Exhibit 10.60
FINDER agreement
This FINDER AGREEMENT ("Agreement") is entered into this 31st day of
December, 1997, by and between Saba Petroleum Company, a Delaware
corporation ("Company") and Aberfoyle Capital Limited, an Irish corporation
("Finder"). RECITALS
A. Finder has introduced Company to RGC International Investors, LDC
("Investor"). Company and Investor have executed a Securities Purchase
Agreement, of even date herewith, ("Securities Purchase Agreement") pursuant to
which Investor has purchased from Company, and Company has sold to Investor,
shares of Company Series A Convertible Preferred Stock, par value $0.001 per
share, and Warrants to purchase shares of Company Common Stock, par value $0.001
per share ("Common Stock"), and pursuant to which Company and Investor have
executed certain other agreements, instruments and documents (collectively, the
"Financing").
B. As compensation for Finder's services in connection with the
Financing, and pursuant to the Final Summary of Offering dated December 15,
1997, Company has agreed to pay to Finder a placement fee as set forth herein,
and to grant Finder certain rights with respect to certain future transactions
of Company, also as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Placement Fee.
As consideration for Finder's services in connection with the
Financing, Company is delivering herewith the following (the "Placement Fee"):
1.1 an executed copy of the Stock Purchase Warrant (Finder's Warrant),
of even date herewith, in the form attached as Exhibit A (the "Warrants"),
pursuant to which Finder shall have the right to purchase 44,944 shares of
Common Stock, as adjusted therein (the "Warrant Shares" and with the
Warrants, the "Securities").
1.2 a wire transfer in the amount of Four Hundred Thousand Dollars
($400,000) to the account of Finder listed in Exhibit B, the receipt of
which is hereby acknowledged by Finder.
2. Exclusive Rights.
Company covenants that from the date hereof until December 15, 1998,
Company will not consummate an additional financing with Investor without
payment to Finder upon such consummation of an additional Placement Fee,
calculated in the same proportion as the current Placement Fee bears to the
Financing; viz, a cash payment of 4% of the funded amount, and warrants to
purchase 4% of the shares of Common Stock which would be issuable to Investor
upon conversion of the preferred stock issued, if any, at 120% of the
then-current Market Price (as defined in the Warrant) for such Common Stock as
of the closing date of such additional financing).
3. Finders Representations and Warranties
Finder represents and warrants to Company as follows:
3.1 Broker/Dealer Status. Finder is either (i) duly registered as a
broker/dealer under the Securities Exchange Act of 1934, as amended, and any
applicable state Blue Sky laws, or (ii) exempt from such registration as a
result of the type and extent of services rendered in connection with the
Financing.
3.2 Investment Intent. Finder is purchasing the Warrants with for its
own account for investment only and not with a view towards the sale or
distribution thereof, except pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission, or in a
transaction exempt from registration under the Securities Act of 1933, as
amended (the "Act").
3.3 Accredited Investor Status. Finder is an "accredited investor" as that
term is defined in Rule 5019(a) of Regulation D promulgated under the Act.
--------------------------
3.4 Reliance on Exemptions. Finder understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and Finder
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Finder set forth herein in order to determine the
availability of such exemptions and the eligibility of the Finder to acquire the
Securities.
3.5 Information. Finder and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of Company
and materials relating to the offer and sale of the Securities which have been
requested by Finder or its advisors. Finder and its advisors, if any, have been
afforded the opportunity to ask questions of Company and have received what
Finder believes to be satisfactory answers to any such inquiries. Finder
understands that its investment in the Securities involves a significant degree
of risk.
3.6 Governmental Review. Finder 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
Securities.
3.7 Transfer or Resale. Finder understands that (i) the Securities have
not been and are not being registered under the Act or any applicable state
securities laws, and may not be transferred unless (a) subsequently included in
an effective registration statement thereunder, or (b) Finder shall have
delivered to the Company an opinion of counsel (which counsel and the form,
substance and scope of such opinion shall be acceptable to the Company in its
reasonable judgment) to the effect that the Securities to be sold or transferred
may be sold or transferred pursuant to an exemption from such registration (c)
sold or transferred to an "affiliate" (as defined under Rule 144) of the Buyer,
or (d) sold pursuant to Rule 144 promulgated under the Act (or a successor
rule); (ii) any sale of such Securities made in reliance on Rule 144 may be made
only in accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Act) may require compliance with
some other exemption under the Act or the rules and regulations of the SEC
thereunder; and (iii) neither the Company nor any other person is under any
obligation to register such Securities under the Act or any state securities
laws or to comply with the terms and conditions of any exemption thereunder.
