Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
dated as of December 12, 2003
between
CONTANGO OIL & GAS COMPANY
and
THE PURCHASERS NAMED IN THIS AGREEMENT
Up to 2,000 Shares of Series C Cumulative Convertible Preferred Stock
TABLE OF CONTENTS
Page
1. Agreement to Purchase Securities........................................................................1
2. Closing.................................................................................................1
3. Purchasers' Representations and Warranties..............................................................1
3.1 Investment Intent..............................................................................1
3.2 Access to Information..........................................................................2
3.3 Accredited Investor............................................................................2
3.4 Knowledge and Experience.......................................................................2
3.5 Suitability....................................................................................2
3.6 Ability to Bear Risk of Loss...................................................................2
3.7 Non-Registered Securities......................................................................2
3.8 Truth and Accuracy.............................................................................2
3.9 Authority......................................................................................3
3.10 No Violation...................................................................................3
3.11 Enforceability.................................................................................3
3.12 Reliance on Own Advisers.......................................................................3
3.13 Scope of Business..............................................................................3
3.14 Brokers or Finders.............................................................................3
3.15 Short Sales....................................................................................3
4. Issuer's Representations and Warranties.................................................................4
4.1 Corporate Existence; Authority.................................................................4
4.2 Enforceability.................................................................................4
4.3 Capitalization.................................................................................4
4.4 No Conflicts...................................................................................5
4.5 SEC Documents..................................................................................5
4.6 Litigation.....................................................................................5
4.7 No Material Adverse Change.....................................................................5
4.8 Environmental Matters..........................................................................5
4.9 Truth and Accuracy.............................................................................6
4.10 Compliance with Laws, Other Instruments........................................................6
4.11 Observance of Agreements, Statutes and Orders..................................................6
4.12 Brokers or Finders.............................................................................7
5. Conditions of Purchasers' Obligations at Closing........................................................7
5.1 Representations and Warranties.................................................................7
5.2 Performance....................................................................................7
5.3 Proceedings and Documents......................................................................7
5.4 Opinion of Issuer Counsel......................................................................7
5.5 Reservation of Converted Shares................................................................7
5.6 Consents, Permits, and Waivers.................................................................7
5.7 Secretary's Certificate........................................................................7
6. Conditions of the Issuer's Obligations at Closing.......................................................8
6.1 Representations and Warranties.................................................................8
6.2 Payment of Purchase Price......................................................................8
6.3 Qualifications.................................................................................8
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TABLE OF CONTENTS (continued)
Page
7. Restrictions on Transfer................................................................................8
7.1 Resale Restrictions............................................................................8
7.2 Restrictive Legend.............................................................................8
7.3 Illiquid Investment............................................................................9
8. Registration of the Converted Shares; Compliance with the Securities Act................................9
8.1 Registration Procedures and Other Matters......................................................9
8.2 Transfer of Shares After Registration; Suspension.............................................10
8.3 Indemnification...............................................................................12
8.4 Termination of Conditions and Obligations.....................................................15
9. Notices................................................................................................15
10. Reliance...............................................................................................16
11. Miscellaneous..........................................................................................16
11.1 Survival......................................................................................16
11.2 Assignment....................................................................................16
11.3 Execution and Delivery of Agreement...........................................................16
11.4 Titles........................................................................................16
11.5 Severability..................................................................................16
11.6 Entire Agreement..............................................................................16
11.7 Waiver and Amendment..........................................................................17
11.8 Counterparts..................................................................................17
11.9 Governing Law.................................................................................17
11.10 Attorney's Fees...............................................................................17
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TABLE OF CONTENTS (continued)
Page
Schedules
1 .........List of Purchasers
4.3(d) .........Outstanding Subscriptions, Options, Warrants, Convertible Securities, etc.
4.3(e) .........Third Party Registration Rights
Exhibits
A .........Accredited Investor Certificate
B .........Certificate of Designations of Series C Cumulative Convertible Preferred Stock
C .........Opinion of Morgan, Lewis & Bockius LLP
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT ("Agreement") is made and entered
into as of the 12th day of December, 2003, by and between Contango Oil & Gas
Company, a Delaware corporation (the "Issuer"), and each of the persons listed
on Schedule 1 attached to this Agreement (each a "Purchaser" and collectively
the "Purchasers").
WHEREAS, the Issuer desires to issue and to sell to the Purchasers, and
the Purchasers desire to purchase from the Issuer, the Series C Preferred Stock
(as hereinafter defined), all in accordance with the terms and provisions of
this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
1. Agreement to Purchase Securities. Subject to the terms and conditions
hereinafter set forth in this Agreement, each Purchaser hereby agrees severally
and not jointly to purchase at the Closing, and the issuer agrees to sell and
issue to each Purchaser at the Closing at a price of $5,000 per share, the
number of shares of the Issuer's Series C Cumulative Convertible Preferred
Stock, par value $0.04 per share (the "Series C Preferred Stock"), shown
opposite such Purchaser's name on Schedule 1, for an aggregate purchase price
(the "Purchase Price") to be paid by such Purchaser in the amount shown opposite
such Purchaser's name on Schedule 1. The shares of the Issuer's common stock,
par value $0.04 per share (the "Common Stock"), that may be issued upon
conversion of the Series C Preferred Stock as contemplated by the Designations
Certificate (as defined below) are referred to herein as the "Converted Shares",
and the Series C Preferred Stock and the Converted Shares are collectively
referred to herein as the "Securities".
