SECURITIES PURCHASE AGREEMENT
Exhibit 4.1
This
SECURITIES PURCHASE
AGREEMENT (the “Agreement”) dated as of December 11,
2009 is by and among ROSSGAZ
LLC, a Limited Liability Company formed under the laws of Russian
Federation, Reg. No. 1040866702986 (“Rossgaz”) and the
holder of 100% capital stock or equity interests in Speckrit LLC, a limited
liability company formed under the laws of the Russian Federation, Reg. No.
1025902544832 (the “Company”), and
PREMIER
ENERGY CORP., a Florida corporation (“Premier”), ,
filing reports pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”). Each of the
parties to this Agreement is individually referred to herein as a “Party” and collectively, as the
“Parties.”
BACKGROUND
WHEREAS, Rossgaz owns 100% of
the capital stock or equity interest (“Equity
Interest”) issued and outstanding of
the Company;
WHEREAS, Premier desires to
acquire the Equity Interest from Rossgaz in consideration of $65,000,000
(sixty-five million United State dollars) (the “Cash Payment”);
WHEREAS, the Board of
Directors of the Company, Rossgaz and Premier have determined that is desirable
to effect this Agreement.
AGREEMENT
NOW THEREFORE, the parties
agree as follows:
ARTICLE
I
Purchase of
Shares
SECTION
1.01. The
above recitals are incorporated by reference as if fully stated
herein.
SECTION
1.02. Sale and Purchase by Rossgaz
and Premier. At the Closing (as defined in Section 1.03),
Rossgaz shall sell, transfer, convey, assign and deliver to Premier the Equity
Interest free and clear of all Liens (as defined below) in exchange
for the Cash Payment.
SECTION
1.03. Closing. The
closing (the “Closing”)
of the transactions contemplated hereby (the “Transactions”)
shall take place at the offices of Premier commencing at 10:00 a.m. local time
on the second business day following the satisfaction or waiver of all
conditions to the obligations of the parties to consummate the Transactions
contemplated hereby (other than conditions with respect to actions the
respective parties will take at the Closing itself), or such other date and time
as the parties may mutually determine (the “Closing
Date”).
ARTICLE
II
Representations and
Warranties of Rossgaz
Rossgaz
hereby represents and warrants to Premier with respect to itself, as
follows:
SECTION
2.01. Good Title; Validity of
Option; Organization. Except for the discharge of those liens,
security interests, pledges, equities and claims effected hereby, Rossgaz is the
record and beneficial owner, and has good title to the Equity Interest, with the
right and authority to sell and deliver such Equity Interest. Upon
delivery of any certificate or certificates duly assigned, representing the same
as herein contemplated and/or upon registering of Premier as the new owner of
such Equity Interest in the share register of the Company, Premier will receive
good title to such Equity Interest, free and clear of all liens, security
interests, pledges, equities and claims of any kind, voting trusts, stockholder
agreements and other encumbrances (collectively, “Liens”).
SECTION
2.02. Power and
Authority. Rossgaz has the legal power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. All acts required to be taken by Rossgaz to enter into
this Agreement and the Company and to carry out the Transactions have been
properly taken. This Agreement constitutes a legal, valid and binding
obligation of Rossgaz, enforceable against Rossgaz in accordance with the terms
hereof.
SECTION
2.03. No
Conflicts. The execution and delivery of this Agreement by
Rossgaz and the performance by Rossgaz of its obligations hereunder in
accordance with the terms hereof: (i) will not require the consent of any third
party or any federal, state, local or foreign government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (“Governmental
Entity”) under any statutes, laws, ordinances, rules, regulations,
orders, writs, injunctions, judgments, or decrees (collectively, “Laws”);
(ii) will not violate any Laws applicable to Rossgaz and (iii) will not violate
or breach any contractual obligation to which Rossgaz is a party.
SECTION
2.04. No Finder’s
Fee. Rossgaz has not created any obligation for any finder’s,
investment banker’s or broker’s fee in connection with the
Transactions.
SECTION
2.05. Intentionally left
blank.
SECTION
2.06. Available
Information. Rossgaz has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of accepting the Cash Payment, it has received all documents
and information from Premier that it has requested and been allowed the
opportunity to ask questions of and receive answers from Premier officers and
directors. Rossgaz does not desire to receive any further documents,
information or answers.
SECTION
2.07. Intentionally Left
Blank.
SECTION
208. Intentionally Left
Blank.
SECTION
2.09. Intentionally Left
Blank. .
SECTION
2.10. Rossgaz Investor
Status. Rossgaz is an (i) “accredited investor” within the
meaning of Rule 501 promulgated under the Securities Act; or (ii) a non-United
States persons as defined in Regulation S of the Securities Act.
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ARTICLE
III
Representations and
Warranties of Rossgaz and the Company
In order
to induce Premier to enter into this Agreement and to consummate the
Transactions contemplated hereby, as of the date hereof and as of the Closing
Date, Rossgaz and the Company, jointly and severally, hereby represent and
warrant to Premier that the statements contained in this Article III are true
and correct, subject to those exceptions set forth in the disclosure schedules
attached hereto and delivered to Premier on the date hereof (the “Company
Disclosure Schedule”). The Company Disclosure Schedule with
respect to this Article III will be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this Article III. Any
matter disclosed in a numbered and lettered section of the Company Disclosure
Schedule shall be deemed to be disclosed in other locations throughout the
Company Disclosure Schedule to the extent such disclosure is reasonably
apparent:
SECTION
3.01. Organization, Standing and
Power. The Company is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, has not had and would not reasonably be
expected to have a material adverse effect on the Company, a material adverse
effect on the ability of the Company to perform its obligations under this
Agreement or on the ability of the Company to consummate the Transactions (a
“Company
Material Adverse Effect”). The Company is duly qualified to do
business in each jurisdiction where the nature of its business or its ownership
or leasing of its properties make such qualification necessary except where the
failure to so qualify would not reasonably be expected to have a Company
Material Adverse Effect. The Company has delivered to Premier true
and complete copies of the Charter, Constituent Agreement, Registration
Certificate, Codes of Statistics and Permit to issue shares or actions of the
Company and such other constituent instruments of the Company as may exist, each
as amended to the date of this Agreement (as so amended, the “Company
Constituent Instruments”).
SECTION
3.02. No Company Subsidiaries; No
Equity Interests. The Company does not as of the date of this
Agreement own, directly or indirectly, any capital stock, membership interest,
partnership interest, joint venture interest or other equity interest in any
person.
