1
EXHIBIT 99.3
PRIVATE PLACEMENT
SUBSCRIPTION AGREEMENT
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (the "Agreement"), dated
as of the date of acceptance set forth below, by and between Harken Energy
Corporation, a Delaware corporation, with headquarters located at 5605 North
MacArthur, Suite 400, Irving, Texas 75038 (the "Company"), and the undersigned
(the "Buyer").
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 under Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 Act"); and
WHEREAS, the Buyer wishes to subscribe for and purchase shares of
Common Stock, $.01 par value (the "Common Stock"), of the Company upon the
terms and subject to the conditions of this Agreement, subject to acceptance of
this Agreement by the Company;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE.
a. SUBSCRIPTION. The undersigned hereby subscribes
for and agrees to purchase the number of shares of Common Stock set forth on
the signature page of this Agreement. (the "Shares") at the price per Share set
forth on the signature page of this Agreement. The aggregate purchase price
for the Shares shall be as set forth on the signature page hereto and shall be
payable in United States Dollars.
b. SUBSCRIPTION PRICE. The subscription price (the
"Subscription Price") per share of the Common Stock shall be based upon the
average closing market price (the "Average Price") for the Common Stock as
listed on the American Stock Exchange for the twenty (20) trading days
immediately prior to the date on which they Buyer shall execute and submit to
the Company this Subscription Agreement. The Subscription Price per share
shall be determined as the Average Price less a twenty five percent (25%)
discount.
c. FORM OF PAYMENT. The Buyer shall pay the
Subscription Price for the Shares by delivering good funds in United States
Dollars to the escrow agent ("Escrow Agent") identified in the Joint Escrow
Instructions attached hereto as ANNEX I (the "Escrow Agreement"). Such
delivery of funds shall be made against delivery by the Company to the Escrow
Agent of a
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Private Placement Subscription Agreement
June 26, 1995
Page 2
certificate for the Shares. Promptly following payment by the Buyer to the
Escrow Agent of the Subscription Price for the Shares, the Company shall
deliver a certificate for the Shares to the Escrow Agent. By signing this
Agreement, the Buyer and the Company each agrees to all of the terms ad
conditions of, and becomes a party to, the Joint Escrow Instructions attached
hereto as ANNEX II, all of the provisions of which are incorporated herein by
this reference as if set forth in full.
d. METHOD OF PAYMENT. Payment of the purchase price
for the Shares shall be made by wire transfer of funds to:
Company: Phillip A. Gustlin Clients Trust Account
Bank: City National Bank
Account No.: 009421726
ABA No.: 122-016066
Telephone No.: 1-800-575-5502
Not later than 4:00 p.m., Dallas, Texas time, on the date which is three
business days after the date on which the Company shall have accepted this
Agreement and returned a signed counterpart of this Agreement to the Buyer, the
Buyer shall deposit with the Escrow Agent the aggregate subscription price for
the Shares.
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO
INFORMATION; INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. The Buyer is purchasing the Shares for its own
account for investment only and not with a view towards the public sale or
distribution thereof;
b. The Buyer is an "Accredited Investor" as that term is
defined in Rule 501 of the General Rules and Regulations under the 1933 Act by
reason of Rule 501(a)(5) or (6);
c. The Buyer has experience in investments of this
nature or has engaged its own advisors for advice and counsel concerning
Buyer's purchase of the Shares.
d. All subsequent offers and sales of the Shares by the
Buyer shall be made pursuant to registration of the Shares under the 1933 Act
or pursuant to a valid exemption from registration;
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Private Placement Subscription Agreement
June 26, 1995
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e. The Buyer understands that the Shares are being
offered and sold to it in reliance on 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 the Buyer's compliance
with, the representation, warranties, agreements, acknowledgments and
understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Shares:
f. The Buyer and/or its advisors have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Shares which have
been requested by the Buyer. The Buyer and its advisors have been afforded the
opportunity to ask questions of the Company and have received complete and
satisfactory answers to any such inquiries. Without limiting the generality of
the foregoing, the Buyer has had the opportunity to obtain and to review the
Company's (1) Annual Report on Form 10-K for the year ended December 31, 1994,
(2) quarterly Reports on Form 10-Q for the quarters ended March 31, June 30,
and September 30, 1994 and March 31, 1995, (3) Proxy Statement dated April 26,
1995 for the Company's 1995 Annual Meeting and (4) Current Reports on Form 8-K,
dated November 4, 1994 as amended on January 3, 1995 and dated April 27, 1995,
in each case as filed with the SEC. The Buyer understands that its investment
in the Shares involves a high degree of risk and Buyer is relying solely upon
its own knowledge and experience in making its decision to purchase the Shares;
g. The Buyer understands that no United States federal
or state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Shares; and
h. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms, subject as to
enforceability to general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors' rights generally.
