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Exhibt 10.01
AGREEMENT BETWEEN
ENDEAVOR ENERGY CORPORATION
(a Nevada Corporation)
AND
FIRST ENDEAVOR HOLDINGS INC.
(an Alberta Corporation)
ENDEAVOR CANADA CORPORATION
(an Alberta Corporation)
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INDEX
Page
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ARTICLE I - MERGER ........................................................ 5
ARTICLE II - REPRESENTATIONS AND WARRANTIES ............................... 5
2.0l - Organization ................................................. 6
2.02 - Capital ...................................................... 6
2.03 - Officers and Directors, Compensation; Bank Accounts .......... 6
2.04 - Financial Statements ......................................... 6
2.05 - Absence of Changes ........................................... 6
2.06 - Absence of Undisclosed Liabilities ........................... 6
2.07 - Tax Returns .................................................. 6
2.08 - Investigation of Financial Condition.......................... 6
2.09 - Trade Names and Rights ....................................... 7
2.l0 - Contracts and Leases ......................................... 7
2.ll - Insurance Policies ........................................... 7
2.l2 - Compliance with Laws ......................................... 7
2.l3 - Litigation ................................................... 7
2.l4 - Ability to Carry Out Obligations ............................. 7
2.l5 - Full Disclosure .............................................. 8
2.l6 - Assets ....................................................... 8
2A - Organization ................................................... 8
2B - Directors and Officers.......................................... 8
2C - Capital ........................................................ 8
2D - Financial Statements ........................................... 8
2E - Absence of Changes ............................................. 8
2F - Absence of Undisclosed Liabilities ............................. 9
2G - Tax Returns .................................................... 9
2H - Investigation of Financial Condition ........................... 9
2I - Trade Names and Rights ......................................... 9
2J - Contracts and Leases ........................................... 9
2K - Insurance Policies ............................................. 9
2L - Compliance with Laws ........................................... 9
2M - Litigation ..................................................... 10
2N - Ability to Carry Out Obligations ............................... 10
2O - Full Disclosure ................................................ 10
2P - Assets ......................................................... 11
ARTICLE III - SHAREHOLDER REPRESENTATIONS.................................. 11
ARTICLE IV - OBLIGATIONS BEFORE CLOSING ................................... 11
4.0l - Investigative Rights ......................................... 11
4.02 - Conduct of Business .......................................... 11
ARTICLE V - CONDITIONS PRECEDENT TO PERFORMANCE BY ENDEAVOR ............... 12
5.0l - Conditions ................................................... 12
5.02 - Accuracy of Representations .................................. 12
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Page
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5.03 - Performance................................................... 12
5.04 - Absence of Litigation ........................................ 12
5.05 - Other ........................................................
12 ARTICLE VI - CONDITIONS PRECEDENT TO PERFORMANCE ....................... 12
BY ECC.................................................. 12
6.0l - Conditions ................................................... 12
6.02 - Accuracy of Representations .................................. 13
6.03 - Performance .................................................. 13
6.04 - Absence of Litigation ........................................ 13
6.05 - Other ........................................................ 13
ARTICLE VII - CLOSING ..................................................... 13
7.0l - Closing ...................................................... 13
7.02 - Exchange of Securities........................................ 14
7.03 - Directors .................................................... 14
ARTICLE VIII - REMEDIES ................................................... 14
8.0l - Arbitration .................................................. 14
8.02 - Costs ........................................................ 14
8.03 - Termination .................................................. 14
ARTICLE IX - MISCELLANEOUS ................................................ 15
9.0l - Captions and Headings ........................................ 15
9.02 - No Oral Change ............................................... 15
9.03 - Non-Waiver ................................................... 15
9.04 - Time of Essence .............................................. 15
9.05 - Entire Agreement ............................................. 15
9.06 - Governing Law ................................................ 15
9.07 - Counterparts ................................................. 15
9.08 - Notices ...................................................... 15
9.09 - Binding Effect ............................................... 16
9.l0 - Effect of Closing ............................................ 16
9.ll - Mutual Cooperation ........................................... 16
9.12 - Expenses...................................................... 16
Schedule 1- Allocation of Shares
Exhibit A - Options, Warrants and Covertible Securities (ECC)..
Exhibit B - Officers and Directors Bank Accounts, Safe Deposit
Boxes, Powers of Attorney (ECC)....................
Exhibit C - Financial Statements - Changes in Financial
Condition (ECC) ...................................
Exhibit D - Trademarks, Trade Names and Cpoyrights (ECC).......
