PURCHASE AND SALE AGREEMENT
Exhibit
10.1
THIS
PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into by and
between SPQR Energy, Inc., a Texas corporation with offices at 00000 Xxxxx Xxxxx
Xx., Xxxxxxx, Xxxxx 00000, its parent and affiliates (hereinafter collectively
referred to as “Seller”) and Exobox Technologies Corp., a Nevada corporation
with offices at 0000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Buyer"),
effective the 22nd day of October, 2009.
W I T N E S S E T
H:
That
Seller desires to sell to Buyer and Buyer desires to purchase from Seller on the
terms set forth in this Agreement those certain oil and gas interests and
associated assets described herein. Accordingly, in consideration of
the mutual promises contained herein, the mutual benefits to be derived by each
party hereunder and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed to, Buyer and Seller
agree as follows:
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1.
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SALE
AND PURCHASE OF ASSETS
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1.1
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Assets To Be
Sold.
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1.1.1
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Seller
shall sell, transfer, assign, and deliver to Buyer, and Buyer shall
purchase and receive all of Seller's right, title, and interest in and to
the Assets set forth on Exhibit “A” attached
hereto.
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1.1.2
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The
transfer of the Assets shall occur and be made at Closing (as hereinafter
defined in Section 9.2.1), and title to the Assets shall be made effective
as of the Effective Date (as hereinafter defined in Section
2.2). Seller and Buyer shall execute such additional documents
as may be necessary to transfer the interests herein sold and purchased on
the records of any purchaser of hydrocarbons produced from or allocable to
the Assets.
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1.2
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Conveyancing
Instruments. The Assets to be conveyed by Seller to
Buyer pursuant to Section 1.1.1 shall be conveyed subject to the express
conditions, warranties and limitations contained in this
Agreement. The Assets to be transferred to Buyer pursuant to
Section 1.1.1 shall be transferred pursuant to an Assignment and Xxxx of
Sale.
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2.
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PURCHASE
PRICE AND EFFECTIVE DATE
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2.1
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Purchase
Price. As consideration for the sale of the Assets,
Buyer shall pay to Seller or its respective designee the purchase price
set forth in Exhibit “B” attached
hereto.
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2.2
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Effective Date of
Sale. The effective date of the sale of the Assets
described in Section 1.1, hereof, shall be as of 5:00 p.m. on October 22,
2009, Central Time Zone (the "Effective
Date”).
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3.
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ASSUMPTION
OF LIABILITIES AND
INDEMNIFICATION.
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3.1
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Abandonment
Obligations. Seller shall continue to operate the Assets
on behalf of Buyer after Closing pursuant to an industry standard
operating agreement and shall continue to be responsible for timely and
fully satisfying all Abandonment Obligations (as defined below) associated
with the Assets. As used herein, the term “Abandonment
Obligations” shall mean and include all obligations associated with and
liability for (i) the plugging and abandonment of the Xxxxx, (ii) the
removal of structures, facilities, foundations, wellheads, tanks,
pipelines, flowlines, pumps, compressors, separators, heater treaters,
valves, fittings and equipment and machinery of any nature located on or
used in connection with the Assets, and (iii) the clearance,
restoration and remediation of the surface and cleanup of the lands
covered by the Leases associated with the
Assets.
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3.2
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Contract
Obligations. Seller’s affiliates shall continue to serve
as the Operator for the Assets on and after the Effective Date, and shall
observe and comply with all covenants, terms, and provisions, express or
implied, contained in the Assumed Contracts and Buyer, subject to and
conditioned upon the occurrence of the closing, as of the Effective Date,
hereby assumes and agrees to be responsible for all obligations of Seller
accruing under such Assumed Contracts on or after the Effective
Date. If any agreement or contract which is not an Assumed
Contract and which materially affects the value of the Assets is
discovered by Buyer or brought to Buyer’s attention by a third party after
Closing, Seller and Buyer shall negotiate to resolve the assignment of
rights and the assumption of obligations under such agreement or
contract. In the event the parties are unable to agree, then
the matter shall be resolved by arbitration in accordance with provisions
of Section 10.3. Seller shall retain all obligations and liabilities under
any such disputed contract during the pendency of
arbitration.