3. COMPANY REPRESENTATIONS, ETC.
The Company represents and warrants to the Buyer that:
a. ORGANIZATION AND GOOD STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and is qualified to do business in the State of
Texas. The Company has full power and authority to enter into this Agreement
and consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by the Company and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the
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Private Placement Subscription Agreement
June 26, 1995
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Company, and this Agreement is a valid and binding obligation of the Company
enforceable in accordance with its terms.
b. FINANCIAL CONDITION. That since the March 31, 1995
10-Q, there has been no material adverse change in the financial condition of
the Company.
c. CONCERNING THE SHARES. The Shares, when issued,
delivered and paid for in accordance with this Agreement, will be duly and
validly authorized and issued, fully paid and non-accessible and will not
subject the holder thereof to personal liability by reason of being such
holder. There are no preemptive rights of any stockholder of the Company, as
such, to acquire the Shares.
d. SUBSCRIPTION AGREEMENT. This Agreement, when
accepted by the Company, shall have been duly and validly authorized ,
executed and delivered on behalf of the Company and shall be a valid and
binding agreement of the Company enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to bankruptcy
or other laws affecting the enforcement of creditors' rights generally.
e. NON-CONTRAVENTION. The execution and delivery of
this Agreement by the Company and the consummation by the Company of the
issuance of the Shares and the other 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 certificate 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 or any applicable decree,
judgment or order of any court, United States federal or state regulatory body,
administrative agency or other governmental body having jurisdiction over the
Company or any of its properties or assets.
f. APPROVALS. The Company is not aware of any
authorization, approval or consent of any governmental body which is required
to be obtained by the Company for the issuance and sale of the Shares to the
Buyer as contemplated by this Agreement other than the filing of a listing
application covering the Shares with the American Stock Exchange, Inc.
4. CERTAIN COVENANTS AND ACKNOWLEDGEMENTS.
a. TRANSFER RESTRICTIONS. The Buyer acknowledges that
(1) the Shares to be issued to it hereunder have not been and are not being
registered under the provisions of the 1933 Act (except as provided in the
Registration Procedures set forth in Section 5 of this Agreement), and may not
be transferred unless (A) the Shares are subsequently registered under the 1933
Act or (B) the Buyer shall have delivered to the Company an opinion of counsel,
reasonably satisfactory in form, scope and substance to the Company, to the
effect that the Shares may be sold or transferred
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Private Placement Subscription Agreement
June 26, 1995
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pursuant to a valid exemption from such registration; (2) any sale of the
Shares made in reliance on Rule 144 promulgated under the 1933 Act may be made
only in accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Shares 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 used in the 1933 Act, may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC
thereunder; and (3) neither the Company or any other person is under any
obligation to register the Shares (other than pursuant to the Registration
Procedure referred to in Section 5 of this Agreement) under the 1933 Act or any
state securities regulations or to comply with the terms and conditions of any
exemption thereunder.
b. RESTRICTIVE LEGEND. The Buyer acknowledges and
agrees that the certificates for the 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 the Shares):
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The shares have been
acquired for investment and may not be sold, transferred or assigned
in the absence of an effective registration statement for these shares
under the Securities Act of 1933, as amended, or an opinion of counsel
acceptable to the Company that registration is not required under said
Act.
c. FORM D. The Company agrees to file a Form D with
respect to the Shares as required under Regulation D.
5. REGISTRATION PROCEDURES.
a. Within 60 days from the date of Closing the Company
shall prepare and file or cause to be filed with the Securities and Exchange
Commission ("SEC") a registration statement (the "Registration Statement") with
respect to all of the Shares (such Shares being registered are referred to as
"Registrable Shares"). The Company shall thereafter use diligence in
attempting to cause the Registration Statement to be declared effective by the
SEC and shall thereafter use diligence to maintain the effectiveness of the
Registration Statement for the shorter of (i) one year from the date of
effectiveness; or (ii) the date on which all of the Registerable Shares have
been sold by Buyer.
b. Following effectiveness, the Company shall furnish to
each Buyer a prospectus as well as such other documents as the Buyer may
reasonably request.