Exhibit E - Material Contracts (ECC)...........................
Exhibit F - Insurance Policies (ECC)...........................
Exhibit G - Officers, Directors, (Endeavor)....................
Exhibit H - Options, Warrants and Convertible Securities
(Endeavor) ........................................
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Exhibit I - Financial Statements - Changes in Financial
Condition (Endeavor)...............................
Exhibit J - Trademarks, Trade Names and Copyrights (Endeavor) .
Exhibit K - Material Contracts (Endeavor) .....................
Exhibit L- Insurance Policies (Endeavor)......................
Exhibit M - Litigation (Endeavor) .............................
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AGREEMENT TO EXCHANGE SECURITIES
--------------------------------
This AGREEMENT, made this 3rd day of August, 2007, by and between
Endeavor Energy Corporation, a Nevada Corporation, ("Endeavor"), First Endeavor
Holdings Inc., an Alberta Corporation, ("FEH") and Endeavor Canada Corporation,
an Alberta Corporation, ("ECC"), and the shareholders of ECC (as to Article I
and Article III only) is made for the purpose of setting forth the terms and
conditions upon which Endeavor will acquire all of the issued and outstanding
common stock of ECC in exchange for shares of Endeavor's common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
MERGER
1.01 ECC shall be merged with and into FEH in accordance with the
statutory provisions of Nevada and Alberta.
1.02 ECC shall be the Surviving Corporation and the corporate identity,
existence, purposes, powers, franchises, rights, and immunities of ECC shall
continue unaffected and unimpaired by the Merger. The Articles of Incorporation
and any other similar document pertaining to the formation and or organization
of ECC shall continue in force and will not be impaired or affected by the
Merger. The corporate identity, existence, purposes, powers, franchises, rights
and immunities of FEH shall be merged into ECC and ECC shall be fully vested
therewith.
1.03 The time at which the Articles of Merger are filed with the
Secretary of State of Nevada shall be the "Effective Time" of the Merger.
1.04 Except insofar as specifically otherwise provided by law, FEH
shall cease to exist at the Effective Time, whereupon the separate existence of
FEH and ECC shall become a single corporation, that being ECC.
1.05 At the Effective Time, without any action by the holder thereof,
each issued and outstanding share of ECC's common stock shall be deemed
cancelled and converted into 90,000 shares of Endeavor's common stock.
1.06 At the Effective Time, without any action by the holder thereof,
each issued an outstanding share of FEH shall be converted into and become one
fully paid and nonassessable share of ECC.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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ECC represents and warrants to Endeavor that:
2.0l Organization. ECC is a company duly organized, validly existing,
and in good standing under the laws of Alberta, has all necessary powers to own
its properties and to carry on its business as now owned and operated by it, and
is duly qualified to do business and is in good standing in location where its
business requires qualification.
2.02 Capital. The authorized capital of ECC consists of 100 shares of
common stock. At closing, there will be no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating ECC to issue any additional securities other than as set forth on
Exhibit A.
2.03 Officers and Directors, Compensation, Bank Accounts. Exhibit B to
this Agreement contains (i) the names and titles of all officers and directors
of ECC and all persons whose compensation from ECC as of the date of this
Agreement will equal or its expected to equal or exceed, at an annual rate, the
sum of $1,000; (ii) the name and address of each bank with which ECC has an
account or safety deposit box, the identification number thereof, and the names
of all persons who are authorized to draw thereon or have access thereto; and
(iii) the names of all persons who have a power of attorney from ECC and a
summary of the terms thereof.
2.04 Financial Statements. Exhibit C to this Agreement contains the
balance sheets of ECC as of March 31, 2007, and the related statements of income
for the period then ended. The financial statements have been prepared in
accordance with generally accepted accounting principles consistently followed
by ECC throughout the periods indicated, and fairly present the financial
position of ECC as of the dates of the balance sheets included in the financial
statements, and the results of its operations for the periods indicated.
2.05 Absence of Changes. Since March 31, 2007 there has not been any
change in the financial condition or operations of ECC, except changes reflected
on Exhibit C or changes in the ordinary course of business, which changes have
not in the aggregate been materially adverse.
2.06 Absence of Undisclosed Liabilities. ECC did not as of March 31,
2007 have any material debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become due,
that is not reflected on Exhibit C.
