EXHIBIT 20
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated
effective the 7th day of January, 2004, is made and entered into by and among
F10 Oil & Gas Properties, Inc., a Nevada corporation ("F10"); GFY, Inc., an
Illinois corporation ("GFY"); and the Shareholders of GFY whose names are set
forth on Exhibit "A" attached hereto and as signatories to the signature page
hereof (the "SHAREHOLDERS")
INTRODUCTION
The SHAREHOLDERS own all of the issued and outstanding shares of common
stock of GFY. F10 desires to acquire all of the issued and outstanding common
stock of GFY and the SHAREHOLDERS desire to transfer their stock to F10 in
exchange for certain shares of stock of F10, all as set forth below, pursuant to
a tax-free reorganization.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and provisions contained herein, the parties hereto agree as follows:
ARTICLE I
PLAN OF REORGANIZATION
ss.1.01 PLAN ADOPTED
A Plan of Reorganization of F10 and GFY, pursuant to the provisions of
ss.368(a)(1)(B) of the Internal Revenue Code of 1986 is adopted as follows:
(a) The SHAREHOLDERS will transfer to F10 One Thousand (1,000) shares
of the capital stock of GFY which constitutes all of the issued and outstanding
shares of stock of GFY.
(b) At the Closing, the SHAREHOLDERS will provide the original stock
certificate representing their shares of stock in GFY to be transferred
hereunder in form for transfer accompanied by properly executed Stock Powers of
Assignment.
(c) In exchange for the shares of GFY transferred by the SHAREHOLDERS,
F10 will cause to be delivered to the SHAREHOLDERS Twenty Million (20,000,000)
shares of the common stock of F10 (the "Exchange Shares"). The Exchange Shares
shall be free and clear of all mortgages, pledges, claims, liens and other
rights and encumbrances whatsoever, except as disclosed in this Agreement. F10
shall cause the Exchange Shares to be issued and delivered to the SHAREHOLDERS
at the Closing herein on the basis of Twenty Thousand (20,000) Exchange Shares
for every One (1) share of GFY transferred by each of the respective
Shareholders.
ss.1.02 CLOSING DATE
Subject to the conditions precedent set forth herein to the obligations
of the parties to consummate the transaction, the Plan of Reorganization shall
be consummated on December 17, 2003. The date of such consummation is the
"Closing Date" or "Closing" referred to herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GFY AND THE SHAREHOLDERS
GFY and the SHAREHOLDERS represent and warrant to F10 as follows:
ss.2.01 ORGANIZATION AND QUALIFICATION
GFY has no subsidiary or affiliate corporation and owns no interest in
any other enterprise (whether or not such enterprise is a corporation). GFY is
duly organized, validly existing, and in good standing under the laws of
Illinois, with all requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use its properties and assets and to carry on the business in which
it is now engaged and the business in which it contemplates engaging.
ss.2.02 CAPITALIZATION
One Thousand (1,000) shares of the common stock of GFY are issued and
outstanding (the "GFY Outstanding Stock"). The GFY Outstanding Stock is validly
authorized, validly issued, fully paid, and non assessable, has not been issued
and is not owned or held in violation of any preemptive right of any
shareholder, and is owned of record and beneficially exclusively by the
SHAREHOLDERS and free and clear of all liens, security interests, pledges,
charges, encumbrances, capital stockholder's agreements, and voting trusts.
There is no commitment, plan, or arrangement to issue, and no outstanding
option, warrant, or other right calling for the issuance of, any capital stock
of GFY or any security or other instrument convertible into, exercisable for, or
exchangeable for capital stock in GFY. There is outstanding no security or other
instrument convertible into or exchangeable for capital stock in GFY.
ss.2.03 FINANCIAL CONDITION
GFY has been operating a business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "BUSINESS"). The SHAREHOLDERS have delivered to F10,
a closing balance sheet and related statement of income for the period
commencing January 1, 2003 and ending September 30, 2003 for the BUSINESS and
the opening balance sheet dated September 30, 2003 of GFY (collectively herein
sometimes referred to as the "FINANCIAL STATEMENTS"). The FINANCIAL STATEMENTS
present fairly the results of operations of for the period indicated and each
such statement presents fairly the information purported to be shown therein.
