STOCK ACQUISITION AGREEMENT
Exhibit
10.1
THIS STOCK ACQUISITION AGREEMENT (this
“Agreement”) is made and entered effective the 18th day of
May, 2009 (the “Effective Date”), by EGPI FIRECREEK, INC., a Nevada corporation
(“Assignor”), and FIRECREEK GLOBAL, INC., a Delaware corporation
(“Assignee”);
A. Assignor
is the record owner and holder of all of the issued and outstanding shares of
the capital stock (the “Stock”) of Firecreek Petroleum, Inc., a Delaware
corporation (the “Corporation”).
B. Assignee
desires to acquire from Assignor, and Assignor desires to assign to Assignee,
all of issued and outstanding shares of the Stock, subject to the terms and
conditions hereinafter set forth;
In consideration of the respective
covenants and agreements in this Agreement, Assignor and Assignee agree as
follows:
1. Acquisition. Subject
to the terms and conditions herein set forth, Assignor shall, at Closing
(hereinafter defined) assign and transfer to Assignee all of the issued and
outstanding shares of the Stock using the form of stock assignment (“Stock
Assignment”) attached as Exhibit “A” hereto, and deliver to Assignee all of
the stock certificates representing such shares in the manner provided in the
Stock Assignment.
2. Consideration. The
consideration to be paid by Assignee for the Stock shall be the sum of Ten and
No/100 Dollars ($10.00).
3. Delivery Matters.
Assignor shall immediately deliver to Assignee, at the expense of Assignor,
copies of tax returns and corporate documents relating to the financial status
and operations of the Corporation since May, 2005.
4. Due Diligence Period.
Assignee shall have until Closing to review and approve the documents delivered
pursuant to Paragraph 3. If Assignee does not approve the same in writing before
Closing, this Agreement shall automatically terminate and neither party shall
have further obligation to the other party hereunder.
5. Closing
Matters.
(a) Closing. Subject to
Assignee’s approval of its due diligence review of Corporation matters during
the Due Diligence Period, closing of the transactions contemplated by this
Agreement (“Closing”) shall occur in a manner to be agreed upon by the parties
and be effective as of May 18, 2009 based upon formal confirmation and
acceptance of all items herein this Agreement, by a formal Closing Notification
Letter, which upon execution thereof by the parties hereto shall be attached and
made a part of this Agreement on Exhibit “C”..
(b) Assignment and Stock
Certificates. Assignor will deliver to Assignee at Closing the attached
form of Stock Assignment, and stock certificates representing all of the issued
and outstanding shares of the Stock, duly endorsed for transfer as provided in
the Stock Assignment.
(c) Right of First
Refusal. Assignor and Assignee shall mutually execute and deliver at
Closing the form of right of first refusal agreement attached as Exhibit “B”
hereto, granting to Assignor the right of first refusal, for a period of two (2)
years after Closing, to participate in certain overseas projects in which
Assignee may have or obtain rights as a consequence of Assignee’s previous
activities in certain areas of the world.
(d) Resignations.
Assignor will deliver to Assignee at Closing the resignation of each director
and officer of the Corporation, to be effective as of the effective date of
Closing.
(e) Books, Records and
Documents. Assignor will deliver to Assignee at Closing, or as soon as
possible after Closing, originals of all of the books and records of the
Corporation; provided, however, that as to filings and returns made jointly with
Assignor copies thereof may be delivered by Assignor if such copies are
certified by the Chief Executive Officer of Assignor to be true, correct and
complete copies thereof, and provided, further, that Assignee shall have the
right after for a period of four (4) years after the Closing date, upon
reasonable notice given to Assignor, to obtain access to and make copies of the
originals of all such filings and returns.
(f) Accounting System.
Assignor will deliver to Assignee promptly after Closing the Quickbooks Pro data
base for the accounting system of the Corporation.
(g) Changes after Effective
Date. Between the Effective Date and Closing, Assignor will promptly
advise Assignee in writing of any fact which, if existing or known as of the
Effective Date, would have been required to be set forth herein or disclosed
pursuant to this Agreement, or which would represent a material fact the
disclosure of which would be relevant to Assignee.
6. Representations and
Warranties of Assignor. Assignor hereby warrants and represents as
follows, which warranties and representations shall be effective as of the
Effective Date and as of the Closing date:
(a) Organization and
Standing. The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, qualified
to do business in the States of Texas and Wyoming, and having full corporate
power and authority to carry on its business as it is now being
conducted.
