SHARE PURCHASE AGREEMENT
Exhibit
10.5
This
Share Purchase Agreement (this "Agreement") is made and entered into as of
November 18, 2009, by and among Offshore Petroleum Corp. a Delaware corporation,
as buyer (the "Company") and NPT Oil Corporation Ltd., a Cayman company
(“NPT”).
RECITALS:
WHEREAS, NPT owns all of the
issued and outstanding capital shares of Atlantic Petroleum Ltd., a Cayman
Islands company ("Atlantic"), such shares being referred to herein as the
“Atlantic Shares;"
WHEREAS, NPT owns all of the
issued and outstanding capital shares of Bahamas Exploration Limited, a Cayman
Islands company ("Bahamas"), such shares being referred to herein as the
“Bahamas Shares;" and
WHEREAS, NPT desires to sell
to the Company, and the Company desires to purchase from NPT, the Atlantic
Shares and the Bahamas Shares (together, the “Shares”) on the terms and subject
to the conditions of this Agreement;
WHEREAS, Atlantic and Bahamas
have each submitted applications to the Government of the
Commonwealth of the Bahamas to license certain offshore oil and gas exploration
rights as more particularly described in Schedule “B” hereto
(the “Licenses”).
NOW THEREFORE, for and in
consideration of the premises and the mutual promises and undertakings contained
herein, and for other good and valuable consideration, and subject to the terms
and conditions of this Agreement, the parties hereto agree as
follows:
1. PURCHASE AND
SALE.
1.1 Sale and Purchase of the
Atlantic and
Bahamas Shares. On the
terms and subject to conditions of this Agreement, upon payment of the Purchase
Price (as defined below) at the Closing (as defined below), NPT shall sell and
deliver to the Company, free and clear of all claims, security interests, liens
or other encumbrances of any nature, and the Company shall purchase, all of the
Shares.
1.2 Technical
Information. NPT has purchased or collected certain technical
information about the properties to be leased by Atlantic and Bahamas pursuant
to the Licenses, the cost of which currently is reflected as an inter-company
payables from Atlantic and Bahamas to NPT. The parties agree that
such cost is included in the Purchase Price and such inter-company payable shall
be forgiven and cancelled at Closing (as defined below).
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1.3 Purchase Price. The
purchase price for the Shares (the “Purchase Price”) shall be as follows: (a)
the Company shall execute and deliver to NPT a promissory note in the principal
amount of One Million Five Hundred Thousand U.S. Dollars ($1,500,000) bearing
interest at 5% per annum and payable at any time over a two-year term (the
“Note”) and (b) the Company shall issue and deliver to NPT 15,000,000 common
shares of the Company (the "Exchange Shares"). The Exchange Shares,
will be, when issued and delivered, validly issued, fully paid, and
nonassessable. The Exchange Shares will not be subject to any liens,
encumbrances, preemptive rights, options or similar rights on the part of any
shareholder or creditor of the Company or any other person.
1.4 Direction of Exchange
Shares. NPT hereby instructs the Company to issue the Exchange
Shares, at Closing, to NPT’s shareholders (the “NPT Shareholders”) in the
amounts set forth opposite the names of such Shareholders as provided in Schedule A
hereto. NPT represents and warrants to the Company that all of the
parties listed in Schedule A are
accredited investors as that term is used in Regulation D (as defined
below).
1.5 Restricted Status of Exchange
Shares. The parties understand and agree that upon issuance at
Closing the Exchange Shares will not have been registered under the Securities
Act of 1933, as amended ("Act"), and will be issued by the Company in reliance
upon exemptions from registration provided by Section 4(2) of the Act and Rule
506 of Regulation D promulgated under the Act (“Regulation D”). Upon
issuance at Closing, the Exchange Shares will be "restricted securities" as that
term is defined in Rule 144(a) of the General Rules and Regulations under the
Act and must be held indefinitely, unless they are subsequently registered for
re-sale under the Act or an exemption from such registration requirements is
available for their resale. All certificates evidencing the Exchange
Shares shall, unless and until removed in accordance with applicable law and
regulations, bear a restrictive legend substantially in the following
form:
"The
shares represented by this Certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are "restricted securities"
as that term is defined in Rule 144 under the Act. These shares may
not be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to an exemption from
registration under the Act."
1.6 Closing. Subject to
the conditions precedent set forth herein, the closing of all transactions
herein contemplated (the "Closing") shall take place at a place and time
mutually agreed by NPT and the Company on or before November 30, 2009 (the
"Closing Date"). This Agreement shall be effective and binding when
signed by all of the parties hereto. As further described in Section
7 hereof, the initial closing will be an escrow closing.
1.7 Resignation of Officers and Directors
of Atlantic and Bahamas. At the Closing, the current
respective officers and directors of Atlantic and Bahamas shall resign and
persons chosen by the Company shall be elected as the respective directors and
officers of Atlantic and Bahamas.
1.8 Further
Assurances. The Company and NPT agree to execute such
additional documents and instruments and to take or to cause to be taken all
actions which the Company and NPT deem necessary or appropriate to complete the
transactions contemplated by this Agreement, both before and after the
Closing.
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2. CAPITALIZATION
2.1 The Company's Capitalization at
Closing. Immediately prior to the Closing, the Company shall
have issued and outstanding not more than 32,000,000 shares of common
stock. At the Closing, the Company will not, without the prior
written consent of NPT, have issued or outstanding any other shares of common
stock, nor any options or other rights to purchase its stock, nor any instrument
convertible into or exchangeable for its stock.
3. REPRESENTATIONS AND WARRANTIES OF NPT
WITH RESPECT TO ATLANTIC. NPT hereby represents and warrants
to the Company that the following representations and warranties with respect to
Atlantic are true and correct as of the date hereof and will be true and correct
through the Closing Date as if made on that date:
3.1 Payment of
Costs. NPT acknowledges and agrees that it has advanced
certain amounts to Atlantic with respect to payment of costs related to
obtaining the Licences and agrees that it will continue to advance all the fees
and expenses necessary to obtain the Licences. All amounts owed by
Atlantic to NPT as provided in the financial statements of Atlantic shall be
forgiven at closing of Escrow
3.2 Best Efforts to Obtain the
Licenses. NPT agrees to use its best effort to cause all
maters required by the Government of the Commonwealth of the Bahamas to be
approved and completed by Atlantic and to obtain the Licenses whether before or
after the Closing and to obtain any consent require by the Bahamian Government
for the change in ownership of Atlantic.
3.3 Organization and
Standing. Atlantic is, and on the Closing Date will be, duly
organized, validly existing and in good standing under the laws of the Cayman
Islands, with all requisite power and authority to carry on the business in
which it is engaged, to own the properties and assets it owns, and is duly
qualified and licensed to do business and is in good standing in all
jurisdictions where the nature of its business makes such qualification
necessary.
3.4 Capitalization. Other
than the Atlantic Shares, no other shares of capital stock have been
issued. The single issued and outstanding share of capital stock of
Atlantic has been duly authorized, validly issued, and is fully paid and
nonassessable. Atlantic does not have outstanding any option, warrant
or similar instrument and is not a party to or bound by any agreement,
instrument, arrangement, contract, obligation, commitment or understanding of
any character, whether written or oral, express or implied, whereby Atlantic is
bound to issue shares of its capital stock or any instrument or right
convertible into or exchangeable for shares of its capital stock, nor relating
to the sale, assignment, encumbrance, conveyance, transfer or delivery of any
capital stock of Atlantic of any type or class.
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3.5 Litigation. There
are no claims, actions, suits, proceedings or investigations pending or
threatened against or affecting Atlantic or any of its properties or assets in
any court or by or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or other instrumentality, domestic
or foreign, or arbitration tribunal or other forum which, if determined
adversely to Atlantic, would materially affect its business, prospects,
properties or financial condition or Atlantic's right to conduct its business as
being conducted or expected to be conducted. There are no judgments,
decrees, injunctions, writs, orders or other mandates outstanding to which
Atlantic is a party or by which it is bound or affected.