The FINANCIAL STATEMENTS are correct and complete and are in accordance with the
books and records of the SHAREHOLDERS and GFY and are attached hereto as Exhibit
C.
(a) There has at no time been a material adverse change in the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of the BUSINESS other than as shown on the
FINANCIAL STATEMENTS.
(b) The operations and activities of the BUSINESS have been conducted
in all respects only in the ordinary course.
(c) There has been no accepted purchase order or quotation,
arrangement, or understanding for future sale of the products or services of the
BUSINESS which GFY or the SHAREHOLDERS expects will not be profitable.
(d) The BUSINESS has not suffered an extraordinary loss (whether or not
covered by insurance) or waived any right of substantial value.
(e) There is no fact known to GFY or the SHAREHOLDERS which materially
adversely affects or in the future (as far as GFY, or the SHAREHOLDERS can
foresee) may materially adversely affect the financial condition, results of
operations, business, properties, assets, liabilities, or future prospects of
GFY; PROVIDED, HOWEVER, that GFY and the SHAREHOLDERS express no opinion as to
political or economic matters of general applicability.
(f) GFY will pay to designated creditors of F10 a minimum sum of fifty
thousand dollars ($50,000.00) prior to Closing.
ss.2.04 TAX AND OTHER LIABILITIES
Neither GFY nor the BUSINESS has any liability of any nature, accrued
or contingent, including without limitation liabilities for federal, state,
local, or foreign taxes and liabilities to customers or suppliers.
ss.2.05 LITIGATION AND CLAIMS
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, threatened, or in
prospect (or any basis therefor known to GFY or the SHAREHOLDERS) with respect
to GFY and the BUSINESS or any of GFY's business, properties, or assets. GFY is
not affected by any present or threatened strike or other labor disturbance nor
to the knowledge of GFY or the SHAREHOLDERS is any union attempting to represent
any employee of GFY as collective bargaining agent. GFY is not in violation of,
or in default with respect to, any law, rule, regulation, order, judgment, or
decree; nor is GFY required to take any action in order to avoid such violation
or default.
ss.2.06 PROPERTIES
GFY has good title to all properties and assets used in its business or
owned by it free and clear of all liens, mortgages, security interests, pledges,
charges, and encumbrances.
(a) Attached as Exhibit D is a true and complete list of all properties
and assets owned, leased, or licensed by GFY (including inventory but not
including Intangibles, as defined in Section 2.09). All properties and assets
owned, leased, or licensed by GFY are in good and usable condition (reasonable
wear and tear which is not such as to affect adversely the operation of the
business of GFY excepted).
(b) The properties and assets (including intangibles) owned, leased, or
licensed by GFY constitute all such properties and assets which are necessary to
the business of GFY as presently conducted or as it contemplates conducting.
ss.2.07 CONTRACTS AND OTHER INSTRUMENTS
GFY has furnished to F10 its Articles of Incorporation and By Laws and
all amendments thereto as presently in effect. Exhibit E, attached hereto,
contains a true and complete list of all contracts, leases, liabilities,
obligations and debts of GFY.
ss.2.08 INTENTIONALLY LEFT BLANK
ss.2.09 PATENTS, TRADEMARKS, BUSINESS NAME
GFY does not own or have pending, or is licensed under, any patent,
patent application, trademark, trademark application, trade name, service ▇▇▇▇,
copyright, franchise, or other intangible property or asset (all of the
foregoing, together with the right to use the name GFY, being herein called
"Intangibles"), other than as described in Exhibit F, all of which are in good
standing and uncontested. Exhibit F accurately sets forth with respect to
Intangibles owned by GFY. GFY has not infringed, is infringing, or has received
notice of infringement with asserted Intangibles of others. There is no
infringement by others of Intangibles of GFY. There is no Intangible of others
which may materially adversely affect the financial condition, results of
operations, business, properties, assets, liabilities, or future prospects of
GFY or of F10.
