AGREEMENT FOR SALE OF MEMBERSHIP INTEREST IN SIERRA PIPELINE, LLC
AGREEMENT
FOR SALE OF MEMBERSHIP INTEREST IN
SIERRA
PIPELINE, LLC
This
Agreement for Sale of Membership Interest in Sierra Pipeline, LLC ("Agreement")
is entered into as of December 18, 2009 (the "Effective Date""), by and between
Xxx Xxxxx, as seller ("Seller"), and EGPI Firecreek, Inc., as buyer ("Buyer11).
Preliminary
Statements
B. As of
the Effective Date, Seller is the sole member of the Company, holding a 100%
membership interest (the "Membership Interest").
D. Buyer
desires to acquire Seller's entire Membership Interest in the Company, which is
equal to a 100% interest (the 'Transferred Interest").
E.
Subject to the terms and conditions set forth herein, Seller desires to have the
Transferred Interest be purchased by Buyer, and Seller desires to withdraw as a
member of the Company.
Agreement
NOW,
THEREFORE, in consideration of the mutual covenants and agreements of the
parties as hereinafter set forth, the parties to this Agreement hereby agree as
follows:
1. Purchase of Transferred
Interest. Subject to the terms and conditions set forth herein, as of the
Closing (as denned in Section 3). Seller shall sell, assign and transfer the
Transferred Interest to Buyer and voluntarily withdraw as a Member of the
Company, and the Transferred Interest shall be purchased by
Buyer.
2. Consideration.
(a) Stock
Deposit. No later than 5:00 P.M. Pacific Time on the Effective Date,
Buyer shall deliver an irrevocable instruction letter to Buyer's transfer agent
instructing the transfer agent to deliver on January 4, 2010 as hereinafter set
forth stock certificates for Two Million Five Hundred Thousand (2,500,000)
shares of stock in Buyer (the "Buyer Stock") as a deposit (the "Stock Deposit"),
which shall be credited towards the Purchase Price (as defined in Section 2(b)) as
provided herein. The Stock Deposit shall be delivered on January 4, 2010 as
follows: (i) stock certificate(s) for Two Million (2,000,000) of the shares of
Buyer Stock shall be delivered directly to Seller in the names and addresses
attached on Schedule
1. and (ii) in accordance with Section 9(a) below,
stock certificate(s) for Five Hundred Thousand (500,000) of the shares of Buyer
Stock shall be delivered directly to Xxxxxx Xxxxxx ("Xxxxxx") in the names and
addresses attached on Schedule 1. The Stock Deposit shall be non-refundable to
Buyer, except as provided in Section 6(a) of this
Agreement. In the event Buyer does not deliver the Stock Deposit as provided above, at
Seller's sole discretion this Agreement shall be void, and the parties hereto shall have no
obligations hereunder. Seller hereby acknowledges and agrees that until either Closing or earlier
termination of this Agreement as provided in Section 2(e) below, the shares of Buyer Stock delivered as
the Stock Deposit shall not be sold, hypothecated, transferred, or disposed of in any
manner by the recipient of said shares of the Stock
Deposit.
(b) Price. The total
purchase price for the Transferred Interest (the "Purchase Price")
shall be equal to (i) Two Million Five Hundred Thousand Dollars ($2,500,000),
payable in certified funds (the "Cash Payment"), plus Five Million (5,000,000)
shares of Buyer Stock (the "Stock Payment").
(c) Manner of Payment of
Purchase Price. The Purchase Price shall be paid in the following manner:
On or prior to the Closing, Buyer shall (i) pay in certified funds or effect a
wire transfer of immediately available and verifiable federal funds to an
account designated by Seller in an amount equal to the Cash Payment, and (ii)
deliver the Stock Payment (less the Stock Deposit) as follows: (a) stock
certificate(s) for Two Million (2,000,000) of the shares of Buyer Stock shall be
delivered directly to Seller in the names and addresses attached on Schedule 1,
and (b) in accordance with Section 9(a) below, stock certificate(s) for Five
Hundred Thousand (500,000) of the shares of Buyer Stock shall be delivered
directly to Xxxxxx in the names and addresses attached on Schedule
1.