2. Closing. Subject to the satisfaction or waiver of the conditions in this
Agreement, the purchase and sale of the Series C Preferred Stock shall take
place at the offices of the Issuer at 3700 Buffalo Speedway, Suite 960, Houston,
Texas 77098, at 10:00 a.m. (local time), on December 12, 2003, or at such other
time and place as the Issuer and the Purchasers acquiring, in the aggregate, a
majority of the shares of Series C Preferred Stock to be sold pursuant to this
Agreement agree upon orally or in writing (which time and date are designated as
the "Closing"). At the Closing, the Issuer shall deliver to each Purchaser a
certificate representing the shares of Series C Preferred Stock that such
Purchaser is purchasing in the name and to the address specified by each
Purchaser on Schedule 1 against payment of the Purchase Price therefor by wire
transfer of immediately available funds.
3. Purchasers' Representations and Warranties. Each Purchaser hereby
represents and warrants to the Issuer that:
3.1 Investment Intent. Such Purchaser is acquiring the Securities
solely for the Purchaser's own account for investment purposes, and not
with a view to, or for offer or sale in connection with, any distribution
of the Securities in violation of the Securities Act of 1933, as amended
(the "Securities Act"). By such representation, such Purchaser means that
no other person has a beneficial interest in the Securities, and that no
other person has furnished or will furnish directly or indirectly, any part
of or guarantee the payment of any part of the consideration to be paid by
such Purchaser to the Issuer in connection therewith. Such Purchaser does
not intend to dispose of all or any part of the Securities except in
compliance with the provisions of the Securities Act and applicable state
securities laws, and understands that the Securities are being offered
pursuant to a specific exemption under the provisions of the Securities
Act, which exemption(s) depends, among other things, upon compliance with
the provisions of the Securities Act.
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3.2 Access to Information. Such Purchaser has received a copy of the
Issuer's annual report on Form 10-KSB for the year ended June 30, 2003 (the
"Annual Report") and quarterly report on Form 10-Q for the quarter ended
September 30, 2003 (the "Quarterly Report") and has reviewed them
carefully, including the risk factors set forth therein. In addition, the
Purchaser has received and reviewed a copy of the Issuer's proxy statement
for its annual meeting of stockholders held on November 7, 2003 (the "Proxy
Statement"). If desired, the Purchaser has also sought and obtained from
management of the Issuer such additional information concerning the
business, management and financial affairs of the Issuer as the Purchaser
has deemed necessary or appropriate in evaluating an investment in the
Issuer and determining whether or not to purchase the Securities.
3.3 Accredited Investor. By completing the Accredited Investor
Certification attached as Exhibit A, such Purchaser represents and warrants
that it is an accredited investor, as defined by Rule 501(a) of Regulation
D under the Securities Act.
3.4 Knowledge and Experience. Such Purchaser is experienced in
evaluating and investing in the securities of businesses in the development
stage, 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 the Securities and of protecting its interests in connection
with an acquisition of the Securities.
3.5 Suitability. Such Purchaser has carefully considered, and has, to
the extent the Purchaser deems it necessary, discussed with the Purchaser's
own professional legal, tax and financial advisers the suitability of an
investment in the Securities for the Purchaser's particular tax and
financial situation, and the Purchaser has determined that the Securities
are a suitable investment for the Purchaser.
3.6 Ability to Bear Risk of Loss. Such Purchaser is financially able
to hold the Securities subject to restrictions on transfer for an
indefinite period of time, and is capable of bearing the economic risk of
losing up to the entire amount of its investment in the Securities.
3.7 Non-Registered Securities. Such Purchaser acknowledges that the
offer and sale of the Securities have not been registered under the
Securities Act or any state securities laws and the Securities may be
resold only if registered pursuant to the provisions thereunder or if an
exemption from registration is available. Such Purchaser understands that
the offer and sale of the Securities is intended to be exempt from
registration under the Securities Act, based, in part, upon the
representations, warranties and agreements of such Purchaser contained in
this Agreement.
3.8 Truth and Accuracy. All representations and warranties made by
such Purchaser in this Agreement are true and accurate as of the date
hereof and shall be true and accurate as of the date the Issuer issues the
Securities. If at any time prior to the issuance of the Securities any
representation or warranty shall not be true and accurate in any respect,
such Purchaser shall so notify the Issuer.
3.9 Authority. The individual(s) executing and delivering this
Agreement on behalf of such Purchaser have been duly authorized to execute
and deliver this Agreement on behalf of such Purchaser, the signature of
such individual(s) is binding upon such Purchaser, such Purchaser is duly
organized and subsisting under the laws of the jurisdiction in which it was
organized, and such Purchaser was not formed for the specific purpose of
acquiring the Securities.
3.10 No Violation. The execution and delivery of this Agreement and
the consummation of the transactions or performance of the obligations
contemplated by this Agreement do not and will not violate any term of such
Purchaser's organizational documents.
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3.11 Enforceability. Such Purchaser has duly executed and delivered
this Agreement and (subject to its execution by the Issuer) it constitutes
a valid and binding agreement of such Purchaser enforceable in accordance
with its terms against such Purchaser, except as such enforceability may be
limited by principles of public policy, and subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
3.12 Reliance on Own Advisers. In connection with such Purchaser's
investment in the Securities, such Purchaser has not relied upon the Issuer
or its advisers for legal or tax advice, and has, if desired, in all cases
sought the advice of such Purchaser's own legal counsel and tax advisers.
3.13 Scope of Business. Such Purchaser has been advised and
understands that the Issuer will be exposed to numerous investment
opportunities in all areas of the oil and gas industry and may therefore
pursue various types of transactions and opportunities, even if they do not
fit within the primary focus of the Issuer's current business plan. For
example, such transactions could include sales of all or substantially all
of the Issuer's assets and such opportunities could include international
investments and downstream investments in oil and gas service companies,
pipelines, and gas processing and gas storage facilities.