3.6 Nature of
Representations. All statements made in this Agreement, or in
any Schedule hereto, or in any document or certificate executed and delivered
herewith, by or on behalf of Atlantic are true, correct and complete as of the
date of this Agreement and will be so as of the Closing Date. All
statements contained in any certificate made by any official of Atlantic and
delivered to the Company shall be deemed representations and warranties of or on
behalf of Atlantic.
3.7 Compliance with Laws and
Permits. To the best of NPT’s knowledge, Atlantic has complied
in all material respects with its Memorandum and Articles of Association and
such other of its organizational documents as may exist (each as amended to
date), all applicable laws, regulations and rules, all applicable orders,
judgments, writs, decrees or injunctions of federal, state and municipal
governments or any department, agency or other instrumentality thereof, domestic
or foreign, applicable to its business or properties, and has not done or
omitted to do any act or acts which singly or in the aggregate are in violation
of any of the foregoing. To the best of NPT’s knowledge, Atlantic has
obtained all federal, state and municipal licenses and permits necessary to its
properties and operations, is not in violation of any such license or permit and
has not received any notification that any revocation or limitation thereof is
pending or threatened.
3.8 No Undisclosed Material
Liabilities. Atlantic has not incurred any liabilities or
obligations whatever (whether direct, indirect, accrued, contingent, absolute,
secured or unsecured or otherwise) affecting or related to its assets, including
liabilities as guarantor or surety or otherwise for the obligations of others
and tax liabilities due or to become due,. There is no basis for any
material claim against Atlantic's , except as disclosed in writing to the
Company. Atlantic has no creditors whose prior consent might be
required by law to the sale of the Atlantic Shares except as set out
herein.
3.9 Material Transactions and Adverse
Changes. Except as has been disclosed in writing to the
Company, Atlantic has not, and as of the Closing Date will not, have: (i)
suffered any materially adverse change in its assets taken as a whole; (ii)
suffered any damage or destruction in the nature of a casualty loss to any one
or more of its assets, whether or not covered by insurance, which singly or in
the aggregate are materially adverse to the properties or business of
Atlantic; (iii) made any change in any method of accounting or
accounting practice, including the revaluation of any of its assets; or (iv)
agreed in writing or otherwise to take any action described in this
Section.
3.10 Taxes. All income,
excise, unemployment, social security, occupational, franchise, ad valorem
and/or other taxes, duties, assessments or charges levied, assessed or imposed
upon Atlantic by any federal, state or municipal government or subdivision or
instrumentality thereof have been duly paid or adequately provided for, and all
required tax returns or reports concerning any such items have been duly
filed. Atlantic has not waived any statute of limitations with
respect to any tax liability whatever for any period prior to the date of this
Agreement or agreed to any extension of time with respect to a tax assessment or
liability.
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3.11 Indebtedness to and from
Affiliates. Atlantic is indebted to NPT as described in
section 3.1 above. Atlantic is not indebted to any officer, director,
employee or shareholder thereof as of the date of this Agreement, and no money
or property is owed to Atlantic by any officer, director, employee or
shareholder thereof, and none will be owed as of the Closing Date.
3.12 Documents
Genuine. All originals and/or copies of Atlantic’s Memorandum
and Articles of Association, as amended to date, and all minutes of meetings and
written consents in lieu of meetings of directors and shareholders of Atlantic,
financial data, and any and all other documents, material, data, files, or
information which have been or will be furnished to the Company, are and will be
true, complete, correct and unmodified originals and/or copies of such
documents, information, data, files or material.
3.13 Financial Statements and
Records. Atlantic will provide to the Company copies of its
financial statements back to inception, and all such statements shall fairly
present the assets, liabilities and financial condition of Atlantic as of the
respective dates thereof, and all shall have been prepared in conformity with
generally accepted accounting principles, consistently applied during the
periods covered. Atlantic also will furnish to the Company copies of
its other books, accounts and records.
3.14 Employees and
Salaries. Atlantic has no employees or salaries due to any
employee.
3.15 Insurance. Atlantic
does not carry any insurance.
3.16 Authorization and Validity.
The execution, delivery and performance by NPT on behalf of Atlantic
of this Agreement and any other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by Atlantic and all necessary approvals of the shareholder(s) of
Atlantic will have been obtained by the Closing Date. This Agreement
and any other agreement contemplated hereby have been or will be as of the
Closing Date duly executed and delivered by NPT on behalf of Atlantic and
constitutes and will constitute legal, valid and binding obligations of
Atlantic, enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of equitable
remedies.
3.17 Consents;
Approvals; Conflict. Except as set out herein, no consent,
approval, authorization or order of any court or governmental agency or other
body is required for the Company to consummate the purchase of the Atlantic
Shares as contemplated herein. Neither the execution, delivery,
consummation or performance of this Agreement shall conflict with, or constitute
a breach of, and no prior approval is necessary by or under, Atlantic’s
Memorandum and Articles of Association or any note, mortgage, indenture, deed of
trust, lease, obligation, or other agreement or instrument to which Atlantic is
a party. In particular and without limiting the generality of the
foregoing representations, except as set forth herein no consent is needed from
the Government of the Bahamas in connection with Atlantic’s proposed license
agreement with the Government of the Bahamas as a result of the change in
control of Atlantic that may deemed to have occurred upon closing of Escrow as
set out in this Agreement.
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3.18 Restrictive
Covenants. Prior to the Closing, Atlantic shall conduct its
business in the ordinary and usual course without unusual commitments and in
compliance with all applicable laws, rules, and
regulations. Furthermore, Atlantic will not, without the prior
written consent of the Company, (i) make any changes in its capital structure,
(ii) incur any liability or obligation other than current liabilities incurred
in the ordinary and usual course of business, (iii) incur any material
indebtedness for borrowed money, (iv) make any loans or advances other than in
the ordinary and usual course of business, (v) declare or pay any dividend or
make any other distribution with respect to its capital stock, (vi) issue, sell,
or deliver or purchase or otherwise acquire for value any of its stock or other
securities, or (vii) mortgage, pledge, or subject to encumbrance any of its
assets or properties or sell or transfer any of its assets, leases or material
contracts or properties, except in the ordinary and usual course of
business.
3.19 Disclaimer of Further Warranties;
Etc. Except as expressly set forth in this Agreement and the Schedules
hereto, the Company has made no other representation or warranty to NPT,
Atlantic, Bahamas or the Shareholders in connection with the transactions
contemplated herein. NPT's decision to enter into this Agreement and
the exchange contemplated herein is based upon its own independent judgment and
investigation and not on any representations and warranties of the Company other
than those expressly stated in this Agreement and in the Schedules
hereto.
3.20 Royalties. The
Company acknowledges the properties proposed to be licensed by Atlantic pursuant
to the Licenses will be subject to royalties on any production from the
properties licensed on terms and conditions as described in Schedule “C”
hereto.
4.
REPRESENTATIONS AND WARRANTIES OF NPT WITH RESPECT TO
BAHAMAS. NPT hereby represents and warrants to the Company
that the following representations and warranties with respect to Bahamas are
true and correct as of the date hereof and will be true and correct through the
Closing Date as if made on that date:
4.1 Payment of
Costs. NPT acknowledges and agrees that it has advanced
certain amounts to Bahamas with respect to payment of costs related to obtaining
the Licenses and agrees that it will continue to advance all the fees and
expenses necessary to obtain the Licenses. All amounts owed by Bahamas to NPT as
provided in the financial statements of Bahamas shall be forgiven at
closing.
4.2 Best Efforts to Obtain
the Licenses. NPT agrees to use its best effort to cause all
maters required by the Government of the Commonwealth of the Bahamas to be
approved and completed by Bahamas and to obtain the Licenses whether before or
after the Closing and to obtain any consent require by the Bahamian Government
for the change in ownership of Bahamas.
