Subscription Agreement - ERHC ENERGY INC - 5-25-1999

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Subscription Agreement - ERHC ENERGY INC - 5-25-1999 Powered By Docstoc
					Exhibit 10.36.1 ERHC INVESTMENT GROUP, LLC c/o Corporate Builders 777 South Flagler Drive, Suite 909 West Palm Beach, Florida 33401 As of April 27, 1999 Environmental Remediation Holding Corporation 3-5 Aubry Lane Oyster Bay, New York 11753 Attention: President Re: Subscription Agreement Ladies and Gentlemen: We refer to the letter if intent, dated as of April 8, 1999 (the "Letter of Intent"), between ERHC Investment Group, Inc., a corporation organized under the laws of the State of Florida ("Investment Group Inc."), and Environmental Remediation Holding Corporation, a corporation organized under the laws of the State of Colorado (the "Company"), pursuant to which the Company agreed, among other things: (i) to issue to Investment Group Inc. or its assigns in one or more transactions validly issued, fully paid, and nonassessable shares (the "Shares") of common stock, par value $.0001 per share, of the Company (the "Common Stock") representing fifty-one percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transaction contemplated by the Letter of Intent; and (ii) to enter into a definitive securities purchase agreement (the "Securities Purchase Agreement") with respect to such issuances of Common Stock. This letter agreement (as amended, supplemented, or otherwise modified from time to time, this "Agreement), is intended to set forth the mutual understanding and agreement between ERHC Investment Group LLC, a limited liability company organized under the laws of the State of Delaware ("Investor"), the assignee of all of Investment Group Inc.'s rights under the Letter of Intent, and the Company regarding Investor's initial subscription for a portion of the Shares prior to the execution and delivery of the Securities Purchase Agreement by the parties thereto. In consideration of the respective agreements, covenants, representations, and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows: Investor hereby irrevocably subscribes for the portion of the Shares (the "Initial Shares") representing twenty-one percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent, and Investor shall pay therefor in lawful money of the United States of America in one or more installments from time to time after the date hereof $210,000 in the aggregate (the "Purchase Price"). The unpaid amount of the Purchase Price at any time outstanding shall bear interest at the "applicable federal rate" per annum

(as such term is used for purposes of ss. 1274(d) of te Internal Revenue Code of the United States of America) as in effect on the date hereof. Upon payment in full of the Purchase Price and all accrued interest, the Company shall issue to Investor the Initial Shares, and shall deliver or cause to be delivered to Investor a certificate or certificates evidencing such Initial Shares. Upon the execution and delivery of the Securities Purchase Agreement, the terms and provisions of the Securities Purchase Agreement shall apply to the Initial Shares subscribed for and purchased hereby, and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, if the Final Closing (as defined in the Letter of Intent) has not occurred within ninety days after the date hereof, Investor shall surrender to the Company for cancellation such rights as it has or such certificates as it has received with respect to that number of the Initial Shares such that, after giving effect to such surrender, the remaining Initial Shares held by Investor would represent that percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent based upon a $5,882,352.90 valuation of the Company as adjusted by the Prior Action of the Board (as defined in the Letter of Intent). As an inducement to the Company to enter into this Agreement, Investor hereby represents and warrants to the Company that: (i) Investor has duly executed and delivered this agreement, and (assuming due execution and delivery by the Company) this agreement constitutes a legal, valid and binding obligation of Investor, enforceable against Investor in accordance with its terms; (ii) Investor's execution, delivery and performance hereof do not and will not: (A) violate or conflict with Investor's certificate of formation or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any governmental authority and applicable to Investor; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Investor understands that the Initial Shares have not been registered under the Securities Act of 1933, as amended, or the laws of any state and may not be sold or transferred, or otherwise disposed of, without registration under the Securities Act and applicable state securities laws, or pursuant to an exemption therefrom. As an inducement to Investor to enter into this Agreement, the Company hereby represents and warrants to Investor as follows: (i) The Company has duly executed and delivered this agreement, and (assuming due execution and delivery by Investor) this agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms;