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3.3
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Buyer’s General
Indemnification. Buyer shall indemnify, defend and hold
Seller, its directors, officers, employees, agents and representatives and
affiliated or parent companies (which additional parties are hereinafter
collectively referred to as the “Seller’s Parties”) harmless from any and
all Claims (as hereinafter defined) arising out of, related to or
connected with Buyer’s ownership of the Assets on or after the Effective
Date, or arising out of any of the obligations or liabilities assumed by
Buyer hereunder. As used in any provision of this
Agreement, “Claims” shall mean all liabilities, losses, costs,
damages, fees and expenses (including, without limitation, expenses
associated with investigation of claims, testing, assessment and remedial
actions), penalties, fines, obligations, judgments, costs of
investigation, attorney’s fees, expert’s fees and disbursements of any
kind or of any nature whatsoever, claims, actions, causes of action,
demands, filings, investigations, and all costs of any administrative
proceedings, arbitrations, settlements, mediations, suits or other legal
proceedings.
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3.4
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Assumption
and Indemnification of Environmental Risk and Environmental Liabilities by
Buyer. Buyer shall assume
full responsibility for, and shall comply with and perform all
environmentally-related duties and obligations with respect to the Assets
for periods of time from and after the Effective Date and shall indemnify,
defend and hold harmless Seller from and against any and all Claims under
any Environmental Law (hereafter defined) with respect to the Assets for
periods of time from and after the Effective Date. The term
“Environmental Law” here and in Section 4.6 means the Occupational Safety
and Health Act, 29 U.S.C.A. §651, et
seq.; the Resource
Conservation and Recovery Act, 42 X.X.X.X. §0000, et
seq.; the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
X.X.X.X. §0000, et
seq.; the Clean
Xxxxx Xxx, 00 X.X.X.X. §0000 et
seq.; the Clean
Air Act, 42 X.X.X.X. §0000, et
seq.; the Safe
Drinking Xxxxx Xxx, 00 X.X.X.X. §0000, et
seq.; the Toxic
Substances Control Act, 15 U.S.C.A. §2601 et
seq.; the Oil
Pollution Act of 1990, 33 U.S.C.A. §2701 et
seq.; and all
rules, regulations and orders adopted under the foregoing statutes
applicable to any waste material, produced water, tank bottoms, sludge, or
constituents thereof, radioactive materials, or hazardous substances on or
included with the Assets or the presence, disposal, release or threatened
release of all waste material, produced water, tank bottoms, sludge, or
constituents thereof, radioactive materials, or hazardous substances on,
included with, or from the Assets into the atmosphere or in or upon land
or any water course or body of water, whether above or below the ground,
and all other federal, state and local environmental and oil and gas laws
and regulations, as well as all acts, laws, and regulations amendatory or
supplemental thereto. As of the Effective Date,
Seller represents that it not aware of any breach of any Environmental Law
pertaining to the Assets.
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3.5
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Nothing
contained in this section 3 shall act as a release or waiver of Seller for
any acts or conditions in existence prior to the Effective
Date.
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3.6
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Buyer
expressly acknowledges and agrees that Xxxxxxx X. Xxxxx has acted solely
in his capacity as President and CEO of Seller, and not individually, with
respect to this transaction and has no personal responsibility,
involvement or liability for this matter in his individual
capacity.
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4.
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TAXES
AND PAYABLES
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4.1
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Payment of
Taxes. All real estate, occupation, ad valorem, Equipment taxes and
charges on any of the Assets, whether past, present or future, known or
unknown, matured or unmatured, shall be prorated between Buyer and Seller
as of the Effective Date. Buyer shall be responsible for all
oil and gas production taxes, severance taxes, windfall profits taxes, and
any other similar taxes applicable to the Assets arising after the
Effective Date. Both of the parties believe that the sale of the Assets is
one occasional sale exempt from sales or use taxes. In the
event that any such taxes would be assessed against the transaction,
however, Buyer assumes the sole risk and responsibility therefor and shall
be solely responsible for all such
taxes.
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5.
