PURCHASE AND SALE AGREEMENT
EXHIBIT
10.1
This
Purchase and Sale Agreement ("Agreement") is made
and entered into as of March 18, 2008, by and between Surge Global Energy, Inc.,
a Delaware corporation (“Surge”), Oromin
Enterprises, Ltd., a British Columbia limited company (“Oromin”), Irie Isle
Limited (“Irie”), a British
Virgin Islands corporation, Xxxxxxx Holdings Ltd., a British Virgin Islands
corporation (“Xxxxxxx”) and Xxxx
Idziszek (“Idziszek”). Each
of Surge, Oromin, Xxxx, Xxxxxxx and Idziszek shall be referred to separately
herein as a "Party" and together
as the "Parties".
RECITALS
A. Surge,
Oromin and Xxxxxxx previously entered into a certain purchase agreement (the
“Purchase
Agreement”) pursuant to which Surge acquired a 17.52% interest Xxxxxxx,
which owns a certain parcel of land covering approximately 7,694 square
kilometres in eastern half of the Cuyana Basin in the Province of Xxxxxxx,
Argentina (the “Santa
Xxxx Property”).
B. Under the
Purchase Agreement, Surge issued One Million (1,000,000) shares of Surge’s
common stock and paid Six Hundred Thousand U.S. Dollars (US$600,000.00) to Irie.
In return, Surge was issued Two Hundred Twelve and Four Hundred Fifteen
Thousandth (212.415) shares of common stock of Xxxxxxx (the “Xxxxxxx Holdings
Shares”).
C. Subject
to the terms and conditions set forth herein, Surge desires to sell all of its
interest in the Xxxxxxx Holdings Shares and thereby its indirect interest in the
Santa Xxxx Property and Oromin, Irie and Idziszek desire to purchase or cause to
be purchased Surge’s interest in the Xxxxxxx Holdings Shares and thereby its
indirect interest in the Santa Xxxx Property at an aggregrate purchase price of
Six Hundred Thousand U.S. Dollars (US$600,000.00) in cash and the return of One
Million (1,000,000) shares of the Surge’s common stock (some of which may be
provided by Idsiszek) previously paid by Surge to Irie. In exchange,
Surge will sell to Irie its entire interest in the Xxxxxxx Holdings Shares and
thereby its indirect interest in the Santa Xxxx Property.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises and certain other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1. Purchase of Shares and
Purchase Price. Subject to the terms and conditions and
reliance on the representations and warranties set forth herein, Surge shall
sell, assign, transfer, and deliver to Oromin, Xxxxxxx and/or Idziszek at the
consummation of the transaction contemplated (the “Closing”) all of
Surge’s interest in the Xxxxxxx Holdings Shares and thereby its indirect
interest in the Santa Xxxx Property (“Surge Purchase
Price”). Subject to the terms and conditions and reliance on
the representations and warranties set forth herein, Oromin, Irie or Idziszek,
as the case may be, shall sell, assign, transfer, and deliver to Surge at the
Closing 1,000,000 shares of common stock of Surge (the “Surge Shares”) and
Six Hundred Thousand U.S. Dollars (US$600,000) in cash by wire transfer ("Oromin Purchase
Price"). Attached as Exhibit A is the wire instructions for
Surge.
2. Surge's Representations and
Warranties. Surge represents and warrants the following, each
of which is true and correct as of the date hereof.
a. Ownership of the
Shares. Surge owns all right, title and interest to the
Xxxxxxx Holdings Shares and has the authority to transfer the Xxxxxxx Holdings
Shares. Surge has not been issued any stock certificate evidencing
the Shares or if one has been issued it is presumed lost. Neither the
Xxxxxxx Holdings Shares nor any interest therein has been sold, assigned,
endorsed, transferred, deposited under any agreement, hypothecated, pledged or
disposed of in any manner by Surge. Neither Surge, nor to Surge’s
knowledge, anyone else has signed, any assignment, power of attorney, or other
assignment or authorization respecting the same that is now outstanding and
still in force as to the Xxxxxxx Holdings Shares, and no person firm,
corporation or other entity has, or has asserted, any right, title, claim,
equity, or interest in, to, or respecting any of the Xxxxxxx Holdings
Shares.
b. Noncontravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Surge is
subject, or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
Surge is a party or by which Surge is bound.
c. Enforceability. Surge
has the full legal capacity to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Surge and constitutes the valid and legally
binding obligation of Surge, enforceable in accordance with its terms, except
where enforceability may be limited by applicable law. The execution
by Surge of this Agreement, and the incurring by Surge of the obligations of
Surge hereunder, have been duly authorized by all necessary action on the part
of Surge.
d. No Other Representations and
Warranties. Other than as set forth in Sections 2.a – 2.c
above, Surge is not making and will not be required to make any other
representations or warranties to Oromin or Xxxxxxx in connection with the
contemplated transaction.
