MEMBERSHIP INTEREST PURCHASE AGREEMENT
This
PURCHASE AGREEMENT (“Agreement”) dated July 1, 2010 (the “Closing Date”) is made
by and between the undersigned sellers (“Sellers”) of membership interests of
AACM3, L.L.C., a Texas limited liability company doing business as Petro 2000
Exploration (“Petro 2000”) and membership interests of PetroGreen Energy, LLC, a
Nevada limited liability company (“PetroGreen”), and Adino Energy Corporation, a
Montana corporation with its principal place of business at 0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (“Purchaser”).
WITNESSETH
WHEREAS,
Sellers own one hundred percent (100%) of the membership interests of Petro 2000
and PetroGreen;
WHEREAS,
Petro 2000 and PetroGreen are engaged in the exploration and production of oil
and gas throughout Texas; and
WHEREAS,
Purchaser desires to purchase 100% of the membership interests of Petro 2000 and
PetroGreen and continue the operations of Petro 2000 and
PetroGreen;
NOW,
THEREFORE, in consideration of the representations, warranties, promises,
covenants, and agreements hereinafter contained and intending to be legally
bound, the parties hereby agree as follows:
ARTICLE
I
SALE
AND PURCHASE OF MEMBERSHIP INTERESTS
1.1 Sale and Purchase of
Membership Interests. Upon the terms and subject to the
conditions contained herein, on the Closing Date, Sellers shall sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall purchase, acquire
and accept from Sellers, all of Sellers’ right, title, ownership and interest in
and to Sellers’ membership interests in Petro 2000 and PetroGreen (the
“Membership Interests”). Sellers represent and warrant that they have full legal
and beneficial title to the Membership Interests and that the Membership
Interests are free and clear of any liens, security interests, or other
encumbrances.
ARTICLE
II
PURCHASE
PRICE
2.1 Amount of Purchase
Price. The purchase price for the Membership Interests shall be ten
million (10,000,000) shares of Purchaser’s common stock, $0.001 par value (the
“Stock”).
2.2 Issuance and Escrow of
Stock.
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(a) On
the date hereof, Purchaser shall instruct its transfer agent to issue stock
certificates to the Sellers in the share amounts listed on Exhibit A (the “Stock
Certificates”). The Stock Certificates shall be issued in the names of the
Sellers (or their designees); however, the Stock Certificates will be sent to
and held in escrow by Xxxxxxx LLP Attorneys at Law as escrow agent (“Escrow
Agent”). The Stock Certificates will contain a restrictive legend prohibiting
the sale of the Stock unless the Stock is registered pursuant to the Securities
Act of 1933 or pursuant to an applicable exemption therefrom.
(b) On
any date following the date that the closing price of Purchaser’s common stock
on the Over the Counter Bulletin Board is twenty five cents ($0.25) per share or
greater (“Escrow Release Price”), the Sellers may request the Escrow Agent to
release the Stock Certificates belonging to each Seller from escrow. Upon
confirmation that the Escrow Release Price has been met, the Escrow Agent will
release the Stock Certificates from Escrow as requested by the
Sellers.
(c) The
Escrow Agent shall have no liability to any person other than as set forth in
Section 2.2(a) and 2.2(b).
ARTICLE
III
CLOSING
3.1 Closing. The
transactions contemplated by this Agreement shall close upon execution of this
Agreement (“Closing”).
3.2 Closing
Obligations.
At the
Closing:
(a)
Sellers will deliver (or cause to be delivered) to Purchaser:
(i) any
certificates representing the Membership Interests, which certificates shall be
endorsed and assigned to the Purchaser at Closing, or if the Membership
Interests are not certificated, a transfer document executed by Sellers
transferring all ownership in the Membership Interests of Petro 2000 and
PetroGreen;
(ii) such
other documents as required by this Agreement; and
(iii)
such other documents as Purchaser may reasonably request.
(b)
Purchaser will deliver (or cause to be delivered) to Sellers:
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(i) a
letter instructing its transfer agent to issue the Stock to the Sellers and to
deliver the Stock Certificates to the Escrow Agent;
(ii) such
other documents as required by this Agreement; and
(iii)
such other documents as Sellers may reasonably request.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES BY SELLERS
Sellers
represent and warrant to Purchaser as follows:
4.1 Organization, Powers and
Qualifications. Petro 2000 is a limited liability company duly
organized and validly existing under the laws of the State of Texas and has all
requisite corporate power and authority to own its properties and assets and
carry on its business as now conducted. PetroGreen is a limited liability
company duly organized and validly existing under the laws of the State of
Nevada and has all requisite corporate power and authority to own its properties
and assets and carry on its business as now conducted, except as set forth in
Exhibit B.
4.2 Membership Interests.
The Membership Interests owned by the Sellers represent 100% of the Membership
Interest of Petro 2000 and PetroGreen. All of said Membership Interests are
validly issued, fully paid, and non-assessable. There are no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating Petro 2000 or PetroGreen to issue any
additional Membership Interests.
4.3 Authorization of
Agreement. Sellers have all requisite power, authority and legal capacity
to execute and deliver this Agreement, and each other agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
Sellers in connection with the consummation of the transactions contemplated by
this Agreement (together with this Agreement, the “Sellers’ Documents”), and to
consummate the transactions contemplated hereby and thereby. Each of Sellers’
Documents are duly and validly executed by Sellers and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto)
this Agreement constitutes, and each of Sellers’ Documents constitute, legal,
valid and binding obligations of Sellers and the Purchaser, enforceable against
Sellers in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity.
4.4 Conflicts; Consents of Third
Parties. The execution, delivery or performance by Sellers of this
Agreement, the Sellers’ Documents, the consummation of the transactions
contemplated hereby or thereby, or compliance by Sellers with any of the
provisions hereof or thereof will not (i) conflict with, violate, result in the
breach or termination of, or constitute a default under any note, bond,
mortgage, indenture, agreement or other instrument or obligation to which Petro
2000 or PetroGreen are a party or by which they are bound; (ii) violate any
statute, rule, regulation, order or decree of any governmental body or authority
by which Petro 2000 and Xxxxx Xxxxx are bound; or (iii) result in the creation
of any lien, charge or encumbrance upon the assets of Petro 2000 and
PetroGreen.