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REPRESENTATIONS
AND WARRANTIES
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5.1
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Seller's
Representations and Warranties. Seller represents and
warrants to Buyer that, as of the date hereof and as of
Closing, the following statements are
accurate:
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5.1.1
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Formation. Seller
is a corporation duly organized and validly existing, in good standing,
under the laws of the State of Texas. Seller has the corporate power and
authority to own the Assets and to carry on its business as now conducted
and to enter into and to carry out the terms of this
Agreement.
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5.1.2
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Authorization. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on behalf of Seller and Seller is not subject
to any charter, by-law, lien, or encumbrance of any kind, agreement,
instrument, order, or decree of any court or governmental body (other
than any governmental approval required) which would prevent consummation
of the transactions contemplated by this
Agreement.
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5.1.3
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No
Brokers. Seller is not a party to, or in any way
obligated under, nor does Seller have any knowledge of, any contract or
outstanding claim for the payment of any broker's or finder's fee in
connection with the origin, negotiation, execution, or performance of this
Agreement for which Buyer will have any
liability.
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5.1.4
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Asset
Value. As of the Effective Date, Seller warrants and
guarantees that the Assets shall have a minimum fair market value of at
least $22,500,000. The term “fair market value” as used herein means the
Present Value Discounted by 10% as used by the NYMEX (PV10). In the event
that the fair market value of the Assets as of the Effective Date is
determined to be less than $22,500,000 pursuant to the third party Reserve
Report provided by Seller and acceptable to Buyer, then the parties agree
that the purchase Price for the Assets shall be adjusted accordingly and
the parties shall execute such documents as are reasonably necessary to
accomplish such adjustment. Seller further represents and warrants that
there is no pending or threatened environmental claim or dispute under any
Environmental Law and to the best of Seller’s good faith knowledge and
belief, none is likely to occur as a result of all facts known to Seller
about the Assets.
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5.2
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Buyer's
Representations and Warranties. Buyer represents and
warrants to Seller that, as of the date hereof and as of Closing, the
following statements are accurate:
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5.2.1
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Formation. Buyer
is a corporation duly organized and validly existing, in good standing,
under the laws of the State of Nevada and is or will be prior to Closing,
duly qualified to carry on its business in each of the states in which it
is required to be qualified and has the corporate power and authority to
own its property and to carry on its business as now conducted and to
enter into and to carry out the terms of this Agreement and the
transactions contemplated by this
Agreement.
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5.2.2
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Authorization. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on behalf of Buyer and Buyer is not subject to
any charter, by-law, lien or encumbrance of any kind, agreement,
instrument, order or decree of any court or governmental body which
would prevent consummation of the actions contemplated by this
Agreement.
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5.2.3
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No
Brokers. Buyer is not a party to, or in any way
obligated under, nor does Buyer have any knowledge of, any contract or
outstanding claim for the payment of any broker's or finder's fee in
connection with the origin, negotiation, execution, or performance of this
Agreement for which Seller will have any
liability.
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5.2.4
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DISCLAIMER
OF WARRANTY BY SELLER. EXCEPT AS EXPRESSLY PROVIDED
IN THIS AGREEMENT, SELLER MAKES THIS SALE OF THE
ASSETS TO BUYER WITHOUT ANY WARRANTY AS TO THE CONDITION OF THE ASSETS,
INCLUDING ABSENCE OF VICES OR DEFECTS (WHETHER APPARENT OR LATENT, KNOWN
OR UNKNOWN, EASILY DISCOVERABLE OR HIDDEN), FITNESS FOR ANY ORDINARY USE,
OR FITNESS FOR ANY INTENDED USE OR PARTICULAR PURPOSE, EVEN FOR RETURN OR
REDUCTION OF THE PURCHASE PRICE OR OTHERWISE, IT BEING UNDERSTOOD THAT
BUYER TAKES THE ASSETS "AS IS" AND "WHERE IS". IN ADDITION,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BUYER ACKNOWLEDGES THAT
SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OF THE ASSETS,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO
ABSENCE OF VICES OR DEFECTS (WHETHER APPARENT OR LATENT, KNOWN OR UNKNOWN,
EASILY DISCOVERABLE OR HIDDEN), FITNESS FOR ANY ORDINARY USE, FITNESS FOR
ANY INTENDED USE OR PARTICULAR PURPOSE, TAX CONSEQUENCES, ENVIRONMENTAL
CONDITION. IN
ADDITION, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS
TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS,
PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS SALE,
INCLUDING WITHOUT LIMITATION, THE QUALITY, QUANTITY OR ENVIRONMENTAL
CONDITION OF THE ASSETS OR ANY OTHER MATTERS CONTAINED IN THE DATA OR ANY
OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY SELLER, ITS
AGENTS, REPRESENTATIVES OR EMPLOYEES. ANY AND ALL SUCH DATA,
RECORDS, REPORTS, PROJECTIONS, INFORMATION AND OTHER MATERIALS FURNISHED
BY SELLER OR OTHERWISE MADE AVAILABLE TO BUYER ARE PROVIDED TO BUYER AS A
CONVENIENCE, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SHALL NOT
CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST
SELLER.