(d) Buyer Stock
Registration. Buyer agrees that upon delivery of the Stock Deposit it
shall include those shares of Buyer Stock being delivered as the Stock Deposit
in its current registration statement, or if necessary, Buyer will file a post
effective amendment with respect to those shares of Buyer Stock being delivered
as the Stock Deposit. In the event the registration does not become effective
prior to the eligibility of an exemption available under Rule 144 under the
Securities Act of 1933, then Buyer agrees to permit the removal of the
restrictive legend in accordance with the applicable regulations thereof. In
accordance with Section 9(a) below, the shares of Buyer Stock being delivered as
the Stock Deposit shall be registered as follows: (i) stock certificate(s) for
Two Million (2,000,000) of the shares of Buyer Stock shall be registered in the
name of Seller, and (ii) stock certificate(s) for Five Hundred Thousand
(500,000) of the shares of Buyer Stock shall be registered in the name of
Xxxxxx. Buyer further agrees that upon Closing, it shall use its best efforts to
include the Stock Payment in its next registration statement that is
subsequently filed after Closing or amend its most recent effective registration
statement prior to Closing, to register the additional shares of Buyer Stock
constituting the Stock Payment as follows: (i) stock certificate(s) for Two
Million (2,000,000) of the shares of Buyer Stock to be registered in the name of
Seller, and (ii) stock certificate(s) for Five Hundred Thousand (500,000) of the
shares of Buyer Stock to be registered in the name of Xxxxxx (pursuant to
Section 9(a) below).
(e) Financing
Contingency. Buyer's and
Seller's obligations under this Agreement shall be contingent upon
Buyer securing a commitment acceptable to Buyer for financing for the Cash Payment by no
later than February 5, 2010 (the "Contingency Termination Date"), as evidenced by
proof in writing of an unconditional and irrevocable commitment to fund such Cash Payment
executed by the funding source and, if such funds are from a lending source, an unconditional
loan approval (collectively, "Proof of Funds"), which Proof of Funds shall be delivered to
Seller by no later than 5:00 P.M. Pacific Time on the Contingency
Termination Date. In the event Buyer is unable to secure and deliver to Seller
such Proof of Funds by 5:00 P.M. Pacific Time on the Contingency Termination
Date, then either Seller or Buyer, each in its sole discretion, may terminate
this Agreement by giving written notice to the other party no later than 5:00
P.M. Pacific Time on February 10, 2010, in which case this Agreement shall be
void, Seller shall be entitled to retain the Stock Deposit, and the parties
hereto shall have no further obligations hereunder.
2
3. Closing. The closing
of the transactions contemplated herein ("Closing") shall occur on or before
March 5, 2010 (the "Closing Date"). Closing shall occur by the parties
executing, dating, delivering and/or exchanging the instruments and Purchase
Price required and/or contemplated by this Agreement. The Purchase Price and
Closing Documents (as hereinafter defined) required herein shall be exchanged by
the parties not later than 3:00 P.M. Pacific Time on the Closing Date. At the
Closing, Seller and Buyer shall deliver the following documents and instruments
(collectively, the "Closing Documents"'):
(a) Deliveries by Buyer.
At Closing, Buyer shall pay and deliver to Seller the Purchase Price as required
by, and in the manner described in, Section 2(c).
Furthermore, Buyer shall deliver to Seller or Seller's counsel the original
documents required to be delivered by Buyer pursuant to this Agreement, each
duly executed and, if required, acknowledged, including without limitation, an
executed counterpart of the Assignment of Membership Interest, in the form
attached as Exhibit
A (the "Assignment"), effective as of the Closing.
(b) Deliveries bv Seller.
Seller shall deliver to Buyer or Buyer's counsel the original documents required
to be delivered by Seller pursuant to mis Agreement, each duly executed by
Seller and, if required, acknowledged, including without
limitation:
(i) an
executed counterpart of the Assignment, effective as of the Closing;
and
(ii)
evidence of Seller's resignation as manager of the Company, in the form attached
as Exhibit B.
effective as of the Closing,
(c) Prorations. The
parties agree that Seller shall pay all taxes due and owing on the Property (as
defined in Section
4(a)(vi)) through December 31, 2009, and that upon Closing, Buyer shall
be responsible for payment of all such taxes which are accruing on the Property
from January 1, 2010 but are not due and payable until after the Closing
Date.
4.
Representations and
Warranties.
(a) Representations and
Warranties of Seller. Seller hereby represents and warrants to Buyer that
as of the Effective Date:
(i) Seller
is the sole member of the Company.