c. The Company shall use diligent efforts to (i)
register and qualify the Registrable Shares covered by the Registration
Statement under such other securities or blue sky
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Private Placement Subscription Agreement
June 26, 1995
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laws of such jurisdictions as the Buyer may reasonably request (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all times while
the Registration Statement is likewise maintained effective, (iv) take all
other actions reasonably necessary or advisable to qualify the Registerable
Shares for sale in such jurisdictions; provided however, that the Company
shall not be required in connection therewith or as a condition thereto (I)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 5(c), (II) subject itself to general
taxation in any such jurisdiction, (III) file a general consent to service of
process in any such jurisdiction, (IV) provide any undertakings that cause more
than nominal expense or burden to the Company or (V) make any change in its
charter or bylaws, which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the Company and its
stockholders;
d. The Company shall, following effectiveness of the
Registration Statement, as promptly as practicable after becoming aware of such
event, notify the Buyer of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state 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, and use its best efforts promptly to prepare a
supplement or amendment to the Registration Statement to correct such untrue
statement or omission, and deliver a number of copies of such supplement or
amendment to each Buyer or as Buyer may reasonably request;
e. Following effectiveness of the Registration
Statement, the Company, as promptly as practicable after becoming aware of such
event, will notify the Buyer of the issuance by the SEC of any stop order or
other suspension of effectiveness of the Registration Statement at the earliest
possible time;
f. Following effectiveness the Company will use
diligence either to (i) cause all the Registrable Shares covered by the
Registration Statement to be listed on a national securities exchange and on
each additional national securities exchange on which similar securities issued
by the Company are then listed, if any, if the listing of such Shares is then
permitted under the rules of such exchange or (ii) secure designation of all
the Registerable Shares covered by the Registration Statement as a National
Association of Securities Dealers Automated Quotations System ("NASDAQ")
"national market system security" within the meaning of Rule 11Aa2-1 of the SEC
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the quotation of the Registerable Shares on the NASDAQ National Market System
or, if, despite the Company's best efforts to satisfy the preceding clause (i)
or (ii), the Company is unsuccessful in satisfying the preceding clause (i) or
(ii), to secure listing on a national securities exchange or NASDAQ
authorization and quotation for such Registerable Securities and, without
limiting the generality of
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Private Placement Subscription Agreement
June 26, 1995
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the foregoing, to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. ("NASD") as such with respect
to such Registerable Securities;
g. Provide a transfer agent and registrar, which may be
a single entity, for the Shares not later than the effective date of the
Registration Statement;
h. Take all other reasonable actions necessary to
expedite and facilitate disposition by the Buyer of the Registerable Shares
pursuant to the Registration Statement;
i. In the event that the Company shall have failed to
prepare and file the Registration Statement with the SEC within the time period
set forth under Section 5(a) above, then the Buyer may engage independent legal
counsel to prepare and file a registration statement covering the Shares and
the Company shall bear the reasonable costs and expenses of such independent
counsel in connection therewith.
j. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 5 that the Buyer
shall furnish to the Company such information regarding itself, the Shares held
by it and the intended method of disposition of the Registerable Shares held by
it as shall be reasonably required to the effect the registration of the Shares
and shall execute such documents in connection with such registration as the
Company may reasonably request.
k. The Buyer agrees to cooperate with the Company in any
manner reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement hereunder unless such Buyer shall
elect in writing to the Company to exclude all of such Buyer's Shares from the
Registration Statement;
l. The Buyer agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
5(d) or 5(e), Buyer will immediately discontinue disposition of Registerable
Shares pursuant to the Registration Statement covering such Registrable Shares
until such Buyer's receipt of the copies of the supplemented or amended
prospectus and, if so directed by the Company, shall deliver to the Company (at
the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in Buyer's possession of the prospectus
covering such Shares current at the time of receipt of such notice; and
m. All expenses, including fees of investment bankers
engaged by the Company, incurred in connection with registrations, filings or
qualifications pursuant to this Section 5, including, without limitation, all
registration, listing and qualification fees, printers and accounting fees and
the fees and disbursements of counsel to the Company, shall be borne by the
Company, including in the event of the applicability of Section 5(i) the costs
of Buyer's independent legal
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Private Placement Subscription Agreement
June 26, 1995
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counsel, except for any costs, fees or expenses related to Buyers sale of the
Shares including but not limited to any brokerage commissions and underwriting
discounts and commissions.