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6.
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DUE
DILIGENCE REVIEW.
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6.1
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Review By
Buyer. Buyer may conduct, at its sole cost, such title
examination or investigation, and other examinations and investigations,
as it may in its sole discretion choose to conduct with respect to the
Assets in order to determine whether defects exist. Should, as
a result of such examinations and investigations, or otherwise, one or
more matters come to Buyer’s attention which would constitute a material
defect resulting in Buyer’s decision to terminate this Agreement and not
to close the transactions contemplated herein, Buyer shall promptly notify
Seller in writing (a “Notice”) of all such defects and of Buyer’s decision
to terminate this Agreement.
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6.2
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Stock
Split. Prior to the date on which the Assumed Debt set
forth in Exhibit “B” is paid in full, Buyer shall not make any reverse
split of any class of its stock or otherwise take any action to combine
any class of its stock into a smaller number of shares without Seller’s
prior, express written consent.
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6.3
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Access by
Buyer.
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(i)
Records. Seller
agrees that it will give Buyer, or Buyer’s authorized representatives, at
Seller’s office and at all reasonable times before the Closing Date, access to
Seller’s records pertaining to the ownership and operation of the Assets
(including, without limitation, title files, division order files, general
financial and tax accounting records, well files, health, safety and
environmental records, lease files, abstracts, production records, joint
interest billing records, records relating to platform and pipeline
construction, operation and maintenance and production, severance and ad valorem
tax records), for the purpose of conducting due diligence reviews contemplated
in Section 7. Buyer may make copies of such records, at its expense,
but shall, if Seller so requests, return all copies so made if the Closing does
not occur; all costs of copying such items shall be borne by
Buyer. Seller shall not be obligated to provide Buyer with access to
any records or data which Seller cannot provide to Buyer without, in its
opinion, breaching, or risking a breach of, agreements with other parties, or
waiving, or risking waiving, legal privilege.
(ii) Physical
Inspection. Seller shall give Buyer, or Buyer’s authorized
representatives, at all reasonable times before the Closing Date, physical
access to the Assets for the purpose of inspecting same. Buyer agrees
to comply fully with all reasonable rules, regulations and instructions issued
by Seller regarding the actions of Buyer while upon, entering or leaving the
Assets.
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6.4
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Operation of the
Assets: Seller currently is the operator for the
Assets. From and after the Effective Date, Seller shall remain as Operator
of the Assets pursuant to the terms and conditions of an industry-standard
Oil & Gas Operating Agreement to be approved by both Buyer and Seller.
Seller may not be removed as Operator of the Assets unless and until the
Bank debt related to the Assets is paid in full and/or Seller is released
by the Bank with respect thereto.
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7.
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CLOSING,
TERMINATION AND FINAL
ADJUSTMENTS
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7.1
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Conditions
Precedent. Each party’s obligation to consummate the
transactions contemplated by this Agreement is subject to the satisfaction
or waiver by the other party of the following
conditions:
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7.1.1
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Each
party shall have performed and complied with all terms of this Agreement
required to be performed or complied with by it at or prior to
Closing.
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7.1.2
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No
action or proceeding by or before any governmental authority shall have
been instituted or threatened (and not subsequently dismissed, settled or
otherwise terminated) which might restrain, prohibit or invalidate any of
the transactions contemplated by this Agreement, other than an action
or proceeding instituted or threatened by a party or any of its
affiliates.