(b) Capitalization. The
Corporation is authorized to issue 100,000 shares of $0.005 par value common
stock, and 50,000 shares of $0.005 par value preferred stock. The Corporation
issued to Assignor 100,000 shares of $0.005 par value common stock and 25,669
shares of $0.005 par value preferred stock (the preferred stock has been
cancelled and returned to treasury), and no other shares of any of the
Stock.
(c) Restrictions on
Stock. There are no restrictions on any shares of the Stock. Neither the
Corporation nor Assignor is a party to any agreement creating rights in any
third person relating to the Stock.
(d) Ownership of Stock.
Assignor is the lawful owner of all of the issued and outstanding shares of the
Stock, free and clear of any security interests, liens, encumbrances, equities
and other charges.
(e) Warrants, Options,
Agreements. There are no existing warrants, options, stock purchase
agreements, redemption agreements, calls or rights to subscribe of any character
relating to the Stock, nor are there any securities convertible into shares of
the Stock.
(f) Subsidiaries. The
Corporation has no subsidiaries.
(g) Properties and
Assets. The Corporation has no properties or assets.
(h) Authority Relative to this
Agreement. Assignor has full power and authority to execute this
Agreement and perform the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by Assignor will not constitute a
breach or a violation of Assignor’s or the Corporation’s Certificate of
Formation, Bylaws, or any law, agreement or other instrument to which Assignor
or the Corporation is a party or by which Assignor or the Corporation is bound,
or constitute a violation of any order, judgment or decree pertaining to
Assignor or the Corporation.
(i) Tax Matters. the
Corporation has timely prepared and filed, or Assignor has timely prepared and
filed on behalf of the Corporation, all federal, state and local tax returns and
reports required to be filed by or on behalf of the Corporation and all taxes
shown thereon have been paid in full.
(j) Litigation. the
Corporation is not a party to any litigation, proceeding or administrative
investigation and, to the best knowledge of Assignor, none is pending against
the Corporation.
(k) Compliance with Applicable
Laws. None of the Corporation’s actions are prohibited by or have
violated or will violate any applicable law in effect on the Effective Date or
the Closing date. None of the actions of the Corporation shall conflict with or
result in any breach of any of the provisions of, or constitute a default under,
or result in the creation of any lien, security interest, charge or encumbrance
upon the Stock under the provisions of the Certificate of Formation or Bylaws or
any agreement to which Assignor or the Corporation is a party or by which the
Stock is bound. The Corporation is in compliance with all applicable laws,
including, but not limited to, corporate laws, and regulations, internal revenue
laws, and all other laws which effect the operations of the Corporation or the
liability of the Corporation.
(l) Financial Statements.
The Corporation’s financial statements to be delivered by Assignor to Assignee
pursuant to Paragraph 3 shall be true, correct and complete as of Closing as
well as the Effective Date. Assignor shall not permit the Corporation to incur
any increase in the Corporation’s debts or obligations, or permit the
Corporation to enter into any agreements of any kind whatsoever, between the
Effective Date and Closing.
(m) Corporation
Documents. The Corporation’s corporate documents to be delivered to
Assignee pursuant to Paragraph 3 shall be true, complete and correct as of
Closing as well as the Effective Date.
(n) Conduct of the Corporation’s
Business Until Closing. Except as Assignee may otherwise consent in
writing prior to the Closing date, Assignor will not enter into any transaction
or take any action or fail to take any action which would result in, or could
reasonably be expected to result in or cause, any of the representations and
warranties of Assignor contained in this Agreement, to be not true on the
Closing date.
7. Broker Commissions.
Assignor represents that there has been no act or omission by Assignor or the
Corporation which would give rise to any valid claim against Assignee or the
Corporation for a brokerage commission or other like payment in connection with
the transactions contemplated hereby. Assignee represents that there has been no
act or omission by Assignee which would give rise to any valid claim against
Assignor for a brokerage commission or other like payment in connection with the
transactions contemplated hereby.
8. SEC Filings. Assignor
shall, at its sole expense, promptly cause any necessary filings to be made with
the Securities Exchange Commission or any state securities agency relating to
the proposed sale and purchase of the Stock, whether such filings are due prior
to or after Closing.