3.14 Brokers or Finders. Such Purchaser has not dealt with any broker
or finder other than Energy Capital Solutions LLC in connection with the
transactions contemplated by the Agreement, and has not incurred, and shall
not incur, directly or indirectly, any liability for any brokerage or
finders' fees or agents commissions or any similar charges in connection
with the transactions contemplated by the Agreement.
3.15 Short Sales. As of the date of this Agreement, such Purchaser and
its affiliates do not have, and during the 30 day period prior to the date
of this Agreement such Purchaser and its affiliates have not entered into,
any "put equivalent position" as such term is defined in Rule 16a-1 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
short sale positions with respect to the Common Stock of the Issuer. Until
the registration statement referred to in Section 8.1 is declared
effective, the Purchaser hereby agrees not to, and will cause its
affiliates not to, enter into any such "put equivalent position" or short
sale position.
4. Issuer's Representations and Warranties. The Issuer hereby represents
and warrants to the Purchasers that:
4.1 Corporate Existence; Authority. The Issuer is a corporation duly
organized, validly existing and in good standing under the laws of
Delaware, and it has all requisite power and authority to carry on its
business as it is being conducted. The individual executing and delivering
this Agreement on behalf of the Issuer has been duly authorized to execute
and deliver this Agreement on behalf of the Issuer, and the signature of
such individual is binding upon the Issuer.
4.2 Enforceability. The Issuer has duly executed and delivered this
Agreement and (subject to its execution by the Purchasers) it constitutes a
valid and binding agreement of the Issuer enforceable in accordance with
its terms against the Issuer, except as such enforceability may be limited
by principles of public policy, and subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of
law governing specific performance, injunctive relief or other equitable
remedies.
4.3 Capitalization. The authorized capital of the Issuer consists, or
will consist immediately prior to the Closing, of:
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(a) Preferred Stock. 5,000,000 shares of Preferred Stock, par
value $0.04 per share, of which (i) 5,000 shares have been designated
Series A Convertible Preferred Stock, par value $0.04 per share (the
"Series A Preferred Stock"), 2,500 of which are issued and
outstanding, (ii) 10,000 shares have been designated Series B
Convertible Preferred Stock, par value $0.04 per share (the "Series B
Preferred Stock"), 5,000 of which are issued or outstanding, and (iii)
4,000 shares have been designated Series C Preferred Stock, none of
which are issued and outstanding and up to 2,000 shares of which will
be sold pursuant to this Agreement.
(b) Common Stock. 50,000,000 shares of Common Stock of which
9,321,471 shares are issued and outstanding on the date of this
Agreement.
(c) All of the outstanding shares of Common Stock of the Issuer
have been duly and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights. The Series C
Preferred Stock has been duly authorized and when issued and delivered
to the Purchasers against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable,
shall have the rights and preferences set forth in the Certificate of
Designations of Series C Preferred Stock attached hereto as Exhibit B
(the "Designations Certificate") and the issuance of such Series C
Preferred Stock will not be subject to any preemptive or similar
rights. If and when issued, the Converted Shares will have been duly
authorized, reserved for issuance and, when issued and delivered to
the Purchasers against payment therefor as provided by herein, will be
validly issued, fully paid and non-assessable, and the issuance of
such Converted Shares will not be subject to any preemptive or similar
rights.
(d) Prior to giving effect to the transactions set forth herein,
there are no outstanding subscriptions, options, warrants, convertible
securities, calls, commitments, agreements or rights to purchase or
otherwise acquire from the Issuer any shares of, or any securities
convertible into, the capital stock of the Issuer except as set forth
on Schedule 4.3(d).
(e) Except as set forth on Schedule 4.3(e), no stockholders of
the Issuer have any right to require the registration of any
securities of the Issuer or to participate in any such registration.
4.4 No Conflicts. The issuance and sale of the Securities to the
Purchasers as contemplated hereby and the performance of this Agreement
will not violate or conflict with the Issuer's Certificate of Incorporation
or Bylaws or any agreements to which the Issuer is a party or by which it
is otherwise bound or, to the Issuer's knowledge, any statute, rule or
regulation (federal, state, local or foreign) to which it is subject.
4.5 SEC Documents. The Issuer has provided the Annual Report, the
Quarterly Report and the Proxy Statement to the Purchasers. As of the date
hereof, the Annual Report, the Quarterly Report and the Proxy Statement do
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Issuer included in
the Annual Report and the Quarterly Report financial statements dated as of
September 30, 2003 heretofore delivered to the Purchasers, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the financial position
of the Issuer as of the dates thereof and the results of its operations and
cash flows for the periods then ended. The Issuer has included in the
Annual Report a list of all material agreements, contracts and other
documents that it reasonably believes are required to be filed as exhibits
to the Annual Report.
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4.6 Litigation. There is no litigation or other legal, administrative
or governmental proceeding pending or, to the knowledge of the Issuer,
threatened against or relating to the Issuer or its properties or business,
that if determined adversely to the Issuer may reasonably be expected to
have a material adverse effect on the present or future operations or
financial condition of the Issuer.
4.7 No Material Adverse Change. Since the date of the Quarterly
Report, there has not been any material adverse change in the business,
operations, properties, prospects, assets, or condition of the Issuer, and
no event has occurred or circumstance exists that may result in such a
material adverse change.