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4.3 Organization and
Standing. Bahamas is, and on the Closing Date will be, duly
organized, validly existing and in good standing under the laws of the Cayman
Islands, with all requisite power and authority to carry on the business in
which it is engaged, to own the properties and assets it owns, and is duly
qualified and licensed to do business and is in good standing in all
jurisdictions where the nature of its business makes such qualification
necessary.
4.4 Capitalization. Other
than the Bahamas Shares, no other shares of capital stock have been
issued. The single issued and outstanding share of capital stock of
Bahamas has been duly authorized, validly issued, and are fully paid and
nonassessable. Bahamas does not have outstanding any option, warrant
or similar instrument and is not a party to or bound by any agreement,
instrument, arrangement, contract, obligation, commitment or understanding of
any character, whether written or oral, express or implied, whereby Bahamas is
bound to issue shares of its capital stock or any instrument or right
convertible into or exchangeable for shares of its capital stock, nor relating
to the sale, assignment, encumbrance, conveyance, transfer or delivery of any
capital stock of Bahamas of any type or class.
4.5 Litigation. There
are no claims, actions, suits, proceedings or investigations pending or
threatened against or affecting Bahamas or any of its properties or assets in
any court or by or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or other instrumentality, domestic
or foreign, or arbitration tribunal or other forum which, if determined
adversely to Bahamas, would materially affect its business, prospects,
properties or financial condition or Bahamas' right to conduct its business as
being conducted or expected to be conducted. There are no judgments,
decrees, injunctions, writs, orders or other mandates outstanding to which
Bahamas is a party or by which it is bound or affected.
4.6 Nature of
Representations. All statements made in this Agreement, or in
any Exhibit or Schedule hereto, or in any document or certificate executed and
delivered herewith, by or on behalf of Bahamas are true, correct and complete as
of the date of this Agreement and will be so as of the Closing
Date. All statements contained in any certificate made by any
official of Bahamas and delivered to the Company shall be deemed representations
and warranties of or on behalf of Bahamas.
4.7 Compliance with Laws and
Permits. To the best of NPT’s knowledge, Bahamas has complied
in all material respects with its Memorandum and Articles of Association and
such other of its organizational documents as may exist (each as amended to
date), all applicable laws, regulations and rules, all applicable orders,
judgments, writs, decrees or injunctions of federal, state and municipal
governments or any department, agency or other instrumentality thereof, domestic
or foreign, applicable to its business or properties, and has not done or
omitted to do any act or acts which singly or in the aggregate are in violation
of any of the foregoing. To the best of NPT’s knowledge, Bahamas has
obtained all federal, state and municipal licenses and permits necessary to its
properties and operations, is not in violation of any such license or permit and
has not received any notification that any revocation or limitation thereof is
pending or threatened.
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4.8 No Undisclosed Material
Liabilities. Bahamas has not incurred any liabilities or
obligations whatever (whether direct, indirect, accrued, contingent, absolute,
secured or unsecured or otherwise) affecting or related to its assets, including
liabilities as guarantor or surety or otherwise for the obligations of others
and tax liabilities due or to become due. There is no basis for any
material claim against Bahamas's assets, except as disclosed in writing to the
Company. Bahamas has no creditors whose prior consent might be
required by law to the sale of the Bahamas Shares except as set out
herein.
4.9 Material Transactions and Adverse
Changes. Except as has been disclosed in writing to the
Company, Bahamas has not, and as of the Closing Date will not, have: (i)
suffered any materially adverse change in its assets taken as a whole; (ii)
suffered any damage or destruction in the nature of a casualty loss to any one
or more of its assets, whether or not covered by insurance, which singly or in
the aggregate are materially adverse to the properties or business of
Bahamas; (iii) made any change in any method of accounting or
accounting practice, including the revaluation of any of its assets; or (iv)
agreed in writing or otherwise to take any action described in this
Section.
4.10 Taxes. All
income, excise, unemployment, social security, occupational, franchise, ad
valorem and/or other taxes, duties, assessments or charges levied, assessed or
imposed upon Bahamas by any federal, state or municipal government or
subdivision or instrumentality thereof have been duly paid or adequately
provided for, and all required tax returns or reports concerning any such items
have been duly filed. Bahamas has not waived any statute of
limitations with respect to any tax liability whatever for any period prior to
the date of this Agreement or agreed to any extension of time with respect to a
tax assessment or liability.
4.11 Indebtedness to and from
Affiliates. Bahamas is indebted to NPT as described in Section
4.1 above. Bahamas is not indebted to any officer, director, employee
or shareholder thereof as of the date of this Agreement, and no money or
property is owed to Bahamas by any officer, director, employee or shareholder
thereof, and none will be owed as of the Closing Date.
4.12 Documents
Genuine. All originals and/or copies of Bahamas’s Memorandum
and Articles of Association, as amended to date, and all minutes of meetings and
written consents in lieu of meetings of directors and shareholders of Bahamas,
financial data, and any and all other documents, material, data, files, or
information which have been or will be furnished to the Company, are and will be
true, complete, correct and unmodified originals and/or copies of such
documents, information, data, files or material.
4.13 Financial Statements and
Records. Bahamas will provide to the Company copies of its
financial statements back to inception, and all such statements shall fairly
present the assets, liabilities and financial condition of Bahamas as of the
respective dates thereof, and all shall have been prepared in conformity with
generally accepted accounting principles, consistently applied during the
periods covered. Bahamas also will furnish to the Company copies of
its other books, accounts and records.
4.14 Employees and
Salaries. Bahamas has no employees or salaries due to any
employee.
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4.15 Insurance. Bahamas
dos not carry any insurance..
4.16 Authorization and
Validity. The execution, delivery and performance by or on behalf of
Bahamas of this Agreement and any other agreements contemplated hereby, and the
consummations of the transactions contemplated hereby and thereby, have been
duly authorized by Bahamas and all necessary approvals of the shareholder(s) of
Bahamas will have been obtained by the Closing Date. This Agreement
and any other agreement contemplated hereby have been or will be as of the
Closing Date duly executed and delivered by or on behalf of Bahamas and
constitutes and will constitute legal, valid and binding obligations of Bahamas,
enforceable against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable
remedies.
4.17 Consents; Approvals;
Conflict. Except as set out herein no consent, approval,
authorization or order of any court or governmental agency or other body is
required for the Company to consummate the purchase of the Bahamas Shares as
contemplated herein. Neither the execution, delivery, consummation or
performance of this Agreement shall conflict with, or constitute a breach of,
and no prior approval is necessary by or under, Bahamas’s Memorandum and
Articles of Association or any note, mortgage, indenture, deed of trust, lease,
obligation, or other agreement or instrument to which Bahamas is a
party. In particular and without limiting the generality of the
foregoing representations, except as set out herein no consent is needed from
the Government of the Bahamas in connection with Bahamas’s proposed licence
agreement with the Government of the Bahamas as a result of the change in
control of Bahamas that may deemed to have occurred upon closing of Escrow as set out in
this Agreement.
4.18 Restrictive Covenants.
Prior to the Closing, Bahamas shall conduct its business in the ordinary and
usual course without unusual commitments and in compliance with all applicable
laws, rules, and regulations. Furthermore, Bahamas will not, without
the prior written consent of the Company, (i) make any changes in its capital
structure, (ii) incur any liability or obligation other than current liabilities
incurred in the ordinary and usual course of business, (iii) incur any material
indebtedness for borrowed money, (iv) make any loans or advances other than in
the ordinary and usual course of business, (v) declare or pay any dividend or
make any other distribution with respect to its capital stock, (vi) issue, sell,
or deliver or purchase or otherwise acquire for value any of its stock or other
securities, or (vii) mortgage, pledge, or subject to encumbrance any of its
assets or properties or sell or transfer any of its assets, leases or material
contracts or properties, except in the ordinary and usual course of
business.