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4.5 Tax Returns. Sellers
have delivered to Purchaser (i) a Schedule C to Form 1040 for Petro 2000 for the
year ended December 31, 2008; (ii) a Schedule C to Form 1040 for Petro 2000 for
the year ended December 31, 2009; and (iii) a Form 1065 for Petrogreen for the
year ended December 31, 2009 (the “Tax Returns”).
4.6 [Intentionally
Omitted.]
4.7 No Material Adverse
Change. Since the date of the Tax Returns, to Sellers’ knowledge: (a)
there has not been any material adverse change in the business, operations,
properties, assets, or condition of Petro 2000 and PetroGreen, and (b) no event
has occurred or circumstance exists that may result in such a material adverse
change other than changes, events and circumstances existing in or affecting the
capital markets and general economic and industry conditions.
4.8 Absence of Certain Changes
and Events.
(a) Since
the date of the Tax Returns there has not been any:
(i) any
amendment or other modification of the certificate of organization or company
agreement of Petro 2000 or PetroGreen;
(ii) any
(A) incurrence, assumption or guaranty by Petro 2000 and PetroGreen of any
indebtedness, (B) loan made by Petro 2000 and PetroGreen to any person or
entity, or any (C) voluntary purchase, cancellation, prepayment or complete or
partial discharge in advance of a scheduled payment date with respect to, or
waiver of any right of Petro 2000 and PetroGreen under any indebtedness of or
owing to Petro 2000 and PetroGreen, other than in the ordinary course of
business in amounts and on terms consistent with past practice, except as set
forth on Exhibit F and Exhibit H;
(iii) any
damage, destruction or other casualty loss (whether or not covered by insurance)
affecting Petro 2000 or PetroGreen;
(iv) any
revaluation in any material respect of any of the Petro 2000 or
PetroGreen;
(v) any
material change in any pricing, investment, accounting, financial reporting,
inventory, credit or allowance practice or policy of Petro 2000 or
PetroGreen;
(vi) any
(A) grant of, or agreement to grant under certain circumstances, any severance
or termination pay to any director, officer or employee of Petro 2000 and
PetroGreen, (B) entering into of any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement) with any
director, officer or employee of Petro 2000 or PetroGreen;
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(vii)
increase in benefits payable under any existing severance or termination pay
policies or employment agreements;
(vii)
increase in compensation, bonus or other benefits payable to directors, officers
or employees of Petro 2000 or PetroGreen, other than a guaranteed payment of
$3,500 per month payable to Xxxx Xxxxxxx, a Seller herein;
(viii)
any cancellation, modification, termination or grant of a waiver of any
provision of any permit or contract to which Petro 2000 or PetroGreen is a
party, or any written or oral notification to Sellers that any party to any such
arrangement intends to cancel or not renew such arrangement beyond its
expiration date as in effect on the date hereof;
(ix) the
making of any election with respect to taxes or the settling or compromising of
any tax liability;
(x) any
acquisition or disposition of any business or any asset or property from or to
any person or entity (whether by merger, consolidation or otherwise) by Petro
2000 or PetroGreen, except as set forth on Exhibit H;
(xi) any
incurrence of any lien on any of the material assets or properties of Petro 2000
or PetroGreen;
(xii) any
capital expenditure or commitment for additions to property, plant or equipment
used or held for use in the conduct of Petro 2000 or PetroGreen’s business
constituting capital assets in an aggregate amount exceeding
$10,000;
(xiii)
any transaction with any officer, director or affiliate of Petro 2000 and
PetroGreen (A) outside the ordinary course of business consistent with past
practice or (B) other than on an arm’s length basis;
(xiv) any
notice by a governmental agency or quasi-governmental agency, except as set
forth on Exhibit C; or
(xv) the
entering into any agreement or commitment to do any of the
foregoing.
(b) Since
the date of the Tax Returns:
(i) Petro
2000 and PetroGreen have carried on their businesses in a manner in accordance
with past practices and in a manner which is to the best of Sellers’ knowledge
and belief, reasonable and prudent;
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(ii)
Petro 2000 and PetroGreen have not engaged in any transaction out of the
ordinary course of business including the purchase, sale, assignment, license,
or other disposition or transfer of property, except as set forth on Exhibit
H;
(iii)
Petro 2000 and PetroGreen have not made capital expenditures of a material
nature, or satisfied or discharged any material liabilities, except in the
ordinary course of business, or incurred any liabilities, or, to the best of
Sellers’ knowledge, incurred any contingent liabilities, except in the ordinary
course of business, except as set forth on Exhibit H;
(iv)
Petro 2000 and PetroGreen have not taken action or, to the extent the same is
within its reasonable control, permitted any action to be taken inconsistent
with preserving its existing business organization and relations with customers,
suppliers, and others with whom it has a business relationship or with regard to
protecting its rights and properties;
(v) Petro
2000 and PetroGreen have conducted their businesses in compliance with all
material laws and regulations applicable to them;
(vi)
Petro 2000 and PetroGreen have not encumbered or permitted to be encumbered any
of its properties or assets, except in the ordinary course of
business;
(vii)
Petro 2000 and PetroGreen have not licensed, assigned, transferred, or conveyed
to any third party any property or right necessary to conduct any of its current
business, including any manufacturing rights or rights to access the computer
source code related to any of its products; and
(viii)
Petro 2000 and PetroGreen have not entered into any other transactions which
would result in the transfer by Petro 2000 and PetroGreen of assets or rights
for other than full and fair consideration.
4.9 Books and Records.
The books of account, minute books, stock record books, and other records of
Petro 2000 and PetroGreen, are complete and correct in all material respects and
have been maintained in accordance with practices that are customary for similar
businesses.
4.10
Environmental
Matters.