(ii) The
Transferred Interest is free and clear of any and all liens, security interests,
mortgages, pledges, charging orders, prior assignments and encumbrances of any
kind or nature whatsoever. Seller has not previously assigned, transferred or
encumbered any or all of the Transferred Interest. The Transferred Interest
is not subject to any agreements or understandings among any persons or entities
with respect to the voting or transfer thereof.
(iii)
Seller has the power, authority and capacity to execute and deliver this
Agreement and consummate the transactions contemplated by this Agreement.
Assuming due authorization, execution and delivery of this Agreement by Buyer,
this Agreement constitutes Seller's legal, valid and binding obligation,
enforceable against Seller in accordance with its terms.
(iv)
Seller has not made a general assignment for the benefit of creditors, filed any
voluntary petition in bankruptcy or, to his knowledge, suffered the filing of an
involuntary petition by his creditors, suffered the appointment of a receiver to
take possession of substantially ah1 of his
assets, suffered the attachment or other judicial seizure of substantially all
of his assets, admitted his inability to pay his debts as they come due, or made
an offer of settlement, extension or composition to his creditors generally. The
consummation of the transactions contemplated by this Agreement, including,
without limitation, the conveyance of the Transferred Interests, will not result
in Seller becoming insolvent.
(v)
Seller (i) is not a person, group, entity or nation described in Section 1 of
Executive Order 13224 - Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism - 66 Fed. Reg.
49079 (dated September 23, 2001, effective September 24, 2001), (ii) is not a
(and is not acting, directly or indirectly, for or on behalf of any) person,
group, entity or nation designated by any Executive Order or the United States
Treasury Department as a terrorist, a "Specially Designated National" or
"Blocked Person," or other banned or blocked person, group, entity or nation
pursuant to any applicable laws (i.e., any and all applicable laws, codes,
ordinances, orders, rules, regulations and requirements of all federal, state,
county, municipal and other governmental authorities and the departments,
commissions, boards, bureaus, instrumentalities and officers thereof) that are
administered or enforced by the Office of Foreign Assets Control, (iii) is not
initiating, facilitating or engaging in the transaction contemplated by this
Agreement, directly or indirectly, for or on behalf of any such person, group,
entity or nation, and (iv) does not engage in any dealings or transactions, and
is not otherwise associated, with any such person, group, entity or
nation.
(vi)
Prior to the Effective Date, the Company acquired all of the right, title and
interest of OGC Pipeline, L.L.C., an Oklahoma limited liability company ("OGC")
in and to:
(A) the
pipeline commonly known as the Horsecollar Pipeline and
having current approximate locations shown on Exhibit C attached
hereto and all meters, valves, fittings, pumps, cathodic protection ground beds,
anodes, rectifiers, transformers, and any other cathodic protection equipment,
locks, rights-of-way markers, and other fixtures, appurtenances and
miscellaneous equipment associated with the construction, installation,
maintenance, repair, use, placement, relocation and/or operation of the pipeline
(collectively, the "Pipeline"); provided, however, such Pipeline identified on
Exhibit C
attached hereto shall exclude the property transferred to Northeast Shelf
Energy, L.L.C. (''Northeast") under the Asset Purchase and Sale Agreement (the
"Purchase Agreement"), dated March 2006, between OGC and Oklahoma Gathering
Company, as sellers, and Northeast, as buyer, attached hereto as Exhibit D: together
with
(B) rights-of-way, easements, permits, licenses, leases,
prescriptive
rights, servitudes, and any other rights of access, agreements and interests in
real property, however denominated or characterized, associated with the
Pipeline, as more particularly listed on Exhibit E attached
hereto, to the extent assignable (collectively referred to hereinafter as the
"Easements"); provided, however, the Easements identified on Exhibit E shall
exclude all Easements transferred to Northeast Tinder the Purchase Agreement and
any portion of said Easements which have been released of record, and further
provided that the Pipeline and Easements are subject to that certain use
restriction of record as specifically set forth in each such Assignment of Right
of Way and Xxxx of Sale attached as part of Exhibit E: together
with
(C) the tangible personal property, including, without
limitation,
all surveys, engineering plans and drawings, and all books, records, files and
documents used in or relating to the ownership, operation or maintenance of the
Pipeline (the "Personal Property." and together with the Pipeline and Easements,
the "Property"):
(vii) The
Company has not caused or consented to any consensual liability, encumbrance or
obligation to be placed or imposed upon all or any part of the
Property.