(ii) The Company's execution, delivery, and performance hereof do not and will not; (A) violate or conflict with the Company's articles of incorporation or by-laws or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any governmental authority and applicable to the Company; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Upon issuance, the Initial Shares will be validly issued, fully paid, and nonassessable and will not be subject to any preemptive rights, and will represent not less than twenty-one percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent. No amendment hereof or supplement or other modification hereto, and no consent to, or waiver, discharge, or release of, any term or provision or breach hereof, shall be valid or effective unless such amendment, supplement, or other modification, or such consent, waiver, discharge, or release is in writing, expressly refers hereto, and is signed by the party to be bound thereby. If any term or other provision hereof is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable in whole or in part by reason of any applicable law or public policy, and such determination becomes final and nonappealable, such term or other provision shall remain in full force and effect to the fullest extent permitted by law, and all other terms and provisions hereof shall remain in full force and affect in their entirety. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York. Each party hereto hereby unconditionally and irrevocably waives all right to trial by jury in any action, suit, or proceeding (whether based on contract, tort, or otherwise) based upon, resulting from, arising out of, or relating to this Agreement or any transaction or agreement contemplated hereby. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each which when executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement with the same effect as if such signatures were upon the same instrument. Delivery of an executed counterpart hereof via telecopier shall be as effective as delivery of an manually executed counterpart hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK].

Please evidence your acknowledgment of and agreement to the foregoing by executing and delivering to Levin & Srinivasan LLP, counsel to the undersigned, by telecopier at (212) 957-4565 a counterpart hereof. Very truly yours, ERHC INVESTMENT GROUP LLC
By: /s/ HOWARD TALKS -----------------------------Howard D. Talks Member

ACKNOWLEDGED AND AGREED as of April 27, 1999: ENVIRONMENTAL REMEDIATION HOLDING CORPORATION
By: /s/ JAMES A. GRIFFIN, CORP SECRETARY -------------------------------------------------------Name: James A. Griffin Title: Corp. Secretary

Exhibit 10.36.2 ERHC INVESTMENT GROUP, LLC c/o Corporate Builders 777 South Flagler Drive, Suite 909 West Palm Beach, Florida 33401 As of April 27, 1999 Environmental Remediation Holding Corporation 3-5 Aubry Lane Oyster Bay, New York 11753 Attention: President Re: Subscription Agreement Ladies and Gentlemen: We refer to the letter if intent, dated as of April 8, 1999 (the "Letter of Intent"), between ERHC Investment Group, Inc., a corporation organized under the laws of the State of Florida ("Investment Group Inc."), and Environmental Remediation Holding Corporation, a corporation organized under the laws of the State of Colorado (the "Company"), pursuant to which the Company agreed, among other things: (i) to issue to Investment Group Inc. or its assigns in one or more transactions validly issued, fully paid, and nonassessable shares (the "Shares") of common stock, par value $.0001 per share, of the Company (the "Common Stock") representing fifty-one percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transaction contemplated by the Letter of Intent; and (ii) to enter into a definitive securities purchase agreement (the "Securities Purchase Agreement") with respect to such issuances of Common Stock. This letter agreement (as amended, supplemented, or otherwise modified from time to time, this "Agreement), is intended to set forth the mutual understanding and agreement between ERHC Investment Group LLC, a limited liability company organized under the laws of the State of Delaware ("Investor"), the assignee of all of Investment Group Inc.'s rights under the Letter of Intent, and the Company regarding Investor's initial subscription for a portion of the Shares prior to the execution and delivery of the Securities Purchase Agreement by the parties thereto. In consideration of the respective agreements, covenants, representations, and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows: Investor hereby irrevocably subscribes for the portion of the Shares (the "Group II Shares") representing 27.195 percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent, and Investor shall pay therefor in lawful money of the United States of America in one or more installments from time to time after the date hereof in accordance with the terms and conditions of the Letter of Intent $2,625,000 in the aggregate (the "Purchase Price"). Notwithstanding anything to the contrary contained herein,

the obligatins of Investor and the Company hereunder shall be subject in all respects to the execution and delivery of the Securities Purchase Agreement and the other terms and conditions of the Letter of Intent As an inducement to the Company to enter into this Agreement, Investor hereby represents and warrants to the Company that: (i) Investor has duly executed and delivered this agreement, and (assuming due execution and delivery by the Company) this agreement constitutes a legal, valid and binding obligation of Investor, enforceable against Investor in accordance with its terms; (ii) Investor's execution, delivery and performance hereof do not and will not: (A) violate or conflict with Investor's certificate of formation or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any governmental authority and applicable to Investor; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Investor understands that the Group II Shares have not been registered under the Securities Act of 1933, as amended, or the laws of any state and may not be sold or transferred, or otherwise disposed of, without registration under the Securities Act and applicable state securities laws, or pursuant to an exemption therefrom. As an inducement to Investor to enter into this Agreement, the Company hereby represents and warrants to Investor as follows: (i) The Company has duly executed and delivered this agreement, and (assuming due execution and delivery by Investor) this agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms; (ii) The Company's execution, delivery, and performance hereof do not and will not; (A) violate or conflict with the Company's articles of incorporation or by-laws or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any governmental authority and applicable to the Company; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Upon issuance, the Group II Shares will be validly issued, fully paid, and nonassessable and will not be subject to any preemptive rights, and will represent not less than 27.195 percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent.

