND THOSE LAWS."
Following the expiration of the Restricted Period, the
Subscriber shall be entitled to obtain replacement certificates
representing the Securities without any restrictive legend,
such replacement certificates to be issued within three
business days of delivery of the original certificates to the
Company.
6
17
6. Legal Opinion. On or before the date hereof, the Company has
delivered to the Subscriber a form of legal opinion from
the Company's counsel (the "Legal Opinion") which, upon
the expiration of the Restricted Period, the Company will cause
its counsel to deliver to the Company's transfer agent which
authorizes the issuance of Securities free of any restrictive
legend or stop transfer instructions in accordance with the
provisions of the foregoing paragraph.
7. Reliance on Representations. The Subscriber understands that
the offer and sale of the Securities are not being registered
under the Act. The Company and the Subscriber are relying
on the rules governing offers and sales made outside the
United States pursuant to Regulation S.
8. Resales. Subscriber acknowledges and agrees that the
Securities may only be resold (a) in compliance with
Regulation S; (b) pursuant to a Registration Statement under
the Act; or (c) pursuant to an exemption from registration
under the Act other than Regulation S.
9. Confidentiality. Each of the Company and the Subscriber agrees
to keep confidential and not to disclose to or use for the
benefit of any third party the terms of this Agreement or any
other information which at any time is communicated by the
other party as being confidential without the prior written
approval of the other party; provided, however, that this
provision shall not apply to information which, at the time of
disclosure, is already part of the public domain (except by
breach of this Agreement) and information which is required to
be disclosed by law.
10. Indemnification. Each of the Company and the Subscriber agrees
to indemnify the other and to hold the other harmless from
and against any and all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees) which the other
may sustain or incur in connection with the breach by the
indemnifying party of any representation, warranty or covenant
made by it in this Agreement.
11. Issuance of Additional Securities. Until the expiration of
the 70th day following the Closing, the Company will not
issue any shares of Common Stock pursuant to Regulation S
which, when aggregated with the Securities (excluding the
Adjustment Shares), would upon issuance thereof (or conversion
thereof in the case of convertible securities) exceed 1,300,000
shares.
12. Registration. After the expiration of the Restricted Period,
if the Company fails to issue to the Subscriber or the
Subscriber's transferees certificates for shares of Common
Stock bearing no restrictive legend for any reason other than
the Company's reasonable good faith belief that the
representations and warranties made by the Subscriber in this
Agreement were untrue when made, then the Company shall be
required, at the request of the Subscriber and at the Company's
expense, to effect the
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18
registration of the Securities under the Act, and relevant Blue
Sky laws as promptly as is practicable. The Company and the
Subscriber shall cooperate in good faith in connection with the
furnishing of information required for such registration and the
taking of such other actions as may be legally or commercially
necessary in order to effect such registration. The Company
shall file a registration statement within 30 days of
Subscriber's written demand therefor and shall use its best
efforts to cause such registration statement to become effective
as soon as practicable thereafter. Such best efforts shall
include, but not be limited to, promptly responding to all
comments received from the staff of the Securities and Exchange
Commission, providing Subscriber's counsel with a
contemporaneous copy of all written communications from and to
the staff of the Securities and Exchange Commission with respect
to such registration statement and promptly preparing and filing
amendments to such registration statement which are responsive
to the comments received from the staff of the Securities and
Exchange Commission. Once declared effective by the Securities
and Exchange Commission, the Company shall cause such
registration statement to remain effective until the earlier of
(i) the sale by the Subscriber of all Securities registered or
(ii) 120 days after the effective date of such registration
statement. In the event that the Company is required to effect a
registration pursuant to the provisions of this Section but has
not registered the Securities under the Act and relevant Blue
Sky Laws within 90 days after the date of the Subscriber's
demand therefor, the Company shall pay to the Subscriber by wire
transfer, as liquidated damages for such failure and not as a
penalty, an amount in cash equal to $100,000. Such payment shall
be made to the Subscriber immediately upon expiration of the
90-day period referenced in the preceding sentence if the
registration of the Securities is not effected by such date;
provided, however, that the payment of such liquidated damages
shall not relieve the Company from its obligations to register
the Securities pursuant to this Section 12.
13. Notices. Any notice to be given or to be served upon any party
to this Agreement in connection with this Agreement must be in
writing and will be deemed to have been given and received one
(1) day after it has been submitted for delivery by Federal
Express or an equivalent carrier, charges prepaid and addressed
to the following addresses with a confirmation of delivery or
upon confirmation of receipt if sent by facsimile transmission
to the following fax numbers:
The Company:
Fortune Petroleum Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
8
19
The Subscriber:
Newsun Limited
c/o ABN AMRO Trust Company
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇. ▇▇▇▇
Any party may, at any time by giving notice to the other party,
designate any other address in substitution of an address
established pursuant to the foregoing to which such notice will
be given.