2.07 Tax Returns. Within the times and in the manner prescribed by law,
ECC has filed all federal, state, and local tax returns required by law and has
paid all taxes, assessments, and penalties due and payable. No federal income
tax returns of ECC have been audited by the Revenue Canada. The provision for
taxes, if any, reflected in ECC 's balance sheet as of March 31, 2007, is
adequate for any and all federal, state, county, and local taxes for the period
ending on the date of that balance sheet and for all prior periods, whether or
not disputed. There are no present disputes as to taxes of any nature payable by
ECC.
2.08 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Endeavor
shall have the opportunity to meet with ECC 's accountants and attorneys to
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discuss the financial condition of ECC. ECC shall make available to Endeavor the
books and records of ECC. The minutes of ECC are a complete and accurate record
of all meetings of the members and managers of ECC and accurately reflect all
actions taken at such meetings. The signatures on such minutes are the valid
signatures of ECC's managers who were duly elected or appointed on the dates
that the minutes were signed by such persons.
2.09 Trade Names and Rights. Exhibit D attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by ECC. No person other than ECC owns any trademark, trademark
registration or application, service xxxx, trade name, copyright, or copyright
registration or application the use of which is necessary or contemplated in
connection with the operation of ECC 's business.
2.10 Contracts and Leases. Exhibit E attached hereto and made a part
hereof contains a summary of the provisions of all material contracts, leases,
and other agreements of ECC presently in existance or which have been agreed to
by ECC (whether written or oral). Except as disclosed on Exhibit E, ECC is not
in default under of these agreements or leases.
2.11 Insurance Policies. Exhibit F to this Agreement is a description
of all insurance policies held by ECC concerning its business and properties.
All these policies are in the respective principal amounts set forth in Exhibit
F and are in full force and effect.
2.12 Compliance with Laws. ECC has complied with, and is not in
violation of, applicable federal, state, or local statutes, laws, and
regulations affecting its properties or the operation of its business, including
but not limited to applicable federal and state securities laws. ECC does not
have any employee benefit plan which is subject to the provisions of the
Employee Retirement Income Security Act of 1974.
2.13 Litigation. ECC is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of ECC threatened, against or affecting ECC or
its business, assets, or financial condition. ECC is not in default with respect
to any order, writ, injunction, or decree of any federal, state, local, or
foreign court, department, agency, or instrumentality. ECC is not engaged in any
legal action to recover moneys due to ECC or damages sustained by ECC.
2.14 Ability to Carry Out Obligations. Subject to the approval of its
shareholders, ECC has the right, power, and authority to enter into, and perform
its obligations under, this Agreement. The execution and delivery of this
Agreement by ECC and the performance by ECC of its obligations hereunder will
not cause, constitute, or conflict with or result in (a) any breach or violation
or any of the provisions of or constitute a default under any license,
indenture, mortgage, charter, instrument, articles of organization, or other
agreement or instrument to which ECC is a party, or by which it may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
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other obligation of ECC, or (c) an event that would result in the creation or
imposition or any lien, charge, or encumbrance on any asset of ECC or would
create any obligation for which ECC would be liable, except as contemplated by
this Agreement.
2.15 Full Disclosure. None of representations and warranties made by
ECC, or in any certificate or memorandum furnished or to be furnished by ECC, or
on its behalf, contains or will contain any untrue statement of material fact,
or omit any material fact the omission of which would be misleading. ECC has
disclosed to Endeavor all reasonably foreseeable contingencies which, if such
contingencies transpired, would have a material adverse effect on ECC's
business.
2.16 Assets. Except as disclosed in Exibit C, ECC has good and
marketable title to all of its property.
Endeavor represents and warrants to ECC that:
2A. Organization. Endeavor is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the states where its business requires qualification, except in those
states where the failure to be so qualified would not have a material adverse
effect on Endeavor.
2B. Directors and Officers. Exhibit G to this Agreement contains: (i)
the names and titles of all directors and officers of Endeavor.
2C. Capital. The authorized capital stock of Endeavor consists of
150,000,000 shares of common stock. Immediately prior to closing _______________
shares of common stock will be issued and outstanding. All of the shares are
validly issued, fully paid, and non-assessable. At closing, there will be no
outstanding subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating Endeavor to issue or to transfer from
treasury any additional shares of its capital stock of any class except as
reflected on Exhibit H.
2D. Financial Statements. Exhibit I to this Agreement contains the
balance sheets of Endeavor as of March 31, 2007, and the related statements of
income and retained earnings for the period then ended. The financial statements
have been prepared in accordance with generally accepted accounting principles
consistently followed by Endeavor throughout the periods indicated, and fairly
present the financial position of Endeavor as of the dates of the balance sheets
included in the financial statements, and the results of its operations for the
periods indicated.