SECTION
3.03. Capital
Structure. The authorized capital of the Company consists of
_______ of which
_______ equity
or capital stock interests (“Capital
Stock’) are
issued and outstanding. Except as set forth above, no shares of
Capital Stock or other voting securities of the Company are issued, reserved for
issuance or outstanding. All outstanding shares of the Capital Stock
of the Company are duly authorized, validly issued, fully paid and nonassessable
and not subject to or issued in violation of any purchase option, call option,
right of first refusal, preemptive right, subscription right or any similar
right under any provision of the applicable corporate laws of the Russian
Federation, the Company Constituent Instruments or any Contract (as defined in
Section
3.05) to which the Company is a party or otherwise
bound. Except as set forth in this Section
3.03, there are not any bonds, debentures, notes or other indebtedness of
the Company having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote). As of the date of this
Agreement, there are not any options, warrants, rights, convertible or
exchangeable securities, “phantom” stock rights, stock appreciation rights,
stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind to which the Company or Rossgaz is a party or by which
it is bound (i) obligating the Company or Rossgaz to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of Capital Stock or
other equity interests in, or any security convertible or exercisable for or
exchangeable into any capital stock of or other equity interest in, the Company,
(ii) obligating the Company or Rossgaz to issue, grant, extend or enter into any
such option, warrant, call, right, security, commitment, contract, arrangement
or undertaking or (iii) that give any person the right to receive any economic
benefit or right similar to or derived from the economic benefits and rights
occurring to holders of the Capital Stock of the Company.
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SECTION
3.04. Authority; Execution and
Delivery; Enforceability. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the Transactions. The execution and delivery by the
Company of this Agreement and the consummation by the Company of the
Transactions have been duly authorized and approved by the Board of Directors of
the Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement and the Transactions. When
executed and delivered, this Agreement will be enforceable against the Company
in accordance with its terms.
SECTION
3.05
No Conflicts;
Consents.
(a) The
execution and delivery by the Company and Rossgaz of this Agreement does not,
and the consummation of the Transactions and compliance with the terms hereof
and thereof will not, conflict with, or result in any violation of or default
(with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under, or result in the creation of any Lien upon any of
the properties or assets of the Company under, any provision of (i) the Company
Constituent Instruments or, (ii) any material contract, lease, license,
indenture, notes, bond, agreement, permit, concession, franchise or other
instrument (a “Contract”)
to which the Company or Rossgaz is a party or by which its properties or assets
is bound or (iii) any material judgment, order or decree (“Judgment”)
or material Law applicable to the Company or its properties or assets, other
than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Company Material Adverse Effect.
(b) No
material consent, approval, license, permit, order or authorization (“Consent”)
of, or registration, declaration or filing with, or permit from, any
Governmental Entity is required to be obtained or made by or with respect to the
Company in connection with the execution, delivery and performance of this
Agreement or the consummation of the Transactions.
SECTION
3.06. Taxes.
(a) The
Company has timely filed, or has caused to be timely filed on its behalf, all
Tax Returns required to be filed by it, and all such Tax Returns are true,
complete and accurate, except to the extent any failure to file or any
inaccuracies in any filed Tax Returns, individually or in the aggregate, have
not had and would not reasonably be expected to have a Company Material Adverse
Effect. All Taxes shown to be due on such Tax Returns, or otherwise
owed, have been timely paid, except to the extent that any failure to pay,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Company Material Adverse Effect. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
(b) The
Company Financial Statements (as defined in Section
3.15) reflect an adequate reserve for all Taxes payable by the Company
(in addition to any reserve for deferred Taxes to reflect timing differences
between book and Tax items) for all Taxable periods and portions thereof through
the date of such financial statements. No deficiency with respect to
any Taxes has been proposed, asserted or assessed against the Company, and no
requests for waivers of the time to assess any such Taxes are pending, except to
the extent any such deficiency or request for waiver, individually or in the
aggregate, has not had and would not reasonably be expected to have a Company
Material Adverse Effect.
(c) For
purposes of this Agreement:
“Taxes”
includes all forms of taxation, whenever created or imposed, and whether of the
United States or elsewhere, and whether imposed by a local, municipal,
governmental, state, foreign, federal or other Governmental Entity, or in
connection with any agreement with respect to Taxes, including all interest,
penalties and additions imposed with respect to such amounts.
4
“Tax
Return” means all federal, state, local, regional, provincial and foreign
Tax returns, declarations, statements, reports, schedules, forms and information
returns and any amended Tax return relating to Taxes.
SECTION
3.07. Benefit
Plans. The Company does not have or maintain any collective
bargaining agreement or any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death
benefit, hospitalization, medical or other plan, arrangement or understanding
(whether or not legally binding) providing benefits to any current or former
employee, officer or director of the Company (collectively, “Company
Benefit Plans”). As of the date of this Agreement there are
not any severance or termination agreements or arrangements between the Company
and any current or former employee, officer or director of the Company, nor does
the Company have any general severance plan or policy.
SECTION
3.08. Litigation. There
is no action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation pending or threatened
in writing against or affecting the Company or Rossgaz, or any of its properties
before or by any court, arbitrator, governmental or administrative agency,
regulatory authority (“Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of this Agreement or (ii) could, if there were an unfavorable
decision, individually or in the aggregate, have or reasonably be expected to
have a Company Material Adverse Effect. Neither the Company, nor any director or
officer thereof (in his or her capacity as such), is or has been the subject of
any Action involving a claim or violation of or liability under any securities
laws or a claim of breach of fiduciary duty.
SECTION
3.09. Compliance with Applicable
Laws. The Company is in compliance with all applicable Laws,
including those relating to occupational health and safety and the environment,
except for instances of noncompliance that, individually and in the aggregate,
have not had and would not reasonably be expected to have a Company Material
Adverse Effect. The Company has not received any written
communication during the past two years from a Governmental Entity that alleges
that the Company is not in compliance in any material respect with any
applicable Law. This Section
3.09 does not relate to matters with respect to Taxes, which are the
subject of Section
3.06.
SECTION
3.10. Oil and Gas
Operations. Except as otherwise set forth in the Disclosure
Schedule, and except for matters as would not reasonably be expected to result
in a Company Material Adverse Effect on the Company, to the knowledge of the
Company, all xxxxx included in the Company’s oil and gas interests have been
drilled and (if completed) completed, operated and produced in accordance with
generally accepted oil and gas field practices and in compliance in all material
respects with applicable oil and gas leases, pooling and unit agreements, and
applicable laws, rules, regulations, judgments, orders and decrees issued by any
court or governmental authority. No well included in the Company’s
oil and gas interests is subject to penalties on allowables because of any
overproduction or any other violation of applicable laws that would prevent such
well from being entitled to its full legal and regular allowable from and after
the Closing Date as prescribed by any governmental authority. Except
as otherwise set forth in the Disclosure Schedule, to the knowledge of the
Company:
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(a)
|
there
are no xxxxx that the Company is currently obligated by law or contract to
plug and abandon;
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(b)
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there
are no xxxxx that are subject to exceptions to a requirement to plug and
abandon issued by a governmental authority having jurisdiction over the
applicable lease;
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(c)
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there
are no xxxxx that have been plugged and abandoned but have not been
plugged in accordance, in all material respects, with all applicable
requirements of each governmental authority having jurisdiction over the
Company’s oil and gas interests;
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(d)
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with
respect to the oil, gas and other mineral leases, unit agreements, pooling
agreements, communitization agreements and other documents creating
interests comprising the Company’s oil and gas interests: (i)
the Company has fulfilled all requirements in all material respects for
filings, certificates, disclosures of parties in interest, and other
similar matters contained in (or otherwise applicable thereto by law, rule
or regulation) such leases or other documents and is fully qualified to
own and hold all such leases or other interests, (ii) there are no
provisions applicable to such leases or other documents which increase the
royalty share of the lessor thereunder, and (ii) upon the establishment
and maintenance of production in commercial quantities, such leases and
other documents are to be in full force and effect over the economic life
of the property involved and do not have terms fixed by a certain number
of years; and
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(e)
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no
person has any call upon, option to purchase, preferential right to
purchase or similar rights with respect to the Company’s oil and gas
interests or to the production
therefrom.
