EXHIBIT 10.16
EXHIBIT 10.16
AMENDED AND RESTATED
AGREEMENT OF PURCHASE AND SALE
This Amended and Restated Agreement of Purchase and Sale (the
"AGREEMENT"), is made and entered into effective as of September 6, 1996, by and
between TEXOIL, INC., a Nevada corporation (the "SELLER"), and ________________,
an individual (the "PURCHASER"), and sets forth the terms and conditions of the
sale and purchase of a $_______ Replacement 12% Convertible Promissory Note,
substantially in the form attached hereto as EXHIBIT A (the "NOTE").
RECITALS
A. The Seller and Purchaser entered into that Agreement of Purchase and
Sale dated as of May 6, 1996 (the "ORIGINAL PURCHASE AGREEMENT"), under which
Seller issued to Purchaser a 12% Convertible Promissory Note in the original
principal amount of $_______ (the "ORIGINAL NOTE").
B. Seller has received a new financing commitment under which it will
issue notes to RIMCO PARTNERS, L.P., RIMCO PARTNERS, L.P. II, RIMCO PARTNERS,
L.P. III, and RIMCO PARTNERS, L.P. IV, each a Delaware limited partnership (the
"RIMCO FINANCING"). Seller and Purchaser agree that the RIMCO Financing is in
the best interest of the Seller and will benefit the Purchaser.
C. The Seller and Purchaser now desire to facilitate the RIMCO Financing
by restructuring the financing arrangement contemplated by the Original Purchase
Agreement. Among other things, the Purchaser and Seller will enter into this
Agreement and that certain Cancellation of Guaranty, Warrants and Registration
Rights Agreement dated the same date as this Agreement.
D. The Seller desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase and accept from the Seller, the Note on the terms
and subject to the conditions set forth herein. The Note is issued in
replacement of, but not as a novation of, the Original Note.
E. This Agreement, the Note, and any documents executed in connection
therewith are collectively referred to as the "TRANSACTION DOCUMENTS".
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants, and the representations and warranties contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Purchaser and Seller agree as follows:
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ARTICLE I
Purchase and Sale
1.1 PURCHASE AND SALE OF THE NOTE. Subject to the terms of this Agreement,
the Seller agrees to issue, sell and deliver the Note to the Purchaser at the
Closing (as defined herein), and Purchaser agrees to purchase and accept the
Note from the Seller at the Closing.
1.2 CONSIDERATION FOR PURCHASE OF THE NOTE. Subject to the terms of this
Agreement, the Purchaser hereby agrees to extend and continue the loan evidenced
by the Original Note under the terms of the Note and to deliver to the Seller
the Original Note at Closing, with such extension and continuation on the terms
of the Note being the consideration for the issuance of the Note (the
"CONSIDERATION").
ARTICLE II
Representations and Warranties of Seller
Seller represents and warrants to the Purchaser as follows:
2.1 ORGANIZATION, STANDING AND QUALIFICATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as it is now being
conducted. Seller is licensed and qualified to do business as a foreign
corporation in each jurisdiction in which the character of Seller's properties,
owned or leased, or the nature of its activities makes such qualification or
license necessary, except where failure to be so licensed and qualified would
not have a material adverse effect on Seller's business.
2.2 AUTHORITY; NO DEFAULTS. Seller has all requisite corporate power and
authority to enter into the Transaction Documents and to carry out its
obligations thereunder. The execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated thereby have been duly
authorized by all necessary corporate action on the part of Seller. The
Transaction Documents have been executed and delivered by Seller and constitute
the valid and binding obligation of Seller, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, moratorium and other similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The execution and delivery of the Transaction Documents do
not, and the consummation of the transactions contemplated hereby and thereby
will not, conflict with or result in a breach of or the acceleration of any
obligation under, or constitute a default or event of default (or event which,
with notice or lapse of time or both, would constitute a default) under, any
provision of any charter,
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bylaw, indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, decree, ordinance or regulation, or any restriction to which any
property of Seller is subject or by which Seller is bound, the effect of which
would be materially adverse to Seller. Seller is not, nor is it alleged to be,
in material violation or default of any applicable law, statute, order, rule or
regulation promulgated or judgment entered by any court, administrative agency
or commission or other governmental agency or instrumentality, domestic or
foreign (a "GOVERNMENTAL ENTITY"), relating to or affecting the operation,
conduct or ownership of the property or business of Seller.