2E. Absence of Changes. Since March 31, 2007, there has not been any
change in the financial condition or operations of Endeavor, except (i) changes
in the ordinary course of business, which changes have not in the aggregate been
materially adverse, and (ii) changes disclosed on Exhibit I.
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2F. Absence of Undisclosed Liabilities. Endeavor did not as of March
31, 2007 have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit I.
2G. Tax Returns. Within the times and in the manner prescribed by law,
Endeavor has filed all federal, state, and local tax returns required by law and
has paid all taxes, assessments, and penalties due and payable, except where the
failure to file and/or pay would not have a material adverse effect on Endeavor.
No federal income tax returns of Endeavor have been audited by the Internal
Revenue Service. The provision for taxes, if any, reflected in Endeavor's
balance sheet as of March 31, 2007, is adequate for any and all federal, state,
county, and local taxes for the period ending on the date of that balance sheet
and for all prior periods, whether or not disputed. There are no present
disputes as to taxes of any nature payable by Endeavor.
2H. Investigation of Financial Condition of Endeavor. Without in any
manner reducing or otherwise mitigating the representations contained herein,
ECC shall have the opportunity to meet with Endeavor's accountants and attorneys
to discuss the financial condition of Endeavor. Endeavor shall make available to
ECC the books and records of Endeavor. The minutes of Endeavor are a complete
and accurate record of all meetings of the shareholders and directors of
Endeavor and accurately reflect all actions taken at such meetings. The
signatures of the directors and/or officers on such minutes are the valid
signatures of Endeavor's directors and/or officers who were duly elected or
appointed on the dates that the minutes were signed by such persons.
2I. Trade Names and Rights. Exhibit J attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by Endeavor. No person, other than Endeavor, will own any trademark,
trademark registration or application, service xxxx, trade name, copyright, or
copyright registration or application the use of which is necessary or
contemplated in connection with the operation of the business of Endeavor, as
such business is to be conducted after the closing of this transaction.
2J. Contracts and Leases. Exhibit K attached hereto and made a part
hereof contains a summary of the provisions of all material contracts, leases,
and other agreements of Endeavor presently in existence or which have been
agreed to by Endeavor (whether written or oral). Except as noted on Exhibit K,
Endeavor is not in default under any of these agreements or leases.
2K. Insurance Policies. Exhibit L to this Agreement is a description of
all insurance policies held by Endeavor concerning its business and properties.
All these policies are in the respective principal amounts set forth in Exhibit
L and are in full force and effect.
2L. Compliance with Laws. Endeavor has complied with, and is not in
violation of, applicable federal, state, or local statutes, laws, and
regulations affecting its properties or the operation of its business, including
but not limited to federal and state securities laws. Endeavor does not have any
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employee benefit plan which is subject to the provisions of the Employee
Retirement Income Security Act of 1974. Endeavor has filed with the Securities
and Exchange Commission ("SEC") and any applicable state securities agency, all
required forms, reports, schedules, statements and other documents
(collectively, the "SEC Documents"). The SEC Documents filed by Endeavor,
including without limitation any financial statements or schedules included
therein, at the time filed, (a) 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; and (b) complied in all material
respects with applicable federal and state securities laws, as the case may be,
and the rules and regulations of the SEC and any applicable state securities
agency. The financial statements of Endeavor included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the period involved (except as
may be indicated in the notes thereto) and fairly presented (subject, in the
case of the unaudited statements, to normal year-end audit adjustments) the
consolidated financial position of Endeavor as of the dates thereof and the
consolidated results of its operations and cash flows for the periods then
ended.
2M. Litigation. Other than as disclosed on Exhibit M, Endeavor is not a
party to any suit, action, arbitration, or legal, administrative, or other
proceeding, or governmental investigation pending or, to the best knowledge of
Endeavor threatened, against or affecting Endeavor or its business, assets, or
financial condition. Endeavor is not in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality. Endeavor is not engaged in any legal
action to recover moneys due to it or damages sustained by it other than as
disclosed on Exhibit M.
2N. Ability to Carry Out Obligations. Endeavor has the right, power,
and authority to enter into, and perform its obligations under, this Agreement.
The execution and delivery of this Agreement by Endeavor and the performance by
Endeavor of its obligations hereunder will not cause, constitute, or conflict
with or result in (a) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, by-law, or other agreement or instrument
to which Endeavor is a party, or by which it may be bound, nor will any consents
or authorizations of any party other than those hereto be required, (b) an event
that would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of Endeavor, or
(c) an event that would result in the creation or imposition or any lien,
charge, or encumbrance on any asset of Endeavor or would create any obligations
for which Endeavor would be liable, except as contemplated by this Agreement.