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5
Notwithstanding
anything in this Section 3.10 to the contrary, the representations and
warranties contained in subsections (a) through (e) above are made to the
knowledge of the Company with respect to those oil and gas interests not
operated by the Company.
SECTION
3.11. Contracts. Except
as disclosed in Section
3.11 of the Company Disclosure Schedule, there are no Contracts that are
material to the business, properties, assets, condition (financial or
otherwise), results of operations or prospects of the Company. The
Company is not in violation of or in default under (nor does there exist any
condition which upon the passage of time or the giving of notice would cause
such a violation of or default under) any Contract to which it is a party or by
which it or any of its properties or assets is bound, except for violations or
defaults that would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect.
SECTION
3.12. Title to
Properties. The Company does not own any real
property. The Company has sufficient title to, or valid leasehold
interests in, all of its properties and assets used in the conduct of its
businesses. All such assets and properties, other than assets and
properties in which the Company has leasehold interests, are free and clear of
all Liens except for Liens that, in the aggregate, do not and will not
materially interfere with the ability of the Company and the Company
Subsidiaries to conduct business as currently conducted.
SECTION
3.13. Intellectual
Property. The Company owns, or is validly licensed or
otherwise have the right to use, all patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, service marks, service xxxx
rights, copyrights and other proprietary intellectual property rights and
computer programs (collectively, “Intellectual
Property Rights”) which are material to the conduct of the business of
the Company. Section
3.13 of the Company Disclosure Schedule sets forth a description of all
Intellectual Property Rights which are material to the conduct of the business
of the Company. There are no claims pending or, to the knowledge of
the Company, threatened that the Company is infringing or otherwise adversely
affecting the rights of any person with regard to any Intellectual Property
Right. To the knowledge of the Company, no person is infringing the
rights of the Company with respect to any Intellectual Property
Right.
SECTION
3.14. Labor
Matters. There are no collective bargaining or other labor
union agreements to which the Company is a party or by which any of them is
bound. No material labor dispute exists or, to the knowledge of the
Company, is imminent with respect to any of the employees of the
Company.
SECTION
3.15. Financial
Statements. Prior to the Closing the Company will deliver to
Premier its audited consolidated financial statements for the fiscal period of
time commencing with its inception to a date within 35 days of the
closing(collectively, the “Company
Financial Statements”). Upon delivery, the Company Financial
Statements will have been prepared in accordance with U.S. promulgated generally
accepted accounting principles applied on a consistent basis throughout the
periods indicated and in respect of interim periods subject to year end
adjustments. The Company Financial Statements will fairly present in
all material respects the financial condition and operating results of the
Company, as of the dates, and for the periods, indicated therein. The
Company will not have any material liabilities or obligations, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to December 31, 2008, and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in the
Company Financial Statements, which, in both cases, individually and in the
aggregate would not be reasonably expected to result in a Company Material
Adverse Effect.
SECTION
3.16. Insurance. The
Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
businesses in which the Company is engaged and in the geographic areas where it
engages in such businesses. The Company has no reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business on terms consistent with market for the
Company’s lines of business.
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SECTION
3.17. Transactions With Affiliates
and Employees. Except as set forth in the Company Financial
Statements, none of the officers or directors of the Company or Rossgaz and, to
the knowledge of the Company, none of the employees of the Company is presently
a party to any transaction with the Company (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, any entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SECTION
3.18. Internal Accounting
Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company has established disclosure
controls and procedures for the Company and designed such disclosure controls
and procedures to ensure that material information relating to the Company, is
made known to the officers by others within those entities. The
Company's officers have evaluated the effectiveness of the Company's controls
and procedures. Since December 31, 2007, there have been no
significant changes in the Company’s internal controls or, to the Company's
knowledge, in other factors that could significantly affect the Company's
internal controls.
SECTION
3.19. Solvency. Based
on the financial condition of the Company as of the Closing Date and after
giving effect to the Closing, (i) the Company's fair saleable value of its
assets exceeds the amount that will be required to be paid on or in respect of
the Company's existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company's assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof, and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid. The Company does not
intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in
respect of its debt).
SECTION
3.20. Application of Takeover
Protections. The Company has taken all necessary action, if
any, in order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company's charter documents
or the laws of the jurisdiction of the Company’s incorporation that is or could
become applicable as a result of Rossgaz and the Company fulfilling their
obligations or exercising their rights under this Agreement.
SECTION
3.21. No Additional
Agreements. The Company has no agreement or understanding with
Rossgaz with respect to the transactions contemplated by this Agreement other
than as specified in this Agreement.
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SECTION
3.22. Investment
Company. The Company is not, and is not an affiliate of, and
immediately following the Closing will not have become, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION
3.23. Disclosure. All
disclosure regarding the Company, its business and the transactions contemplated
hereby, furnished by or on behalf of the Company (including the Company’s
representations and warranties set forth in this Agreement) are true and correct
and do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
SECTION
3.24. Information
Supplied. None of the information supplied or to be supplied
by the Company for inclusion or incorporation by reference in any filing to be
made under the Securities Exchange Act of 1934 will contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
SECTION
3.25. Absence of Certain Changes
or Events. Except as disclosed in the Company Financial
Statements, from December 31, 2008 to the date of this Agreement, the Company
has conducted its business only in the ordinary course, and during such period
there has not been:
(a) any
change in the assets, liabilities, financial condition or operating results of
the Company, except changes in the ordinary course of business that have not
caused, in the aggregate, a Company Material Adverse Effect;
(b) any
damage, destruction or loss, whether or not covered by insurance, that would
have a Company Material Adverse Effect;
(c) any
waiver or compromise by the Company of a valuable right or of a material debt
owed to it;
(d) any
satisfaction or discharge of any lien, claim, or encumbrance or payment of any
obligation by the Company, except in the ordinary course of business and the
satisfaction or discharge of which would not have a Company Material Adverse
Effect;
(e) any
material change to a material Contract by which the Company or any of its
respective assets is bound or subject;
(f) any
mortgage, pledge, transfer of a security interest in, or lien, created by the
Company, with respect to any of its material properties or assets, except liens
for taxes not yet due or payable and liens that arise in the ordinary course of
business and do not materially impair the Company’s ownership or use of such
property or assets;
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(g) any
loans or guarantees made by the Company to or for the benefit of its employees,
officers or directors, or any members of their immediate families, other than
travel advances and other advances made in the ordinary course of its
business;
(h) any
alteration of the Company’s method of accounting or the identity of its
auditors;
(i) any
declaration or payment of dividend or distribution of cash or other property to
the Stockholders or any purchase, redemption or agreements to purchase or redeem
any shares of Company Stock;
(j) any
issuance of equity securities to any officer, director or
affiliate;
(k) any
arrangement or commitment by the Company to do any of the things described in
this Section 3.25.