(a)
Except as set forth in Exhibit D, Petro 2000 and PetroGreen have not received
any notice, report or information regarding any liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise), or any corrective,
investigatory or remedial obligations, arising under environmental and safety
requirements, with respect to the past or present operations of its business,
its assets and/or its contracts.
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(b) Petro
2000 and PetroGreen have obtained, and are in compliance with all terms and
conditions of, all permits, licenses and other authorizations required pursuant
to environmental and safety requirements with respect to past or present
operations of its business and its assets.
(c) To
the best of Sellers’ knowledge, there exists no asbestos-containing material in
any form or condition at any property owned or occupied by Petro 2000 and
PetroGreen.
(d) No
facts, events or conditions relating to the assets, operations of the business
and/or contracts of Petro 2000 and PetroGreen will (i) prevent, hinder or limit
continued compliance by Purchaser, Petro 2000, and PetroGreen with environmental
and safety requirements, (ii) give rise to any corrective, investigatory or
remedial obligations on the part of Petro 2000 and PetroGreen pursuant to
environmental and safety requirements, or (iii) give rise to any liabilities on
the part of Petro 2000 and PetroGreen (whether accrued, absolute, contingent,
unliquidated or otherwise) pursuant to environmental and safety requirements,
including, without limitation, those liabilities relating to on-site or off-site
hazardous substance releases, personal injury, property damage or natural
resources damage.
(e)
Neither Petro 2000 nor PetroGreen have assumed any liabilities or obligations of
any third party under environmental and safety requirements.
(f) To
the best of Sellers’ knowledge, there exists no environmental condition that
could lead to liability under any state or federal environmental law for Petro
2000 and PetroGreen’s business, operations, or assets.
4.11
Taxes.
(a) All
tax returns of Petro 2000 and PetroGreen required to be filed on or before the
date hereof have been duly and timely filed on or before such date. Each such
tax return is true, complete and correct, and all taxes upon Petro 2000 and
PetroGreen that are due and payable, whether or not shown thereon, have been
paid. There are no actions or proceedings currently pending or, to the knowledge
of Sellers, threatened by any taxing authority against Petro 2000 and
PetroGreen. Petro 2000 and PetroGreen have collected and remitted all sales,
use, and excise taxes as required by each local jurisdiction in which it does
business as of the date hereof. Petro 2000 and PetroGreen have withheld and paid
all taxes required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor, stockholder, or
other third party.
(b)
Neither Petro 2000 nor PetroGreen is a party to any agreement extending the time
within which to file any tax return. There is no dispute or claim
concerning any tax liability of Petro 2000 and PetroGreen either (i) claimed or
raised by any tax authority or (ii) otherwise known to Sellers. No issues have
been raised in any examination by any tax authority with respect to Petro 2000
and PetroGreen which reasonably could be expected to result in a proposed
deficiency for any other period not so examined. To Sellers’ knowledge, no claim
has been made by a jurisdiction in which Petro 2000 and PetroGreen do not file
tax returns that they are or may be subject to taxation by that
jurisdiction.
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(c)
Neither Petro 2000 nor PetroGreen has waived (and neither of them is subject to
a waiver of) any statute of limitations in respect of the payment of taxes nor
have they agreed to any extension of time with respect to any tax assessment or
deficiency (other than with respect to limitation periods that have since
expired).
(d) None
of Petro 2000 and PetroGreen’s assets is property that is required to be treated
as owned by any other person pursuant to the “safe harbor lease” provisions of
former section 168(f)(8) of the Internal Revenue Code of 1954 as amended (“IRC”)
and in effect immediately prior to the enactment of the Tax Reform Act of 1986
and none of the Assets is “tax-exempt use property” within the meaning of IRC
section 168(h).
(e) None
of Petro 2000 and PetroGreen’s assets secure any debt, the interest on which is
tax-exempt under IRC section 103.
4.12
Employees.
Neither Petro 2000 nor PetroGreen have any employees.
4.13
[Intentionally
Omitted.]
4.14
[Intentionally
Omitted.]
4.15
Compliance with Legal
Requirements, Governmental Authorizations.
(a)
Except as set forth in Exhibit D, Petro 2000 and PetroGreen are in full
compliance with each legal requirement that is applicable to them or to the
conduct or operation of their business or the ownership or use of any of their
assets.
(b) No
event has occurred or circumstance exists that (with or without notice or lapse
of time) (A) may constitute or result in a material violation by Petro 2000 and
PetroGreen of, or a material failure on the part of Petro 2000 and PetroGreen to
comply with, any legal requirement, or (B) may give rise to any material
obligation on the part of Petro 2000 and PetroGreen to undertake, or to bear all
or any portion of the cost of, any remedial action of any nature.
(c)
Neither Petro 2000 nor PetroGreen has received any written notice or other
communication from any governmental body regarding any material, actual,
alleged, possible, or potential violation of, or failure to comply with, any
legal requirement which would have a material adverse effect on Sellers which
has not been remedied.
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(d)
Except as set forth in Exhibit D, PetroGreen and Petro 2000 have such
governmental authorizations, permits, or licenses (collectively, “Licenses”)
that are necessary for the conduct of their businesses, and they are in material
compliance with terms, conditions, and requirements of the
Licenses.
(e)
Except as set forth in Exhibit B, the Licenses collectively constitute all of
the governmental authorizations, permits, or licenses necessary to permit Petro
2000 and PetroGreen to lawfully conduct and operate their businesses in the
manner that they currently conduct and operate their businesses and to permit
Petro 2000 and PetroGreen to own and use their assets in the manner in which
they currently own and use them.
(f)
Subject to Section 11.3, no event has occurred or circumstance exists that may
(with or without notice or lapse of time) (A) constitute or result directly or
indirectly in a material violation of or a failure to comply with any term or
requirement of any governmental authorization or permit listed or required to be
listed or (B) result directly or indirectly in the revocation, withdrawal,
suspension, cancellation, or termination of, or any modification to, any
governmental authorization or permit listed or required to be
listed.