2O.Full Disclosure. None of representations and warranties made by
Endeavor, or in any certificate or memorandum furnished or to be furnished by
Endeavor, or on its behalf, contains or will contain any untrue statement of
material fact, or omit any material fact the omission of which would be
misleading. Endeavor has disclosed to ECC all reasonably foreseeable
contingencies which, if such contingencies transpired, would have a material
adverse effect on Endeavor.
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2P. Assets. Endeavor has good and marketable title to all of its
property.
ARTICLE III
SHAREHOLDER REPRESENTATIONS
Each shareholder of ECC represents to Endeavor that he or she has the
right, power, and authority to enter into, and perform his or her obligations
under this Agreement. The execution and delivery of this Agreement by such
shareholder and the delivery by such shareholder of his or her common stock in
ECC pursuant to Article I will not cause, constitute, or conflict with or result
in any breach or violation or any of the provisions of or constitute a default
under any license, indenture, mortgage, charter, instrument, or agreement to
which he or she is a party, or by which he or she may be bound, nor will any
consents or authorizations of any party be required. Each shareholder of ECC
represents and warrants to Endeavor that the common stock of ECC that such
shareholder will deliver at closing will be free of any liens or encumbrances.
Each shareholder of ECC understands that the shares being acquired from
Endeavor represent restricted securities as that term is defined in Rule l44 of
the Securities and Exchange Commission.
Each shareholder of ECC represents to Endeavor that the shareholder is
not relying on Endeavor or any officer, director, employee, attorney, accountant
or agent of Endeavor with respect to the tax consequences of the transactions
contemplated by this Agreement.
ARTICLE IV
OBLIGATIONS BEFORE CLOSING
4.0l Investigative Rights. From the date of this Agreement until the
date of closing, each party shall provide to the other party, and such other
party's counsel, accountants, auditors, and other authorized representatives,
full access during normal business hours to all of each party's properties,
books, contracts, commitments, records and correspondence and communications
with regulatory agencies for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs as
the other party may reasonably request.
4.02 Conduct of Business. Prior to the closing, and except as
contemplated by this Agreement, each party shall conduct its business in the
normal course, and shall not sell, pledge, or assign any assets, without the
prior written approval of the other party, except in the regular course of
business. Except as contemplated by this Agreement, ECC agrees that it shall not
amend its Articles of Incorporation, Articles of Organization, by-laws or
operating agreement, declare dividends, redeem or sell stock, or other
securities, incur additional or newly-funded material liabilities, acquire or
dispose of fixed assets, change senior management, change employment terms,
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enter into any material or long-term contract, guarantee obligations of any
third party, settle or discharge any balance sheet receivable for less than its
stated amount, pay more on any liability than its stated amount, or enter into
any other transaction other than in the regular course of business.
ARTICLE V
CONDITIONS PRECEDENT TO PERFORMANCE BY ENDEAVOR
5.01 Conditions. Endeavor's obligations hereunder shall be subject to
the satisfaction, at or before the Closing, of all the conditions set forth in
this Article V. Endeavor may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Endeavor of any other condition of or any of
Endeavor's other rights or remedies, at law or in equity, if ECC shall be in
default of any of its representations, warranties, or covenants under this
agreement.
5.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ECC in this Agreement or in any
written statement that shall be delivered to Endeavor by ECC under this
Agreement shall be true on and as of the closing date as though made at those
times.
5.03 Performance. ECC shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. ECC shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby.
5.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
5.05 Other. In addition to the other provisions of this Article V,
Endeavor's obligations hereunder shall be subject to the satisfaction, at or
before the Closing, of the following:
o The financial statements of ECC for the eight month period ended
December 31, 2006 will have been audited by an accouting firm
satisfactory to Endeavor.
o EEC will have title to the following oil and gas properties
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ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE BY ECC
6.01 Conditions. ECC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of the conditions set forth in this
Article VI. ECC may waive any or all of these conditions in whole or in part
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without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by ECC of any other condition of or any of ECC's other
rights or remedies, at law or in equity, if Endeavor shall be in default of any
of its representations, warranties, or covenants under this agreement.
6.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Endeavor in this Agreement or
in any written statement that shall be delivered to ECC by Endeavor under this
Agreement shall be true on and as of the closing date as though made at those
times.