(viii)
The Company has no liabilities, contingent or otherwise, except as previously
disclosed to Buyer, including any and all taxes not yet due and owing and any
and all business registration and licensing fees.
(ix) To
the best of Seller's knowledge, no litigation has been brought against Seller or
the Property during the Company's ownership thereof.
(x) To
the best of Seller's knowledge, there are no known tax liens on the
Property.
(xi)
Seller has not encumbered the Property, nor to the best of Seller's knowledge
has the Property been encumbered during the Company's ownership
thereof.
(xii) To
the best of Seller's knowledge, Seller has not received any written notices of
environmental complaints with respect to the Property.
(b) Representations and
Warranties of Buyer. Buyer represents and warrants to Seller that as of
the Effective Date:
(i) Buyer
has the requisite power and authority to execute and deliver this Agreement and
consummate the transactions contemplated by this Agreement. Assuming due
authorization and execution and delivery of this Agreement by Seller, this
Agreement constitutes Buyer's legal, valid and binding obligation, enforceable
against Buyer in accordance with its terms.
(ii)
Buyer has had access to all information it considers necessary regarding the
Company and its business, assets, liabilities and financial condition in order
to make an informed decision with respect to the purchase of the
Transferred Interest, including, without limitation, the value of the
Transferred Interest. Further, Buyer has had the opportunity to obtain any and
all documents or additional information requested in order to supplement or
verify any information so furnished to Buyer or to which Buyer had
access.
(iii)
Buyer (i) is not a person, group, entity or nation described in Section 1 of
Executive Order 13224 - Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism - 66 Fed. Reg.
49079 (dated September 23, 2001, effective September 24, 2001), (ii) is not a
(and is not acting, directly or indirectly, for or on behalf of any) person,
group, entity or nation designated by any Executive Order or the United States
Treasury Department as a terrorist, a "Specially Designated National" or
"Blocked Person," or other banned or blocked person, group, entity or nation
pursuant to any applicable laws (i.e., any and all applicable laws, codes,
ordinances, orders, rules, regulations and requirements of all federal, state,
county, municipal and other governmental authorities and the departments,
commissions, boards, bureaus, instrumentalities and officers thereof) that are
administered or enforced by the Office of Foreign Assets Control, (iii) is not
initiating, facilitating or engaging in the transaction contemplated by this
Agreement, directly or indirectly, for or on behalf of any such person, group,
entity or nation, and (iv) does not engage in any dealings or transactions, and
is not otherwise associated, with any such person, group, entity or
nation.
(c) Survival of Representations
and Warranties. In the event any of the representations and warranties in
this Section 4
are inaccurate when made, and a party discovers inaccuracy of the same within
six (6) months following the Closing Date, such party will not be limited by the
default provisions of Section 6 below, but
shall have any and all remedies available to such party at
law.
5. Conditions to Close.
The obligations of each party to proceed with the Closing are subject to the
fulfillment at or prior to the Closing Date, of each of the following
conditions: (i) each of the representations and warranties of the other party in
Section 4 shall
be true and correct in all material respects as of the Effective Date and as of
the Closing Date; and (ii) all covenants, agreements and obligations contained
in this Agreement to be performed or complied with by the other party on or
prior to the Closing Date shall have been performed or complied with in all
material respects.
6.
Defaults.
(a) Default by Seller. In
the event Seller fails to deliver the executed Assignment as of the Closing,
provided Buyer has complied with Section 3(a) on or
before the Closing Date, Buyer's sole and exclusive remedy shall be to terminate
this Agreement by providing written notice delivered to Seller on the Closing
Date, in which event Seller and Xxxxxx shall return the Stock Deposit to Buyer
and neither party shall have any further rights or obligations
hereunder.