ARTICLE
IV
Representations and
Warranties of_Premier
In order
to induce the Company to enter into this Agreement and to consummate the
transactions contemplated hereby, as of the date hereof and as of the Closing
Date, Premier hereby represents and warrant to Rossgaz and the Company that the
statements contained in this Article IV are true and correct subject to those
exceptions set forth in the disclosure schedules attached hereto and delivered
to the Company on the date hereof (the “Premier
Disclosure
Schedule”). The Premier Disclosure Schedule with respect to
this Article IV will be arranged in paragraphs corresponding to the numbered and
lettered paragraphs contained in this Article IV. Any matter
disclosed in a numbered and lettered section of the Premier Disclosure Schedule
shall be deemed to be disclosed in other locations throughout the Premier
Disclosure Schedule to the extent such disclosure is reasonably
apparent:
SECTION
4.01. Organization, Standing and
Power. Premier is duly organized, validly existing and in good
standing under the laws of the State of Florida. Premier has
delivered to the Company and Rossgaz (i) true and complete copies of the
Articles of Incorporation of Premier, as amended to the date of this Agreement
(as so amended, the “Premier
Charter”),
and the Bylaws of Premier, as amended to the date of this Agreement (as so
amended, the “Premier
Bylaws”).
SECTION
4.02. No Subsidiaries; No Equity
Interests. Premier does not own, directly or indirectly, any
capital stock, membership interest, partnership interest, joint venture interest
or other equity interest in any person.
SECTION
4.03. Capital
Structure. The authorized capital stock of Premier consists of
250,000,000 shares of Common Stock, $0.0001 par value per share, and 10,000,000
shares of preferred stock, $0.0001 par value. As of the date hereof
(i) 210,600,000 shares of Premier Common Stock are issued and
outstanding (ii) no shares of preferred stock are outstanding and
(iii) no shares of the Premier Common Stock or preferred stock currently are
held by Premier in its treasury. All of said shares are fully paid
and nonassessable and not subject to or issued in violation of any purchase
option, call option, right of first refusal, preemptive right, subscription
right or any similar right under any provision as relating to Premier, the
Business Corporation Act of the State of Florida, the Premier Charter, the
Premier Bylaws or any Contract to which Premier is a party or otherwise
bound. As of the date of this Agreement, there are not any options,
warrants, rights, convertible or exchangeable securities, “phantom” stock
rights, stock appreciation rights, stock-based performance units, commitments,
Contracts, arrangements or undertakings of any kind. The shareholder
list to be provided at closing to the Company shall be a current shareholder
list generated by its stock transfer agent, and such list shall accurately
reflect all of the issued and outstanding shares of Premier’s Common
Stock.
9
SECTION
4.04. Authority; Execution and
Delivery; Enforceability. The execution and delivery by
Premier of this Agreement and the consummation by Premier of the Transactions
have been duly authorized and approved by the Board of Directors of Premier, and
no other corporate proceedings on the part of Premier is necessary to authorize
this Agreement and the Transactions. This Agreement constitutes a
legal, valid and binding obligation of the Selling Parties, enforceable against
them in accordance with the terms hereof.
SECTION
4.05. No Conflicts;
Consents.
(a) The
execution and delivery by Premier of this Agreement, does not, and the
consummation of the Transactions and compliance with the terms hereof and
thereof will not, conflict with, or result in any violation of or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
Lien upon any of the properties or assets of Premier under, any provision of (i)
Premier Charter, Premier Bylaws, (ii) any Material Contract to which Premier is
a party or by which any of its properties or assets is bound or (iii) subject to
the filings and other matters referred to in Section
4.05(b), any material Judgment or material Law applicable to Premier’s
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Premier Material Adverse
Effect.
(b) No
Consent of, or registration, declaration or filing with, or permit from, any
Governmental Entity is required to be obtained or made by or with Premier in
connection with the execution, delivery and performance of this Agreement or the
consummation of the Transactions, other than the (A) filing with the SEC of
reports under Sections 13 of the Exchange Act, and (B) filings under state “blue
sky” laws, as may be required in connection with this Agreement and the
Transactions.
10
SECTION
4.06. SEC Documents; Undisclosed
Liabilities.
(a) Premier
has filed all reports, schedules, forms, statements and other documents required
to be filed by Premier with the SEC since its organization pursuant to Sections
13(a), 14 (a) and 15(d) of the Exchange Act (the “Premier
SEC
Documents”).
(b) As
of its respective filing date, each Premier SEC Document complied in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to such Premier SEC
Document, and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Except to the extent that information contained
in any Premier SEC Document has been revised or superseded by a later filed
Premier SEC Document, none of the Premier SEC Documents contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of Premier included in the Premier SEC Documents comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with the U.S. generally accepted accounting principals (“GAAP”)
(except, in the case of unaudited statements, as permitted by the rules and
regulations of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present
the financial position of Premier as of the dates thereof and the results of its
operations and cash flows for the periods shown (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(c) Except
as set forth in the Premier SEC Documents, Premier has no liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a balance sheet of Premier or in the notes
thereto.
(d) Since
the date of the latest audited financial statements included within the Premier
SEC Documents, except as specifically disclosed in the Premier SEC Documents,
Premier has not changed its auditors and Premier does not have pending before
the SEC any request for confidential treatment of information.
SECTION
4.07. Brokers. No
broker, finder, investment banker or other person is or will be, in connection
with the transactions contemplated by this Agreement, entitled to any brokerage,
finder’s or other fee or compensation based on any arrangement or agreement made
by or on behalf of Premier and for which Rossgaz or the Company will have any
obligation or liability. Premier shall indemnify and hold Rossgaz and
the Company harmless from any and all claims, liabilities, damages, costs and
expenses asserted against them by any person claiming to have acted on behalf of
Premier, or to have been retained by Premier as a broker in connection with the
transaction contemplated by this Agreement.