(g)
Except as set forth in Exhibit C, neither Petro 2000 nor PetroGreen have
received any notice or other communication (whether oral or written) from any
governmental body or any other person regarding any material actual, alleged,
possible, or potential violation of or failure to comply with any term or
requirement of any governmental authorization or permit.
(h) All
applications required to have been filed for the renewal of the governmental
authorizations or permits listed or required to be listed have been duly filed
on a timely basis with the appropriate governmental bodies, and all other
filings required to have been made with respect to such governmental
authorizations or permits have been duly made on a timely basis with the
appropriate governmental bodies.
4.16
Legal Proceedings;
Orders.
(a) There
is no pending proceeding:
(i) that
challenges, or that may have the effect of preventing, delaying, making illegal,
or otherwise interfering with, the transaction contemplated by this Agreement;
and
(ii) To
the knowledge of Sellers, no event has occurred or circumstance exists that may
give rise to or serve as a basis for the commencement of any such
proceeding.
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(b) There
is no order, award, decision, injunction, judgment, ruling, subpoena or verdict
entered, issued, made or rendered by any court, administrative agency, or other
governmental body or by an arbitrator (collectively an “Order”) to which Petro
2000 and PetroGreen is subject, the violation of or compliance with which would
have a material adverse effect on Petro 2000 or PetroGreen or their
assets.
(c) No
officer, director, agent or employee of Petro 2000 or PetroGreen is subject to
any Order that prohibits such officer, director, agent or employee from engaging
in or continuing any conduct, activity or practice relating to the business of
Petro 2000 or PetroGreen or that would in any manner affect Petro 2000 or
PetroGreen’s business or assets.
4.17
Contracts.
(a)
Sellers have delivered to Purchaser a true and complete copy of all contracts
material to the conduct of the business, the operations, or the ability to use
the assets of Petro 2000 and PetroGreen;
(b)
Neither Sellers nor any affiliate of Sellers have or may acquire any rights
under any contract that relates to the business of, or any of the assets owned
or used by Petro 2000 or PetroGreen;
(c) No
officer or director of Petro 2000 and PetroGreen and, to the knowledge of
Sellers, no agent, employee, consultant, or contractor of Petro 2000 and
PetroGreen is bound by any contract that purports to limit the ability of such
officer, director, agent, employee, consultant, or contractor to (A) engage in
or continue any conduct, activity, or practice relating to Petro 2000 or
PetroGreen’s business or (B) assign to Petro 2000 and PetroGreen or to any other
person any rights to any invention, improvement, or discovery;
(d) To
the knowledge of Sellers, each contract delivered to Purchaser is in full force
and effect and is valid and enforceable in accordance with its
terms;
(e) Petro
2000 and PetroGreen are in material compliance with all applicable terms and
requirements of each contract under which Petro 2000 and PetroGreen have any
obligation or liability or by which Petro 2000, PetroGreen or any of the assets
owned or used by Petro 2000 and PetroGreen is bound;
(f) To
the knowledge of Sellers, each other person that has or had any obligation or
liability under any contract under which Petro 2000 and PetroGreen has or had
any rights is in full compliance with all applicable terms and requirements of
such contract;
(g) To
the knowledge of Sellers, no event has occurred or circumstance exists that
(with or without notice or lapse of time) may contravene, conflict with, or
result in a violation or breach of, or give Sellers or any other person the
right to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
contract;
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(h)
Except as set forth in Exhibit E, Petro 2000 and PetroGreen have not given to or
received from any other person any written notice or other communication
regarding any actual, alleged, possible, or potential violation or breach of, or
default under, any contract;
(i) There
are no renegotiations of, attempts to renegotiate, or outstanding rights to
renegotiate any material amounts paid or payable to Petro 2000 and PetroGreen
under current or completed contracts with any person and no such person has made
written demand for such renegotiation; and
(j) The
contracts relating to the provision of goods or services by Petro 2000 and
PetroGreen have been entered into in the ordinary course of business and have
been entered into without the commission of any act alone or in concert with any
other person, or any consideration having been paid or promised, that is or
would be in violation of any legal requirement.
4.18
Insurance. Neither
Petro 2000 nor PetroGreen are insured by any insurance policies.
4.19
Intellectual
Property.
(a) The
term “Intellectual Property Assets” means:
(i) all
fictional business names, trading names, registered and unregistered trademarks,
service marks, and applications owned, used or licensed to Petro 2000 and
PetroGreen (collectively, “Marks”); and
(ii) all
know-how, trade secrets, confidential information, customer lists, software,
technical information, data, and process technology (collectively, “Trade
Secrets”) owned, used, or licensed by Petro 2000 or PetroGreen as licensee or
licensor.
(b) Know-How Necessary for the
Business.
(i) Petro
2000 and PetroGreen are the owner of all right, title, and interest in and to
each of their respective Intellectual Property Assets, free and clear of all
encumbrances, or have the right to use the Intellectual Property Assets without
payment to a third party.
(ii) To
Sellers’ knowledge, no employee of Petro 2000 or PetroGreen has entered into any
contract that restricts or limits in any way the scope or type of work in which
the employee may be engaged or requires the employee to transfer, assign, or
disclose information concerning his work to anyone other than Petro 2000 or
PetroGreen.
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(c) Trade Secrets. Petro
2000 and PetroGreen have good title to and an absolute (but not necessarily
exclusive) right to use the Trade Secrets. To Sellers’ knowledge, no
Trade Secret is subject to any adverse claim or has been challenged or
threatened in any way.
4.20
Real Estate; Oil and
Gas Leases; Material Fixed Assets. Petro 2000 and PetroGreen have
provided to Purchaser true and correct copies of all oil and gas leases to which
they are a party and true and correct descriptions of all real estate and
material fixed assets other than personal assets, and each such oil and gas
lease, real property and asset is free and clear of all mortgages, liens or
other encumbrances and there are no eminent domain or condemnation proceedings
affecting such real property. Petro 2000 and Xxxxx Xxxxx hold good and
marketable title to all of their oil and gas leases.
