PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
PURCHASE AGREEMENT (this "Agreement"), dated as of August 5th 2009, is by and
among ENERCOR, INC., a Nevada corporation (the "Company"), and COBRA OIL &
GAS COMPANY a Nevada corporation (the "Buyer") (collectively the
“Parties”).
WITNESSETH
WHEREAS,
the Parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall sell to the Buyer, as provided herein, and the Buyer
shall purchase from the Company, a thirty-seven and one-half percent
(37.5%) working interest in that certain lease issued by the United
States Bureau of Land Management UTU-38076 (“Lease”). The balance (62.5%) of the
Lease interest is owned by Pioneer Natural Resources.
NOW,
THEREFORE, in consideration of the mutual covenants and other agreements
contained in this Agreement the Company and the Buyer hereby agree as
follows:
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1.
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PURCHASE,
SALE AND ASSIGNMENT OF
LEASE.
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(a) Purchase
of Lease. Subject to the satisfaction (or waiver) of the terms and
conditions of this Agreement, the Buyer agrees to purchase at the Closing and
the Company agrees to sell and assign to the Buyer at the Closing, its 37.5%
title and working interest in the Lease.
(b) Closing
Date. The Closing Date of the purchase and sale of the Lease shall
take place on or before ten (10) business days following the date hereof,
subject to notification of satisfaction of the conditions to the Closing set
forth herein and in Sections 4 and 5 below (or such later date as is mutually
agreed to by the Company and the Buyer (the " Closing Date").
(c) Purchase
Price. The Purchase Price to be paid at the Closing shall be three
hundred thousand (300,000) shares of Buyer's Common Stock, fully paid and
non-assessable.
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2.
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BUYER'S
REPRESENTATIONS AND
WARRANTIES.
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Buyer
represents and warrants that:
(a) Investment
Purpose. Buyer is acquiring the Lease for its own account for
investment only and not with a view towards, or for resale in connection with,
the redistribution thereof.
(b) Information. Buyer
has been furnished with all materials relating to the business, finances and
operations of the Company and information it deemed material to making an
informed investment decision regarding his purchase of the Lease, which have
been requested by such Buyer.
Buyer has
been afforded the opportunity to ask questions of the Company and its
management. Neither such inquiries nor any other due diligence
investigations conducted by Buyer shall modify, amend or affect such Buyer's
right to rely on the Company's representations and warranties contained in
Section 3 below. Buyer understands that its investment in the Lease
involves a high degree of risk. Buyer is in a position regarding the
Lease, which, based upon employment, family relationship or economic bargaining
power, enabled and enables the Buyer to obtain information from the Company in
order to evaluate the merits and risks of this investment. The Buyer
has sought such accounting, legal and tax advice, as it has considered necessary
to make an informed investment decision with respect to its acquisition of the
Lease.
(c) Authorization,
Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
(d) Receipt
of Documents. Buyer has received and read in their
entirety: (i) this Agreement and each representation, warranty and
covenant set forth herein, (ii) all due diligence and other information
necessary to verify the accuracy and completeness of such representations,
warranties and covenants; and (iii) answers to all questions the Buyer submitted
to the Company regarding an investment in the Lease; and the Buyer has relied on
the information contained therein and has not been furnished any other
documents, literature, memorandum or prospectus.
(e) No
Legal Advice From the Company. Buyer acknowledges that it had
the opportunity to review this Agreement and the transactions contemplated by
this Agreement. Buyer is not relying on any statements or
representations of the Company or any of its representatives or agents for
legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
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3.
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REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
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The
Company represents and warrants to the Buyer that:
(a) Organization
and Qualification. The Company is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction in which it
is incorporated, and has the requisite corporate power to own its properties and
to carry on its business as now being conducted. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company.
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(b) Authorization,
Enforcement, Compliance with Other Instruments. (i) The Company has
the requisite corporate power and authority to enter into and perform this
Agreement and any related agreements(the "Transaction Documents") and to sell
the Lease in accordance with the terms hereof and thereof, (ii) the consummation
by it of the transactions contemplated hereby and thereby, have been duly
authorized by the Company's Board of Directors and subject to the consent of a
majority of the shareholders and notice to the non-consenting shareholders no
further consent or authorization is required by the Company or its Board of
Directors, (iii) this Agreement constitutes the valid and binding obligations of
the Company enforceable against the Company in accordance with its terms, except
as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies. The authorized officer of the Company executing
this Agreement knows of no reason why the Company cannot perform any of the
Company's other obligations under this Agreement.