9. Income Tax. Assignor
shall, at its sole expense, be responsible for filing all federal and state tax
filings for 2008 whether the same remain to be filed prior to Closing or are
required to be filed thereafter year. Assignee shall be responsible for all such
tax filings for 2009 and subsequent years. In addition, Assignor shall, at its
sole expense, be responsible for any state or federal income taxes and/or
penalties arising during the period of time that the Corporation was a
subsidiary of Assignor. Assignor shall and does hereby agree to indemnify,
defend and hold harmless Assignee from and against all federal, state and local
income or other taxes of the Corporation attributable to the period of time that
the Corporation was a subsidiary of Assignor and/or arising because the
Corporation will not be a subsidiary of Assignor after Closing.
10. Undisclosed Actions and
Omissions. Assignor shall and does hereby agree to indemnify, hold
harmless and defend Assignee from and against liabilities, debts, losses, claims
and actions arising out of actions or omissions of the Corporation occurring
during the three (3) year period prior to Closing to the extent the same (i)
were known by Assignor prior to Closing, (ii) were not known by Assignee prior
to Closing, and (iii) were not disclosed in writing by Assignor pursuant
hereto.
11. Expenses. Each of the
parties hereto shall pay its own expense in connection with this Agreement and
the transactions contemplated hereby, including the fees and expenses of its
counsel and its certified public accountants and other experts.
12. General.
(a) Survival of Representations
and Warranties. Assignor’s representations, warranties, covenants and
agreements herein and in any documents delivered by Assignor in connection
herewith shall survive the Closing date and terminate on the second anniversary
of such date. Except as set forth in this Agreement, or in any documents and
papers delivered by Assignor to Assignee in connection herewith, there are no
other agreements, representations, warranties or covenants by or among the
parties hereto with respect to the subject matter hereof.
(b) Waivers. No action
taken pursuant to this Agreement, including any investigation by or on behalf of
any party shall be deemed to constitute a waiver by the party taking such action
or compliance with any representation, warranty, covenant or agreement contained
herein or in any documents delivered in connection herewith. The waiver by a
party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
(c) Notices. All notices,
requests, demands and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered or mailed, first class mail, postage prepaid, addressed to
the party to whom such notice is intended to be given at such party’s address
set forth below its signature hereto.
(d) Entire Agreement.
This Agreement (including the exhibits hereto and all documents and papers
delivered by Assignor pursuant hereto and any written amendments hereof executed
by the parties hereto) constitutes the entire Agreement and supersedes all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof.
(e) Headings. The section
and other headings contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this
Agreement.
(f) Governing Law. This
agreement, and all transactions contemplated hereby, shall be governed by,
construed and enforced in accordance with the laws of the State of Nevada. In
the event that litigation results from or arises out of this Agreement or the
performance thereof, the parties agree to reimburse the prevailing party’s
reasonable attorney’s fees, court costs, and all other expenses, whether or not
taxable by the court as costs, in addition to any other relief to which the
prevailing party may be entitled.
(g) Corporation
Obligations. The parties understand that the Corporation has significant
monetary obligations to third persons and parties, that those obligations will
remain with the Corporation and will no longer be filed and reported as part of
combined reporting by Assignor and its subsidiaries, and that Assignor has no
direct obligations to pay or satisfy such obligations, now or in the future.
Notwithstanding the foregoing, Assignee is not assuming personal liability for,
or in any capacity as guarantor or warrantor of, any of the obligations of the
Corporation, and the same shall be solely the obligations of the Corporation.
Assignee does not warrant or guaranty that any of the obligations of the
Corporation will be paid in part or in whole.
IN WITNESS WHEREOF, this Agreement has
been executed by each of the parties hereto on the date indicated below each
party’s signature hereto, to be effective as of the Effective Date. If both
parties have not executed this Agreement within one business day after the first
signing party executes this Agreement, this Agreement shall be null and
void.
| ASSIGNOR: | |||
| EGPI FIRECREEK, INC. | |||
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By:
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/s/ Xxxxxx X. Xxxxxxxxx | ||
| Xxxxxx X. Xxxxxxxxx, CEO | |||
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Date
of Execution:
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Address
for Notices:
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0000 Xxxxx
Xxxx Xxxx
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Xxxxxxxxxx,
Xxxxxxx 00000
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| ASSIGNEE: | |||
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FIRECREEK
GLOBAL, INC.
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By:
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/s/
Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx, President & CEO
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Date
of Execution:
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Address
for Notices:
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0000 Xxxx
Xxxxx Xxxx.
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Xxxxx
000
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Xxxx
Xxxxx, Xxxxx 00000
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EXHIBIT
“A”
Form of Stock
Assignment
EXHIBIT
“B”
Form of Right of First
Refusal Agreement
EXHIBIT
“C”
Closing Notification
Letter