No amendment hereof or supplement or other modification hereto, and no consent to, or waiver, discharge, or release of, any term or provision or breach hereof, shall be valid or effective unless such amendment, supplement, or other modification, or such consent, waiver, discharge, or release is in writing, expressly refers hereto, and is signed by the party to be bound thereby. If any term or other provision hereof is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable in whole or in part by reason of any applicable law or public policy, and such determination becomes final and nonappealable, such term or other provision shall remain in full force and effect to the fullest extent permitted by law, and all other terms and provisions hereof shall remain in full force and affect in their entirety. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York. Each party hereto hereby unconditionally and irrevocably waives all right to trial by jury in any action, suit, or proceeding (whether based on contract, tort, or otherwise) based upon, resulting from, arising out of, or relating to this Agreement or any transaction or agreement contemplated hereby. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each which when executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement with the same effect as if such signatures were upon the same instrument. Delivery of an executed counterpart hereof via telecopier shall be as effective as delivery of an manually executed counterpart hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK].

Please evidence your acknowledgment of and agreement to the foregoing by executing and delivering to Levin & Srinivasan LLP, counsel to the undersigned, by telecopier at (212) 957-4565 a counterpart hereof. Very truly yours, ERHC INVESTMENT GROUP LLC
By: /s/ HOWARD TALKS -----------------------------Howard D. Talks Member

ACKNOWLEDGED AND AGREED as of April 27, 1999: ENVIRONMENTAL REMEDIATION HOLDING CORPORATION
By: /s/ JAMES A. GRIFFIN, CORP SECRETARY ---------------------------------------Name: James A. Griffin Title: Corp. Secretary

Exhibit 10.36.3 ERHC INVESTMENT GROUP, LLC c/o Corporate Builders 777 South Flagler Drive, Suite 909 West Palm Beach, Florida 33401 As of April 27, 1999 Environmental Remediation Holding Corporation 3-5 Aubry Lane Oyster Bay, New York 11753 Attention: President Re: Subscription Agreement Ladies and Gentlemen: We refer to the letter if intent, dated as of April 8, 1999 (the "Letter of Intent"), between ERHC Investment Group, Inc., a corporation organized under the laws of the State of Florida ("Investment Group Inc."), and Environmental Remediation Holding Corporation, a corporation organized under the laws of the State of Colorado (the "Company"), pursuant to which the Company agreed, among other things: (i) to issue to Investment Group Inc. or its assigns in one or more transactions validly issued, fully paid, and nonassessable shares (the "Shares") of common stock, par value $.0001 per share, of the Company (the "Common Stock") representing fifty-one percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transaction contemplated by the Letter of Intent; and (ii) to enter into a definitive securities purchase agreement (the "Securities Purchase Agreement") with respect to such issuances of Common Stock. This letter agreement (as amended, supplemented, or otherwise modified from time to time, this "Agreement), is intended to set forth the mutual understanding and agreement between ERHC Investment Group LLC, a limited liability company organized under the laws of the State of Delaware ("Investor"), the assignee of all of Investment Group Inc.'s rights under the Letter of Intent, and the Company regarding Investor's initial subscription for a portion of the Shares prior to the execution and delivery of the Securities Purchase Agreement by the parties thereto. In consideration of the respective agreements, covenants, representations, and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows: Investor hereby irrevocably subscribes for the portion of the Shares (the "Initial Shares") representing 2.805 percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent, and Investor shall pay therefor in lawful money of the United States of America contemporaneously herewith $165,000 in the aggregate (the "Purchase Price"). Upon payment in full of the Purchase Price, the Company shall issue to Investor the Initial shares, and shall deliver or cause to be delivered to Investor a certificate or certificates evidencing such Initial Shares.