ss.2.10 AUTHORITY TO SELL
GFY and the SHAREHOLDERS have all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of GFY have been duly taken to authorize the execution, delivery,
and performance of this Agreement by GFY and (including, without limitation,
action by the SHAREHOLDERS). This Agreement has been duly authorized, executed,
and delivered by GFY, has been duly executed and delivered by the SHAREHOLDERS,
constitutes the legal, valid, and binding obligation of GFY and the
SHAREHOLDERS, and is enforceable as to them in accordance with its terms. To the
best of GFY's and the SHAREHOLDERS' knowledge, no consent, authorization,
approval, order, license, certificate, or permit of or from, or declaration or
filing with, any federal, state, local, or other governmental authority or any
court or other tribunal is required by GFY or the SHAREHOLDERS for the
execution, delivery, or performance of this Agreement by GFY or the
SHAREHOLDERS.
ss.2.11 COMPLETENESS OF DISCLOSURE
No representation or warranty by GFY or the SHAREHOLDERS in this
Agreement contains or on the date of the Closing will contain any untrue
statement of material fact or omits or on the date of the Closing will omit to
state a material fact necessary to make the statements made not misleading,
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF F10
F10 represents and warrants to GFY as follows:
ss.3.01 ORGANIZATION
F10 is a Nevada corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of incorporation, with all
requisite power and authority to own, lease, license, and use its properties and
assets and to carry on the business in which it is now engaged and the business
in which it contemplates engaging.
ss.3.02 AUTHORITY TO BUY
F10 has all requisite power and authority to execute, deliver, and
perform this Agreement. All necessary corporate proceedings of F10 have been
duly taken to authorize the execution, delivery, and performance of this
Agreement by F10. This Agreement has been duly authorized, executed, and
delivered by F10, is the legal, valid, and binding obligation of F10, and is
enforceable as to it in accordance with its terms.
ss.3.03 SEC ACTION AGAINST F10
On October 16, 2003, the Securities and Exchange Commission through
its Salt Lake City, Utah, office filed a complaint in the United States District
Court for the District of Utah against 21 defendants including F10 Oil & Gas
Properties, Inc., ▇▇▇ ▇. ▇▇▇▇▇▇, the former Chief Executive Officer of F10, ▇▇▇▇
▇. ▇▇▇▇▇, the former President of F10, ▇▇▇ ▇. ▇▇▇▇▇▇, a consultant to F10 and
Grateful Internet Associates, LLC, a Colorado limited liability company owed by
▇▇▇ ▇. ▇▇▇▇▇▇. The complaint alleges that overseas investors were defrauded by a
scheme organized by defendants ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Sukumo Ltd. to
sell securities in five United States-based issuers including F10. F10, with its
former officers ▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, are alleged to have made false
or incomplete filings with the SEC and to have manipulated the price of F10's
securities in violation of the antifraud provisions of Section 17(a) of the
Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, the issuer reporting provision of Section
13(a) of the Exchange Act, and Rules 12b-20, 13a-1 and 13a-13 promulgated under
the Exchange Act.
The complaint seeks the entry of a preliminary and permanent
injunction against all defendants including F10 and its former officers, ▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, including the return of "ill gotten" gains, and seeks
asset freezes against 16 of the defendants including F10 and its former
officers.
F10's bank account with a balance of approximately $60,000 is
currently frozen.
The court has scheduled a December 2003 hearing on the SEC's
application for a preliminary injunction.
GFY hereby acknowledges full knowledge of this current action by the
SEC.
F10 represents and warrants that the SEC action and any and all
preliminary injunctive relief sought and obtained therein in no way prohibits
the following:
(a) The ability for F10 to enter into this Agreement and Plan of
Reorganization.
(b) The issuance and transfer of the shares hereunder.
(c) The approval of corporate resolutions to issue additional
shares.
(d) The approval of corporate resolutions to increase the number
of authorized shares.
(e) The approval of corporate resolutions to conduct reverse stock
splits, enter into other merger agreements, file registration
statements under Rule S-8 filings or any other corporate
transactions involving a capital restructuring.
ARTICLE IV
INDEMNITY
ss.4.01 INDEMNITY OF GFY AND THE SHAREHOLDERS
GFY and the SHAREHOLDERS agree to jointly and severally indemnify
and hold harmless F10, its officers, directors and employees against and in
respect of any and all:
(a) Claims, suits, actions, proceedings (formal or informal),
investigations, judgments, deficiencies, damages, settlements, liabilities, and
legal and other expenses (including legal fees and expenses of counsel chosen by
any Indemnitee) as and when incurred arising out of or based upon (i) any breach
of any representation, warranty, covenant, or agreement of GFY or the
SHAREHOLDERS contained in this Agreement, (ii) any obligation of liability of
any nature, accrued or contingent, of GFY not specifically disclosed to F10 in
accordance with this Agreement.