(b) Default by Buyer. THE
PARTIES AGREE THAT SELLER SHOULD BE COMPENSATED FOR KEEPING THE TRANSFERRED
INTEREST OFF THE MARKET DURING THE TERM OF THIS AGREEMENT AND THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER MAY
SUFFER. THEREFORE, IN THE EVENT THAT BUYER DEFAULTS IN ITS OBLIGATION TO
CONSUMMATE THE TRANSACTION CONTEMPLATED HEREIN, INCLUDING WITHOUT LIMITATION
FAILING TO CLOSE BY THE CLOSING DATE, THE PARTIES AGREE THAT A REASONABLE
ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IS AND WILL BE
EQUAL TO THE STOCK DEPOSIT, AND THE RETENTION OF THE STOCK DEPOSIT BY SELLER
WILL BE SELLER'S EXCLUSIVE REMEDY AT LAW AND IN EQUITY AND WELL BE THE FULL,
AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER, AND
THIS AGREEMENT WILL BE TERMINATED AND, EXCEPT FOR BUYER'S OBLIGATIONS THAT
EXPRESSLY SURVIVE, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER.
Buyer's
Initials
_______ Seller's
Initials ________
7.
Disclaimer.
(a) Acknowledgment.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4(A). SELLER
MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO THE TRANSFERRED INTEREST, THE
CONDITION OR DESIGN OF THE PROPERTY OR ANY OTHER ASSETS OWNED BY THE COMPANY,
INCLUDING WITHOUT LIMITATION THE PIPELINE AND THE EASEMENTS, OR THE COMPLETENESS
OR THE ACCURACY OF ANY DOCUMENTS DELIVERED TO BUYER BY SELLER, INCLUDING WITHOUT
LIMITATION THE ACCURACY OF EXHIBITS C. D AND E
ATTACHED HERETO. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ZONING, USE
RESTRICTIONS, MERCHANTABILITY OF THE PROPERTY, OR ITS FITNESS FOR ANY PURPOSE,
OR AS TO THE CONDITION OR QUALITY OF THE PROPERTY, OR AS TO THE VALIDITY OF OR
GOOD, VALID TITLE TO THE PIPELINE OR THE EASEMENTS, ALL OF WHICH SELLER HEREBY
DISCLAIMS AND EXCLUDES.
(b) "AS IS-WHERE
IS". WITHOUT
LIMITING THE ACKNOWLEDGEMENT
OF THE PARTIES SET FORTH IN SECTION 7(A) ABOVE
AND EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 4(A). THE
MEMBERSHIP INTERESTS
AND ALL PROPERTY, INCLUDING WITHOUT LIMITATION THE PIPELINE
AND EASEMENTS OWNED BY THE COMPANY, ARE BEING SOLD "AS IS-WHERE IS"
AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS, WITHOUT ANY
WARRANTY OF TITLE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND SELLER
NEITHER REPRESENTS NOR WARRANTS TO BUYER THAT SAID EASEMENTS
ARE SUFFICIENT IN LAW TO SUPPORT OR ENABLE OR AUTHORIZE THE USE
OF THE PIPELINE OR PERSONAL PROPERTY LOCATED THEREON AND PART OF
THE PROPERTY OWNED BY THE COMPANY, AND BUYER RELIES UPON SAME AT
ITS OWN RISK.
(c) Release. Buyer hereby
waives on behalf of itself and its related parties, any and all right to recover
from Seller, the Company and from Seller's affiliates, successors, assigns,
members, managers, officers, affiliates, employees and agents ("Seller's
Related AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER
MAY SUFFER. THEREFORE, IN THE EVENT THAT BUYER DEFAULTS IN ITS OBLIGATION TO
CONSUMMATE THE TRANSACTION CONTEMPLATED HEREIN, INCLUDING WITHOUT LIMITATION
FAILING TO CLOSE BY THE CLOSING DATE, THE PARTIES AGREE THAT A REASONABLE
ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IS AND WILL BE
EQUAL TO THE STOCK DEPOSIT, AND THE RETENTION OF THE STOCK DEPOSIT BY SELLER
WILL BE SELLER'S EXCLUSIVE REMEDY AT LAW AND IN EQUITY AND WILL BE THE FULL,
AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER, AND
THIS AGREEMENT WILL BE TERMINATED AND, EXCEPT FOR BUYER'S OBLIGATIONS THAT
EXPRESSLY SURVIVE, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER.
Buyer's Initials
_______ Seller's
Initials
7.
Disclaimer.