3. Oromin’s and Idziszek’s
Representations and Warranties.
Oromin,
Irie and Idziszek represent and warrant, jointly and severally, the following,
each of which is true and correct as of the date hereof.
a. Ownership of the
Shares. Irie and Idziszek own all right, title and interest to
the Surge Shares and each has the authority to transfer the Surge
Shares. Neither the Surge Shares nor any interest therein has been
sold, assigned, endorsed, transferred, deposited under any agreement,
hypothecated, pledged or disposed of in any manner by Irie of Idziszek other
than as set forth in this Agreement. Neither Irie or Idziszek, nor to
their knowledge, anyone else has signed, any assignment, power of attorney, or
other assignment or authorization respecting the same that is now outstanding
and still in force as to the Surge Shares, and no person firm, corporation or
other entity has, or has asserted, any right, title, claim, equity, or interest
in, to, or respecting any of the Surge Shares.
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b. Noncontravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Oromin,
Irie or Idziszek is subject, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Oromin, Irie or Idziszek is a party or by which Oromin, Irie or
Idziszek is bound.
c. Enforceability. Oromin,
Irie and Idziszek have the full legal capacity to enter into this Agreement and
to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Oromin, Irie and Idziszek
and constitutes the valid and legally binding obligation of Oromin, Irie and
Idziszek, enforceable in accordance with its terms, except where enforceability
may be limited by applicable law. The execution by Oromin, Irie and
Idziszek of this Agreement, and the incurring by Oromin and Idziszek of the
obligations of Oromin, Irie and Idziszek hereunder, have been duly authorized by
all necessary action on the part of Oromin, Irie and Idziszek.
d. No Other Representations and
Warranties. Other than as set forth in Sections 3.a – 3.c
above, Oromin, Irie and Idziszek are not making and will not be required to make
any other representations or warranties to Surge in connection with the
contemplated transaction.
4. Deliveries Upon
Execution. Upon execution of this Agreement, the Parties shall
do the following:
a. Surge
shall deliver to Irie the Xxxxxxx Holdings Shares.
b. Oromin,
Irie and Idziszek shall deliver to Surge the Oromin Purchase Price.
c. Surge
shall immediately deliver and surrender to Irie a stock power/assignment
separate from certificate transferring ownership of the Xxxxxxx Holdings
Shares.
d. Irie and
Idziszek shall immediately deliver and surrender to Surge the original stock
certificates, if available, and stock power/assignments separate from
certificate evidencing ownership of the Surge Shares.
5. Annual
Meeting. To the extent the Surge Shares have not been
transferred to Surge for whatever reason, Irie and Idziszek shall vote the Surge
Shares in favor of the proposals submitted by Surge to the Surge stockholders,
including the election of directors, at the next annual meeting of stockholders
currently scheduled for March 18, 2008, or any subsequent date.
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6. Release.
a. Surge, on
behalf of itself and its respective affiliates, shareholders, officers,
directors, agents, successors, heirs, and assigns (collectively, the “Surge Parties”),
hereby fully and forever releases and discharges Oromin, Xxxx, Xxxxxxx and
Idzizsek and their respective affiliates, shareholders, officers, directors,
agents, successors, heirs, and assigns (collectively, the “Oromin Parties”),
from any and all claims, demands, liens, actions, agreements, suits, causes of
action, obligations, controversies, debts, costs, attorneys' fees, expenses,
damages, judgments, orders and liabilities of whatever kind or nature in law,
equity or otherwise, whether now known or suspected which have existed or may
have existed, from the beginning of time, or which do exist or which hereafter
can, shall or may exist, based on any facts, events, or omissions, including,
without limitation, any claims resulting from, arising out of, relating to or in
connection with the Xxxxxxx Holdings Shares, including any rights as a
shareholder of Xxxxxxx (collectively, “Xxxxxxx Holdings
Claims”); provided, however, that this release shall not release any
Xxxxxxx Holdings Claims arising under this Agreement.
b. Oromin,
on behalf of themselves and the Oromin Parties, hereby fully and forever
releases and discharges the Surge Parties from any and all claims, demands,
liens, actions, agreements, suits, causes of action, obligations, controversies,
debts, costs, attorneys' fees, expenses, damages, judgments, orders and
liabilities of whatever kind or nature in law, equity or otherwise, whether now
known or suspected which have existed or may have existed, from the beginning of
time, or which do exist or which hereafter can, shall or may exist, based on any
facts, events, or omissions, including, without limitation, any claims resulting
from, arising out of, relating to or in connection with the Surge Shares,
including any rights as a shareholder of Surge (collectively, “Surge Claims”);
provided, however, that this release shall not release any Surge Claims arising
under this Agreement.