6.03 Performance. Endeavor shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the closing.
Endeavor shall have obtained all necessary consents and approvals necessary to
consummate the transactions contemplated hereby.
6.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
6.05 Other. In addition to the other provisions of this Article VI,
ECC's obligations hereunder shall be subject to the satisfaction, at or before
the Closing, of the following:
o ___________________
ARTICLE VII
CLOSING
7.0l Closing. The closing of this transaction shall be held at the
offices of _______. Unless the closing of this transaction takes place before
July 30, 2007, then either party may terminate this Agreement without liability
to the other party, except as otherwise provided in Section 9.12. At the
closing, the following documents, in form reasonably acceptable to counsel to
the parties or as set forth herein, shall be delivered:
By ECC:
A. An officer's certificate, dated the closing date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of ECC are true and correct as of, or have been fully
performed and complied with by, the closing date.
By Endeavor:
A. An officer's certificate, dated the closing date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of Endeavor are true and correct as of, or have been fully
performed and complied with by, the closing date.
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7.02 Exchange of Securities. On the closing date, each share of ECC
then issued and outstanding will be exchanged for 90,000 fully paid and
nonassessable shares of Endeavor in accordance with Schedule 1 to this
Agreement.
7.03 Directors. At the closing of this Agreement Endeavor will appoint
Xxxxxxx Xxxx as a director. Following such appointment, all other officers and
directors of Endeavor will resign.
ARTICLE VIII
REMEDIES
8.01 Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Seattle, Washington in accordance with the rules of
the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8.02 Costs. (i) Each party will bear its own costs of and incidental to
the preparation and execution of this Agreement; (ii) If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
8.03 Termination. In addition to the other remedies, Endeavor or ECC
may on or prior to the closing date terminate this Agreement, without liability
to the other party:
(i) If any bona fide action or proceeding shall be pending against
Endeavor or ECC on the closing date that could result in an unfavorable
judgment, decree, or order that would prevent or make unlawful the carrying out
of this Agreement or if any agency of the federal or of any state government
shall have objected at or before the closing date to this acquisition or to any
other action required by or in connection with this Agreement;
(ii) If the legality and sufficiency of all steps taken and to be taken
by each party in carrying out this Agreement shall not have been approved by the
respective party's counsel, which approval shall not be unreasonably withheld.
(iii) If a party breaches any representation, warranty, covenant or
obligation of such party set forth herein and such breach is not corrected
within ten days of receiving written notice from the other party of such breach.
14
ARTICLE IX
MISCELLANEOUS
9.01 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
9.02 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
9.03 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, convenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
9.04 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
9.05 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements,
understandings and the letters of intent between the parties.
9.06 Governing Law. This Agreement and its application shall be
governed by the laws of Nevada.
9.07 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.08 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
15
Endeavor
--------
West 0000 Xxxxxxxxxx
Xxxxxxx, XX 00000
ECC
---
000-0 Xxxxxx XX
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
9.09 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
closing of this Agreement. In the event there is any material misrepresentation
or warranty of any party to this Agreement, then Endeavor (if such
misrepresentation is made by ECC or the ECC members) or the shareholders of ECC
( if such misrepresentation is made by Endeavor) may recind this Agreement
during the 90 day period following the closing of this Agreement.
9.11 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein. Neither party will
intentionally take any action, or omit to take any action, which will cause a
breach of such party's obligations pursuant to this Agreement.
9.12 Expenses. Each of the parties hereto agrees to pay all of its own
expenses (including without limitation, attorneys' and accountants' fees)
incurred in connection with this Agreement, the transactions contemplated herein
and negotiations leading to the same and the preparations made for carrying the
same into effect. Each of the parties expressly represents and warrants that no
finder or broker has been involved in this transaction and each party agrees to
indemnify and hold the other party harmless from any commission, fee or claim of
any person, firm or corporation employed or retained by such party (or claiming
to be employed or retained by such party) to bring about or represent such party
in the transactions contemplated by this Agreement.
16
AGREED TO AND ACCEPTED as of the date first above written.
ENDEAVOR ENERGY CORPORATION
(a Nevada Corporation)
By /s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx, President
FIRST ENDEAVOR HOLDINGS INC.
(an Alberta Corporation)
By /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx, President
ENDEAVOR ENERGY CORPORATION
(an Alberta Corporation)
By /s/ Xxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx, President
By /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx, V.P. Operations
By /s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx, V.P. Land
17
SCHEDULE 1
Shares in Shares in
Name ECC Endeavor
---- --------- ----------
18
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