14. Multiple Counterparts. This Agreement may be executed in
several counterparts, each of which will be deemed to be an
original but all of which will constitute one in the same
instrument. However, in enforcing any party's rights under this
Agreement it will be necessary to produce only one copy of this
Agreement signed by the party to be charged.
15. Governing Law. This Agreement will be construed and enforced
in accordance with and governed by the laws of the State of New
York except for matters arising under the Act or the Exchange
Act, without reference to principles of conflicts of law. Each
of the parties consents to the jurisdiction of the federal
courts whose districts encompass any part of the State of New
York or the state courts of the State of New York in connection
with any dispute arising under this Agreement and hereby waives,
to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of
any such proceeding in such jurisdictions. Each party hereby
agrees that if another party to this Agreement obtains a
judgment against it in such a proceeding, the party which
obtained such judgment may enforce same by summary judgment in
the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby
waives any defenses available to it under local law and agrees
to the enforcement of such a judgment. Each party to this
Agreement irrevocably consents to the service of process in any
such proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such party at its address
set forth herein. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The undersigned hereby subscribes 313,725 of Initial Shares and pay
herewith funds in the amount of One Million Dollars ($1,000,000).
The undersigned acknowledges that this subscription shall not be
effective unless accepted by the Company as indicated below.
Dated this 8th day of December, 1995
NEWSUN LIMITED
By: /s/
----------------------------------
Name:
Title:
THIS SUBSCRIPTION IS ACCEPTED BY THE COMPANY ON THE 8TH DAY OF
DECEMBER, 1995.
FORTUNE PETROLEUM CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name:
Title: President & CEO
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21
JOINT ESCROW INSTRUCTIONS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Patterson, Belknap, ▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Acquisition of Fortune Petroleum Corporation Shares by
T.H.C. Inc. and Newsun Limited
Dear ▇▇. ▇▇▇▇▇▇▇:
As escrow agent for both Fortune Petroleum Corporation, a Delaware
corporation (the "Company"), and T.H.C. Inc. and Newsun Limited (the
"Purchaser"), purchasers of Shares of the Company, you (the "Escrow Agent") are
hereby authorized and directed to hold the documents and funds (together with
any interest thereon, the "Escrow Funds") delivered to the Escrow Agent
pursuant to the terms of the Agreement in accordance with the following
instructions:
1. Upon its acceptance of the Subscription Agreement, the Company
shall deliver or cause to be delivered to Escrow Agent, common stock share
certificates ("Share Certificates") for 313,725 Shares each, as provided in the
Subscription Agreement.
2. The Escrow Agent shall, as promptly as feasible, notify the
Company of receipt of the purchase price from the Purchaser, and notify the
Purchaser (or such agent as the Purchaser may designate in writing) of receipt
of certificates for the Shares (each a "Certificate" and collectively the
"Certificates"). As promptly as feasible upon receipt of notice (whether oral
or in written form) from the Company and the Purchaser that the respective
conditions precedent to the purchase and sale have been satisfied (which notice
shall not be unreasonably withheld), the Escrow Agent shall release the Escrow
Funds to or upon the order of the Company and shall release the Certificates to
the Purchaser. If such Certificates are not deposited with the Escrow Agent
within ten (10) days after receipt by the Company of notice of receipt by the
Escrow Agent of the funds from the Purchaser, Escrow Agent shall notify the
Purchaser and Purchaser shall be entitled to cancel the
22
subscription and demand repayment of the funds. If the Company or the
Purchaser notifies the Escrow Agent that on the Closing Date (as defined in the
Agreement) the conditions precedent to the obligations of the Company or the
Purchaser, as the case may be, under the Agreement were not satisfied or
waived, then the Escrow Agent shall return the Escrow Funds to the Purchaser
and shall return the Certificates to the Company. Prior to return of the
Escrow Funds to the Purchaser, the Purchaser shall furnish such tax reporting
or other information as shall be appropriate for the Escrow Agent to comply
with applicable United States' laws.
3. The Share Certificates delivered to the Escrow Agent pursuant
hereto shall be deposited for safekeeping with the Escrow Agent (the "Escrow
Agent"). During the Escrow Period (hereinafter defined), none of the Share
Certificates deposited in the Escrow Account shall become the property of
Purchaser or any other entity or be subject to the debts of investor or any
other entity except as expressly provided herein, and the Escrow Agent shall
neither make nor permit any disbursements or deliveries from the Escrow Account
except as expressly provided herein.