4.8 Environmental Matters.
(a) Except as would not be reasonably likely to have a material
adverse effect change in the business, operations, properties,
prospects, assets, or condition of the Issuer: (i) to Issuer's
knowledge, Issuer has complied with all applicable Environmental Laws
(as defined in Section 4.8(b)); (ii) to Issuer's knowledge, Issuer is
not subject to liability for any Hazardous Substance disposal or
contamination on any third party property; (iii) to Issuer's
knowledge, Issuer has not been associated with any release or threat
of release of any Hazardous Substance; (v) Issuer has not received any
notice, demand, letter, claim or request for information alleging that
Issuer may be in violation of or liable under any Environmental Law;
(vi) Issuer is not subject to any orders, decrees, injunctions or
other arrangements with any governmental entity or is subject to any
indemnity or other agreement with any third party relating to
liability under any Environmental Law or relating to Hazardous
Substances; and (vii) there are no circumstances or conditions
involving Issuer that could reasonably be expected to result in any
claims, liability, investigations, costs or restrictions on the
ownership, use or transfer of any property of Issuer pursuant to any
Environmental Law.
(b) For purposes of this Agreement, the term "Environmental Law"
means any federal, state, local or foreign law, regulation, order,
decree, permit, authorization, opinion, common law or agency
requirement relating to: (A) the protection, investigation or
restoration of the environment, health and safety, or natural
resources, (B) the handling, use, presence, disposal, release or
threatened release of any Hazardous Substance or (C) noise, odor,
wetlands, pollution, contamination or any injury or threat of injury
to persons or property.
(c) For purposes of this Agreement, the term "Hazardous
Substance" means any substance that is: (A) listed, classified or
regulated pursuant to any Environmental Law; (B) any petroleum product
or by-product, asbestos-containing material, lead-containing paint or
plumbing, polychlorinated biphenyls, radioactive materials or radon;
or (C) any other substance which is the subject of regulatory action
by any governmental entity pursuant to any Environmental Law.
4.9 Truth and Accuracy. All representations and warranties made by the
Issuer in this Agreement are true and accurate as of the date hereof and
shall be true and accurate as of the date the Issuer issues the Securities.
If at any time prior to the issuance of any of the Securities any
representation or warranty shall not be true and accurate in any respect,
the Issuer shall so notify the Purchasers.
4.10 Compliance with Laws, Other Instruments. The execution, delivery
and performance by the Issuer of this agreement will not (a) contravene,
result in any breach of, or constitute a default under or result in the
creation of any lien in respect of any property of the Issuer under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement,
lease, corporate charter or bylaws, or any other material agreement or
instrument to which the Issuer is bound or by which the Issuer or any of
its respective properties may be bound or affected, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or
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governmental authority applicable to the Issuer or (c) violate any
provision of any statute or other rule or regulation of any governmental
authority applicable to the Issuer.
4.11 Observance of Agreements, Statutes and Orders. The Issuer is not
in default under any term of any agreement or instrument to which it is a
party or by which it is bound, or any order, judgment, decree or ruling of
any court, arbitrator or governmental authority or is in violation of any
applicable law, ordinance, rule or regulation (including without limitation
environmental laws) of any governmental authority which default or
violation could have a material adverse effect upon the business or
operations of the Issuer.
4.12 Brokers or Finders. Except for Energy Capital Solutions LLC
(which has acted as a finder for the transactions contemplated by the
Agreement), the Issuer has not dealt with any broker or finder in
connection with the transactions contemplated by the Agreement, and except
for certain fees and expenses payable by the Issuer to Energy Capital
Solutions LLC, the Issuer has not incurred, and shall not incur, directly
or indirectly, any liability for any brokerage of finders' fees or agents
commissions or any similar charges in connection with the transactions
contemplated by the Agreement.
5. Conditions of Purchasers' Obligations at Closing. The obligations of
each Purchaser under Section 1 and Section 2 are subject to the fulfillment on
or before the Closing of each of the following conditions, the waiver of which
shall not be effective against any Purchaser who does not consent in writing to
such waiver:
5.1 Representations and Warranties. The representations and warranties
of the Issuer contained in Section 4 shall be true and correct on and as of
the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing (other than
representations and warranties that relate only to a certain date, which
shall be true as of such date).
5.2 Performance. The Issuer shall have performed and complied with the
covenants and agreements in this Agreement that are required to be
performed or complied with by it on or before the Closing.
5.3 Proceedings and Documents. All corporate and other proceedings in
connection with the Agreement contemplated to be effected at the Closing
and all documents incident thereto shall be reasonably satisfactory in form
and substance to Purchasers' counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as
they may reasonably request.
5.4 Opinion of Issuer Counsel. Each Purchaser shall have received from
Morgan, Lewis & Bockius LLP, counsel for the Issuer, an opinion, dated as
of the Closing, substantially in the form of Exhibit C.
5.5 Reservation of Converted Shares. The Converted Shares issuable
upon conversion of the Series C Preferred Stock shall have been duly
authorized and reserved for issuance upon such conversion.
5.6 Consents, Permits, and Waivers. The Issuer shall have obtained any
and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement.
5.7 Secretary's Certificate. Purchasers shall have received from the
Issuer's Secretary or Assistant Secretary, a certificate having attached
thereto (i) the Certificate of Incorporation as in effect at the time of
the Closing, (ii) the Issuer's Bylaws as in effect at the time of the
Closing,
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(iii) resolutions approved by the Board of Directors authorizing the
transactions contemplated hereby, and (iv) good standing certificates
(including tax good standing) with respect to the Issuer from the
applicable authorities in Delaware and Texas.