2.3 APPROVALS. Except for compliance with the provisions of the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), the Securities Act of 1933 (the
"SECURITIES ACT") and the blue sky laws of various states, there is no legal
impediment to the execution and delivery of the Transaction Documents by Seller
or to the consummation of the transactions contemplated thereby, and no filing
or registration with, or authorization, consent or approval of, a Governmental
Entity, shareholders or any other third party is necessary for the consummation
by Seller of the transactions contemplated thereby.
2.4 SEC DOCUMENTS. Seller has provided to the Purchaser a true, complete
and correct copy of Seller's annual report on Form 10-KSB for the fiscal year
ended December 31, 1995, together with all amendments thereto, and any and all
filings with the Securities and Exchange Commission ("SEC") made by Seller
(including all requested exhibits to such filings) since the filing of said Form
10-KSB (all such documents that have been filed with the SEC, as amended, are
referred to as the "SELLER SEC DOCUMENTS"). As of their respective dates, and
except as amended, the Seller SEC Documents complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as the case may
be, and none of the Seller SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of Seller
included in the Seller SEC Documents comply as to form in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with generally accepted accounting principles ("GAAP") applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as permitted by Form
10-QSB) and fairly present (subject, in the case of the unaudited statements, to
normal recurring audit adjustments) the consolidated financial position of
Seller as of the dates thereof and the consolidated results of its operations
and cash flows for the periods then ended.
2.5 LITIGATION. Except as set forth in Seller SEC Documents, as of the
date of this Agreement, there is no suit, action, proceeding or investigation
pending or, to the best knowledge of Seller, threatened against or affecting
Seller (or any of its respective officers or directors in connection with the
business of Seller), nor is there any outstanding judgment, order, writ,
injunction or decree against Seller, which judgment would have a material
adverse effect on Seller. Seller is not
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subject to any court order, writ, injunction, decree, settlement agreement or
judgment that contains or orders any on-going obligations, whether prohibitory
or mandatory in nature, the performance of which would have a material adverse
effect on Seller.
2.6 CAPITALIZATION. Seller has authorized capital stock of (a) 50,000,000
shares of Common Stock, par value $.01, of which, as of July 31, 1996, 4,157,073
shares are issued and outstanding, and (b) 10,000,000 shares of preferred stock,
par value $.01 per share ("PREFERRED STOCK"), of which, as of March 31, 1996,
23,000 shares are issued and outstanding. All of the issued and outstanding
shares of Common Stock were duly and validly issued and are fully paid and
non-assessable. None of the outstanding shares of Common Stock have been issued
in violation of any preemptive rights of the current or past stockholders of
Seller. All of the Common Stock issued on the conversion of the Note will be
fully paid, non-assessable and free and clear of any preemptive rights and,
subject to compliance with the statutes and regulations referred to in Section
2.3, Encumbrances. As used in this Agreement, the term "ENCUMBRANCE" means and
includes (i) any security interest, mortgage, deed of trust, lien, charge,
pledge, proxy, adverse claim, equity, power of attorney, or restriction of any
kind, including but not limited to, any restriction or servitude on the use,
transfer, receipt of income, or other exercise of any attributes of ownership,
other than restrictions imposed by the Securities Act or any state blue sky
laws, and (ii) any Uniform Commercial Code financing statement or other public
filing, notice or record that by its terms purports to evidence or notify
interested parties of any of the matters referred to in clause (i) that has not
been terminated or released by another proper public filing, notice or record.
2.7 SUBSIDIARIES. Each subsidiary of Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite corporate power and
authority to own, to lease or to operate its properties and to carry on its
business as it is now being conducted and is duly qualified or licensed to do
business in each jurisdiction in which the character of its properties, owned or
leased, or the nature of its activities makes such qualification or license
necessary, unless the failure to be so licensed or qualified would not have a
material, adverse effect on Seller. All outstanding shares of capital stock of
each subsidiary of Seller were duly and validly issued and are fully paid,
nonassessable and owned by Seller or a subsidiary of Seller, free and clear of
all Encumbrances. There are no options, warrants or other rights, agreements or
commitments (including preemptive rights) obligating Seller or any of its
subsidiaries to issue, to sell or to transfer any shares of capital stock or
other securities of any subsidiary of Seller.