(b) Claims, suits, actions, and proceedings (formal or informal) of
persons or entities other than F10 and related judgments, deficiencies, damages,
settlements, liabilities, and legal and other expenses (including legal fees and
expenses of counsel) as and when incurred arising out of or based upon the
conduct of the business of GFY prior to the Closing.
ss.4.02 INDEMNITY OF F10
F10 agrees to indemnify and hold harmless the SHAREHOLDERS against and
in respect of any and all:
(a) Claims, suits, actions, proceedings (formal or informal),
investigations, judgments, deficiencies, damages, settlements, liabilities, and
legal and other expenses (including legal fees and expenses of counsel) as and
when incurred arising out of or based upon any breach of any representation,
warranty, covenant, or agreement of F10 contained in this Agreement.
(b) Claims, suits, actions, and proceedings (formal or informal) of
persons or entities other than the SHAREHOLDERS and related judgments,
deficiencies, damages, settlements, liabilities, and legal and other expenses
(including legal fees and expenses of counsel) as and when incurred arising out
of or based upon the conduct of the business of GFY and/or F10 after the
Closing.
ss.4.03 NOTICE
F10, its officers, directors and employees on the one hand, and the
SHAREHOLDERS on the other hand, shall give prompt notice to the other of any
claim asserted or threatened on the basis of which indemnification may be sought
as herein provided but the obligations contained in this Article IV shall not be
conditioned upon receipt of such notice.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF F10
The obligations of F10 under this Agreement are subject, at the option
of F10, to the following conditions:
ss.5.01 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS
All representations and warranties of GFY and/or the SHAREHOLDERS
contained in this Agreement shall be accurate when made and, in addition, shall
be accurate as of the Closing as though such representations and warranties were
then made in exactly the same language by GFY and/or the SHAREHOLDERS and
regardless of knowledge or lack thereof on the part of GFY or the SHAREHOLDERS
or changes beyond their or its control; only as of the Closing, GFY and the
SHAREHOLDERS shall have performed and complied with all covenants and agreements
and satisfied all conditions required to be performed and complied with by any
of them at or before such time by this Agreement.
ss.5.02 OTHER CLOSING DOCUMENTS
GFY shall have delivered to F10 at or prior to the Closing such other
documents (including certificates of officers of GFY) as F10 may reasonably
request in order to enable F10 to determine whether the conditions to their
obligations under this Agreement have been met and otherwise to carry out the
provisions of this Agreement.
ss.5.03 INTENTIONALLY LEFT BLANK
ss.5.04 LEGAL ACTION
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation of,
the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
The references in this Section 5.04 to this Agreement include any other
document executed by GFY or the SHAREHOLDERS relating hereto or delivered to F10
in connection with the transactions contemplated hereby.
ss.5.05 NO GOVERNMENTAL ACTION
There shall not have been any action taken, or any law, rule,
regulation, order, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transactions contemplated by this Agreement by any
federal, state, local, or other governmental authority or any court or other
tribunal, including the entry of a preliminary or permanent injunction, which,
in the sole judgment of F10, (a) makes any of the transactions contemplated by
this Agreement illegal, (b) results in a delay in the ability of F10 to
consummate any of the transactions contemplated by this Agreement, (c) requires
the divestiture by F10 of a material portion of the business of either F10 and
its subsidiaries taken as a whole, or of GFY taken as a whole, (d) imposes
material limitations on the ability of F10 effectively to exercise full rights
of ownership with respect to the properties and assets purported to be sold
pursuant to this Agreement, or (e) otherwise prohibits, restricts, or delays
consummation of any of the transactions contemplated by this Agreement or
impairs the contemplated benefits to F10 of the transactions contemplated by
this Agreement.