4. The Escrow Period shall begin on the effective date of the
Subscription Agreement and, except as otherwise provided herein, shall continue
until terminated on the 70th day after the Closing Date, or as otherwise
provided in the Subscription Agreement. Notwithstanding the foregoing, if
there remain Share Certificates in the Escrow Account, all such Share
Certificates then remaining in the Escrow Account shall forthwith be forwarded
to the Company upon written request given to Escrow Agent by the Company.
5. The Company shall deliver to the Escrow Agent appropriate
written notice of any extension or amendment to the Subscription Agreement.
6. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, the Purchaser and
the Escrow Agent.
7. The Escrow Agent shall be obligated only for the performance of
such duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by the Escrow Agent to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to do hereunder
as Escrow Agent while acting in good faith, and any act done or omitted by the
Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law
shall be conclusive evidence of such good faith.
8. The Escrow Agent is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person
or corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to
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comply with and obey orders, judgments or decrees of any court. In case the
Escrow Agent obeys or complies with any such order, judgment or decree, the
Escrow Agent shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been entered
without jurisdiction.
9. The Escrow Agent shall not be liable in any respect on account
of the identity, authorities or rights of the parties executing or delivering
or purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
10. The Escow Agent shall be entitled, at its own expense, to
employ such legal counsel and other experts as the Escrow Agent may deem
necessary properly to advise the Escrow Agent in connection with the Escrow
Agent's duties hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor. The Escrow Agent has acted as
legal counsel for Purchaser and may continue to act as legal counsel for
Purchaser, from time to time, notwithstanding its duties as Escrow Agent
hereunder.
11. The Escrow Agent's responsibilities as Escrow Agent hereunder
shall terminate if the Escrow Agent shall resign by written notice to the
Company and the Purchaser. In the event of any such resignation, the Purchaser
and the Company shall appoint a successor Escrow Agent.
12. If the Escrow Agent reasonably requires other or further
instruments in connection with these Joint Escrow Instructions or obligations
in respect hereto, the necessary parties hereto shall join in furnishing such
instruments.
13. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
documents or Escow Funds held by the Escrow Agent hereunder, the Escrow Agent
is authorized and directed in the Escrow Agent's sole discretion (a) to retain
in the Escrow Agent's possession without liability to anyone all or any part of
said documents or Escrow Funds until such disputes shall have been settled
either by mutual written agreement of the parties concerned or by a final
order, decree or judgment of a court of competent jurisdiction after the time
for appeal has expired and no appeal has been perfected, but the Escrow Agent
shall be under no duty whatsoever to institute or defend any such proceedings,
or (b) to deliver the Escrow Funds and any other property and documents held by
the Escrow Agent hereunder to a state or federal court having competent
subject matter jurisdiction and located in the State and City of New York in
accordance with the applicable procedure therefor.
14. The Company and the Purchaser agree jointly and severally to
indemnify and hold harmless the Escrow Agent from any and all claims,
liabilities, costs or expenses in any way arising from or relating to the
duties or performance of the Escrow Agent
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hereunder other than any such claim, liability, cost or
expense to the extent the same shall have been determined by
final, unappealable judgment of a court of competent
jurisdiction to have resutled from the gross negligence or
willful misconduct of the Escrow Agent.
15. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall
be deemed effectively given upon personal delivery or
three business days after deposit in the United States Postal
Service, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses
as a party may designate by ten days advance written notice to
each of the other parties hereto.
COMPANY: Fortune Petroleum Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Cunsel
PURCHASER:
ESCROW AGENT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Patterson, Belknap, ▇▇▇▇ & Tyler, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
16. By signing these Joint Escrow Instructions, the Escrow Agent
becomes a party hereto only for the purpose of these
Joint Escrow Instructions; the Escrow Agent does not become a
party to the Agreement. The Company and the purchaser have
become parties hereto by their execution and delivery of the
Agreement, as provided therein.
17. This instrument shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and
permitted assigns and shall be governed by the laws of the
State of New York without giving effect to principles governing
the conflicts of laws. A facsimile transmission of these
instructions signed by the Escrow Agent shall be legal and
binding on all parties hereto.
18. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings provided in the
Agreement.
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19. The rights and obligations of any party hereto are not
assignable without the written consent of the other parties hereto.
FORTUNE PETROLEUM CORPORATION T.H.C. INC.
By: /s/ By: /s/
------------------------------ ------------------------------
▇▇▇▇ ▇. DRULLAS
Secretary NEWSUN LIMITED
By: /s/
------------------------------
ACCEPTED BY ESCROW AGENT:
By: /s/
------------------------------
Date
-----------------------------
5