4.19 Disclaimer of Further
Warranties; Etc. Except as expressly set forth in this Agreement and the
Schedules hereto, the Company has made no other representation or warranty to
NPT, Atlantic, Bahamas or the Shareholders in connection with the transactions
contemplated herein. NPT’s decision to enter into this Agreement and
the exchange contemplated herein is based upon its own independent judgment and
investigation and not on any representations and warranties of the Company other
than those expressly stated in this Agreement and in the Schedules
hereto.
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4.20 Royalties. The
Company acknowledges the properties proposed to be licensed by
Bahamas pursuant to the Licenses will be subject to royalties on any production
from the property on terms and conditions as described in Schedule “C”
hereto.
5. REPRESENTATIONS AND WARRANTIES OF
THE COMPANY. The Company represents and warrants to NPT that
the following statements are true and correct as of the date hereof and will be
true and correct through the Closing Date as if made on that date:
5.1 Organization and Good
Standing. The Company is, and on the Closing Date will be,
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has no assets or liabilities, limited
cash and currently conducts no business in any state.
5.2 Authorized
Capitalization. As provided in its Certificate of
Incorporation, the authorized capital stock of the Company consists of
200,000,000 common shares, of which not more than 32,000,000 were issued and
outstanding prior to the issue of the Exchange Shares. There is no
other type of securities are authorized for issue.
5.3 Outstanding Options, Warrants or
Other Rights. The Company does not have outstanding any
option, warrant or similar instrument and is not a party to or bound by any
agreement, instrument, arrangement, contract, obligation, commitment or
understanding of any character, whether written or oral, express or implied,
whereby the Company is bound to issue shares of its capital stock or any
instrument or right convertible into or exchangeable for shares of its capital
stock, nor relating to the sale, assignment, encumbrance, conveyance, transfer
or delivery of any capital stock of the Company of any type or
class.
5.4 Documents Genuine. All
originals and/or copies of the Company's certificate of incorporation and
bylaws, each as amended to date, and all minutes of meetings and written
consents in lieu of meetings of shareholders, directors and committees of
directors of the Company, financial data, and any and all other documents,
material, data, files, or information which have been or will be made available
for NPT to inspect, are and will be true, complete, correct and unmodified
originals and/or copies of such documents, information, data, files or material
and will be the only such documents, information, data, files and
material.
5.5
Litigation. There are no claims, actions, suits, proceedings
or investigations pending or threatened against or affecting the Company or any
of its properties or assets in any court or by or before any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
other instrumentality, domestic or foreign, or arbitration tribunal or other
forum which, if determined adversely to the Company, would materially affect its
business, prospects, properties or financial condition or the Company's right to
conduct its business as it is intended to be conducted. There are no
judgments, decrees, injunctions, writs, orders or other mandates outstanding to
which the Company is a party or by which it is bound or
affected.
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5.6 Nature of
Representations. All statements made in this Agreement, or in
any Schedule or Exhibit hereto, or in any document or certificate executed and
delivered herewith, by the Company are true, correct and complete as of the date
of this Agreement and will be so as of the Closing Date. All
statements contained in any certificate made by any official of the Company and
delivered to NPT shall be deemed representations and warranties of the
Company.
5.7 Compliance with Laws and
Permits. To the best of its knowledge, the Company has
complied in all material respects with its Certificate of Incorporation and
By-Laws and such other of its organizational documents as may exist (each as
amended to date), all applicable laws, regulations and rules, all applicable
orders, judgments, writs, decrees or injunctions of federal, state and municipal
governments or any department, agency or other instrumentality thereof, domestic
or foreign, applicable to its business or properties, and has not done or
omitted to do any act or acts which singly or in the aggregate are in violation
of any of the foregoing.
5.8 Material Transactions and Adverse
Changes. The Company has not, and as of the Closing Date will
not, have: (i) suffered any materially adverse change in its assets taken as a
whole; (ii) suffered any damage or destruction in the nature of a casualty loss
to any one or more of its assets, whether or not covered by insurance, which
singly or in the aggregate are materially adverse to the properties or business
of the Company; (iii) made any change in any method of accounting or
accounting practice, including the revaluation of any of its assets; or (iv)
agreed in writing or otherwise to take any action described in this
Section.
5.9 Taxes. All
income, excise, unemployment, social security, occupational, franchise, ad
valorem and/or other taxes, duties, assessments or charges levied, assessed or
imposed upon the Company by any federal, state or municipal government or
subdivision or instrumentality thereof have been duly paid or adequately
provided for, and all required tax returns or reports concerning any such items
have been duly filed. The Company has not waived any statute of
limitations with respect to any tax liability whatever for any period prior to
the date of this Agreement or agreed to any extension of time with respect to a
tax assessment or liability.
5.10 Indebtedness to and from
Affiliates. The Company is not indebted to any officer,
director, employee or shareholder thereof as of the date of this Agreement, and
no money or property is owed to the Company by any officer, director, employee
or shareholder thereof, and none will be owed as of the Closing
Date.
5.11 Employees and
Salaries. The Company has no employees or salaries due to any
employee officer or director.
5.12 Authorization and
Validity. The execution, delivery and performance by the Company of this
Agreement and any other agreements contemplated hereby, and the consummations of
the transactions contemplated hereby and thereby, have been duly authorized by
the Company. This Agreement and any other agreement contemplated
hereby have been or will be as of the Closing Date duly executed and delivered
by the Company and constitutes and will constitute legal, valid and binding
obligations of the Company, enforceable against it in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or the availability of
equitable remedies.
- 11
-
5.13 Consents; Approvals;
Conflict. No consent, approval, authorization or order of any
court or governmental agency or other body is required for the Company to
consummate the purchase of the Shares as contemplated herein. Neither
the execution, delivery, consummation or performance of this Agreement shall
conflict with, or constitute a breach of, and no prior approval is necessary by
or under, the Company’s Certificate of Incorporation, By-Laws or any note,
mortgage, indenture, deed of trust, lease, obligation, or other agreement or
instrument to which the Company is a party.
6. ACKNOWLEDGEMENTS
REGARDING THE COMPANY AND THE EXCHANGE SHARES.
6.1
NPT agrees as follows:
(a) NPT,
on behalf of itself and its Shareholders who will receive Exchange Shares at
Closing, acknowledges and agrees that the Company has no current operations,
revenues and limited cash. NPT, on behalf of itself and its
Shareholders who will receive Exchange Shares at Closing, recognizes that the
Exchange Shares are speculative and involve a high degree of risk, and that the
prospects and future success of the Company depend principally upon the
Shareholders and current Company management.
(b)
NPT, on behalf of itself and its Shareholders who
will receive Exchange Shares at Closing, represents that it has had an
opportunity to ask questions of and receive answers from the Company regarding
the Company and its business, assets, results of operations, financial condition
and plan of operation and the terms and conditions of the issuance of the
Exchange Shares.
(c) NPT,
on behalf of itself and its Shareholders who will receive Exchange Shares at
Closing, alone or together with its adviser(s), has such knowledge and
experience in financial, tax and business matters as to enable it to utilize the
information made available by the Company, in connection with the issuance of
the Exchange Shares, to evaluate the merits and risks of acquiring the Exchange
Shares and to make an informed investment decision with respect
thereto.
6.2 True and Correct Information and
Material Changes. All information that NPT has provided or
will provide to the Company is or will be correct and complete as of the date
furnished to the Company, and, if there should be any material change in such
information prior to the Closing NPT will immediately provide the Company with
such information.
6.3 No
Solicitation. NPT, on behalf of itself and its Shareholders
who will receive Exchange Shares at Closing, acknowledges and agrees that it was
not solicited by the Company or by any form of general solicitation or general
advertising, including but not limited to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or made available over telephone lines by
any information service, or any seminar or meeting whose attendees had been
invited by any means of general solicitation or general
advertising.