2.8 LIABILITIES. Seller has no liabilities or obligations, either accrued,
absolute, contingent, or otherwise that have a material adverse effect on the
value or business of Seller, and Seller has no knowledge of any potential
liability that it reasonably believes would likely result in a material adverse
effect on the value or business of the Seller, other than those (a) reflected or
reserved against in the unaudited consolidated balance sheet of Seller at July
31, 1996, or disclosed in other Seller SEC
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Documents, (b) incurred in the ordinary course of business, (c) incurred in
connection with the RIMCO Financing, or (d) that are otherwise known to
Purchaser.
2.9 LICENSES, PERMITS, AUTHORIZATIONS, ETC. Seller holds all approvals,
authorizations, consents, licenses, orders, franchises, rights, registrations
and permits of any type required to operate its business as presently conducted,
except where failure to be so authorized would not have a material adverse
effect on Seller's business. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not result in any
revocation, cancellation, suspension or modification of any such approval,
authorization, consent, license, order, franchise, right, registration or
permit.
2.10 TAXES AND RETURNS. Seller has filed all required tax returns and
reports. Seller has paid all taxes, assessments and governmental charges and
penalties which it has incurred, except such as are being or may be contested in
good faith by appropriate proceedings. Seller is not delinquent in the payment
of any tax, assessment or governmental charge. No deficiencies for any taxes
have been proposed, asserted, or assessed against Seller, and no requests for
waivers of the time to assess any such tax are pending. For the purposes of this
Agreement, the term "TAX" (including, with correlative meaning, the terms
"taxes" and "taxable") shall include all federal, state, local and foreign
income, profits, franchise, gross receipts, payroll, sales, employment, use,
property, withholding, excise and other taxes, duties or assessments of any
nature whatsoever, together with all interest, penalties and additions imposed
with respect to such amounts.
2.11 INSURANCE. Each policy of property, fire and casualty, commercial
liability, product liability, worker's compensation, professional liability and
title insurance and other forms of insurance (except group, health and life
policies) and each bond issued or posted by any person with respect to any
operations or other activities of Seller is, to the knowledge of Seller, the
legal, valid and binding obligation of the insurer or bond issuer, enforceable
in accordance with its terms, and is in an amount and provides for coverage as
is customary in the ordinary business practices of Seller's industry.
ARTICLE III
Representations and Warranties of Purchaser
Purchaser represents and warrants to the Seller as follows:
3.1 PURCHASER. Purchaser is an individual, over the age of eighteen years,
a citizen of the United States of America and a resident of California.
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3.2 AUTHORITY; NO DEFAULTS. Purchaser has all requisite legal capacity and
authority to enter into the Transaction Documents and to carry out its
obligations thereunder. The Transaction Documents have been executed and
delivered by Purchaser and constitute the valid and binding obligation of
Purchaser, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, moratorium and other similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The execution
and delivery of the Transaction Documents do not, and the consummation of the
transactions contemplated hereby and thereby will not, conflict with or result
in a breach of or the acceleration of any obligation under, or constitute a
default or event of default (or event which, with notice or lapse of time or
both, would constitute a default) under, any provision of any charter, bylaw,
indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, decree, ordinance or regulation, or any restriction to which any
property of Purchaser is subject or by which Purchaser is bound, the effect of
which would be materially adverse to Purchaser. Purchaser is not, nor is it
alleged to be, in material violation or default of any applicable law, statute,
order, rule or regulation promulgated or judgment entered by any Governmental
Entity, relating to or affecting the operation, conduct or ownership of the
property or business of Purchaser.
3.3 APPROVALS. Purchaser is an accredited investor (as defined in Section
2(15) of the Securities Act, and in Rule 215 and Regulation D promulgated
thereunder), and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in Common Stock, and make an informed investment decision. In addition,
Purchaser is a director of Seller. There is no legal impediment to the execution
and delivery of the Transaction Documents by Purchaser or to the consummation of
the transactions contemplated thereby, and no filing or registration with, or
authorization, consent or approval of, a Governmental Entity, shareholders or
any other third party is necessary for the consummation by Purchaser of the
transactions contemplated thereby.
3.4 NO AWARENESS OF BREACH. As of the date hereof and the Closing Date,
Purchaser is not aware of any breach of any representation, warranty, covenant
or other agreement by Seller contained in this Agreement or in any other
Transaction Document.
ARTICLE IV
The Closing
4.1 TIME AND PLACE. The closing of the purchase and sale of the Note (the
"CLOSING") will take place on September 6, 1996 (the "CLOSING DATE"), at the
offices of Seller, unless another place is agreed to by the parties.