(c) No
Conflicts. The execution, delivery and performance of the Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) conflict with or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, or result in a violation of any law, rule, regulation, order, judgment
or decree
(including
federal and state securities laws and regulations) applicable to the Company or
by which any property or asset of the Company is bound or
affected. The Company is not in violation of any term of or in
default under any material contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree or order or any statute, rule or
regulation applicable to the Company. The business of the Company is
not being conducted, and shall not be conducted in violation of any material
law, ordinance, or regulation of any governmental entity.
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4.
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CONDITIONS
TO THE COMPANY'S OBLIGATION TO
SELL.
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The
obligation of the Company hereunder to sell the Lease to the Buyer at the
Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Company's sole benefit and may be waived by the Company at any time in
its sole discretion:
(b) The
Buyer shall have delivered to the Company the Purchase Price.
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(c) The
representations and warranties of the Buyer shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date), and the Buyer shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Buyer at or
prior to the Closing Date.
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5.
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CONDITIONS
TO THE BUYER'S OBLIGATION TO
PURCHASE.
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(a) The
obligation of the Buyer hereunder to purchase the Lease is subject to the
satisfaction, at or before the Closing Date, of each of the following
conditions:
(i) The
Company shall have executed this Agreement and delivered the same to the
Buyer.
(ii) The
representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Date. If requested by the Buyer,
the Buyer shall have received a certificate, executed by the President of the
Company, dated as of the Closing Date, to the foregoing effect and as
to such other matters as may be reasonably requested by the Buyer including,
without limitation an update as of the Closing Date regarding the representation
contained in Section 3(c) above.
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6.
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GOVERNING
LAW: MISCELLANEOUS.
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(a) Governing
Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California without regard to the
principles of conflict of laws. The parties further agree that any
action between them shall be heard in Los Angeles County, California, and
expressly consent to the jurisdiction and venue of the Superior Court of Los
Angeles County, sitting in Los Angeles County and the United States District
Court for the District of California sitting in Los Angeles, California for the
adjudication of any civil action asserted pursuant to this
paragraph.
(b) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other
party.
(c) Headings. The
headings of this Agreement are for convenience or reference
and shall not form part of, or affect the interpretation of, this
Agreement.
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(d) Severability. If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Entire
Agreement, Amendments. This Agreement supersedes all other prior oral
or written agreements between the Buyer, the Company, their affiliates and
persons acting on their behalf with respect to the matters discussed herein, and
this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in writing signed
by the party to be charged with enforcement.
(f) Notices. Any
notices, consents, waivers, or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered (i) upon receipt, when delivered personally; (ii) upon
confirmation of receipt, when sent by facsimile; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv) one (1) day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
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If
to the Company, to:
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Enercor,
Inc.
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0000
Xxxxxx xx xxx Xxxxx, Xxx. 000
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Xxx
Xxxxxxx, XX 00000
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If
to the Buyer, to:
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Cobra
Oil & Gas Company
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Uptown
Center
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0000
Xxxx Xxxx Xxxxx, Xxx. 000
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Xxxxxxx,
XX 00000
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(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. Neither the
Company nor the Buyer shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party
hereto.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
(i) Survival. Unless
this Agreement is terminated under Section 7(l), the representations and
warranties of the Company and the Buyer contained in Sections 2 and 3, shall
survive the Closing for a period of two (2) years. The Buyer shall be
responsible only for its own representations, warranties, agreements and
covenants hereunder.
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(j) Further
Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(k) Termination. In
the event that the Closing shall not have occurred with respect to
the Buyer on or before the Closing Date due to the Company's or the
Buyer's failure to satisfy the conditions set forth in Sections 4 and 5 above
(and the non-breaching party's failure to waive such unsatisfied condition(s)),
the non-breaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on such date without
liability of any party to any other party.
(l) No
Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any
party.
IN
WITNESS WHEREOF, the Buyer and the Company have caused this Agreement to be duly
executed as of the date first written above.
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COMPANY:
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ENERCOR,
INC.
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By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx
X. Xxxxxxx
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Title: CFO
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BUYER:
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COBRA
OIL & GAS COMPANY
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By: /s/ Xxx Xxxxxxx
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Name: Xxx
Xxxxxxx
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Title: President
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