11
SECTION
4.08. Absence of Certain Changes
or Events. Except as disclosed in the Premier SEC Documents,
from the date of the most recent audited financial statements included in the
Premier SEC Documents to the date of this Agreement, Premier, conducted its
business only in the ordinary course, and during such period there has not
been:
(a) any
change in the assets, liabilities, financial condition or operating results of
Premier from that reflected in the Premier SEC Documents, except changes in the
ordinary course of business that have not caused, in the aggregate, a Material
Adverse Effect;
(b) any
damage, destruction or loss, whether or not covered by insurance, that would
have a Premier Material Adverse Effect;
(c) any
waiver or compromise by Premier of a valuable right or of a material debt owed
to it;
(d) any
satisfaction or discharge of any lien, claim, or encumbrance or payment of any
obligation by Premier, except in the ordinary course of business and the
satisfaction or discharge of which would not have a Premier Material Adverse
Effect;
(e) any
material change to a material Contract by which Premier or any of its assets is
bound or subject;
(f) any
material change in any compensation arrangement or agreement with any employee,
officer, director or stockholder;
(g) any
resignation or termination of employment of any officer of Premier;
(h) any
mortgage, pledge, transfer of a security interest in, or lien, created by
Premier, with respect to any of its material properties or assets, except liens
for taxes not yet due or payable and liens that arise in the ordinary course of
business and do not materially impair Premier ownership or use of such property
or assets;
(i) any
loans or guarantees made by Premier to or for the benefit of its employees,
officers or directors, or any members of their immediate families, other than
travel advances and other advances made in the ordinary course of its
business;
(j) any
declaration, setting aside or payment or other distribution in respect of any of
Premier capital stock, or any direct or indirect redemption, purchase, or other
acquisition of any of such stock by Premier;
(k) any
alteration of Premier method of accounting or the identity of its
auditors;
(l) any
issuance of equity securities to any officer, director or affiliate;
or
12
(m) any
arrangement or commitment by Premier to do any of the things described in this
Section
4.08.
SECTION
4.09. Taxes.
(a) Premier
has timely filed, or has caused to be timely filed on its behalf, all Tax
Returns required to be filed by it, and all such Tax Returns are true, complete
and accurate, except to the extent any failure to file or any inaccuracies in
any filed Tax Returns, individually or in the aggregate, have not had and would
not reasonably be expected to have a Premier Material Adverse
Effect. All Taxes shown to be due on such Tax Returns, or otherwise
owed, has been timely paid, except to the extent that any failure to pay,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Premier Material Adverse Effect.
(b) The
most recent financial statements contained in the Premier SEC Documents reflect
an adequate reserve for all Taxes payable by Premier (in addition to any reserve
for deferred Taxes to reflect timing differences between book and Tax items) for
all Taxable periods and portions thereof through the date of such financial
statements. No deficiency with respect to any Taxes has been
proposed, asserted or assessed against Premier, and no requests for waivers of
the time to assess any such Taxes are pending, except to the extent any such
deficiency or request for waiver, individually or in the aggregate, has not had
and would not reasonably be expected to have a Premier Material Adverse
Effect.
(c) There
are no Liens for Taxes (other than for current Taxes not yet due and payable) on
the assets of Premier. Premier is not bound by any agreement with
respect to Taxes.
SECTION
4.10. Absence of Changes in
Benefit Plans. From the date of the most recent audited
financial statements included in the Premier SEC Documents to the date of this
Agreement, there has not been any adoption or amendment in any material respect
by Premier of any collective bargaining agreement or any bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock ownership, stock
purchase, stock option, phantom stock, retirement, vacation, severance,
disability, death benefit, hospitalization, medical or other plan, arrangement
or understanding (whether or not legally binding) providing benefits to any
current or former employee, officer or director of Premier (collectively, “Premier
Benefit
Plans”). As of the date of this Agreement there are not any
employment, consulting, indemnification, severance or termination agreements or
arrangements between Premier and any current or former employee, officer or
director of Premier, nor does Premier have any general severance plan or
policy.
SECTION
4.11. ERISA Compliance; Excess
Parachute Payments. Premier has, and since its inception has
never had, maintained, or contributed to any “employee pension benefit plans”
(as defined in Section 3(2) of ERISA), “employee welfare benefit plans” (as
defined in Section 3(1) of ERISA) or any other Premier Benefit Plan for the
benefit of any current or former employees, consultants, officers or directors
of Premier.
SECTION
4.12. Litigation. Except
as disclosed in the Premier SEC Documents, there is no Action which (i)
adversely affects or challenges the legality, validity or enforceability of any
of this Agreement or the Shares or (ii) could, if there were an unfavorable
decision, individually or in the aggregate, have or reasonably be expected to
result in a Premier Material Adverse Effect. There has not been, and
to the knowledge of Premier, there is not pending any investigation by the SEC
involving Premier or any current or former director or officer of Premier (in
his or her capacity as such). The SEC has not issued any stop order
or other order suspending the effectiveness of any registration statement filed
by Premier under the Exchange Act or the Securities Act. Neither Premier nor any
subsidiary, nor any director or officer thereof (in his or her capacity as
such), is or has been the subject of any Action involving a claim or violation
of or liability under federal or state securities laws or a claim of breach of
fiduciary duty.
13
SECTION
4.13. Compliance with Applicable
Laws. Except as disclosed in the Premier SEC Documents,
Premier is in compliance with all applicable Laws, including those relating to
occupational health and safety and the environment, except for instances of
noncompliance that, individually and in the aggregate, have not had and would
not reasonably be expected to have a Premier Material Adverse Effect. Except as
set forth in the Premier SEC Documents, Premier has not received any written
communication during the past two years from a Governmental Entity that alleges
that such Company is not in compliance in any material respect with any
applicable Law. Premier is in compliance with all effective
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations thereunder, that are applicable to it, except where such
noncompliance could not have or reasonably be expected to result in a Premier
Material Adverse Effect. This Section
4.13 does not relate to matters with respect to Taxes, which are the
subject of Section
4.09.
SECTION
4.14. Contracts. Except
as disclosed in the Premier SEC Documents, there are no Contracts that are
material to the business, properties, assets, condition (financial or
otherwise), results of operations or prospects of Premier. Premier is
not in violation of or in default under (nor does there exist any condition
which upon the passage of time or the giving of notice would cause such a
violation of or default under) any Contract to which it is a party or by which
it or any of its properties or assets is bound, except for violations or
defaults that would not, individually or in the aggregate, reasonably be
expected to result in a Premier Material Adverse Effect.