4.21
Certain
Payments. Neither Petro 2000 nor PetroGreen nor any director, officer,
agent, or employee of Petro 2000 or PetroGreen, or any other person associated
with or acting for or on behalf of them, has directly or indirectly (a) made any
contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other
payment to any person, private or public, regardless of form, whether in money,
property, or services (i) to obtain favorable treatment in securing business,
(ii) to pay for favorable treatment for business secured, or (iii) to obtain
special concessions or for special concessions already obtained, for or in
respect of Petro 2000 or PetroGreen or any affiliate of them, in violation of
any legal requirement, or (b) established or maintained any fund or asset that
has not been recorded in the books and records of Petro 2000 and
PetroGreen.
4.22
Borrowings.
Exhibit F lists all existing instruments, agreements or arrangements pursuant to
which Sellers, Petro 2000 or PetroGreen has borrowed any money, incurred any
other indebtedness, established a line of credit or guaranteed the indebtedness
or obligation of another person, corporation or other entity involving assets or
property which is being sold pursuant to this Agreement.
4.23
Bank Accounts.
Exhibit G lists all banks in which Petro 2000 or PetroGreen have an account or a
safe deposit box, the respective account numbers of such accounts, and the names
of all persons authorized to draw on such accounts or who have access to such
accounts. If requested by Purchaser, Sellers shall cooperate with Purchaser to
ensure that the appropriate persons requested by Purchaser are added as
authorized signatories to such accounts, and that persons not desired by
Purchaser as authorized signatories are removed as such from the
accounts.
4.24
Related Party
Transactions. Other than as set forth in Exhibit H, neither Petro 2000
nor PetroGreen has any contract, extension of credit, business arrangement or
other relationship of any kind with any of the following persons: (i)
any executive officer or director; (ii) any shareholder owning five percent (5%)
or more of the outstanding stock of Petro 2000 and PetroGreen; (iii) any
“associate” (as defined in Rule 405 under the Securities Act) of the foregoing
persons; or (iv) any business in which any of the foregoing persons is an
officer, director, employee or five percent (5%) or greater equity
owner.
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4.25
[Intentionally
Omitted].
4.26
Disclosure.
(a)
Neither this Agreement, nor any financial statement, schedule (including without
limitation the exhibits to this Agreement), certificate, or other statement or
document delivered by Sellers to Purchaser in connection herewith contains any
statement which, at the time and in light of the circumstances under which it is
made, is false or misleading with respect to any material fact or omits to state
any material fact necessary in order to make the statements contained therein
not misleading in light of the circumstances in which they are
made.
(b)
Sellers have made available to Purchaser true and complete copies of all
documents described above. Except to the extent described, Sellers, Petro 2000
and PetroGreen have performed all of the obligations required to be performed by
them to date and are not in default in any material respect under any of the
agreements, contracts, instruments or documents described above, nor, to the
best knowledge of Sellers is any other party to such agreements, contracts,
instruments or documents in default thereunder in any material
respect.
4.27
Condition of
Properties. All assets of Petro 2000 and PetroGreen are in good operating
condition and repair, subject only to ordinary wear and tear and depletion which
is not such as to render them less than substantially fit for the purposes for
which they are being used.
4.28
Accuracy of
Representations and Warranties. The representations and warranties of
Sellers contained in this Agreement, including the attached exhibits, contain no
untrue statement of a material fact and do not omit or misstate a material fact
necessary in order to make the statement contained therein not misleading in
light of the circumstances in which they are made.
4.29
Customers, Vendors and
Suppliers. There is no actual or, to the knowledge of Sellers,
threatened termination, cancellation, limitation or any modification or change
in business relationship of Petro 2000 and PetroGreen with any customer or group
of customers of Petro 2000 and PetroGreen. Within the six-month
period prior to the date hereof, neither Petro 2000 nor PetroGreen have received
any notice from any vendor or supplier of an item material to Petro 2000’s or
PetroGreen’s business that such vendor or supplier will not continue to make
deliveries on the same price, quality and delivery terms and conditions
consistent with past practices of such vendor or supplier. There are no claims
against Petro 2000 and PetroGreen to return merchandise by reason of alleged
over-shipments, defective merchandise or otherwise in excess of $5,000 in the
aggregate and, to the knowledge of Sellers, there is no basis for any such
claims.
4.30
[Intentionally
Omitted.]
4.31
Real Property Holding
Corporation. Neither Petro 2000 nor PetroGreen is a United States real
property holding corporation within the meaning of Section 897(c)(2) of the
Internal Revenue Code of 1986 as amended and any regulations promulgated
thereunder.
Page 13 of
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ARTICLE
V
REPRESENTATION
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to Sellers at and as of the date of this Agreement as
follows:
5.1 Organization, Powers and
Authority. Purchaser is a corporation duly organized and validly existing
under the laws of the State of Montana and has all requisite corporate power and
authority to execute, deliver and perform this Agreement. The Board of Directors
of Purchaser has authorized the execution, delivery and performance of this
Agreement by Purchaser and has authorized the transactions contemplated by the
Agreement. Purchaser has duly executed and delivered the Agreement. The
Agreement is valid, binding and enforceable against Purchaser in accordance with
its terms subject only to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity.
5.2 Authority; No Conflict;
Consents. The execution and delivery of this Agreement by Purchaser does
not, and the consummation of the transactions contemplated hereby will not (i)
conflict with, or result in any violation or breach of any provisions of its
articles of incorporation or bylaws, (ii) result in any violation or breach of,
or constitute (with or without notice or lapse of time, or both) a default or
give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any material benefit, under any of the terms, conditions
or provisions of any note, bond mortgage, indenture, lease, contract or other
agreement, instrument or obligation to which Purchaser is a party or by which
any of its properties or assets by which may Purchaser be bound, or (iii)
conflict with or violate any permit, concession, franchise, lien, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Purchaser or any of its properties or assets. There is no action, suit,
proceeding, claim, arbitration, or investigation pending, or to the best
knowledge of Purchaser threatened, against Purchaser which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement.