7. Section 1542
Waiver. The Parties have been advised of the existence of
Section 1542 of the California Civil Code (“Section 1542”) which
provides:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding
such provisions, this release shall constitute a full release in accordance with
its terms. Surge, Oromin, Xxxx, Xxxxxxx and Idziszek hereby knowingly
and voluntarily waive the provisions of Section 1542, as well as any other
statute, law or rule of similar effect.
8. Survival of Representations
and Warranties. The representations and warranties of the
Parties contained in this Agreement shall survive the Closing for one
year.
9. Miscellaneous.
a. Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on the Party to whom notice is to be given or within five
(5) business days if mailed to the Party to whom notice is to be given, by
first class mail, registered, or certified, postage prepaid and properly
addressed to the address immediately following their signatures
below.
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b. Expenses. Except
as otherwise provided for herein, each Party hereto shall be responsible for his
own expenses accrued in connection with the negotiation, execution and
consummation of the transactions contemplated by this Agreement, including fees
of his attorneys, accountants or consultants.
c. Successors and
Assigns. All covenants, representations, warranties and
agreements of the Parties contained herein shall be binding upon and inure to
the benefit of their respective heirs, executors, administrators, personal
representatives, successors and assigns.
d. Assignment; No Third Party
Beneficiaries. No rights under this Agreement shall be
assignable nor duties delegable by any Party. Nothing contained in
this Agreement is intended to confer upon any person or entity, other than the
Parties hereto, any rights or remedies under or by reason of this
Agreement.
e. Further
Assurances. Upon request, from time to time, Surge, Oromin and
Idziszek shall execute and deliver all documents, make all rightful oaths,
testify in any proceedings and do all other acts which may be necessary or
desirable to carry out the transactions contemplated hereby.
f. Entire
Agreement. This Agreement constitutes the entire agreement
among the Parties pertaining to the subject matter hereof and thereof and
supersedes all prior and contemporaneous agreements and understandings of the
Parties in connection herewith and therewith.
g. Governing
Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, without regard
to its conflicts of law principles.
h. Amendments and
Waivers. Any term hereof may be amended only with the written
consent of each of the Parties hereto.
i. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
j. Counterparts. This
Agreement may be executed in one or more counterparts, all of which when fully
executed and delivered by all Parties hereto and taken together shall constitute
a single agreement, binding against each of the Parties. To the
maximum extent permitted by law or by any applicable governmental authority, any
document may be signed and transmitted by facsimile with the same validity as if
it were an ink-signed document.
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IN
WITNESS WHEREOF, each of the Parties has executed this Agreement on the day and
year first written above.
| SURGE: | OROMIN: |
| Surge Global Energy, Inc., | Oromin Enterprises, Ltd. |
| a Delaware corporation | |
| By: /s/ Xxxx Idziszek | |
| Name: | |
| Title: | |
| By: /s/ E. Xxxxx Xxxxxxx | Irie Isle Limited: |
| Name: E. Xxxxx Xxxxxxx | |
| Title: Chief Executive Officer | By: /s/ Xxxx Idziszek |
| Name: | |
| Title: | |
| Xxxxxxx Holdings Ltd.: | |
| By: /s/ Xxxx Idziszek | |
| Name: | |
| Title: | |
| /s/ Xxxx Idziszek | |
|
Xxxx
Idziszek (individually)
|
|
6
EXHIBIT
A
WIRE
INSTRUCTIONS
| Bank name: | Xxxxx Fargo Bank |
| Swift Number: | XXXXXX0X |
| ABA/Routing Number: | 000000000 |
| Beneficiary Bank Name: | Xxxxxx Xxxxx Bank |
| 00000 Xx Xxxxxx Xxxx | |
| Xxx Xxxxx, XX 00000 | |
| Beneficiary Bank Account Number: | 4050019702 |
| Reference information: | Account #0331003449 |