SECTION
4.15. Title to
Properties. Premier has good title to, or valid leasehold
interests in, all of its properties and assets used in the conduct of its
businesses. All such assets and properties, other than assets and
properties in which Premier has leasehold interests, are free and clear of all
Liens except for Liens that, in the aggregate, do not and will not materially
interfere with the ability of Premier to conduct business as currently
conducted. Premier has complied in all material respects with the
terms of all material leases to which it is a party and under which it is in
occupancy, and all such leases are in full force and effect. Premier
enjoys peaceful and undisturbed possession under all such material
leases.
SECTION
4.16. Intellectual
Property. Premier owns, or is validly licensed or otherwise
has the right to use, all Intellectual Property Rights which are material to the
conduct of its business taken as a whole. No claims are pending or,
to the knowledge of Premier, threatened that Premier is infringing or otherwise
adversely affecting the rights of any person with regard to any Intellectual
Property Right. To the knowledge of Premier, no person is infringing
the rights of Premier with respect to any Intellectual Property
Right.
14
SECTION
4.17. Labor
Matters. There are no collective bargaining or other labor
union agreements to which Premier is a party or by which it is
bound. No material labor dispute exists or, to the knowledge of
Premier, is imminent with respect to any of the employees of
Premier.
SECTION
4.18. Transactions With Affiliates
and Employees. Except as set forth in the Premier SEC
Documents, none of the officers or directors of Premier and, to the knowledge of
Premier, none of the employees of Premier is presently a party to any
transaction with Premier (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of Premier, any entity in which
any officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
SECTION
4.19. Internal Accounting
Controls. Premier maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Premier has established disclosure controls and
procedures and designed such disclosure controls and procedures to ensure that
material information is made known to its officers. Premier’s
officers have evaluated the effectiveness of the controls and
procedures. Since December 31, 2007, there have been no significant
changes in the internal controls or, to Premier’s knowledge, in other factors
that could significantly affect the internal controls.
SECTION
4.20. Intentionally left
blank.
SECTION
4.21. Application of Takeover
Protections. Premier has taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Premier charter documents or
the laws of its state of incorporation that is or could become applicable to the
Stockholders as a result of the Stockholders and Premier fulfilling their
obligations or exercising their rights under this Agreement, including, without
limitation, the issuance of the Shares to Premier and his ownership
of the Shares.
SECTION
4.22. No Additional
Agreements. Premier does not have any agreement or
understanding with Rossgaz with respect to the transactions contemplated by this
Agreement other than as specified in this Agreement.
15
SECTION
4.23. Investment
Company. Premier is not, and is not an affiliate of, and
immediately following the Closing will not have become, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION
4.24. Disclosure. All
disclosure provided to Rossgaz and the Company regarding Premier, its business
and the transactions contemplated hereby, furnished by or on behalf of Premier
(including the their representations and warranties set forth in this Agreement)
are true and correct and do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.
SECTION
4.25. Certain Registration
Matters. Except as specified in Premier SEC Documents, Premier
has not granted or agreed to grant to any person any rights (including
“piggy-back” registration rights) to have any securities of Premier registered
with the SEC or any other governmental authority that have not been
satisfied.
SECTION
4.26. Listing and Maintenance
Requirements. Premier is, and has no reason to believe that it
will not in the foreseeable future continue to be, in compliance with the
listing and maintenance requirements for continued listing of its
shares of common stock on the Over-The-Counter Bulletin Board (“OTCBB”). The
issuance and sale of the Shares under this Agreement does not contravene the
rules and regulations of the trading market on which its shares of
common stock are currently eligible for listing or
trading.
SECTION
4.27. No Undisclosed Events,
Liabilities, Developments or Circumstances. No event,
liability, development or circumstance has occurred or exists, or is
contemplated to occur with respect to Premier or its business, properties,
prospects, operations or financial condition, that would be required to be
disclosed by Premier under applicable securities laws on a registration
statement on Form SB-2 filed with the SEC relating to an issuance and sale by
Premier of its Common Stock and which has not been publicly announced will not
be publicly announced in the current report on Form 8-K that will be filed by
Premier at the Closing.
SECTION
4.28. Foreign Corrupt
Practices. To Premier’s knowledge, any director, officer,
agent, employee or other person acting on behalf of Premier has, in the course
of its actions for, or on behalf of, Premier (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
ARTICLE
V
Deliveries
SECTION
5.01. Deliveries of
Rossgaz.
(a) Concurrently
herewith Rossgaz is delivering to Premier this Agreement executed by each of
them.
16
(b) At
or prior to the Closing, Rossgaz shall deliver to Premier:
(i) certificates
representing its Company Stock;
(ii) duly
executed stock powers for transfer by Rossgaz of its Company Stock to Premier;
and
(iii) such
other information and documents as Premier or its counsel may require, in each
of their sole discretion, to establish an exemption from registration
requirements of the Securities Act.
SECTION
5.02. Deliveries of
Premier.
(a) Concurrently
herewith, Premier is delivering to Rossgaz and the Company a copy of this
Agreement executed by Premier;
(b) At
or prior to the Closing, Premier shall deliver the Cash Payment.
SECTION
5.03. Deliveries of the
Company.
(a) Concurrently
herewith, the Company is delivering to Premier this Agreement executed by the
Company.
(b) At
or prior to the Closing, the Company shall deliver a certificate from the
Company, signed by its authorized officer certifying and attaching copies of the
Company’s Constituent Instruments and resolutions of the Board of Directors of
the Company approving the Agreement and the Transactions are all true, complete
and correct and remain in full force and effect.
ARTICLE VI
Conditions to
Closing
SECTION
6.01. Company and Rossgaz
Conditions Precedent. The obligations of the Company and
Rossgaz to enter into and complete the Closing is subject, at the option of the
Company and Rossgaz, to the fulfillment on or prior to the Closing Date of the
following conditions.
17
(a) Representations and
Covenants. The representations and warranties of Premier
contained in this Agreement shall be true in all material respects on and as of
the Closing Date with the same force and effect as though made on and as of the
Closing Date. Premier shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by such parties on or prior to the Closing
Date. Premier shall have delivered to the Company and Rossgaz a
certificate, dated the Closing Date, to the foregoing effect.
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
Transactions or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of the
Company, a materially adverse effect on the assets, properties, business,
operations or condition (financial or otherwise) of the Company.
(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since December 31, 2007 which
has had or is reasonably likely to cause a Premier Material Adverse
Effect.
(d) Post-Closing
Capitalization. At, and immediately after, the Closing, the
authorized capitalization, and the number of issued and outstanding shares of
the capital stock of Premier, on a fully-diluted basis, as indicated on a
schedule to be delivered by the Parties at or prior to the Closing, shall be
acceptable to the Company and Rossgaz in their sole and absolute
discretion.
(e) SEC
Reports. Premier shall have filed all reports and other
documents required to be filed by Premier under the U.S. federal securities laws
through the Closing Date.