6. Conditions of the Issuer's Obligations at Closing. The obligations of
the Issuer to each Purchaser under this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions:
6.1 Representations and Warranties. The representations and warranties
of the Purchaser contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
6.2 Payment of Purchase Price. Such Purchaser shall have delivered the
Purchase Price specified in Section 1, and the Purchasers shall have
delivered Purchase Prices equal to at least $6 million in aggregate
principal amount.
6.3 Qualifications. All authorizations, approvals or permits, if any,
of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale
of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
7. Restrictions on Transfer.
7.1 Resale Restrictions. The Purchasers understand that the offer and
sale of the Securities to the Purchasers have not been registered under the
Securities Act or under any state laws. Each Purchaser agrees not to offer,
sell or otherwise transfer the Securities, or any interest in the
Securities, unless (i) the offer and sale is registered under the
Securities Act, the Securities may be sold in accordance with the
applicable requirements and limitations of Rule 144 under the Securities
Act and any applicable state laws and, if the Issuer reasonably requests,
such Purchaser delivers to the Issuer an opinion of counsel to such effect,
or such Purchaser delivers to the Issuer an opinion of counsel reasonably
satisfactory to the Issuer that the offer and sale is otherwise exempt from
Securities Act registration. Notwithstanding the foregoing subsections (ii)
and (iii), no opinion shall be required for transfers by a Purchaser to its
affiliates.
7.2 Restrictive Legend. Each Purchaser understands and agrees that a
legend in substantially the following form will be placed on the
certificates or other documents representing the Securities:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS (i) THE OFFER AND SALE IS REGISTERED UNDER
THE SECURITIES ACT, OR (ii) THE OFFER AND SALE IS EXEMPT FROM
SECURITIES ACT REGISTRATION AND THE TERMS OF SECTION 7.1 OF THE
SECURITIES PURCHASE AGREEMENT PURSUANT TO WHICH THE SECURITIES WERE
ORIGINALLY PURCHASED HAVE BEEN COMPLIED WITH. (A COPY OF THE SECURITIES
PURCHASE AGREEMENT IS ON FILE AT THE CORPORATE OFFICE OF THE
CORPORATION.)"
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7.3 Illiquid Investment. Each Purchaser acknowledges that it must bear
the economic risk of its investment in the Securities for an indefinite
period of time, until such time as the Securities are registered or an
exemption from registration is available. Each Purchaser acknowledges that
the soonest that the Rule 144 exemption from registration could become
available would be after such Purchaser has paid for and held the
Securities for one year.
8. Registration of the Converted Shares; Compliance with the Securities
Act.
8.1 Registration Procedures and Other Matters. The Issuer shall:
(a) subject to receipt of necessary information from the
Purchasers after prompt request from the Issuer to the Purchasers to
provide such information, promptly following the Closing but no later
than 60 days after the Closing (the "Filing Date"), prepare and file
with the Securities and Exchange Commission (the "SEC") a registration
statement on Form S-3 or such other successor form (except that if the
Issuer is not then eligible to register for resale the Converted
Shares on Form S-3, in which case such registration shall be on Form
S-1 or any successor form) (a "Registration Statement") to enable the
resale of the Converted Shares, by the Purchasers or their transferees
from time to time over the American Stock Exchange or in
privately-negotiated transactions. No Purchaser may include any
Converted Share in the Registration Statement pursuant to this
Agreement unless such Purchaser furnishes to the Issuer in writing
within five business days after receipt of request therefor, such
requested information;
(b) use commercially reasonable efforts, subject to receipt of
necessary information from the Purchasers after prompt request from
the Issuer to the Purchasers to provide such information, to cause the
Registration Statement to become effective as soon as practicable;
(c) use its commercially reasonable efforts to cause such
Registration Statement to remain continuously effective and prepare
and file with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith
(the "Prospectus") (and the applicable Exchange Act reports
incorporated therein by reference, so filed on a timely basis) as may
be necessary to keep the Registration Statement current, effective and
free from any material misstatement or omission to state a material
fact for a period ending on the date that is, with respect to each
Purchaser's Converted Shares purchased hereunder, the earlier of (i)
the date on which the Purchaser may sell all Converted Shares then
held by the Purchaser without restriction under Rule 144(k), or (ii)
such time as all Converted Shares purchased by such Purchaser in this
Offering have been sold pursuant to a registration statement;
(d) so long as a Purchaser holds Converted Shares, provide copies
to and permit single legal counsel designated by the Purchasers to
review the Registration Statement and all amendments and supplements
thereto, no fewer than three business days prior to their filing with
the SEC, and not file any Registration Statement, amendment or
supplement thereto to which a holder of the Converted Shares
reasonably objects in writing within such three business day period;
(e) furnish to the Purchasers with respect to the Converted
Shares registered under the Registration Statement such number of
copies of the Registration Statement, Prospectuses and preliminary
Prospectuses ("Preliminary Prospectuses" and individually,
"Preliminary Prospectus") in conformity with the requirements of the
Securities Act and such other documents as the Purchasers may
reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Converted Shares by the Purchasers;
provided, however, that the obligation of the Issuer to deliver copies
of Prospectuses or Preliminary Prospectuses to the Purchasers shall be
subject to the receipt by the Issuer of reasonable assurances from the
Purchasers that the Purchasers will comply with the applicable
prospectus
8
delivery requirements under the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with
any use of such Prospectuses or Preliminary Prospectuses;
(f) file documents required of the Issuer for normal blue sky
clearance in states specified in writing by the Purchasers and use its
commercially reasonable efforts to maintain such blue sky
qualifications during the period the Issuer is required to maintain
the effectiveness of the Registration Statement pursuant to Section
8.1(b); provided, however, that the Issuer shall not be required to
qualify to do business or consent to service of process in any
jurisdiction in which it is not now so qualified or has not so
consented;
(g) promptly notify the Purchasers after it receives notice of
the time when the Registration Statement has been declared effective
by the SEC, or when a supplement or amendment to any Registration
Statement has been filed with the SEC; and
(h) advise the Purchasers, promptly: (a) after it shall receive
notice or obtain knowledge of the issuance of any stop order by the
SEC delaying or suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that
purpose; and it will promptly use its commercially reasonable efforts
to prevent the issuance of any stop order or to obtain its withdrawal
at the earliest possible moment if such stop order should be issued;
and (b) at any time when a Prospectus relating to Converted Shares is
required to be delivered under the Securities Act, upon discovery
that, or upon the happening of an event 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 any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