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7.1.3
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The
representations and warranties contained in Sections 5 and 6 shall be true
and correct in all material respects on the Closing Date as though made on
and as of the Closing Date.
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7.1.4
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All
consents under any of the Assumed Contracts have been obtained by the
Seller.
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7.2
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Closing.
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7.2.1
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The
Closing of the transactions contemplated herein and the transfer of the
Assets shall occur on October 22, 2009, at 5:00 p.m., Central Daylight
Time, or such other date, time, and place as Seller and Buyer may agree in
writing (the "Closing").
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7.2.2
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At
Closing, the following shall occur:
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7.2.2.1
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Buyer
and Seller shall execute and acknowledge Assignments in the form and
substance sufficient to convey title to the Assets in accordance with the
terms of this Agreement;
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7.2.2.2
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Buyer
and Seller shall execute and acknowledge any such other instruments as are
reasonably necessary to effectuate the conveyance of the Assets to Buyer,
including without limitation, separate assignments of the Assets on
officially approved forms in sufficient counterparts to satisfy applicable
statutory and regulatory requirements for the transfer of the Assets;
and
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7.2.2.3
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At
the Closing, upon and against delivery of the documents and materials
described in this Section, Buyer shall pay to Seller the Purchase
Price.
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7.3
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Termination. This
Agreement and the transactions contemplated hereby may be terminated in
writing, properly noticed, with or without cause, by Buyer or Seller at
any time on or before the Closing. In the event of any such termination by
either party, each party shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated herein,
and neither party shall have any liability or obligation to the other in
connection with this Agreement or the transactions contemplated
herein.
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8.
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MISCELLANEOUS
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8.1
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Books and
Records. Seller shall deliver to Buyer at Closing or within three
(3) business days thereafter the
Records.
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8.2
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Publicity. Seller
and Buyer shall each have the right to file one or more press releases
related to this Agreement and the transactions contemplated herein.
Provided, however, that no such press release shall be issued by either
party without the express written approval of the other. Provided further
that Seller shall have the unilateral right to file an 8-K with the SEC
after Closing, announcing this
transaction.
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8.3
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Entire
Agreement. This Agreement constitutes the entire
agreement between Seller and Buyer with respect to the transactions
contemplated herein, and supersedes all prior oral or written agreements,
commitments, understandings, or information otherwise furnished by either
party to the other with respect to such matters. No amendment,
waiver or modification shall be binding unless in writing and signed by
both parties. Headings used in this Agreement are only for
convenience of reference and shall not be used to define the meaning of
any provision. This Agreement is for the benefit of Seller and
Buyer only and not for the benefit of third
parties.
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8.4
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Notices. All
notices and consents to be given hereunder shall be in writing and shall
be deemed to have been duly given if delivered either by personal
delivery, telex, telecopy or similar facsimile means, by certified or
registered mail, return receipt requested, or by courier or delivery
service, addressed to the parties hereto at the following
addresses:
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If
to Buyer:
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If
to Seller:
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SPQR
Energy, Inc.
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0000
Xxxx Xxxx, Xxxxx 000
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00000
Xxxxx Xxxxx Xx.
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Xxxxxxx,
Xxxxx 00000
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Xxxxxxx,
Xxxxx 00000
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Attn.:
Xxxx Xxxxxxxx
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Attn.:
Xxxxxxx X. Xxxxx
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Phone:
(000) 000-0000
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Phone:
(000) 000-0000
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Fax: (000)
000-0000
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Fax: (000)
000-0000
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or at
such other address and number as either party shall have previously designated
by written notice given to the other party in the manner herein above set
forth. Notices shall be deemed given when received, if sent by
facsimile means (confirmation of such receipt by confirmed facsimile
transmission being deemed receipt of communications); and when delivered and
receipted for (or upon the date of attempted delivery where delivery is
refused), if hand-delivered, sent by express courier or delivery service, or
sent by certified or registered mail, return receipt requested.