5.3 Governmental
Approvals. The execution and delivery of this Agreement and any related
agreements by the Purchaser do not, and the performance of this Agreement and
related agreements by the Purchaser and the consummation of the transactions
contemplated hereby and thereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
entity.
5.4 Certain Proceedings.
There is no pending proceeding that has been commenced against Purchaser and
that challenges, or may have the effect of preventing, delaying, making illegal,
or otherwise interfering with the transactions contemplated by this Agreement.
To Purchaser’s knowledge, no such proceeding has been threatened.
5.5 Accuracy of
Representations. The representations and warranties of Purchaser
contained in this Agreement, contain no untrue statement of a material fact and
do not omit or misstate a material fact necessary in order to make the
statements contained therein misleading in light of the circumstances in which
they are made.
Page 14 of
29
ARTICLE
VI
[INTENTIONALLY
OMITTED.]
ARTICLE
VII
[INTENTIONALLY
OMITTED.]
ARTICLE
VIII
[INTENTIONALLY
OMITTED.]
ARTICLE
IX
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
9.1 Survival. The
representations, warranties, covenants and obligations in this Agreement shall
survive the Closing.
9.2 Schedules and
Exhibits. For purposes of this Agreement, each statement or other item of
information set forth in the exhibits or schedules shall be deemed to be a
representation and warranty made by Sellers in this Agreement.
9.3 Applicability of
Representations and Warranties. For purposes of Article 4, each Seller
shall be deemed to be making only representations and warranties as to the
company in which he is a member, and not as to any other company.
10.1
Indemnification.
(a)
Sellers hereby agree to indemnify and hold Purchaser and its directors,
officers, employees, affiliates, agents, successors and assigns (collectively,
the “Purchaser’s Indemnified Parties”) harmless from and against:
(i) any
and all debts and liabilities of any type whatsoever of Sellers, PetroGreen, and
Petro 2000 and all causes of action, claims and proceedings asserted against
Purchaser which were incurred or arose prior to the Closing Date;
(ii) any
and all Losses based upon, attributable to or resulting from the failure of any
representation or warranty of the Sellers set forth in Article 4 hereof, or any
representation or warranty contained in any certificate delivered by or on
behalf of the Purchaser pursuant to this Agreement, to be true and correct as of
the date made;
Page 15 of
29
(iii) any
and all losses, liabilities, obligations, damages, costs and expenses based
upon, attributable to or resulting from the breach of any covenant or other
agreement on the part of Sellers under this Agreement;
(iv) all
losses, liabilities, obligations, damages, costs and expenses with respect to
which indemnification is provided hereunder (collectively, “Losses”) and any and
all notices, actions, suits, proceedings, claims, demands, assessments,
judgments, costs, penalties and expenses, including attorneys’ and other
professionals’ fees and disbursements (collectively, “Expenses”) incident
thereto; and
(v) any
taxes (including interest and penalties) assessed against Purchaser, Petro 2000,
or PetroGreen which arose prior to the Closing Date;
(b)
Purchaser hereby agrees to indemnify and hold Sellers and its affiliates,
agents, successors and assigns (collectively, the “Sellers’ Indemnified
Parties”) harmless from and against:
(i) any
and all Losses based upon, attributable to or resulting from the breach of any
covenant or other agreement on the part of Purchaser under this
Agreement;
(ii) any
and all payments of debts, claims and liabilities incurred by Petro 2000, Xxxxx
Xxxxx, or Purchaser which are incurred subsequent to the Closing and which are
attributable to Purchaser’s operation of the business; and
(iii) all
Losses and any Expense incident thereto involving items listed in 10.1(b)(i) or
(ii).
10.2
Indemnification
Procedures.
(a) In
the event that any legal proceedings shall be instituted or that any claim or
demand (“Claim”) shall be asserted by any person in respect of which payment may
be sought under Section 10.1 hereof, the indemnified party shall reasonably and
promptly cause written notice of the assertion of any Claim of which it has
knowledge which is covered by this indemnity to be forwarded to the indemnifying
party.
(b) The
indemnifying party shall have the right, at its sole option and expense, to be
represented by counsel of its choice and to defend against, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder. If the indemnifying party elects to defend against, negotiate, settle
or otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, it shall within five (5) days (or sooner, if the nature of the Claim
so requires) notify the indemnified party of its intent to do so.
Page 16 of
29
(c) If
the indemnifying party elects not to defend against, negotiate, settle or
otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, and fails to notify the indemnified party of its election as herein
provided or contests its obligation to indemnify the indemnified party for such
Losses under this Agreement, the indemnified party may defend against,
negotiate, settle or otherwise deal with such Claim. If the
indemnified party defends any Claim, then the indemnifying party shall reimburse
the indemnified party for the Expenses of defending such Claim upon submission
of periodic bills. If the indemnifying party shall assume the defense
of any Claim, the indemnified party may participate, at his or its own expense,
in the defense of such Claim; provided, however, that such indemnified party
shall be entitled to participate in any such defense with separate counsel at
the expense of the indemnifying party if, (i) so requested by the indemnifying
party to participate or (ii) in the reasonable opinion of counsel to the
indemnified party, a conflict or potential conflict exists between the
indemnified party and the indemnifying party that would make such separate
representation advisable; and provided, further, that the indemnifying party
shall not be required to pay for more than one such counsel for all indemnified
parties in connection with any Claim. The parties hereto agree to
cooperate fully with each other in connection with the defense, negotiation or
settlement of any such Claim.
(d) After
any final judgment or award shall have been rendered by a court, arbitration
board or administrative agency of competent jurisdiction and the expiration of
the time in which to appeal therefrom, or a settlement shall have been
consummated, or the indemnified party and the indemnifying party shall have
arrived at a mutually binding agreement with respect to a Claim hereunder, the
indemnified party shall forward to the indemnifying party notice of any sums due
and owing by the indemnifying party pursuant to this Agreement with respect to
such matter and the indemnifying party shall be required to pay all of the sums
so due and owing to the indemnified party by wire transfer of immediately
available funds within 10 business days after the date of such
notice.