8.2 Transfer of Shares After Registration; Suspension.
(a) Each Purchaser agrees that it will not effect any disposition
of the Converted Shares that would constitute a sale within the
meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 8.1 and as described
below or as otherwise permitted by law, and that it will promptly
notify the Issuer in writing of any changes in the information set
forth in the Registration Statement regarding the Purchaser or its
plan of distribution.
(b) Except in the event that paragraph (c) below applies, the
Issuer shall if deemed necessary by the Issuer, prepare and file from
time to time with the SEC a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by
reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a
material fact or omit 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, and so that,
as thereafter delivered to purchasers of the Converted Shares being
sold thereunder, such Prospectus will not contain an untrue statement
of a material fact or omit 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, (ii)
provide the Purchasers copies of any documents filed pursuant to
Section 8.2(b)(i), and (iii) inform each Purchaser that the Issuer has
complied with its obligations in Section 8.2(b)(i) (or that, if the
Issuer has filed a post-effective amendment to the Registration
Statement which has not yet been declared effective, the Issuer will
notify the Purchasers to that effect, will use its commercially
reasonable efforts to secure the effectiveness of such post-effective
amendment as promptly as possible and will promptly notify the
Purchaser pursuant to Section 8.2(b)(i) hereof when the amendment has
become effective).
9
(c) In the event (i) of any request by the SEC or any other
federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Issuer of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Converted Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) of any event or circumstance
which, upon the advice of its counsel, necessitates the making of any
changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material
fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, then the
Issuer shall promptly deliver a certificate in writing to the
Purchasers (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Purchasers will
refrain from selling any Converted Shares pursuant to the Registration
Statement (a "Suspension") until the Purchasers' receipt of copies of
a supplemented or amended Prospectus prepared and filed by the Issuer,
or until the Purchasers are advised in writing by the Issuer that the
current Prospectus may be used, and have received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Prospectus. In the event of any
Suspension, the Issuer will use its commercially reasonable efforts to
cause the use of the Prospectus so suspended to be resumed as promptly
as possible after the delivery of a Suspension Notice to the
Purchasers.
(d) Provided that a Suspension is not then in effect, the
Purchasers may sell Converted Shares under the Registration Statement
in the manner set forth under the caption "Plan of Distribution" in
the Prospectus, provided that each arranges for delivery of a current
Prospectus to the transferee of such Converted Shares. Upon receipt of
a request therefor, the Issuer has agreed to provide an adequate
number of current Prospectuses to the Purchasers and to supply copies
to any other parties requiring such Prospectuses.
8.3 Indemnification. For the purpose of this Section 8.3:
(i) the term "Selling Stockholder" shall include the Purchasers
and their respective affiliates;
(ii) the term "Registration Statement" shall include the
Prospectus in the form first filed with the SEC pursuant to Rule
424(b) of the Securities Act or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is
required, any exhibit, supplement or amendment included in or relating
to the Registration Statement referred to in Section 8.1; and
(iii) the term "untrue statement" shall include any untrue
statement or alleged untrue statement of a material fact in the
Registration Statement, or any omission or alleged omission to state
in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(a) The Issuer agrees to indemnify and hold harmless each Selling
Stockholder and its officers, directors, members and their respective
successors and assigns (collectively, the "Selling Stockholder Indemnified
Parties") from and against any third party losses, claims, damages or
10
liabilities to which such Selling Stockholder Indemnified Parties may
become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon (i) any breach of the
representations or warranties of the Issuer contained herein, or failure to
comply with the covenants and agreements of the Issuer contained herein,
(ii) any untrue statement of a material fact contained in the Registration
Statement as amended at the time of effectiveness or any omission of a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, or (iii) any failure by the Issuer to fulfill any
undertaking included in the Registration Statement as amended at the time
of effectiveness, and the Issuer will reimburse such Selling Stockholder
Indemnified Parties for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, provided, however, that the Issuer shall not
be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in such
Registration Statement or any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading
in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of such Selling Stockholder Indemnified Parties
specifically for use in preparation of the Registration Statement, a breach
of any representations or warranties made by such Selling Stockholder
herein, or the failure of such Selling Stockholder Indemnified Parties to
comply with its covenants and agreements contained in this Agreement hereof
or any statement or omission in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Selling Stockholder
Indemnified Party prior to the pertinent sale or sales by the Selling
Stockholder Indemnified Party. The Issuer shall reimburse each Selling
Stockholder Indemnified Party for the amounts provided for herein on demand
as such expenses are incurred.