- 12
-
6.4 No Other Representations or
Warranties. Except as expressly set forth in this Agreement
and the Schedules hereto, the Company has not made any representation or
warranty to NPT in connection with this Agreement. NPT’s decision to
enter into this Agreement is based upon its own independent judgment and
investigation and not on any representations and warranties of the Company other
than those expressly stated in this Agreement and in the Schedules
hereto.
7. CLOSING IN ESCROW AND
CONDITIONS TO CLOSING. The parties agree that the Closing
shall take place by depositing on the Closing Date all closing documents, fully
executed, in an escrow with Xxxxx Capital Ltd., an Ontario Canada corporation,
acting as escrow agent (the “Escrow Agent”) pending fulfillment of the
conditions specified herein. The Escrow Agent shall accept such
transaction documents and hold them in escrow in accordance with the provisions
of this Section 7.
7.1 Closing in
Escrow. Upon the execution and delivery by the Bahamian
Government of the Licenses specified in Schedule B hereto and
consent of the Bahamian Government to the change of ownership of Atlantic and
Bahamas and there being no further approvals of the Bahamian Government required
for the implementation of such Licenses and the exploration activities
contemplated thereby, the Escrow Agent shall release the transaction documents
from escrow and deliver them to the parties as contemplated in such
documents.
7.2 Liability of Escrow Agent;
Indemnification of Escrow Agent. The acceptance by the Escrow
Agent of its appointment under this Agreement is based upon and is subject to
the following terms and conditions which shall govern the rights, duties,
liabilities and immunities of the Escrow Agent.
(a) The
Escrow Agent shall be entitled to rely on the validity of any written
certificate, opinion, direction or instruction referred to in this Agreement and
to assume and rely upon the authority of the person making or signing such
document, the genuiness of the signatures thereto and on the truth of facts as
set out therein and the Escrow Agent shall not be bound by any notice or
direction to the contrary by any person other than the person entitled to give
such notice hereunder. The Escrow Agent shall not be required to
inquire into or interpret any terms or agreement existing between the parties in
connection with this transaction and shall not be required to exercise any
discretion hereunder. The Escrow Agent shall be entitled to apply to
a court having jurisdiction for any instruction or to affirm any instruction
upon which it has been requested to act. The Escrow Agent may retain
such independent counsel or other advisors as it reasonably may require for such
purpose or otherwise for the purpose of discharging or determining its duties,
obligations or rights hereunder and may act and rely on the advise or opinion so
obtained.
- 13
-
(b) The
Company and NPT (on behalf of itself its Shareholders, Atlantic and Bahamas)
hereby release the Escrow Agent from any and all actions, causes of action,
claims, demands, damages, losses, costs, liabilities, penalties and expenses
whatsoever, whether arising, directly or indirectly, by way of statute,
contract, tort or otherwise in connection herewith for anything whatsoever other
than as a result of the Escrow Agent’s fraud, gross negligence or willful
misconduct. The Company and NPT (on behalf of itself, its
Shareholders, Atlantic and Bahamas) agree to indemnify, hold harmless and defend
the Escrow Agent from and against any and all actions, causes of action, claims,
demands, damages (which damages include consequential damages), losses, costs,
liabilities, penalties and expenses, of any nature or kind including all legal
or adviser fees and other disbursements, which may be made or brought against it
or which it may suffer or incur as a result of or in respect of or arising out
of its appointment as Escrow Agent hereunder, except such as shall result solely
and directly from its own fraud, gross negligence or willful
misconduct. This obligation of the parties to indemnify the Escrow
Agent shall survive the termination or discharge of this Agreement, the release
of the transaction documents and the resignation of the Escrow
Agent.
(c) The
Escrow Agent shall have no duties except those which are expressly set forth
herein. Each of the other parties to this Agreement expressly
acknowledges and agrees that the duties of the Escrow Agent hereunder are purely
administrative in nature and that the Escrow Agent shall not be liable for any
error of judgment, or for any act done or step taken or omitted by it in good
faith, or for any mistake of fact or law, or for anything which it may do or
refrain from doing in connection therewith, except for its own fraud, gross
negligence or willful misconduct.
(d) The
Escrow Agent shall be under no obligation to institute or defend any action,
suit or legal proceeding in connection herewith. The Escrow Agent
shall not be liable for any actions taken or omitted to be taken by it, or any
action suffered by it to be taken or omitted by it, in good faith and in the
exercise of its rights and powers hereunder, and it may rely conclusively and
shall be protected in acting in good faith upon any notice, instruction,
consent, certificate, order, affidavit, letter or other paper or document
believed by it to be genuine and to have been signed or sent by the proper
person or persons on behalf of any party hereto. The Escrow Agent
shall not be required to give any bond or surety in respect of the execution of
the duties and powers intended to be conferred it hereunder.
(e) In
the event of any disagreement between the parties hereto resulting in adverse
claims or demands with respect to the transaction documents or any portion
thereof, the Escrow Agent may (but shall not be obliged to) deposit the escrowed
transaction documents or any portion thereof then in his possession with a court
of competent jurisdiction in the Province of Ontario or the State of New York,
which deposit may include a request for an interpleader order or such other
proceeding as is appropriate to mediate the dispute without further
participation by the Escrow Agent. Upon the Escrow Agent making such
deposit, the Escrow Agent shall be discharged and released of his duties and
obligations hereunder. The Company and NPT (on behalf of itself, its
Shareholders, Atlantic and Bahamas) acknowledge and agree that the Escrow Agent,
in its sole discretion, shall be entitled to represent itself in connection with
any legal actions taken in connection with this Agreement.
7.3 Documents to be delivered to the
Company. At the Closing, the following documents shall be delivered to
the Company by NPT, which documents shall be reasonably satisfactory in form and
content to the Company's counsel:
- 14
-
(a) Certificates
executed by an officer of NPT, dated as of the Closing Date, certifying that the
representations and warranties of NPT, contained in this Agreement and the
information set forth in all Schedules hereto are then true and correct and that
NPT has or will have complied with all agreements and conditions required by
this Agreement and all related agreements to be performed or complied with by
NPT prior to any release of the closing documents by the Escrow
Agent.
(b) A
copy of the directors' resolution or the minutes of the meeting of the directors
of NPT approving the execution and performance of this Agreement.
(c) A
share certificate representing the Atlantic Shares.
(d) A
share certificate representing the Bahamas Shares.
(e) All
completed Schedules called for in this Agreement.
(f) Resignations
of the officers and directors of Atlantic and Bahamas
(g) Copies
of technical information regarding the licensed properties collected, purchased
or held by NPT
7.4 Documents to be delivered to
NPT. At the Closing the following documents shall be delivered
to NPT by the Company.
(a) A
certificate executed by the Company that the Exchange Shares have been properly
recorded in the Share records of the Company. The parties agree that
the Company shall not issue certificates representing the Exchange Shares, but
that such Exchange Shares shall be registered in the share registry maintained
by the Company.
(b) To
NPT, a certificate executed by the Company dated as of the Closing Date,
certifying that the representations and warranties of the Company contained in
this Agreement are then true and correct and that the Company has complied with
all agreements and conditions required by this Agreement to be performed by
it.
(c) To
NPT, a copy of the directors' resolution or the minutes of the meeting of the
directors of the Company approving the execution and performance of this
Agreement.
(d) All
completed Schedules called for in this Agreement.
(e) A
Promissory Note as described in Article 1.3 hereof
7.5 Conditions Precedent to Closing
as Release of Escrow. The obligations of the parties under this Agreement
are subject to the satisfaction of the following conditions (in addition to
other conditions and terms of this Agreement:
- 15
-
(a) Representations and Warranties
Correct. The representations and warranties of every party
contained in this Agreement shall be in all material respects true and correct
on and as of the Closing Date and on the date that the Escrow is released, as if
made on such date.
(b) Compliance. The
Company, NPT on its own behalf and on behalf of Atlantic and Bahamas each shall
have performed all covenants and agreements, satisfied all conditions and
complied with all other terms and provisions of this Agreement to be
respectively performed, satisfied or complied with by it as of the Closing Date
or as of the date that the Escrow is to be released, as the case may
be.