(f) OTCBB
Quotation. Premier shall have maintained its status as a
Company whose common stock is eligible for quotation or listing on the
Over-the-Counter Bulletin Board and no reason shall exist as to why such status
shall not continue immediately following the Closing.
(g) Deliveries. The
deliveries specified in Section 5.02 shall
have been made by Premier.
(h) No Suspensions of Trading in
Premier_Stock. Trading
in its shares of common stock shall not have been suspended by the
SEC or any trading market (except for any suspensions of trading of not more
than one trading day solely to permit dissemination of material information
regarding the Company) at any time since the date of execution of this
Agreement, and its shares of common stock shall have been at all
times since such date quoted for trading on a trading market.
(i) Satisfactory Completion of
Due Diligence. The Company and Rossgaz shall have completed
their legal, accounting and business due diligence of Premier, and the results
thereof shall be satisfactory to the Company and Rossgaz in their sole and
absolute discretion.
SECTION
6.02. Premier Conditions
Precedent. The obligations of Premier to enter into and
complete the Closing is subject, at the option of Premier, to the fulfillment on
or prior to the Closing Date of the following conditions, any one or more of
which may be waived by Premier in writing.
18
(a) Representations and
Covenants. The representations and warranties of the Company
and Rossgaz contained in this Agreement shall be true in all material respects
on and as of the Closing Date with the same force and effect as though made on
and as of the Closing Date. The Company and Rossgaz shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by the
Company and Rossgaz on or prior to the Closing Date. The Company and
Rossgaz, shall have delivered to Premier a certificate, dated the Closing Date,
to the foregoing effect.
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
Transactions or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of Premier, a
materially adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of the Company.
(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since December 31, 2007 which
has had or is reasonably likely to cause a Company Material Adverse
Effect.
(d) Deliveries. The
deliveries specified in Section 5.01, Section 5.03 and 5.04 shall have been made
by Rossgaz and the Company, respectively.
(e) Satisfactory Completion of
Due Diligence. Premier shall have completed its legal,
accounting and business due diligence of the Company and Rossgaz, and the
results thereof shall be satisfactory to Premier in its sole and absolute
discretion.
ARTICLE
VII
Covenants
SECTION
7.01.
Public Announcements. Premier, Rossgaz and the Company will
consult with each other before issuing, and provide each other the opportunity
to review and comment upon, any press release or other public statements with
respect to the Agreement and the Transactions and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by applicable Law, court process or by obligations pursuant to
any listing agreement with any national securities exchange.
SECTION
7.02. Fees
and Expenses. All fees and expenses incurred in connection
with this Agreement shall be paid by the Party incurring such fees or expenses,
whether or not this Agreement is consummated.
SECTION
7.03. Continued Efforts.
Each Party shall use commercially reasonable efforts to (a) take all action
reasonably necessary to consummate the Transactions, and (b) take such
steps and do such acts as may be necessary to keep all of its representations
and warranties true and correct as of the Closing Date with the same effect as
if the same had been made, and this Agreement had been dated, as of the Closing
Date.
19
SECTION
7.04. Exclusivity. Neither
Rossgaz nor the Company shall (i) solicit, initiate, or encourage the submission
of any proposal or offer from any person relating to the acquisition of any
capital stock or other voting securities of the Company, or any assets of the
Company (including any acquisition structured as a merger, consolidation, share
exchange or other business combination), (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing, or (iii) take any other action that
is inconsistent with the Transactions and that has the effect of avoiding the
Closing contemplated hereby. Rossgaz or the Company shall notify
Premier immediately if any person makes any proposal, offer, inquiry, or contact
with respect to any of the foregoing.
SECTION
7.05. Filing of 8-K and Press
Release. Premier shall file, as soon as is practicable after
the Closing Date, a current report on Form 8-K and attach as exhibits all
relevant agreements with the SEC, as soon as is practicable disclosing the terms
of this Agreement and other requisite disclosure regarding the Transactions and
including the requisite audited consolidated financial statements of the
Company. In addition, Premier shall issue a press release prior to
9:30 a.m. (New York Time) on the business day following the Closing Date,
announcing the closing of the transaction.
SECTION
7.06. Access. Each
Party shall permit representatives of each other Party to have full access to
all premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to such Party.
SECTION
7.07. Preservation of
Business. From the date of this Agreement until the Closing
Date, each of the Company and Premier shall operate only in the ordinary and
usual course of business consistent with past practice, and shall use reasonable
commercial efforts to (a) preserve intact its respective business organization,
(b) preserve the good will and advantageous relationships with customers,
suppliers, independent contractors, employees and other Persons material to the
operation of its respective business, and (c) not permit any action or omission
which would cause any of its respective representations or warranties contained
herein to become inaccurate or any of its respective covenants to be breached in
any material respect.
ARTICLE
VIII
Indemnification
SECTION
8.01. General Indemnification
Provision. Each of Premier, Rossgaz and the Company (each an
“Indemnifying
Party”) shall indemnify, defend and hold the other Party, its affiliates,
officers, directors, partners (general and limited), employees, agents,
attorneys successors and assigns (each an “Indemnified
Party”) harmless from and against all Losses incurred or suffered by a
Indemnified Party as a result of the breach of any of the respective
Indemnifying Parties representations, warranties, covenants or agreements made
by the respective Indemnifying Parties in this Agreement.
20
SECTION
8.02. Indemnification
Principles. For purposes of this Article VIII, “Losses”
shall mean each and all of the following items: claims, losses (including,
without limitation, losses of earnings), liabilities, obligations, payments,
damages (actual, punitive or consequential), charges, judgments, fines,
penalties, amounts paid in settlement, costs and expenses (including, without
limitation, interest which may be imposed in connection therewith, costs and
expenses of investigation, actions, suits, proceedings, demands, assessments and
reasonable fees, expenses and disbursements of counsel, consultants and other
experts).