n. To the extent permitted by law, the Company will
indemnify and hold harmless each Buyer who holds such Registerable Shares, the
directors, if any, of such Buyer, the officers, if any, of such Buyer, each
person, if any, who controls any Buyer within the meaning of the Securities Act
or the Exchange Act, any underwriter (as defined in the 1933 Act) for the
Buyer, the directors, if any, of such underwriter and the officers, if any , of
such underwriter, and each person, if any, who controls any such underwriter
within the meaning of the 1933 Act or the Exchange Act (each, an "Indemnified
Person"), against any losses, claims, damages, expenses or liabilities (joint
or several) (collectively, "Claims") to which any of them may become subject
under the 1933 Act, the Exchange Act or otherwise, insofar a such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations in the Registration Statement, or any post-effective amendment
thereof, or any prospectus included therein; (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any post effective amendment thereof or the omission or alleged
omission to state their a material facts required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary
to make the statements made therein, in light of the circumstances under which
the statements therein were made, not misleading or (iii) any violation or
alleged violation by the Company of the Securities Act, any state securities
law or any rule or regulation by the Company of the 1933 Act the Exchange Act
or any state securities law (the matters in the foregoing clauses (i) through
(iv) being, collectively, "Violations"). Subject to the restrictions set
forth in Section 5(p) with respect to the number of legal counsel, the Company
shall reimburse the Buyer and each such underwriter or controlling person,
promptly as such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 5(n) (I) shall not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by any Indemnified Person or underwriter
for such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the
Company; (II) with respect to any preliminary prospectus shall not inure to
the benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then
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Private Placement Subscription Agreement
June 26, 1995
Page 9
amended or supplemented, if such prospectus was timely made available by the
Company; and (III) shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of the
Company, which consent shall not be reasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of the
Registrable Shares by the Buyers.
o. In connection with any Registration Statement in
which Buyer is participating, such Buyer agrees to indemnify and hold
harmless, to the same extent and in the same manner set forth in Section 5(n),
the Company, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls the Company within
the meaning of the 1933 Act or the Exchange Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the 1933 Act or the Exchange Act
(collectively and together with an Indemnified Person, an "Indemnified Party"),
against any Claim to which any of them may become subject, under the 1933 Act,
the Exchange Act or otherwise, insofar as such Claim arises out of or is based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Buyer expressly for use in
connection with such Registration Statement; and such Buyer will reimburse any
legal or other expenses reasonable incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 5(o) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior written consent of such Buyer, which consent shall not be unreasonably
withheld; provided, further, however, that the Buyer shall be liable under
this Section 5(o) for only that amount of a Claim as does not exceed the net
proceeds to such Buyer as a result of the sale of Registrable Shares pursuant
to such Registration Statement. Such investigation made by or on behalf of
such Indemnified Party and shall survive the transfer of the Registrable Shares
by the Buyers. Notwithstanding anything to the contrary contained herein the
indemnification agreement contained in this Section 5(o) with respect to any
preliminary prospectus shall not inure to the benefit of any Indemnified Party
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented.
p. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 5(n) and 5(o) of notice of the
commencement of any action (including any governmental action), such
Indemnified Person or Indemnified Party shall, if a Claim in respect thereof is
made against any indemnifying party under this Section 5, deliver t the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying parties; provided, however, that an
Indemnified Person or Indemnified Party shall
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Private Placement Subscription Agreement
June 26, 1995
Page 10
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the reasonable opinion of counsel retained by
the indemnifying party, the representation by such counsel of the Indemnified
Person or Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified Person
or Indemnified Party and any other party represented by such counsel in such
proceeding. The Company shall pay for only one separate legal counsel for the
Buyer(s); such legal counsel shall be selected by the Buyer(s) holding a
majority in interest of the Registrable Securities. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of
any liability to the Indemnified Person or Indemnified Party under this Section
5, except to the extent that the indemnifying party is prejudiced in its
ability to defend such action. The indemnification required by this Section 5
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage or liability is
incurred and is due and payable.
6. TRANSFER AGENT INSTRUCTIONS.
Promptly following the delivery by the Buyer of the aggregate
subscription price for the Shares in accordance with Section 1(c) hereof, the
Company's transfer agent will be instructed by the Company to issue one or more
certificates representing in total the Shares, bearing the restrictive legend
specified in Section 4(b) of this Agreement, registered in the name of the
Buyer or its nominee and in such denominations as shall be specified by the
Buyer prior to the closing. The Company warrants that no instruction other
than such instructions referred to in this Section 6 and stop transfer
instructions to give effect to Section 4(a) hereof will be given by the Company
to the transfer agent and that the Shares shall otherwise be freely
transferable on the books and records of the Company as and to the extent
provided in this Agreement. Nothing in this Section shall affect in any way
the Buyer's obligations and agreement to comply with all applicable securities
laws upon resale of the Shares. If the Buyer provides the Company with an
opinion of counsel reasonably satisfactory in form, scope and substance to the
Company that registration of a resale by the Buyer of any of the Shares in
accordance with Section 4(a) is not required under the 1933 Act, the Company
shall permit the transfer agent to issue one or more share certificates in such
name and in such denominations as specified by the Buyer.