(b) Each Purchaser agrees to indemnify and hold harmless the Issuer
(and each person, if any, who controls the Issuer within the meaning of
Section 15 of the Securities Act, each officer of the Issuer who signs the
Registration Statement and each director of the Issuer) from and against
any third party losses, claims, damages or liabilities to which the Issuer
(or any such officer, director or controlling person) may become subject
(under the Securities Act or otherwise), insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise
out of, or are based upon, (i) any breach of the representations and
warranties of such Purchaser contained herein, (ii) any failure to comply
with the covenants and agreements of such Purchaser contained herein, or
(iii) any untrue statement of a material fact contained in the Registration
Statement or any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading if such untrue
statement or omission was made in reliance upon and in conformity with
written information furnished by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement, and such
Purchaser will reimburse the Issuer (or such officer, director or
controlling person), as the case maybe, for any reasonable legal or other
expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however, that such
Purchaser's obligation to indemnify the Issuer or any other persons
hereunder shall be limited to the amount by which the net amount received
by such Purchaser from the sale of the Converted Shares to which such loss
relates exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue statement or
omission, provided further that, with respect to any indemnification
obligation arising under clause (iii) of this paragraph (b), such
obligation shall be limited to the net amount received by such Purchaser
from the sale of the Converted Shares included in the Registration
Statement in question.
(c) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 8.3, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, but the omission to so notify
11
the indemnifying person will not relieve it from any liability which it may
have to any indemnified person under this Section 8.3 (except to the extent
that such omission materially and adversely affects the indemnifying
person's ability to defend such action) or from any liability otherwise
than under this Section 8.3. Subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person, the
indemnifying person shall be entitled to participate therein, and, to the
extent that it shall elect by written notice delivered to the indemnified
person promptly after receiving the aforesaid notice from such indemnified
person, shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume
the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided,
however, that if there exists or shall exist a conflict of interest that
would make it inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified person and
such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the
expense of such indemnifying person; provided, however, that no
indemnifying person shall be responsible for the fees and expenses of more
than one separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be liable in
respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement;
provided that such consent shall not be unreasonably withheld. No
indemnifying person shall, without the prior written consent of the
indemnified person, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified person is or could have been
a party and indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8.3 is
unavailable to or insufficient to hold harmless an indemnified person under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying person shall contribute to the amount paid
or payable by such indemnified person as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative fault of the Issuer on the one
hand and the Purchaser(s) on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, in the case of an untrue statement,
whether the untrue statement relates to information supplied by the Issuer
on the one hand or the Purchaser(s) on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement. The Issuer and the Purchasers agree that it
would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Purchasers were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified person as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), a Purchaser shall not be required to
contribute any amount in excess of the amount by which the net amount
received by such Purchaser from the sale of the Converted Shares to which
such loss relates exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue statement. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Each
Purchaser's obligations in this subsection to contribute shall be in
12
proportion to its sale of Converted Shares to which such loss relates and
shall not be joint with any other Selling Stockholders.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 8.3, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section
8.3 fairly allocate the risks in light of the ability of the parties to
investigate the Issuer and its business in order to assure that adequate
disclosure is made in the Registration Statement as required by the
Securities Act. The parties are advised that federal or state public policy
as interpreted by the courts in certain jurisdictions may be contrary to
certain of the provisions of this Section 8.3, and the parties hereto
hereby expressly waive and relinquish any right or ability to assert such
public policy as a defense to a claim under this Section 8.3 and further
agree not to attempt to assert any such defense.
8.4 Termination of Conditions and Obligations. The conditions
precedent imposed by this Agreement upon the transferability of the
Converted Shares, shall cease and terminate as to any particular Converted
Shares when such Converted Shares shall have been effectively registered
under the Securities Act and sold or otherwise disposed of in accordance
with the intended method of disposition set forth in the Registration
Statement covering the Converted Shares or at such time as an opinion of
counsel reasonably satisfactory to the Issuer shall have been rendered to
the effect that such conditions are not necessary in order to comply with
the Securities Act.
9. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within the United States
by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail, three business days after so mailed, (ii) if delivered by
nationally recognized overnight carrier, one business day after so mailed, (iii)
if delivered by International Federal Express, two business days after so
mailed, (iv) if delivered by facsimile, upon electronic confirmation of receipt
and shall be delivered as addressed as follows:
(a) if to the Issuer, to:
Contango Oil & Gas Company
3700 Buffalo Speedway, Suite 960
Houston, TX 77098
Tel: (713) 960-1901
Fax: (713) 960-1065
(b) with a copy to:
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, Suite 2200
Los Angeles, CA 90071
Attn: Richard A. Shortz
Tel: (213) 612-2526
Fax: (213) 612-2554
(c) if to a Purchaser, at its address on
Schedule 1 attached hereto, or at such other
address or addresses as may have been
furnished to the Issuer in writing
13
(d) with a copy to:
Energy Capital Solutions, LLC
2651 North Harwood
410 Rolex Bldg.
Dallas, TX 75201
and
Patton Boggs LLP
2001 Ross Avenue, Suite 3000
Dallas, TX 75201
Attn: Fred A. Stovall
Tel: (214) 758-1500
Fax: (214) 758-1550
10. Reliance. Each Purchaser and the Issuer understand and agree that the
other party and its respective officers, directors, employees and agents may,
and will, rely on the accuracy of the other party's respective representations
and warranties in this Agreement to establish compliance with applicable
securities laws. Each Purchaser and the Issuer agree to indemnify and hold
harmless all such parties against all losses, claims, costs, expenses and
damages or liabilities which they may suffer or incur caused or arising from
their reliance on such representations and warranties.
11. Miscellaneous.
11.1 Survival. The representations and warranties made in this
Agreement shall survive the closing of the transactions contemplated by
this Agreement.
11.2 Assignment. This Agreement is not transferable or assignable,
except that the rights of the Purchasers set forth in Section 8 hereof
shall be transferable by a Purchaser to its affiliate.