(c) No Errors or
Misrepresentations. The Company shall not have discovered any material
error, misstatement or omission in or failure of any representation or warranty
made by any of the other parties, and NPT shall not have discovered any material
error, misstatement or omission in or failure of any representation or warranty
made by the Company.
(d) Due Diligence Examination. The
Company shall have completed a due diligence examination of Atlantic and Bahamas
including an audit of both Company’s accounting records satisfactory to the
Company covering all books, records, contracts and other documents and all
financial affairs of Atlantic and Bahamas. NPT shall have completed a due
diligence examination of the Company satisfactory to NPT covering all books,
records, contracts and other documents and all financial affairs of the
Company.
(e) Condition on Delivery of Licenses.
It is understood and agreed that the final granting by the Bahamian
Government of the Licenses covering certain exploration rights in the Atlantic
Ocean under the jurisdiction of the Bahamian Government shall have been
completed and delivered, and all necessary approvals of the Bahamian Government
for the change in ownership of Atlantic and Bahamas obtained, prior to the
release of any documents held in Escrow. NPT shall use its best
effort to see that these Licenses and approvals are delivered fully executed on
or before October 31, 2009. In the event the Licenses and approvals
are not delivered fully executed by the Bahamian Government by December 31, 2009
this agreement shall become null and void and all actions taken by the Company,
NPT on its own behalf and on behalf of Atlantic, Bahamas and the Shareholders
shall be unwound as though they had never taken place. In the event
of the unwinding of this transaction all parties to this Agreement shall be
relieved of any liability to the other parties
8 OTHER COVENANTS OF THE
PARTIES. The parties agree that, prior to and after the
Closing:
8.1 Effectuation of this
Agreement. The parties hereto each will use their best efforts
to cause this Agreement and all related agreements and conditions to become
effective, and all transactions herein and therein contemplated to be
consummated, in accordance with its and their terms, to obtain all required
consents, waivers and authorizations of governmental entities and other third
parties, to make all filings and give all notices to those regulatory
authorities or other third parties which may be necessary or reasonably required
in order to effect the transactions contemplated in this Agreement, and to
comply with all federal, local and state laws, rules and regulations as may be
applicable to the contemplated transactions.
- 16
-
8.2 Restriction on
Action. The parties each agree that they will not do any thing
or act prohibited by this Agreement or any related agreement, or fail to do any
thing or act which he or it has undertaken to do in this Agreement or any
related agreement.
8.3
Confidentiality. NPT, on behalf of itself and its
Shareholders, Bahamas, Atlantic and the Company covenant that they each will not
disclose any confidential information of the other parties, except to its
officers, directors, attorneys, accountants, and employees involved in these
transactions, and only then on the condition that such individuals not disclose
the information disclosed to them. Notwithstanding the foregoing, the
terms of this Agreement, or of any of the transactions contemplated hereby, may
be disclosed following execution hereof, provided that each party will provide
at least twenty-four hours' notice to the other party prior to making the
initial public announcement regarding the transaction. In addition,
either party may disclose this Agreement or any part hereof to any third party
at any time if required to do so by law, this Agreement or other contractual
obligation. This Agreement may be filed with the SEC as an exhibit to
a registration statement, at which time this Agreement shall become a public
document.
9. SURVIVAL OF COVENANTS
AND WARRANTIES.
9.1 Indemnification by
NPT. NPT agrees to defend, indemnify and hold the Company, any
subsidiary or affiliate thereof, and its respective successors, officers,
directors and controlling persons (the "Indemnified Company Group") harmless
from and against any and all losses, liabilities, damages, costs or expenses
(including reasonable attorney's fees, penalties and interest) payable to or for
the benefit of, or asserted by, any party resulting from, arising out of, or
incurred as a result of (a) the breach of any representation made by NPT on its
own behalf or on behalf of Atlantic, Bahamas or NPT’s Shareholders herein or in
accordance herewith; (b) the breach of any warranty or covenant made by NPT on
its own behalf or on behalf of, Atlantic Bahamas or the NPT Shareholders herein
or in accordance herewith; or (c) any claim, whether made before or after the
date of this Agreement, or any litigation, proceeding or governmental
investigation, whether commenced before or after the date of this Agreement,
arising out of the business of NPT, Atlantic, or Bahamas or arising out of any
act or occurrence, prior to, or any state of facts existing as of the
Closing.
9.2 Survival of Covenants and
Warranties. The representations, warranties, covenants and
agreements made by NPT on the one hand, and the Company on the other hand, shall
survive the Closing and shall be fully enforceable at law or in equity against
such other party and its successors and assigns for a period of one year after
the Closing Date. Any investigation at any time made by or on behalf
of (or any disclosure to) any party hereto shall not diminish in any respect
whatsoever its right to rely on the representations and warranties of the other
party hereto.
9.3 Notice of Claims. The
Company and NPT, Atlantic, Bahamas and the NPT Shareholders each agree to give
prompt written notice to the other of any claim against the party giving notice
which might give rise to a claim by it against the other party hereto, stating
the nature and basis of the claim and the actual or estimated amount
thereof.
- 17
-
10.TERMINATION OF THIS
AGREEMENT.
10.1 Grounds for
Termination. This Agreement shall terminate:
(a) By
mutual written consent of the Company and NPT; or
(b) By
Company or NPT, if:
(i) all
the conditions precedent to its respective obligations hereunder have not been
satisfied or waived prior to December 31, 2009, as it may be accelerated or
extended, or if all of the Shareholders of NPT are not accredited investors, as
that term is used under Regulation D;
(ii) any
party shall have defaulted or refused to perform in any material respect under
this Agreement, or if the Company or NPT should have reasonable cause to believe
there has been a material representation concerning, or failure or breach of,
any representation or warranty by the other party, or if it appears that either
NPT or the Company has committed any unlawful acts affecting the other
party;
(iii) the
transactions contemplated in this Agreement and related agreements have not been
consummated by December 31, 2009, as it may be accelerated or
extended,
(iv) either
the Company or NPT shall reasonably determine that the transactions contemplated
in this Agreement have become inadvisable by reason of the institution or threat
by any federal, state or municipal governmental authorities or by other person
whatever of a formal investigation or of any action, suit or proceeding of any
kind against either or both parties which in one party's reasonable belief is
material in light of the other party's business, prospects, properties or
financial condition;
10.2 Survival of
Confidentiality Provisions. Upon termination of this Agreement
for any reason, (i) the covenants of the parties concerning the confidentiality
and proprietary nature of all documents and other information furnished
hereunder shall remain in force except as to information which has otherwise
become public knowledge, and (ii) each party shall promptly return all documents
received from the other party in connection with this Agreement. This
Paragraph constitutes a mutual covenant of the parties, and either may
judicially enforce it.
11.MISCELLANEOUS
PROVISIONS.
11.1 Assignment. Neither
this Agreement nor any right created hereby or in any agreement entered into in
connection with the transactions contemplated hereby shall be assignable by any
party hereto without the prior written consent of the party not seeking
assignment, and any purported assignment without such consent shall be null and
void and of no force or effect. No such assignment shall relieve the
assignor of any obligations created under this Agreement.
11.2 Parties in Interest;
No Third Party Beneficiaries. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties and their respective heirs, legal representatives,
successors and permitted assigns. Neither this Agreement nor any
other agreement contemplated hereby shall be deemed to confer upon any person
not a party hereto nor thereto any rights or remedies hereunder or thereunder,
except as expressly set forth in this Agreement.
- 18
-
11.3 Entire
Agreement. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
11.4
Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Further, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal,
valid and enforceable.
11.5 Survival of Representations,
Warranties and Covenants. The representations, warranties and
covenants of all parties contained herein shall survive the Closing, and all
statements contained in any certificate, exhibit or other instrument delivered
by or on behalf of the Company or NPT, as the case may be, and, notwithstanding
any provision in this Agreement to the contrary, shall survive the
Closing.