(a) Acknowledgment EXCEPT
AS EXPRESSLY SET FORTH IN SECTION 4(A). SELLER
MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO THE TRANSFERRED INTEREST, THE
CONDITION OR DESIGN OF THE PROPERTY OR ANY OTHER ASSETS OWNED BY THE COMPANY,
INCLUDING WITHOUT LIMITATION THE PIPELINE AND THE EASEMENTS, OR THE COMPLETENESS
OR THE ACCURACY OF ANY DOCUMENTS DELIVERED TO BUYER BY SELLER, INCLUDING WITHOUT
LIMITATION THE ACCURACY OF EXHIBITS C. D AND E
ATTACHED HERETO. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ZONING, USE
RESTRICTIONS, MERCHANTABILITY OF THE PROPERTY, OR ITS FITNESS FOR ANY PURPOSE,
OR AS TO THE CONDITION OR QUALITY OF THE PROPERTY, OR AS TO THE VALIDITY OF OR
GOOD, VALID TITLE TO THE PIPELINE OR THE EASEMENTS, ALL OF WHICH SELLER HEREBY
DISCLAIMS AND EXCLUDES.
(b) "AS IS-WHERE
IS". WITHOUT
LIMITING THE ACKNOWLEDGEMENT
OF THE PARTIES SET FORTH IN SECTION 7(A1 ABOVE
AND EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 4fAX THE
MEMBERSHIP INTERESTS
AND ALL PROPERTY, INCLUDING WITHOUT LIMITATION THE PIPELINE
AND EASEMENTS OWNED BY THE COMPANY, ARE BEING SOLD "AS IS-WHERE IS"
AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS, WITHOUT ANY
WARRANTY OF TITLE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND SELLER
NEITHER REPRESENTS NOR WARRANTS TO BUYER THAT SAID EASEMENTS
ARE SUFFICIENT IN LAW TO SUPPORT OR ENABLE OR AUTHORIZE THE USE
OF THE PIPELINE OR PERSONAL PROPERTY LOCATED THEREON AND PART OF
THE PROPERTY OWNED BY THE COMPANY, AND BUYER RELIES UPON SAME AT
ITS OWN RISK.
(c) Release. Buyer hereby
waives on behalf of itself and its related parties, any and all right to recover
from Seller, the Company and from Seller's affiliates, successors, assigns,
members, managers, officers, affiliates, employees and agents ("Seller's
Related Parties"), and forever releases and discharges Seller and
Seller's Related Parties, from all claims and causes of action of any type
whatsoever, including, without limitation, any and all claims sounding in
contract, warranty, tort or strict liability, arising out of or in connection
with the condition or ownership of the Property.
8. Confidentiality.
Prior to Closing, neither party shall disclose, nor permit any third party to
disclose, any Confidential Information (as hereinafter defined), including,
without limitation, issue any press releases or other public announcements or
appear for any media stories or interviews relating to this transaction, without
the other party's express prior written consent, other than disclosure required
by law or court order, or to a party's environmental consultants, attorneys,
engineers, contractors, lenders and other similar third parties having a need to
know; provided that the disclosing party shall advise such third parties of the
confidentiality requirements set forth herein. Each party may also disclose
Confidential Information to the extent required by law, so long as said
disclosing party notifies the other party of the disclosing party's need to make
such disclosure and cooperates with other party in an effort to narrow or avoid
such disclosure or to obtain an adequate confidentiality agreement or protective
order to protect the confidentiality of such information. If this Agreement is
terminated, Buyer shall return to the extent reasonable all Confidential
Information provided by Seller which is in Buyer's possession. "Confidential
Information" shall mean the identity of the parties, the terms of this
Agreement, including the Purchase Price, and any and all financial, technical,
and any and all other information concerning Transferred Interests, the Company
and the Property, including engineering, geotechnical and environmental reports
and plans, all analyses, inventories, correspondence, market studies or other
material prepared by Seller or their representatives, advisors or otherwise,
including any of the same that may have been provided to a party by any third
party source.
9.
Fees.
(a) In
connection with the sale of the Transferred Interest, at such time as Seller
receives the Stock Deposit, Seller agrees to pay to Xxxxxx a fee equal to Five
Hundred Thousand (500,000) shares of Buyer Stock for his independent consulting
services. In addition, on the Closing Date, Seller agrees to pay Xxxxxx a fee
equal to (i) Five Hundred Thousand Dollars ($500,000), and (ii) an additional
Five Hundred Thousand (500,000) shares of Buyer Stock, for his independent
consulting services in connection with this transaction. Seller shall have no
obligation to pay Xxxxxx the fees set forth in this Section 9(a) unless
and until such time as Seller is in actual receipt of the non-refundable Stock
Deposit for such initial payment, and unless and until the transaction closes
and Seller is in receipt of the Purchase Price for the additional payment.