The references in this Section 5.05 to this Agreement include any other
document executed by GFY or the SHAREHOLDERS relating hereto or delivered to F10
in connection with the transactions contemplated hereby.
ss.5.06 RETENTION OF EXISTING F10 ASSETS
The parties hereby agree that F10's existing officers shall retain
authority over the distribution of its existing frozen cash assets as well as
the oil and gas investments within F10 as of the date of this Agreement (the
"Frozen Assets"). If and when the SEC grants F10 permission to sell or otherwise
dispose of the Frozen Assets, the control of these assets will revert to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, the current President of F10.
ss.5.07 CONTRACTUAL CONSENTS NEEDED
The parties to this Agreement shall have obtained at or prior to the
Closing all consents required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which any of them
is a party, or to which any of their respective businesses, properties, or
assets are subject.
ss.5.08 OTHER AGREEMENTS
Any and all agreements to be signed after this Agreement is executed
but before the Closing shall have been duly authorized, executed, and delivered
by the parties thereto at or prior to the Closing, shall be in full force, valid
and binding upon the parties thereto, and enforceable by them in accordance with
their terms at the Closing, and no party thereto at any time from the execution
thereof until immediately after the Closing shall have been in violation of or
in default in complying with any material provision thereof.
ss.5.09 INTENTIONALLY LEFT BLANK
ss.5.10 INTENTIONALLY LEFT BLANK
ss.5.11 CORPORATE MATTERS
F10 shall have received at or prior to the Closing the original
Corporate Minute Book, Stock Ledger, Stock Certificate Book, Corporate seal and
other related Corporate documents of GFY.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF GFY AND THE SHAREHOLDERS
The obligations of GFY and the SHAREHOLDERS under this Agreement are
subject, at the option of GFY and the SHAREHOLDERS, to the following conditions:
ss.6.01 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS
All representations and warranties of F10 contained in this Agreement
shall be accurate when made and, in addition, shall be accurate as of the
Closing as though such representations and warranties were then made in exactly
the same language by F10 and regardless of knowledge or lack thereof on the part
of F10 or changes beyond its or their control; as of the Closing F10 shall have
performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by any of them at or
before such time by this Agreement.
ss.6.02 OTHER CLOSING DOCUMENTS
F10 shall have delivered to the SHAREHOLDERS at or prior to the Closing
such other documents as GFY or the SHAREHOLDERS may reasonably request in order
to enable the SHAREHOLDERS to determine whether the conditions to their
obligations under this Agreement have been met and otherwise to carry out the
provisions of this Agreement.
ss.6.03 REVIEW OF PROCEEDINGS
All actions, proceedings, instruments, and documents required to carry
out this Agreement or incidental thereto and all other related legal matters
shall be subject to the reasonable approval of counsel to GFY and the
SHAREHOLDERS, and F10 shall have furnished such counsel such documents as such
counsel may have reasonably requested for the purpose of enabling them to pass
upon such matters.
The references in this Section 6.03 to this Agreement include any other
document executed by GFY or the SHAREHOLDERS relating hereto or delivered to F10
in connection with the transactions contemplated hereby.
ss.6.04 LEGAL ACTION
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation of,
the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto. Notwithstanding, F10 hereby discloses the legal
action taken by the SEC as described in Section 3.03 herein.
The references in this Section 6.04 to this Agreement include any other
document executed by GFY or the SHAREHOLDERS relating hereto or delivered to F10
in connection with the transactions contemplated hereby.
ss.6.05 INTENTIONALLY LEFT BLANK
ss.6.06 INTENTIONALLY LEFT BLANK
ss.6.07 OTHER AGREEMENTS
Any and all agreements to be signed after this Agreement is executed
but before the Closing shall have been duly authorized, executed, and delivered
by the parties thereto at or prior to the Closing, shall be in full force, valid
and binding upon the parties thereto, and enforceable by them in accordance with
their terms at the Closing, and no party thereto at any time from the execution
thereof until immediately after the Closing shall have been in violation of or
in default in complying with any material provision thereof.