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8.5
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Governing
Law. Except as otherwise set forth herein, this
Agreement shall be governed by the laws of the State of Texas applicable
to contracts to be wholly performed within Texas without regard to any
conflicts or choice of law principles of Texas or any other
jurisdiction. The validity of the conveyances affecting the
title to real property shall be governed by and construed in accordance
with the laws of the jurisdiction in which such property is
situated.
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8.6
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Confidentiality.
Buyer acknowledges that all information furnished or disclosed by Seller
pursuant hereto must remain confidential prior to
Closing. Buyer may disclose such information only to its
subsidiaries or affiliates, agents, advisors, counsel or representatives
(herein "Representatives") who have agreed, prior to being given access to
such information, to be bound by the terms of this Agreement as its bears
upon confidential information and requirements of confidentiality found
herein. In the event that Closing of the transactions contemplated by this
Agreement does not occur for any reason, Buyer and its Representatives
shall promptly return to Seller all non-proprietary or non-interpretive
materials and information, including any notes, summaries, compilations,
analyses or other material derived from the inspection or evaluation of
such material and information, without retaining copies
thereof.
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8.7
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Survival. The
terms and provisions of this Agreement shall survive the Closing and shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, sublessees and
assigns.
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8.8
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Further
Cooperation. After the Closing, each party shall
execute, acknowledge, and deliver all documents, and take all such acts
which from time to time may be reasonably requested by the other party in
order to carry out the purposes and intent of this
Agreement.
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8.9
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Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing the
facsimile signature of a party hereto shall constitute a valid and binding
execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents. In
making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by each
party.
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8.10
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Exhibits. All
of the Exhibits referred to in this Agreement are hereby incorporated into
this Agreement by reference and constitute a part of this
Agreement. Each party to this Agreement and its counsel has
received a complete set of Exhibits prior to and as a part of the
execution of this Agreement.
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8.11
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Severability.
If any term or provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, all other conditions and
provisions of the Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transaction
contemplated hereby is not affected in any materially adverse manner to
the other party.
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8.12
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Expenses and
Recording. Except as otherwise specifically provided,
all fees, costs and expenses incurred by Buyer or Seller in negotiating
this Agreement or in consummating the transactions contemplated by this
Agreement shall be paid by the party incurring the same, including,
without limitation, legal and accounting fees, costs and
expenses. Buyer shall be responsible for the filing and
recording of the Assignments and other instruments required to convey
title to the Assets to Buyer. Buyer shall bear all required documentary,
filing and recording fees and expenses incurred in connection
therewith.
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8.13
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CONSPICUOUSNESS/EXPRESS
NEGLIGENCE. THE
DEFENSE, INDEMNIFICATION AND HOLD HARMLESS PROVISIONS PROVIDED FOR IN THIS
AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT THE DAMAGES, LOSSES,
INJURIES, LIABILITIES, COSTS OR EXPENSES IN QUESTION AROSE SOLELY OR IN
PART FROM THE ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY
OR OTHER FAULT OF ANY INDEMNIFIED PARTY. BUYER AND SELLER
ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE
AND IS CONSPICUOUS.
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NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, WHETHER ARISING IN TORT, CONTRACT, UNDER
ANY STATUTE, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. THE PARTIES
INTEND THAT THE LIMITATIONS UNDER THIS SECTION 8.14 IMPOSED ON REMEDIES AND THE
MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO,
INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF ANY PARTY,
WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE.
IN
WITNESS WHEREOF, the Parties hereto have caused their authorized representatives
to execute this Agreement effective on the date first above
written.
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SELLER:
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BUYER:
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| SPQR Energy, Inc. | ||||
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By:
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By:
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Xxxxxxx
X. Xxxxx, President
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Xxxxx
X. Xxxxx, President
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EXHIBIT
“A”
Assets
Subject
to the Assumed Debt described in Exhibit “B”, Seller shall sell, transfer,
assign, and deliver to Buyer, and Buyer shall purchase and receive all of
Seller's right, title, and interest in and to the following sixteen (16) oil
and/or gas xxxxx described in the real property records of their
respective counties in Ohio, effective as of the Effective Date
herein:
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1.
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Xxxxx
R&G #1-K Well,
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API
No. 3400724268, 80.176650% Seller’s Net Revenue Interest sold
to Buyer;
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2.