Furthermore, in the event the Stock Deposit is refunded to Buyer pursuant to
Section 6(a) of
this Agreement, then Xxxxxx shall return that portion of the Stock Deposit paid
to Xxxxxx pursuant to this Section 9(a). For all
tax purposes, Xxxxxx shall be treated as an independent
contractor.
(b)
Neither Buyer nor Seller has dealt with any broker or incurred any obligation to
pay a broker's commission or finder's fee in connection with the transaction
contemplated herein, other than as herein provided. Each party shall indemnify,
defend and hold the other party harmless from and against all expenses, losses,
damages and claims, including the other party's attorneys' fees, arising
out of any such broker's or finder's claim through said indemnifying party. The
provisions of this Section 9(b) shall
survive the Closing.
10. Retention of Xxxxxx.
Seller agrees that if Buyer desires to retain Xxxxxx'x services after the
Effective Date, Buyer may do so and Xxxxxx shall be free to negotiate, in good
faith, with Buyer on his own behalf.
11.
Miscellaneous.
(a) Notices. All notices,
requests, demands and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed given (i) two
business days after being sent by a nationally recognized overnight delivery
service or (ii) upon receipt of electronic or other confirmation of transmission
if sent via facsimile, in each case at the addresses or facsimile numbers (or at
such other address or facsimile number for a party as shall be specified by like
notice) set forth below:
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To
Seller:
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Sierra
Pipeline, LLC
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0000
Xxxxxxxxx
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Xxx
Xxxxx, Xxxxxx 00000
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Attention:
DonTyner
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxxx
& Silver
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Ninth
Floor
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0000
Xxxxxx Xxxxxx Xxxxxxx
Xxx
Xxxxx, Xxxxxx, 00000
Facsimile:
(000) 000-0000
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Buyer:
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0000
Xxxxx Xxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Facsimile:
(000)000-0000
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(b) Entire Agreement.
This Agreement shall constitute the entire agreement as to matters expressed
herein. There are no representations, agreements, arrangements or understandings
(whether oral or written) between or among the parties relating to the subject
matter of this Agreement that are not fully expressed herein.
(c) Amendment. This
Agreement may not be amended except upon the express written consent of the
parties.
(d) Successors and
Assigns. Buyer shall not assign or transfer its rights under this
Agreement without the prior written consent of Seller, which consent cannot be
unreasonably withheld, except to an existing or newly-formed affiliate of Buyer.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties, their heirs, executors, administrators,
successors and assigns.
(e) Further Assurance.
Each party agrees to cooperate with the other party and to execute such
additional instruments and documents as may be reasonably necessary or proper in
order to carry out the provisions of this Agreement.
(g) Attorneys' Fees.
Should either party institute any action or proceeding to enforce or interpret
this Agreement or any provision hereof, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all reasonable
costs and expenses, including reasonable attorneys' fees and costs. The
obligations of the parties set forth in this Section lUg) shall
survive the Closing as well as any termination of this
Agreement.
(h) Counterparts. This
Agreement may be executed in any number of counterparts, or on facsimile copies,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(i) Interpretation. The
captions of the sections of this Agreement are for convenience and reference
only, and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of this
Agreement. Any pronouns or references used herein shall be deemed to include the
masculine, feminine or neuter genders as appropriate. Any expression in the
singular or the plural shall, if appropriate in the context, include both the
singular and the plural.
(j) Time of the Essence.
Time is of the essence in the performance of each of the terms hereof with
respect to the obligations and rights of each party hereto.
(k) No Third Party
Beneficiary. The provisions of this Agreement and of the documents to be
executed and delivered at Closing are and will be for the benefit of Seller and
Buyer only and are not for the benefit of any third party (including, any
broker), and accordingly, no third party (other than a permitted assignee of
this Agreement) shall have the right to enforce the provisions of this Agreement
or of the documents to be executed and delivered at Closing. The provisions of
this Section
IQflc) shall survive the closing of the transaction contemplated by this
Agreement.
[Signature
page follows.]
10
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the Effective Date.