(e) The
failure of the indemnified party to give reasonably prompt notice of any Claim
shall not release, waive or otherwise affect the indemnifying party’s
obligations with respect thereto except to the extent that the indemnifying
party can demonstrate actual loss and prejudice as a result of such
failure.
10.3
Reliance. No
disclosure by any party to this Agreement nor any investigation made by or in
behalf of any party with respect to another party shall be deemed to affect the
party’s reliance on the respective representations and warranties contained in
this Agreement and shall not effect a waiver of that party’s rights to indemnity
as herein provided or the breach of any said representations and
warranties.
Page 17 of
29
ARTICLE
XI
POST-CLOSING
COVENANTS
11.1
Cooperation.
The parties will cooperate with and provide such further assurances to each
other as are reasonably necessary or requested to perfect (of record or
otherwise) and effectively vest the Purchaser’s title to the Membership
Interests and aid in the prosecution, defense, or other action regarding
litigation of any rights arising from or affecting title to the Membership
Interests.
11.2
Treatment of
Confidential Information. Sellers and Purchaser acknowledge that they
have or may have had in the past, and in the future may have, access to
confidential information of each other. Sellers and Purchaser agree that they
will keep confidential all such confidential information and, except with the
specific prior written consent of the other party, will not disclose such
confidential information to any person except each party’s representatives,
provided that such representatives (other than counsel) agree to the
confidentiality provisions of this Section. Confidential information shall not
include (A) such information that becomes known to the public generally through
no fault of either party, (B) information required to be disclosed by the terms
of this Agreement or by law or the order of any governmental authority under
color of law, provided that prior to disclosing any information pursuant to this
clause (B), the disclosing party shall, if possible, give prior written notice
thereof to the other party and provide the other party with the opportunity to
contest such disclosure, or (C) such information that the disclosing party
reasonably believes is required to be disclosed in connection with the defense
of a lawsuit against the disclosing party. Nothing herein shall be construed as
prohibiting either party from pursuing any other remedy available at law or in
equity for such breach or threatened breach, including the recovery of
damages.
11.3
Further
Assurances. The parties shall cooperate with each other and
sign any documents necessary in order to complete the sale of the Stock and
other transactions contemplated hereby.
ARTICLE
XII
GENERAL
PROVISIONS
12.1
Notices. Any
notice, request, instruction or other document to be given hereunder by any
party hereto shall be in writing and shall be delivered personally or sent by
courier or express delivery service by reputable overnight courier, by
facsimile, by electronic mail with delivery confirmation, or by registered or
certified mail, postage prepaid, return receipt requested to the following
addresses:
Page 18 of
29
|
if
to Sellers:
|
As
set forth in Exhibit A
|
|
if
to Purchaser:
|
Attn.:
Xx. Xxxxxxx X. Xxxx, Xx.
|
|
Adino
Energy Corporation
|
|
|
0000
Xxxx Xxxx Xxxxxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
(___)
___ -- ____ Facsimile
|
|
|
xxxxx@xxxxxxxxxxxxxxx.xxx
|
or such
other addresses as any party may designate by written notice to the other
parties. Any party may change the name and contact information for
receipt of its notices hereunder with notice to the other parties.
12.2
Governing Law.
This agreement and the transaction documents shall be governed by and construed
in accordance with the laws of the State of Texas without regard to principles
of conflicts of law.
12.3
Expenses.
Except as otherwise provided in this Agreement, Sellers and Purchaser shall each
bear their own expenses incurred in connection with the negotiation and
execution of this Agreement and each other agreement, document and instrument
contemplated by this Agreement and the consummation of the transactions
contemplated hereby and thereby.
12.4
Parties-In-Interest.
This agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, administrators, executors, successors and
assigns.
12.5
Entire Agreement and
Modification. This Agreement (including its exhibits)
constitutes and contains the entire agreement of the parties and supersedes any
and all prior negotiations, correspondence, understandings and agreements
between the parties respecting its subject matter. This Agreement may not be
amended except by a written agreement executed by the party to be changed with
the amendment.
12.6
Waiver. Any of
the terms and conditions of this Agreement, and any inaccuracies in any of the
representations or warranties contained herein, may be waived at any time and
from time to time, in writing, by such parties as are entitled to the benefit of
such terms, conditions, warranties or representations. Such waiver shall not
constitute or be deemed a waiver of any other terms, conditions or
inaccuracies.
12.7
Attorney’s
Fees. If suit or action is filed by any party to enforce this Agreement
or otherwise with respect to the subject matter of this Agreement, the
prevailing party shall be entitled to recover from the non-prevailing party all
costs of such suit, including reasonable attorneys’ fees incurred in preparation
for and prosecution of such suit or action as fixed by the trial court, and if
any appeal is taken from the decision of the trial court, reasonable attorney’s
fees as fixed by the appellate court.
Page 19 of
29
12.8
Interpretation.
Headings, captions, section or section numbers appearing in this Agreement are
for ease of reference and convenience only, and shall in no way be deemed to
define, modify, affect, limit or describe the scope, intent or content of this
Agreement or of provisions to which they relate.
12.9
Singular or Plural
Words. Whenever used, the singular pronoun will include the
plural, the plural will include the singular, and the uses of any gender will
include all genders as required or necessary for proper grammatical reading or
as the sense or context requires.
12.10
Severability. The
invalidity of any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of the Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses, sections
or subsections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, section or sections or
subsection or subsections had not been inserted.
12.11
Assignment and
Delegation. This Agreement may be assigned by the Purchaser provided the
assignee assumes the obligations of the Purchaser hereunder. Any acts
which are required or permitted to be performed under this Agreement may be
performed by the party’s designated agents(s), employees, permitted assigns or
successors, and such acts will be deemed to have been performed by the party if
it is in fact performed at the party’s direction or with the party’s consent by
any such designated person or entity.
12.12
Counterparts.
This Agreement may be executed in several counterparts and all of such
counterparts shall constitute one and the same instrument with the same force
and effect as if all the parties had executed the same document.