Upon the execution and delivery of the Securities Purchase Agreement, the terms and provisions of the Securities Purchase Agreement shall apply to the Initial Shares subscribed for and purchased hereby, and the other transactions contemplated by this Agreement. As an inducement to the Company to enter into this Agreement, Investor hereby represents and warrants to the Company that: (i) Investor has duly executed and delivered this agreement, and (assuming due execution and delivery by the Company) this agreement constitutes a legal, valid and binding obligation of Investor, enforceable against Investor in accordance with its terms; (ii) Investor's execution, delivery and performance hereof do not and will not: (A) violate or conflict with Investor's certificate of formation or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any governmental authority and applicable to Investor; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Investor understands that the Initial Shares have not been registered under the Securities Act of 1933, as amended, or the laws of any state and may not be sold or transferred, or otherwise disposed of, without registration under the Securities Act and applicable state securities laws, or pursuant to an exemption therefrom. As an inducement to Investor to enter into this Agreement, the Company hereby represents and warrants to Investor as follows: (i) The Company has duly executed and delivered this agreement, and (assuming due execution and delivery by Investor) this agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms; (ii) The Company's execution, delivery, and performance hereof do not and will not; (A) violate or conflict with the Company's articles of incorporation or by-laws or similar organizational documents, or any law or any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any governmental authority and applicable to the Company; (B) violate or infringe upon any rights of any person; or (C) require any consent, approval, authorization or other order of, action by, filing with, or notification to, any governmental authority or any other person; and (iii) Upon issuance, the Initial Shares will be validly issued, fully

paid, and nonassessable and will not be subject to any preemptive rights, and will represent not less than 2.805 percent of the issued and outstanding capital stock of the Company on a fully-diluted basis after giving effect to all of the transactions contemplated by the Letter of Intent. No amendment hereof or supplement or other modification hereto, and no consent to, or waiver, discharge, or release of, any term or provision or breach hereof, shall be valid or effective unless such amendment, supplement, or other modification, or such consent, waiver, discharge, or release is in writing, expressly refers hereto, and is signed by the party to be bound thereby. If any term or other provision hereof is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable in whole or in part by reason of any applicable law or public policy, and such determination becomes final and nonappealable, such term or other provision shall remain in full force and effect to the fullest extent permitted by law, and all other terms and provisions hereof shall remain in full force and affect in their entirety. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York. Each party hereto hereby unconditionally and irrevocably waives all right to trial by jury in any action, suit, or proceeding (whether based on contract, tort, or otherwise) based upon, resulting from, arising out of, or relating to this Agreement or any transaction or agreement contemplated hereby. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each which when executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement with the same effect as if such signatures were upon the same instrument. Delivery of an executed counterpart hereof via telecopier shall be as effective as delivery of an manually executed counterpart hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK].

Please evidence your acknowledgment of and agreement to the foregoing by executing and delivering to Levin & Srinivasan LLP, counsel to the undersigned, by telecopier at (212) 957-4565 a counterpart hereof. Very truly yours, ERHC INVESTMENT GROUP LLC
By: /s/ HOWARD TALKS -----------------------------Howard D. Talks Member

ACKNOWLEDGED AND AGREED as of April 27, 1999: ENVIRONMENTAL REMEDIATION HOLDING CORPORATION
By: /s/ JAMES A. GRIFFIN, CORP SECRETARY ------------------------------------Name: James A. Griffin Title: Corp. Secretary

ARTICLE 5 CIK: 0000799235 NAME: Environmental Remediation Holding Corp. MULTIPLIER: 1 CURRENCY: U.S. Currency

PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END EXCHANGE RATE CASH SECURITIES RECEIVABLES ALLOWANCES INVENTORY CURRENT ASSETS PP&E DEPRECIATION TOTAL ASSETS CURRENT LIABILITIES BONDS PREFERRED MANDATORY PREFERRED COMMON OTHER SE TOTAL LIABILITY AND EQUITY SALES TOTAL REVENUES CGS TOTAL COSTS OTHER EXPENSES LOSS PROVISION INTEREST EXPENSE INCOME PRETAX INCOME TAX INCOME CONTINUING DISCONTINUED EXTRAORDINARY CHANGES NET INCOME EPS BASIC EPS DILUTED

3 MOS DEC 31 1998 JAN 1 1999 MAR 31 1999 1 0 0 0 0 0 446,586 6,393,879 (1,293,409) 11,801,919 8,166,291 0 0 0 2,847 0 11,801,919 0 0 0 4,520,958 0 0 1,507,166 0 0 0 0 0 0 (4,520,958) (0.16) 0