11.6
Interpretation. This Agreement shall be governed by and
construed under the laws of the State of Delaware and shall be interpreted as if
both parties participated equally in its drafting. The captions in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect any of the terms or provisions hereof. Whenever the
context requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural. Use of the words "herein", "hereof", "hereto"
and the like in this Agreement shall be construed as references to this
Agreement as a whole and not to any particular provision in this Agreement,
unless otherwise noted.
11.7 Notice. Any
notice or communication hereunder or in any agreement entered into in connection
with the transactions contemplated hereby must be in writing and given by
depositing the same in the United States of Canadian mail, addressed to the
party to be notified, postage prepaid and registered or certified with return
receipt requested, by telefax transmission or by delivery by use of a messenger
which regularly retains its delivery receipts. Such notice shall be deemed
received on the date on which it is delivered to the addressee. For purposes of
notice, the addresses of the parties shall be as follows:
- 19
-
If to
NPT:
NPT Oil
Corporation Ltd.
c/x
Xxxxxxx & Company
Trafalgar
Place, P.O. Box 792
West Bay
Rd, Unit D
Grand
Cayman, Cayman Islands
KY1-1303
With copy
to:
Xxxxx
Capital Ltd.
0000
Xxxxx Xxx Xxxx.
Xxxxx
00X
Xxxxxxxx,
Xxxxxxx X0X 0X0
If to
Company:
Offshore
Petroleum Corporation
000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxx 0000
Xx.
Xxxxxxxxxx, XX 00000
With copy
to
Xxxxx
Capital Ltd.
0000
Xxxxx Xxx Xxxx.
Xxxxx
00X
Xxxxxxxx,
Xxxxxxx X0X 0X0
11.8 No
Brokers: Each party represents and warrants to the others and
agrees that it has not employed or engaged, and will not employ or engage, any
person as a finder or broker in connection with the transactions contemplated
herein, and that no person is entitled to compensation as a finder or
broker. Each party hereby indemnifies the other parties and holds the
other parties harmless from and against any claims of any third persons claiming
to have acted as a finder or broker in connection with the transactions herein
contemplated, and such indemnity shall include all expenses, costs and damages
arising from or related to such claims, including reasonable attorneys'
fees.
11.9
Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing facsimile
signature or scanned and emailed signatures of a party shall constitute a valid
and binding execution and delivery of this Agreement by such party. Such
facsimile or scanned copies of signatures shall constitute enforceable original
documents.
- 20
-
11.10 Prevailing Party (Attorneys'
Fees) Clause. In the event of any litigation or proceeding
arising as a result of the breach of this Agreement or the failure to perform
hereunder, or failure or untruthfulness of any representation or warranty
herein, the party or parties prevailing in such litigation or proceeding shall
be entitled to collect the costs and expenses of bringing or defending such
litigation or proceeding, including reasonable attorneys' fees, from the party
or parties not prevailing.
11.12 Relationship of the
Parties. Nothing in this Agreement is intended to be construed
so as to suggest that the parties hereto are partners or joint venturers, or
that any party or its employees is the employee or agent of the
other. Neither NPT nor the Company has any express or implied right
or authority under this Agreement to assume or create any obligations on behalf
of or in the name of the other party to any contract, agreement, arrangement,
understanding or undertaking with any third party.
11.13 No Advice Given. NPT, on
behalf of itself and its Shareholders who are receiving Exchange Shares,
acknowledges and agrees that they have neither asked for nor received any legal
or tax advice from the Company or its Directors or any other person associated
with the Company in regard to this Agreement or the transactions herein
contemplated, and have instead relied on advice and counsel furnished by their
own legal or other advisers in order to satisfy themselves as to the tax and
other legal implications to them of the transactions contemplated in this
Agreement and issuance of the Exchange Shares.
IN
WITNESS WHEREOF, all parties have executed this Agreement as of the date first
set out above.
|
By
|
/s/ Xxxx Xxxxxxxxx | |
|
Name: Xxxx
Xxxxxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
NPT
OIL CORPORATION LTD.
|
||
|
By
|
/s/ Xxxx Xxxxxxx | |
|
Name:
Xxxx Xxxxxxx
|
||
|
Title:
President
|
||
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SCHEDULE A
NPT
directs the Company to issue at Closing the number of Exchange Shares indicated
below to each of NPT’s Shareholders as follows, such issuance to be considered
satisfaction of the share component of the Purchase Price payable to NPT at
Closing.
|
Allocated Company Shares
|
||||
|
Xxxx
Xxxxxxx
|
2,463,000 | |||
|
00
Xxxxx Xxxx
|
||||
|
Xxxxxx
Xxxxxxx
|
||||
|
Xxxx
Xxxxxx Xxxxxxxxx
|
3,806,000 | |||
|
000
Xxxxx Xxxxx Xxx
|
||||
|
Xxxxxxxxxxx,
XX 00000
|
||||
|
NPT
Fund
|
2,238,000 | |||
|
P.
O. Xxx 000, Xxxx Xxx Xxxx
|
||||
|
Xxxx
X. Trafalgar Place, Grand Xxxxxx
|
||||
|
Xxxxxx
Xxxxxxx XX0-0000
|
||||
|
Xxxx
Holdings Ltd.
|
4,477,000 | |||
|
Walkers
Xxxxxxxx – 000 Xxxx Xxxxxx
|
||||
|
P.
X. Xxx 00, Xxxx Xxxx
|
||||
|
Xxxxxxx
XX0000 British Virgin Islands
|
||||
|
Xxxxxx
X. Xxxxxxxxx
|
672,000 | |||
|
P.
O. Xxx 00000
|
||||
|
Xxxxxxxxxxx,
XX 00000
|
||||
|
Xxxxx
Xxxxxxxxx
|
1,344,000 | |||
|
00
Xxxxxx Xxxx Xxxxx
|
||||
|
Xxx
Xxxxxxxxx
|
||||
|
Xxxxx
00000
|
||||
| 15,000,000 | ||||
- 22
-
SCHEDULE
B
The
Licenses are more particular described in the following
Exhibits.
- 23
-
EXHIBIT
"A"
To
License Application of
ATLANTIC
EXPLORATION LTD.
Limits of
Area Venus
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License Xx. 0 (Xxxx Xxxxx).
|
Xxxxx
Xx.
|
Xxxxxxxxx
|
Xxxxxxxx
|
||||
|
00
|
78°
|
40'W
|
27°
|
00'
N
|
||
|
12
|
78°
|
30'W
|
27°
|
00'
N
|
||
|
13
|
78°
|
20'W
|
27°
|
00'
N
|
||
|
45
|
78°
|
10'W
|
27°
|
00'
N
|
||
|
10
|
78°
|
50'W
|
27°
|
00'
N
|
||
|
1
|
79°
|
00'W
|
27°
|
10'
N
|
||
|
2
|
78°
|
50'W
|
27°
|
10'
N
|
||
|
6
|
78°
|
10'W
|
27°
|
10'
N
|
||
|
43
|
79°
|
00'W
|
27°
|
20'
N
|
||
|
48
|
78°
|
10'W
|
27°
|
20'
N
|
||
- 24
-
EXHIBIT
"A"
To
License Application of
ATLANTIC
EXPLORATION LTD.
Limits of
Area Neptune
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License No. 2 (Area Neptune).
|
Block No.
|
Longitude
|
Latitude
|
||||
|
40
|
78°
|
10'W
|
27°
|
30'N
|
||
|
30
|
78°
|
10'W
|
27°
|
40'N
|
||
|
31
|
78°
|
00'W
|
27°
|
40'N
|
||
|
32
|
77°
|
50'W
|
27°
|
40'N
|
||
|
19
|
78°
|
10'W
|
27°
|
50'N
|
||
|
21
|
77°
|
50'W
|
27°
|
50'N
|
||
|
22
|
77°
|
40'W
|
27°
|
50'N
|
||
|
9
|
77°
|
50'W
|
28°
|
00'N
|
||
|
10
|
77°
|
40'W
|
28°
|
00'N
|
||
|
11
|
77°
|
30'W
|
28°
|
00'N
|
||
- 25
-
EXHIBIT
"A"
To
License Application of
ATLANTIC
EXPLORATION LTD.