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Xxxxxxxxx
#2 Well,
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API
No. 3405921698, 27.343750% Seller’s Net Revenue Interest sold
to Buyer;
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3.
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Xxxxxx
#1 Well,
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API
No. 3405921244, 84.765600% Seller’s Net Revenue Interest sold
to Buyer;
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4.
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Xxxxxx
L #1 Well,
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API
No. 3409920404, 26.486250% Seller’s Net Revenue Interest sold
to Buyer;
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5.
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Xxxxx
#1 Well,
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API
No. 3409920237, 38.281250% Seller’s Net Revenue Interest sold
to Buyer;
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6.
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Xxxxxxxx
C #1 Well,
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API
No. 3409920236, 38.281250% Seller’s Net Revenue Interest sold
to Buyer;
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7.
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Xxxxxx
Unit #1 Well,
|
API
No. 3409920430, 26.486250% Seller’s Net Revenue Interest sold
to Buyer;
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8.
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Xxxxxxxx
#1 Well,
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API
No. 3409920403, 26.486250% Seller’s Net Revenue Interest sold
to Buyer;
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9.
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Radcliffe
D #1 Well,
|
API
No. 3411923190, 81.675000% Seller’s Net Revenue Interest sold
to Buyer;
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10.
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Xxxxxx
#1 Well,
|
API
No. 3413322175, 83.851070% Seller’s Net Revenue Interest sold
to Buyer;
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11.
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Xxxxx
M #1 Well,
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API
No. 3413321783, 84.937500% Seller’s Net Revenue Interest sold
to Buyer;
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12.
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Xxxxxxx
Unit #1 Well,
|
API
No. 3415123128, 83.851070% Seller’s Net Revenue Interest sold
to Buyer;
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13.
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Xxxxxx
R #1 Well,
|
API
No. 3415723291, 84.937500% Seller’s Net Revenue Interest sold
to Buyer;
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14.
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Xxxxxx
R #1A Well,
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API
No. 3415723292, 84.937500% Seller’s Net Revenue Interest sold
to Buyer;
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15.
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Hardorn
Xxxxxx Unit #1 Well,
|
API
No. 3415723290, 84.937500% Seller’s Net Revenue Interest sold
to Buyer;
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16.
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XX
Xxxxx #1 Well,
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API
No. 3415723554, 85.158170% Seller’s Net Revenue Interest
sold to Buyer
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In
addition to the above referenced xxxxx, and subject to the Assumed Debt
described in Exhibit “B”, the Assets include all of Seller’s right, title and
interest in and to:
a. all of
the oil and gas leases, agreements, lands and/or properties listed and described
below (including any renewals, extensions, ratifications and amendments to such
interests (collectively, "Leases");
b. all
oil and gas xxxxx, salt water disposal xxxxx, injection xxxxx and other xxxxx,
including the 16 xxxxx identified above, located on or associated with the
Leases (collectively the "Xxxxx");
c. all
structures, facilities, foundations, wellheads, tanks, pumps, compressors,
separators, heater treaters, valves, fittings, equipment, machinery, fixtures,
flowlines, pipelines, platforms, tubular goods, materials, tools, supplies,
improvements, and any other real, personal, immovable and mixed property located
on, used in the operation of, or relating to the production, treatment,
non-regulated transportation, gathering, marketing, sale, processing, handling
or disposal of hydrocarbons, water, and associated substances produced from the
Leases (the “Equipment”);
d. all
natural gas, casinghead gas, drip gasoline, natural gasoline, natural gas
liquids, condensate, products, crude oil and other hydrocarbons, whether gaseous
or liquid, produced from or allocable to the Assets (as hereinafter
defined) on and after the Effective Date (the "Hydrocarbons");
e. to
the extent transferable, all contracts, permits, rights-of-way, easements,
licenses, servitudes, transportation agreements, pooling agreements, operating
agreements, gas balancing agreements, farm-in agreements pertaining to the
Assets, INSOFAR ONLY as they directly relate and are attributable to the Leases,
Xxxxx, Hydrocarbons, or Equipment or the ownership or operation thereof, or the
production, treatment, non-regulated transportation, gathering, marketing, sale,
processing, handling or disposal treatment, sale, storage transportation,
processing, handling or disposal of hydrocarbons, water, or substances
associated therewith (the "Assumed Contracts"); and
f. records
relating to the Leases, Xxxxx, Hydrocarbons, Assumed Contracts and
Equipment in the possession of Seller (the “Records”)and including as
follows: all (i) lease, land, and division order files (including any abstracts
of title, title opinions, certificates of title, title curative documents, and
division orders contained therein), (ii) the Assumed Contracts; (iii) all well,
facility, operational, environmental, regulatory, compliance and historic
production files and (iv) all geological files relating to the Leases (the
“Geologic Data”), but not including any records which (i) Seller is prohibited
from transferring to Buyer by law or existing contractual relationship, or which
(ii) constitute Excluded Assets (as hereinafter defined in Section
1.2).