Finder further understands and acknowledges that the Warrants and Warrant Shares
may be transferred only in whole and only with the prior written consent of
Company, which consent will not be unreasonably withheld.
3.8 Legends. Finder understands that the Warrants and Warrant Shares,
may bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for such
Securities):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The securities
have been acquired for investment any may not be sold, transferred or
assigned in the absence of an effective registration statement for the
securities under said Act, or an opinion of counsel, in form, substance
and scope reasonably acceptable to the Company, that registration is
not required under said Act or unless sold pursuant to Rule 144 under
said Act. In addition, transfer of these securities is subject to
limitations as set forth in the Finder Agreement dated as of December
31, 1997."
The legend set forth above shall be removed and Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if, unless otherwise required by applicable state securities laws, (a)
such Security is registered for sale under an effective registration statement
filed under the Act, or (b) such holder provides the Company with an opinion of
counsel (which counsel and the form, substance and scope of such opinion shall
be acceptable to the Company in its reasonable judgment), to the effect that a
public sale or transfer of such Security may be made without registration under
the Act and such sale or transfer is effected or (c) such holder provides
Company with reasonable assurances that such Security can be sold pursuant to
Rule 144 under the Act (or a successor rule thereto) without any restriction as
to the number of Securities acquired as of a particular date that can then be
immediately sold. Finder agrees to sell all Securities, including those
represented by a certificate(s) from which the legend has been removed, in
compliance with applicable prospectus delivery requirements, if any.
4. Registration Rights with Respect to Warrant Shares
Company will include all of the Warrant Shares in the registration
statement required to be filed by Company in connection with the Securities
Purchase Agreement. Finder will provide customary indemnification to Company for
any information provided by Finder and included by Company in such registration
statement. Finder shall have no rights under the Registration Rights Agreement,
dated as of December 31, 1997, by and among Company and the parties signatory
thereto.
5. Miscellaneous
5.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given on the date of delivery, if delivered
personally or faxed during normal business hours of the recipient, or three days
after deposit in the U.S. Mail, postage prepaid, if mailed by registered or
certified mail (return receipt requested) as follows:
(a) if to Company:
Saba Petroleum Company
3201 Airpark Drive, Suite 201
Santa Maria, CA 93455
Attention: General Counsel
(b) if to Finder
Aberfoyle Capital Limited
c/o Loughran & Co.
38 Hertford Street
London W1Y 7TG England
Attention: Mr. Pierce Loughran
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
5.2 Choice of Law; Jury Trial
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW
OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the jurisdiction of the courts
of the State of California located in the County of Santa Barbara ("State
Court") and the Federal courts of the United States of America located in the
Central District of the State of California ("Federal Court") solely in respect
of the interpretation and enforcement of the provisions of this Agreement and of
the documents referred to in this Agreement, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a State Court or Federal Court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided herein in such other manner as may be
permitted by applicable law, shall be valid and sufficient service thereof.
(b) The parties agree that irreparable damage would occur and that the
parties would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties are entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any Federal Court or State Court, this being in addition to any other remedy
to which they are entitled at law or in equity.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY AND TO PUNITIVE DAMAGES
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE INITIAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
5.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which being deemed an original, but all of which
together shall constitute one and the same agreement. ------------
5.4 Entire Agreement. This Agreement, together with the exhibits
hereto, embodies the entire agreement and understanding of the parties in
respect of the subject matter contained herein and, with respect to Company and
Finder only, supersedes all prior agreements and understandings among them with
respect to such subject matter, including without limitation the Final Summary
of Offering, dated December 15, 1997.
5.5 No Personal Liability. This Agreement shall not create or be
deemed to create any personal liability or obligation on the part of any
direct or indirect stockholder of Finder or Company, or any of
---------------------- their respective officers, directors, employees,
agents or representatives.
5.6 Expenses. All costs and expenses incurred in connection with this
Agreement, the Financing, and the other transactions contemplated hereby
shall be paid by the party incurring such expenses. ---------
5.7 Termination. This Agreement shall terminate and be of no further
force and effect on December 15, 1998. -----------
[signatures follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
COMPANY FINDER
Saba Petroleum Company Aberfoyle Capital Limited
By: ________________________ By: ________________________
Name: ________________________ Name: ________________________
Title: ________________________ Title: ________________________
EA973640.038/10+