7. STOCK DELIVERY INSTRUCTIONS.
The certificate for the Shares shall be delivered by the Company to
the Escrow Agent pursuant to Section 1(c) hereof upon receipt of which the
Escrow Agent will immediately transfer the aggregate Subscription Price by wire
transfer to the Company pursuant to the terms of the Escrow Agreement.
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Private Placement Subscription Agreement
June 26, 1995
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8. CLOSING DATE.
The effective date and time of the issuance and sale of the Shares
(the "Closing Date") shall be 9:00 a.m. , Dallas time, on the first business
day following the date on which the Buyer has paid the aggregate subscription
price for the Shares in accordance with Section 1(c) hereof, to the Escrow
Agent and the Company shall have delivered the Shares to the Escrow Agent in
accordance with Section 1(d) hereof.
9. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell the
Registerable Shares to the Buyer pursuant to this Agreement is conditioned
upon:
a. The receipt and acceptance in its sole and absolute discretion
by the Company of this Subscription Agreement from the Buyer for the
Registrable Shares as evidenced solely by the execution and delivery to Buyer
of this Agreement by the Company;
b. Timely delivery by the Buyer to the Escrow Agent of good funds
as payment in full of an amount equal to the aggregate subscription price for
the Registrable Shares in accordance with Section 1(d) hereof, and
c. The accuracy on the Closing Date of the representations and
warranties of the Buyer contained in this Agreement and the performance by the
Buyer on or before the Closing Date of all covenants and agreements of the
Buyer required to be performed on or before such Closing Date.
10. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the
Registerable Shares is conditioned upon:
a. Delivery by the Company to the Escrow Agent of this Agreement
duly executed by the Company in acceptance thereof; and
b. The accuracy on the Closing Date of the representations and
warranties of the Company contained in this Agreement and the performance by
the Company on or before the Closing Date of all covenants and agreements of
the Company required to be performed on or before such Closing Date; and
c. On the Closing Date, the Escrow Agent shall have received an
opinion of counsel from the Company, in the form as set forth in Annex III
attached hereto.
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Private Placement Subscription Agreement
June 26, 1995
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11. GOVERNING LAW; MISCELLANEOUS. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of Texas.
A facsimile transmission of this signed agreement shall be legal and binding on
all parties hereto. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement or the validity or
enforceability of this Agreement in any other jurisdiction. This Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by mail or delivered personally or by
courier and shall be effective five (5) days after being placed in the mail, if
mailed, or upon receipt, if delivered personally or by courier, in each case
addressed to a party at such party's address shown in the introductory
paragraph or on the signature page of this Agreement or such other address as a
party in accordance with this provision.
12. NO OFFER TO SELL. This Agreement shall not be construed nor
interpreted as any offer by the Company to sell the Shares. The Company shall
have no obligation to accept this Subscription Agreement if offered by the
Buyer and may in the Company's sole discretion elect to reject this
Subscription Agreement. The Company shall have no obligation nor liability to
the Buyer nor any other party should the Company in its sole and absolute
discretion not accept this Subscription Agreement.
13. ENTIRE UNDERSTANDING. This Agreement (including the
attachments hereto) constitutes the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes any and all prior
agreements, whether written or oral. This Agreement may be amended only in a
written document duly executed by both parties hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Buyer or one
of its officers thereunto duly authorized as of the date set forth below.
NUMBER OF SHARES: ___________________
PRICE PER SHARE: $ __________________1
AGGREGATE SUBSCRIPTION PRICE: $____________________
NAME OF BUYER: ____________________________________
13
Private Placement Subscription Agreement
June 26, 1995
Page 13
SIGNATURE: _______________________________________________
Title: _______________________________________________
Date: _______________________________________________
Address: ________________________________
________________________________
________________________________
IRS TAXPAYER NO.: __________________________
This Agreement has been accepted by the Company as of the date set
forth below (the "Acceptance Date").
HARKEN ENERGY CORPORATION
By: __________________________________________
Title: ________________________________________
Date: ________________________________________
____________________________
1. The Average Price as defined in Section 1(b) was $____________.