11.3 Execution and Delivery of Agreement. The Issuer shall be entitled
to rely on delivery by facsimile transmission of an executed copy of this
Agreement, and acceptance by the Issuer of such facsimile copy shall create
a valid and binding agreement between the Purchaser and the Issuer.
11.4 Titles. The titles of the sections and subsections of this
Agreement are for the convenience of reference only and are not to be
considered in construing this Agreement.
11.5 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect or limit the
validity or enforceability of the remaining provisions of this Agreement.
11.6 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties with respect to the subject matters
herein and supersedes and replaces any prior agreements and understandings,
whether oral or written, between them with respect to such matters.
11.7 Waiver and Amendment. Except as otherwise provided herein, the
provisions of this Agreement may be waived, altered, amended or repealed,
in whole or in part, only upon the mutual written agreement of the Issuer
and Purchasers acquiring in the aggregate a majority of the Series C
Preferred Stock purchased pursuant to this Agreement.
14
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
11.9 Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the State of Delaware.
11.10 Attorney's Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorney's fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
15
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above mentioned.
ISSUER:
CONTANGO OIL & GAS COMPANY
By: /s/ Kenneth R. Peak
------------------------------------------
Name: Kenneth R. Peak
Title: President and Chief Executive Officer
PURCHASER:
By:
-------------------------------------------
Name:
Title:
[Signature Page to Securities Purchase Agreement]
SCHEDULE 1
LIST OF PURCHASERS
- --------------------------------------------------------- ---------------------------- ------------------------------
Number of Shares of
Series C Preferred Stock
Name and Address of Purchaser Purchased Aggregate Purchase Price
- --------------------------------------------------------- ---------------------------- ------------------------------
Bonanza Master Fund, Ltd. 200 $ 1,000,000
8235 Douglas Avenue, Suite 423
Dallas, Texas 75225
- --------------------------------------------------------- ---------------------------- ------------------------------
Gryphon Master Fund, L.P. 400 $ 2,000,000
500 Crescent Court., #270
Dallas, Texas 75201
- --------------------------------------------------------- ---------------------------- ------------------------------
Ironman Energy Capital, L.P. 80 $ 400,000
4545 Bissonnet, Suite 291
Bellaire, Texas 77401
- --------------------------------------------------------- ---------------------------- ------------------------------
Nicholas Equity Income Fund, Inc. 40 $ 200,000
c/o Nicholas Company Inc.
700 N. Water Street, 10th Floor
Milwaukee, Wisconsin 53202
- --------------------------------------------------------- ---------------------------- ------------------------------
Nicholas Income Fund, Inc. 160 $ 800,000
c/o Nicholas Company Inc.
700 N. Water Street, 10th Floor
Milwaukee, Wisconsin 53202
- --------------------------------------------------------- ---------------------------- ------------------------------
Nicholas Limited Edition, Inc. 300 $ 1,500,000
c/o Nicholas Company Inc.
700 N. Water Street, 10th Floor
Milwaukee, Wisconsin 53202
- --------------------------------------------------------- ---------------------------- ------------------------------
North Sound Legacy Fund LLC 7 $ 35,000
c/o North Sound Capital LLC
53 Forest Avenue, Suite 202
Old Greenwich, Connecticut 06870
- --------------------------------------------------------- ---------------------------- ------------------------------
North Sound Legacy Institutional Fund LLC 65 $ 325,000
c/o North Sound Capital LLC
53 Forest Avenue, Suite 202
Old Greenwich, Connecticut 06870
- --------------------------------------------------------- ---------------------------- ------------------------------
North Sound Legacy International Ltd. 108 $ 540,000
c/o North Sound Capital LLC
53 Forest Avenue, Suite 202
Old Greenwich, Connecticut 06870
- --------------------------------------------------------- ---------------------------- ------------------------------
Old Head, LLC 20 $ 100,000
Attn: William D. Griffin
6538 Norway Road
Dallas, Texas 75230
- --------------------------------------------------------- ---------------------------- ------------------------------
Robert Raymond 40 $ 200,000
3510 Turtle Creek Blvd., #5C
Dallas, Texas 75219
- --------------------------------------------------------- ---------------------------- ------------------------------
- --------------------------------------------------------- ---------------------------- ------------------------------
Union Bank of California, Custodian for Earl Schatz 15 $ 75,000
Attn: Bob Wilcox
745 Sansome Street, 11th Floor
San Francisco, California 94111
- --------------------------------------------------------- ---------------------------- ------------------------------
- --------------------------------------------------------- ---------------------------- ------------------------------
Union Bank of California, Custodian for Gerald Lisac 15 $ 75,000
Attn: Bob Wilcox (1-475-11)
475 Sansome Street, 11th Floor
San Francisco, California 94111
- --------------------------------------------------------- ---------------------------- ------------------------------
- --------------------------------------------------------- ---------------------------- ------------------------------
U.S. Bank, NA, Trustee for Reliable Credit Assoc. 100 $ 500,000
Pension Plan
Attn: Alta Heimbuck
555 SW Oak Street, PD-OR-T6TD
Portland, Oregon 97204
- --------------------------------------------------------- ---------------------------- ------------------------------
- --------------------------------------------------------- ---------------------------- ------------------------------
U.S. Bank, NA, Trustee for Reliable Credit Assoc. 50 $ 250,000
Profit Sharing Plan
Attn: Alta Heimbuck
555 SW Oak Street, PD-OR-T6TD
Portland, Oregon 97204
- --------------------------------------------------------- ---------------------------- ------------------------------