Limits of
Area Mercury
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License No. 2 (Area Mercury).
|
Block
No.
|
Longitude
|
Latitude
|
||||
|
47
|
78°
|
20'W
|
27°
|
20'
N
|
||
|
37
|
78°
|
40'W
|
27°
|
30'
N
|
||
|
38
|
78°
|
30'W
|
27°
|
30'
N
|
||
|
39
|
78°
|
20'W
|
27°
|
30'
N
|
||
|
29
|
78°
|
20'W
|
27°
|
40'
N
|
||
|
18
|
78°
|
20'W
|
27°
|
50'
N
|
||
|
6
|
78°
|
20'W
|
28°
|
00'
N
|
||
|
7
|
78°
|
10'W
|
28°
|
00'
N
|
||
|
8
|
78°
|
00'W
|
28°
|
00'
N
|
||
|
20
|
78°
|
00'W
|
27°
|
50
N
|
||
- 26
-
EXHIBIT
"A"
To
License Application of
ATLANTIC
EXPLORATION LTD.
Limits of
Area Aphrodite
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License No. 2 (Area Aphrodite).
|
Block
No.
|
Longitude
|
Latitude
|
||||
|
16
|
79°
|
00'
W
|
26°
|
50'
N
|
||
|
17
|
78°
|
50'
W
|
26°
|
50'
N
|
||
|
18
|
78°
|
20'
W
|
26°
|
40'
N
|
||
|
19
|
78°
|
30'
W
|
26°
|
50'
N
|
||
|
20
|
78°
|
20'
W
|
26°
|
50'
N
|
||
|
9
|
79°
|
00'
W
|
27°
|
00'
N
|
||
|
46
|
79°
|
00'
W
|
26°
|
40'
N
|
||
|
3
|
78°
|
50'
W
|
26°
|
40'
N
|
||
|
5
|
78°
|
30'
W
|
26°
|
40'
N
|
||
|
4
|
78°
|
40'
W
|
26°
|
40'
N
|
||
- 27
-
EXHIBIT
"A"
To
License Application of
BAHAMAS
EXPLORATION LIMITED
Limits of
Area Poseidon
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License No. 2 (Area Poseidon).
|
Block No.
|
Longitude
|
Latitude
|
||||
|
44
|
78°
|
50'W
|
27°
|
20'N
|
||
|
36
|
78°
|
50'W
|
27°
|
30'N
|
||
|
25
|
79°
|
00'W
|
27°
|
40'N
|
||
|
26
|
78°
|
50'W
|
27°
|
40'N
|
||
|
27
|
78°
|
40'W
|
27°
|
40'N
|
||
|
28
|
78°
|
30'W
|
27°
|
40'N
|
||
|
14
|
79°
|
00'W
|
27°
|
50'N
|
||
|
15
|
78°
|
50'W
|
27°
|
50'N
|
||
|
17
|
78°
|
30'W
|
27°
|
50'N
|
||
|
5
|
78°
|
30'W
|
28°
|
00'N
|
||
- 28
-
EXHIBIT
"A"
To
License Application of
BAHAMAS
EXPLORATION LIMITED
Limits of
Area Apollo
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License Xx. 0 (Xxxx Xxxxxx).
|
Xxxxx Xx.
|
Xxxxxxxxx
|
Xxxxxxxx
|
||||
|
0
|
79°
|
10'W
|
28°
|
00'
N
|
||
|
2
|
79°
|
00'W
|
28°
|
00'
N
|
||
|
3
|
78°
|
50'W
|
28°
|
00'
N
|
||
|
4
|
78°
|
40'W
|
28°
|
00'
N
|
||
|
16
|
78°
|
40'W
|
28°
|
00'
N
|
||
|
41
|
79°
|
20'W
|
27°
|
20'
N
|
||
|
33
|
79°
|
20'W
|
27°
|
30'
N
|
||
|
23
|
79°
|
20'W
|
27°
|
40'
N
|
||
|
12
|
79°
|
20'W
|
27°
|
50'
N
|
||
|
13
|
79°
|
10'W
|
27°
|
50'
N
|
||
- 29
-
EXHIBIT "A"
To License Application of
BAHAMAS EXPLORATION LIMITED
Limits of Area
Hermes
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas and having an approximate area of Eight hundred and
Forty-eight thousand, Six hundred and Thirty (848,630) acres.
The
following coordinates specify the Southwestern corner of each of the ten (10)
submarine blocks to be covered by License No. 2 (Area Hermes).
|
Block
No.
|
Longitude
|
Latitude
|
||||
|
14
|
79°
|
20'W
|
26°
|
50'
N
|
||
|
7
|
79°
|
20'W
|
27°
|
00'
N
|
||
|
49
|
79°
|
20'W
|
27°
|
10'
N
|
||
|
50
|
79°
|
10'W
|
27°
|
10'
N
|
||
|
8
|
79°
|
10'W
|
27°
|
00'
N
|
||
|
15
|
79°
|
10'W
|
26°
|
50'N
|
||
|
42
|
79°
|
10'W
|
27°
|
20'N
|
||
|
34
|
79°
|
10'W
|
27°
|
30'
N
|
||
|
24
|
79°
|
10'W
|
27°
|
40'N
|
||
|
35
|
79°
|
00'W
|
27°
|
30'N
|
||
- 30
-
ANNEXURE
"A"
To
License Application of
BAHAMAS
EXPLORATION LINIITED
Limits of
Area Zeus
All those
lands or submarine areas or both indicated on the attached plat situate in the
Commonwealth of the Bahamas.
The
following coordinates specify the Southwestern corner of each of the two (2)
submarine blocks to be covered by License Xx. 0 (Xxxx Xxxx).
|
Xxxxx
Xx.
|
Xxxxxxxxx
|
Xxxxxxxx
|
|
0
|
78° 20'W
|
27° 20'N
|
|
5
|
78° 30'W
|
27° 20'N
|
- 31
-
Schedule
“C”
Description
of Royalties
The
following is a list of the parties entitled to Gross Overriding Royalties on all
production from the properties being licensed from the Bahamian
Government. The agreements covering these royalties have been
delivered to the Company, which the Company hereby
acknowledges.
|
Xxxxx Xxxxxxxxx
|
Half of one percent
|
(0.5)%
|
|
B&C Capital Ltd.
|
Three percent
|
(3)%
|
|
Xxxx x. Xxxxxxx
|
One and one half
|
(1.5)
|
|
percent
|
||
|
Xxxx X. Xxxxxxxxx
|
One and one half
|
(1.5)
|
|
percent
|
- 32
-
ADDENDUM
Made this
22nd
day of December, 2009
To
Agreement dated November 18, 2009 between Offshore Petroleum Corp., and NPT Oil
Corporation Ltd., (the Agreement).
Whereas the parties
anticipated that the Licenses from the Bahamian Government would be finalized on
or before December 31, 2009; and
Whereas the parties to the
Agreement agree to extend the date to allow the Bahamian Government further
time.
Now therefore the parties to
the Agreement agree as follows:
The date
of December 31, 2009 for delivery of the Licenses from the Bahamian Government
and completion of the Escrow condition, where referred to in the Agreement,
shall be extended to February 15, 2010.
All other
terms and conditions of the Agreement shall remain the same and time shall
remain of the essence.
In
Witness whereas the parties have executed this Addendum as of the first date
written above.
|
By:
|
NPT Oil
Corporation Ltd.
|
By:
|
- 33
-