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SELLER:
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||
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XXX
XXXXX
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BUYER:
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||
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EGPIFIRECREEK,
INC., a Nevada corporation
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||
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Its:
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ceo
|
|
|
Print Name:
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Xxxxxx X.
Xxxxxxxxx
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11
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the Effective Date.
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SELLER:
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||
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DONTYNER
|
||
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BUYER:
|
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EGPIFERECREEK,
INC., a Nevada corporation
|
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By:
|
||
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Its:
|
||
|
Print Name:
|
||
11
EXHIBIT A ASSIGNMENT
OF MEMBERSHIP
INTEREST
This
Assignment of Membership Interest ("Assignment") is entered into, effective as
of __________ (the "Effective Date"), between Xxx Xxxxx, as assignor
("Assignor'"), and EGPI
Firecreek, Inc., as assignee ("Assignee").
Preliminary
Statements
A.
Assignor is the sole member of Sierra Pipeline, LLC, a Nevada limited liability
company (the "Company").
B. In
connection with the Agreement for Sale of Membership Interest in Sierra
Pipeline, LLC, dated as of December _, 2009, Assignor desires to transfer and
assign to Assignee all of Assignor's membership interest, which is a 100%
interest, including, all of Assignor's right, title and interest attributable to
Assignor's membership interest (the "Transferred Interest").
Assignment NOW,
THEREFORE,
the parties agree as follows:
1. Preliminary
Statements. The foregoing Preliminary Statements are true and correct and
are incorporated herein by this reference.
2. Assignment and
Acceptance. Assignor hereby transfers and assigns the Transferred
Interest to Assignee. Assignee hereby accepts the foregoing assignment and the
withdrawal of Assignor as a member of the Company.
3. Successors. This
Assignment shall inure to the benefit of and be binding upon the heirs, legal
representatives, successors and assigns of the parties
hereto.
4. Counterparts. This
Assignment may be executed in any number of counterparts or by annexing
signature pages hereto, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
5. Governing Law. The
rights and obligations of the parties shall be governed by, and construed in
accordance with, the laws of Nevada (excluding that body of law denominated as
the choice of law rules).
12
IN
WITNESS WHEREOF, this Assignment has been executed and made effective as of the
Effective Date.
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ASSIGNOR:
|
|
|
XXX
XXXXX
|
|
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ASSIGNEE:
|
|
|
EGPIFIRECKEEK,
INC., a Nevada corporation
|
|
|
By:
|
|
|
Its:
|
|
|
Print
Name:
|
|
13
EXHIBIT B
RESIGNATION
I hereby
resign from my position as Manager of Sierra Pipeline, LLC, a Nevada limited
liability company effective as of ___________, ____.
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Xxx
Xxxxx
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EXHIBIT C
LOCATION
OF PIPELINE
See
Attached.
EXHIBIT D
PURCHASE
AGREEMENT
See
attached.
EXHIBIT
E
EASEMENTS
See
attached.
SCHEDULE
1 NAMES AND
ADDRESSES
FOR BUYER STOCK
DELIVERY
Stock
Deposit
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(1)
|
The
stock certificate for the 2,000,000 shares of Buyer Stock being delivered
to Seller as part of the Stock Deposit should be delivered in the name of
Xxx Xxxxx and Xxxxx Xxxxx with an address of 0000 Xxxxxxxxx Xxxxx, Xxx
Xxxxx, XX 00000.
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(2)
|
The
stock certificate for the 500,000 shares of Buyer Stock being delivered
directly to Xxxxxx as part of the Stock Deposit should be delivered in the
name of Xxxxxx Xxxxxx with an address of 00000 Xxxxxxxxxx Xxx, XX, XX,
00000.
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Stock
Payment
|
(1)
|
The
stock certificate for the 2,000,000 shares of Buyer Stock being delivered
to Seller as part of the Stock Payment should be delivered in the name of
Xxx Xxxxx and Xxxxx Xxxxx, and/or their nominees, with an address of 0000
Xxxxxxxxx Xxxxx, Xxx Xxxxx, XX
00000.
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(2)
|
The
stock certificate for the 500,000 shares of Buyer Stock being delivered
directly to Xxxxxx as part of the Stock Payment should be delivered in the
name of Xxxxxx Xxxxxx and/or his nominees with an address of 00000
Xxxxxxxxxx Xxx, XX, XX,
00000.
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