SECTION
8.03. Claim
Notice; Right to Defend. An Indemnified Party shall promptly
upon becoming aware of the facts indicating that a claim for indemnification may
be warranted, give to the Indemnifying Party a claim notice relating to such
Loss (a “Claim
Notice”). Each Claim Notice shall specify the nature of the
claim and, if possible, the amount or the estimated amount thereof. No failure
or delay in giving a Claim Notice and no failure to include any specific
information relating to the claim (such as the amount or estimated amount
thereof) shall affect the obligation of the Indemnifying Party unless such
failure materially and adversely prejudices the Indemnifying
Party. If such Loss relates to the commencement of any action or
proceeding by a third person, the Indemnified Party shall give a Claim Notice to
the Indemnifying Party regarding such action or proceeding and the Indemnifying
Party shall be entitled to participate therein to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Party. After
the delivery of notice from the Indemnifying Party to the Indemnified Party of
its election to assume the defense of such action or proceeding, the
Indemnifying Party shall not be liable (except to the extent the proviso to this
sentence is applicable, in which event it will be so liable) to the Indemnified
Party under this Article VIII for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation, provided that each
Indemnified Party shall have the right to employ separate counsel to represent
it and assume its defense (in which case, the Indemnifying Party shall not
represent it) if (i) upon the advice of counsel, the representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, (ii) in the event the Indemnifying Party has
not assumed the defense thereof within 10 days of receipt of notice of such
claim or commencement of action, and in which case the fees and expenses of one
such separate counsel shall be paid by the Indemnifying Party or (iii) if such
Indemnified Party who is a defendant in any action or proceeding which is also
brought against the Indemnifying Party reasonably shall have concluded that
there may be one or more legal defenses available to such Indemnified Party
which are not available to the Indemnifying Party. If the
Indemnifying Party so assumes the defense thereof, it may not agree to any
settlement of any such claim or action as the result of which any remedy or
relief, other than monetary damages for which the Indemnifying Party shall be
responsible hereunder, shall be applied to or against the Indemnified Party,
without the prior written consent of the Indemnified Party. In any
action hereunder as to which the Indemnifying Party has assumed the defense
thereof with counsel reasonably satisfactory to the Indemnified Party, the
Indemnified Party shall continue to be entitled to participate in the defense
thereof, with counsel of its own choice, but, except as set forth above, the
Indemnifying Party shall not be obligated hereunder to reimburse the Indemnified
Party for the costs thereof.
21
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given upon receipt by the Parties at the
following addresses (or at such other address for a Party as shall be specified
by like notice):
If to
Rossgaz, LLC, to
00,
Xxxxxxxxxxxx xxx.,
Xxxxxx,
RF, 115093
If to the
Company, to:
Speckrit
LLC
00,
Xxxxxx xxx.,
Xxxxxxxxxx.,
Permskiy Kraiy, RF 617800
Copy:
00,
Xxxxxxxxxxxx xxx.,
Xxxxxx,
RF, 115093
If to
Premier Energy Corp, to:
00000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
SECTION 9.02. Amendments; Waivers; No
Additional Consideration. No provision of this Agreement may
be waived or amended except in a written instrument signed by the Company,
Rossgaz and Premier. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either Party to exercise any right hereunder in any manner
impair the exercise of any such right. No consideration shall be
offered or paid to any Party to amend or consent to a waiver or modification of
any provision of any transaction document unless the same consideration is also
offered and paid to all Stockholders who then hold Shares (or are entitled to
receive Shares hereunder).
22
SECTION
9.03. Termination.
(a) Termination of
Agreement. The Parties may terminate this Agreement as
provided below:
(i) All
of the parties may terminate this Agreement by mutual written consent at any
time prior to the Closing;
(ii) Premier
may terminate this Agreement by giving written notice to the Company, and
Rossgaz at any time prior to the Closing (A) in the event the Company or Rossgaz
have breached any material representation, warranty, or covenant contained in
this Agreement in any material respect, Premier has notified the Company and
Rossgaz of the breach, and the breach has continued without cure for a period of
twenty days after the notice of breach, or (B) if the Closing shall not have
occurred on or before 60 days after the date of this Agreement by reason of the
failure of any condition precedent under Section
6.02 hereof (unless the failure results primarily from Premier itself
breaching any representation, warranty, or covenant contained in this
Agreement); and
(iii) The
Company or Rossgaz may terminate this Agreement by giving written notice to
Premier at any time prior to the Closing (A) in the event Premier has breached
any material representation, warranty, or covenant contained in this Agreement
in any material respect, the Company or Rossgaz has notified Premier of the
breach, and the breach has continued without cure for a period of twenty days
after the notice of breach or (B) if the Closing shall not have occurred on or
before 60 days after the date of this Agreement, by reason of the failure of any
condition precedent under Section
6.01 hereof (unless the failure results primarily from the Company, or
Rossgaz themselves breaching any representation, warranty, or covenant contained
in this Agreement).
(b) Effect of
Termination. If any Party terminates this Agreement pursuant
to Section
8.03(a) above, all rights and obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party.
SECTION
9.04. Replacement of
Securities. If any certificate or instrument evidencing any
shares is mutilated, lost, stolen or destroyed, Premier shall issue or cause to
be issued in exchange and substitution for and upon cancellation thereof, or in
lieu of and substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to Premier of such loss, theft
or destruction and customary and reasonable indemnity, if
requested. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated
with the issuance of such replacement Shares. If a replacement
certificate or instrument evidencing any shares is requested due to a mutilation
thereof, Premier may require delivery of such mutilated certificate or
instrument as a condition precedent to any issuance of a
replacement.
SECTION
9.05. Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of Premier, Rossgaz and the Company
will be entitled to specific performance under this Agreement. The Parties agree
that monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
23
SECTION
9.06. Interpretation. When
a reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Whenever the words
“include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”.
SECTION
9.07. Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule or Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the Transactions contemplated
hereby is not affected in any manner materially adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that Transactions contemplated
hereby are fulfilled to the extent possible.
SECTION
9.08. Counterparts; Facsimile
Execution. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the Parties and delivered to the other Parties. Facsimile execution and delivery
of this Agreement is legal, valid and binding for all purposes.
SECTION
9.09. Entire Agreement; Third
Party Beneficiaries. This Agreement, taken together with the
Company Disclosure Schedule and Premier Disclosure Schedule, (a) constitute the
entire agreement, and supersede all prior agreements and understandings, both
written and oral, among the Parties with respect to the Transactions and (b) are
not intended to confer upon any person other than the Parties any rights or
remedies.
SECTION
9.12. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof. ALL PARTIES HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK WITH RESPECT TO
ANY DISPUTE ARISING UNDER THIS AGREEMENT. ALL PARTIES IRREVOCABLY WAIVE THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR
PROCEEDING. ALL PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A
PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE
SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
SECTION
9.13. Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the Parties without the prior written consent of the other
Parties. Any purported assignment without such consent shall be void. Subject to
the preceding sentences, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the Parties and their respective successors
and assigns.
[The
Remainder of Page Intentionally Kept Blank]
24
The
Parties hereto have executed and delivered this Share Exchange Agreement as of
the date first above written.
| PREMIER ENERGY CORP. | |||
|
By:
|
/s/ Xxxxx Xxxxxxxxxx | ||
|
Name: Xxxxx
Xxxxxxxxxx
Title:
CEO
|
|||
| SPECKRIT LLC | |||
|
By:
|
/s/ Valentin Tsigoev | ||
|
Name:
Valentin Tsigoev
Title:
Director
|
|||
| ROSSGAZ , LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
|
Name:
Xxxxxx Xxxxxx
Title:
General Director
|
|||
25
Company
Disclosure Schedule
None
Premier
Disclosure Schedule
None
26