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4.2 CONDITIONS TO THE OBLIGATION OF SELLER. The obligation of Seller to
effect the Closing is subject to the consummation of the RIMCO Financing and to
Purchaser delivering, or causing to be delivered, to Seller the Original Note at
the Closing.
4.3 CONDITIONS TO THE OBLIGATION OF PURCHASER. The obligation of Purchaser
to effect the Closing is subject to the consummation of the RIMCO Financing and
to Seller delivering, or causing to be delivered, to Purchaser at the Closing
the following documents:
(a) the Note; and
(b) a certificate of an officer of the Seller, in a form acceptable
to the Purchaser in its sole discretion, that each of the representations
and warranties of Seller in the Transaction Documents are true as of the
Closing Date.
ARTICLE V
General Provisions
5.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements contained in this Agreement shall
survive the Closing until the earlier of the expiration of the statutory
limitation period or such time as the Purchaser is no longer the owner of any of
the capital stock of Seller.
5.2 NOTICES. All notices or other communications which are required or may
be given under this Agreement shall be in writing and shall be deemed to have
been duly given when delivered, transmitted by telecopier (with receipt
confirmed) or mailed by registered or certified first class mail, postage
prepaid, return receipt requested to the parties hereto at the address set forth
below (as the same may be changed from time to time by notice similarly given)
or the last known business or residence address of such other person as may be
designated by either party hereto in writing.
(a) If to Seller:
Texoil, Inc.
1600 Smith Street, Suite 4000
Houston, Texas 77002
Fax: (713) 652-9601
Attn: President
with a copy to:
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Porter & Hedges, L.L.P.
700 Louisiana Street, 35th Floor
Houston, Texas 77002-2764
Fax: (713) 228-1331
Attn: Nick D. Nicholas
(b) If to Purchaser:
Fax:
with a copy to:
Pillsbury, Madison & Sutro, L.L.P.
101 West Broadway, Suite 1800
San Diego, California 92101-8219
Fax: (619) 236-1995
Attn: David R. Snyder
Shannon, Martin, Finkelstein & Sayre, P.C.
1200 Smith Street, Suite 1300
Houston, Texas 77002
Fax: (713) 752-0337
Attn: Nancy F. Martin
5.3 MISCELLANEOUS. This Agreement and the other Transaction Documents (i)
constitute the entire agreement and supersede all other prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof, (ii) shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and is not intended to confer upon any other person any rights or remedies
hereunder, (iii) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Texas, and (iv) may be
executed in two or more counterparts which when read together shall constitute a
single agreement.
5.4 SCHEDULES. All statements contained in any exhibit, schedule,
appendix, certificate or other instrument delivered by or on behalf of the
parties hereto, or in connection with the transactions contemplated hereby, are
an integral part of this Agreement and shall be deemed representations and
warranties hereunder. Notwithstanding anything in this Agreement or any
Transaction Document to the contrary, Purchaser shall not be entitled to assert,
by action or defense, any breach or inaccuracy
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in any representation, warranty, covenant, or agreement by Seller under this
Agreement or any other Transaction Document, if, and to the extent that,
Purchaser or any member of Seller's Board of Directors, who is also a purchaser
of a note and warrant from Seller, has knowledge of such breach or inaccuracy.
5.5 PUBLICITY. Seller and Purchaser promptly shall advise and cooperate
with the other prior to issuing, or permitting any of its directors, officers,
employees or agents to issue, any press release with respect to this Agreement
or the explicit transactions contemplated hereby. Notwithstanding the foregoing,
without the prior consent of the Purchaser, neither Seller nor any of its
directors, officers, employees or agents shall issue any press release which
includes the name of the Purchaser or any of the Purchaser' affiliates.
5.6 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto (other
than by operation of law) without the prior written consent of the other party,
which consent may not be unreasonably withheld.
[SIGNATURES ON FOLLOWING PAGES.]
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SELLER'S SIGNATURE PAGE
IN WITNESS WHEREOF, Seller has signed this Agreement as of the date first
written above.
TEXOIL, INC.,
A NEVADA CORPORATION
By:
Ruben Medrano
President
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PURCHASER'S SIGNATURE PAGE
IN WITNESS WHEREOF, Purchaser has signed this Agreement as of the date
first written above.
Name:
ATTACHMENTS:
Exhibit A - Form of Replacement 12% Convertible Promissory Note
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