All such
Leases, Xxxxx, Equipment, Hydrocarbons, Assumed Contracts, and Records are
hereinafter collectively referred to as the "Assets."
EXHIBIT
“B”
Purchase
Price
As consideration for the sale of the
Assets, Buyer shall pay to Seller or its designee(s) at Closing, the
following:
1. A
five (5) year $1,500,000 convertible promissory note at seven point five percent
(7.5%) annual interest, with a conversion price of $0.21 per share. Interest
shall be payable in cash or unrestricted Exobox Technologies Corp. common stock
at Seller’s sole option;
2. 1,163,00
shares of Exobox Technologies Corp. Series E convertible preferred stock, stated
value $10.00 per share (the “Original Issue Price”) for a total aggregate value
of $11,630,000, convertible to 24,357,143 shares of Exobox Technologies Corp.
common stock at $0.477 per share, with a seven point five percent (7.5%) annual
coupon which shall be payable in cash or unrestricted Exobox Technologies Corp
common stock at Seller’s sole option; and
3. 3,000,000
shares of Rule 144 restricted Exobox Technologies Corp. common stock, for which,
and for any other common stock issued to Seller, Buyer will cause the
law firm of Xxxxxx & Xxxxxxxxx, P.C. to prepare a registration
statement for filing with the SEC within ten (10) business days of filing
related audited financials; and
4. Buyer’s
assumption of $3 million in total debt relating to the Assets, comprised of
$2,800,000 in debt owed to Park City Bank, N.A. pursuant to its lien on the
Assets (“Bank Debt”) and $ 200,000 in other payables pertaining to the Assets
(“Payables”) (collectively the “Assumed Debt”). Provided further, that upon the
closing after October 22, 2009 of (i) any debt financing of $10,000,000 or more
either by Buyer or its subsidiaries or the last of any such debt financings
which taken together equal $10,000,000 or more either by Buyer or its
subsidiaries, or (ii) any equity financing of $8,000,000 or more by Buyer or its
subsidiaries or the last of any such equity financings which taken together
equal $8,000,000 or more either by Buyer or its subsidiaries, or (iii) the last
of any combination of debt financings and equity financings either by the
Company or its subsidiaries which taken together equal $8,000,000.00 or more (a
“Redemption
Event”), Buyer shall pay in full all of the principal and interest then
accrued and unpaid on this Assumed Debt contemporaneously with such
closing. Also, upon the closing of an equity financing (or a series
of equity financings) after October 22, 2009 less than $8,000,000 by Buyer or
its subsidiaries (a “Partial Redemption
Event”), Buyer shall pay at such closing an amount equal to 33% of the
proceeds of the financing or series of financings and such amount shall be
applied first to accrued interest then unpaid and next to principal related to
the Assumed Debt, as set forth below. Provided further, that in the
event that Buyer generates average monthly income of at least $100,000 per month
for any 2 consecutive months, then Buyer shall apply 50% of all such income
above an average of $100,000 per month toward paying the outstanding interest
and principal on the Assumed Debt. All debt reduction payments described herein,
if any, shall be applied seventy percent (70%) to the Payables and thirty
percent (30%) to the Bank Debt. Once all Payables are satisfied or otherwise
extinguished, all debt reduction payments shall be applied to the reduction of
the Bank Debt.