IN
WITNESS WHEREOF, the parties have executed this PURCHASE AGREEMENT as of the
date first written above.
|
Purchaser:
|
|||
|
ADINO
ENERGY CORPORATION
|
|||
|
By:
|
/s/ | ||
| Xxxxxxx X. Xxxx, Xx. | |||
|
Title:
Chief Executive Officer
|
|||
Page 20 of
29
|
Sellers: |
|||
|
XXXXXXXXX
XXXXXXX
|
|||
|
By:
|
/s/ | ||
| Xxxxxxx X. Xxxx, Xx. | |||
|
Title:
Chief Executive Officer
|
|||
|
Purchaser:
|
|||
|
ADINO
ENERGY CORPORATION
|
|||
|
By:
|
/s/ | ||
|
XXXXXXX
X XXXXXXXX
|
|||
|
By:
|
/s/ | ||
|
XXXX
XXXXXXXX, SR.
|
|||
|
By:
|
/s/ | ||
|
XXXXXX
XXXXXXXX
|
|||
|
By:
|
/s/ | ||
|
XXXXXX
XXXXXXXX
|
|||
|
By:
|
/s/ | ||
|
XXXXXX
XXXXXXXX
|
|||
|
By:
|
/s/ | ||
|
XXXXXXX
XXXXX
|
|||
|
By:
|
/s/ | ||
|
|
|||
Page 21 of
29
EXHIBIT
A
NAMES
AND ADDRESSES OF SELLERS AND ALLOCATION OF SHARES
|
Name and Address
|
Number of Shares
|
|
[Confidential
treatment claimed pursuant to Rule 24b-2]
|
|
|
TOTAL
|
10,000,000
|
Page 22 of
29
EXHIBIT
B
ORGANIZATION,
POWERS AND QUALIFICATIONS
PetroGreen
is not registered to transact business in Texas.
Page 23 of
29
EXHIBIT
C
NOTICES
OR CLAIMS BY GOVERNMENTAL AGENCIES
On July
28, 2009, Xxxxxxxxx Xxxxxxx, a Seller herein, received an information request
from the Texas State Securities Board regarding the use of investor funds in
several companies controlled by him.
On June
4, 2010, Petro 2000 received a delinquency notice from the Texas Railroad
Commission regarding pressure testing of certain disposal/injection
xxxxx.
Page 24 of
29
EXHIBIT
D
ENVIRONMENTAL
CLAIMS
On June
4, 2010, Petro 2000 received a delinquency notice from the Texas Railroad
Commission regarding pressure testing of certain disposal/injection
xxxxx.
Page 25 of
29
EXHIBIT
E
NOTICE
OF BREACH OF CONTRACT
On
September 16, 2009, Xxx X. Xxxxxxx, Xxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxx, and Xxxxx Xxxxxxxx
filed suit against Xxxxxxxxx Xxxxxxx and Petro 2000 in the 000xx
Xxxxxxxx Xxxxxxxx Xxxxx xx Xxx Xxxxx Xxxxxx, Xxxxx under Cause No. C-09-1136-C.
Xx. Xxxxxxx and Petro 2000 filed a third-party action against Xxxx
Xxxx.
There has
been no settlement of these cases and no court date has been set.
Page 26 of
29
EXHIBIT
F
BORROWINGS
Petrogreen energy
LLC
|
AACM/Petro
2000
|
$60,706.13
|
|
0000
Xxxxxxxx Xxx; XXX X
|
|
|
Xxx
Xxxxxx, XX 00000
|
|
|
Xxxxxxxxx
Xxxxxxx
|
$176,678.32
|
|
0000
Xxxxx Xxxxx Xxxx
|
|
|
Xxx
Xxxxxx, Xxxxx 00000
|
|
|
AACM3/Petro 2000
Exploration
|
|
|
Xxxx
Xxxxxxxx, Sr
|
$29,500.00
|
|
0000
Xxxxx Xx
|
|
|
Xxx
Xxxxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxxxx
|
$29,500.00
|
|
000
XX 000
|
|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxxxx
|
$29,500.00
|
|
0000
XX 000
|
|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Xxxxxx
Xxxxxxxx
|
|
|
0000
XX 0000
|
|
|
Xxxxxx
Xxxx, XX 00000
|
$29,500.00
|
|
McDonald
Investments
|
$8,665.31
|
|
Bank
of America
|
$3,205.06
|
|
San
Angelo, TX
|
|
|
Texas
State Bank
|
$3,788.70
|
|
0000
Xxxxxxxx Xxx XX Xxx 0000
|
|
|
Xxx
Xxxxxx, XX 00000
|
Page 27 of
29
EXHIBIT
G
BANK
ACCOUNTS
Petrogreen, LLC
[Confidential
treatment claimed pursuant to Rule 24b-2]
AACM3 LLC/ Petro 2000
Exploration
[Confidential
treatment claimed pursuant to Rule 24b-2]
Page 28 of
29
EXHIBIT
H
RELATED
PARTY TRANSACTIONS
|
1.
|
Notes
receivable from John, Joseph, Xxxxxx and Xxxxxx Xxxxxxxx (listed on
Exhibit F). Loans were made by these investors to Petro 2000 Exploration.
This was prior to their investment in Petrogreen Energy,
LLC. The loan was for operating capital and the purchase of
working interest.
|
|
2.
|
Petro
2000 sold a drilling rig and equipment to Petrogreen LLC. The
proceeds were used to pay off a payable owed by Petro 2000 to Petrogreen
and the remainder was set up as a note payable from Petrogreen to Petro
2000. (Note listed on Exhibit
F)
|
|
3.
|
Xxxxxxxxx
Xxxxxxx transferred in to Petrogreen Energy 50% of his working interest in
the Xxxxx Xxxxxx leases as a capital contribution. He then sold
the remaining 50% working interest to Petrogreen
energy. Petrogreen Energy set up a note payable to Xxxxxxxxx
Xxxxxxx for the value of the 50% working interest
transferred.
|
Page 29 of
29