VII
COVENANTS AND AGREEMENTS OF GFY AND THE SHAREHOLDERS
GFY and the SHAREHOLDERS covenant and agree as follows:
ss.7.01 ACCESS
GFY will afford, and the SHAREHOLDERS will cause GFY to afford, the
officers, employees, counsel, agents, accountants, and other representatives of
F10 and lenders, investors, and prospective lenders and investors free and full
access to the plants, properties, books, and records of GFY, will permit them to
make extracts from and copies of such books and records, and will from time to
time furnish F10 with such additional financial and operating data and other
information as to the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of GFY as F10 from time to
time may request.
ss.7.02 CONDUCT OF BUSINESS
GFY will, and the SHAREHOLDERS will cause GFY to conduct its affairs so
that at the Closing no representation or warranty of GFY or the SHAREHOLDERS
will be inaccurate, no covenant or agreement of GFY or the SHAREHOLDERS will be
breached, and no condition in this Agreement will remain unfulfilled by reason
of the actions or omissions of GFY or the SHAREHOLDERS. GFY will, and the
SHAREHOLDERS will cause GFY, to use their best efforts to preserve the business
operations of GFY intact, to keep available the services of their present
personnel, to preserve in full force and effect the contracts, agreements,
instruments, leases, licenses, arrangements, and understandings of GFY, and to
preserve the goodwill of their suppliers, customers, and others having business
relations with any of them. Until the Closing or earlier rightful termination of
this Agreement, GFY will, and the SHAREHOLDERS will cause GFY, to conduct their
business and operations in all respects only in the ordinary course.
ss.7.03 ADVICE OF CHANGES
Until the Closing or the earlier rightful termination of this
Agreement, GFY and the SHAREHOLDERS will immediately advise F10 in a detailed
written notice of any fact or occurrence or any pending or threatened occurrence
of which any of them obtains knowledge and which (if existing and known at the
date of the execution of this Agreement) would have been required to be set
forth or disclosed in or pursuant to this Agreement or an Exhibit hereto, which
(if existing and known at any time prior to or at the Closing) would make the
performance by any party of a covenant contained in this Agreement impossible or
make such performance materially more difficult than in the absence of such fact
or occurrence, or which (if existing and known at the time of the Closing) would
cause a condition to any party's obligations under this Agreement not to be
fully satisfied.
The references in this Section 7.03 to this Agreement include any other
document executed by GFY or the SHAREHOLDERS relating hereto or delivered to F10
in connection with the transactions contemplated hereby.
ss.7.04 INTENTIONALLY LEFT BLANK
ss.7.05 RELEASE BY THE SHAREHOLDERS
If the Closing takes place, effective immediately after the Closing,
the SHAREHOLDERS jointly and severally, fully and unconditionally release and
discharge all claims and causes of action which they or their heirs, personal
representatives, successors or assigns ever had, now have, or hereafter may have
against GFY or its properties and assets.
ARTICLE VIII
MISCELLANEOUS
ss.8.01 BROKERAGE FEES
If any person shall assert a claim to a fee, commission, or other
compensation or account of alleged employment as a broker or finder, or alleged
performance of services as a broker or finder, in connection with or as a result
of any of the transactions contemplated by this Agreement, GFY and the
SHAREHOLDERS shall (subject to the next sentence) indemnity and hold harmless
the Indemnitees against and in respect of any and all claims, suits, actions,
proceedings (formal or informal), investigations, judgments, deficiencies,
damages, settlements, liabilities, and legal and other expenses (including legal
fees and expenses of attorneys chosen by any Indemnitee) as and when incurred
arising out of or based upon such claim by such person, and GFY and the
SHAREHOLDERS shall at their sole expense defend any and all suits, actions,
proceedings (formal or informal), or investigations involving such claim that
may at any time be brought against any Indemnitee and satisfy promptly any
settlement or judgment arising therefrom; but if GFY and the SHAREHOLDERS fail
to defend such suit, action, proceeding, or investigation in a timely manner,
F10 or any Indemnitee made a defendant therein or a party thereto shall have the
right to defend and settle the same and pay any judgment or settlement
pertaining thereto as it or he may reasonably deem appropriate at the cost and
expense of GFY and the SHAREHOLDERS. If, however, it is ultimately determined in
any such suit, action, or proceeding (in which F10 and all Indemnitees made a
defendant therein or a party thereto were afforded the opportunity to have their
counsel participate in the defense) that F10 or any Indemnitee made a defendant
therein or a party thereto was the sole employer of such broker or finder or
services were performed solely for F10 or any Indemnitee made a defendant
therein or a party thereto, then GFY and the SHAREHOLDERS shall not be
responsible under this Section 8.01 and amounts theretofor paid by them by
reason of this Section 8.01 shall be reimbursed by F10 or the Indemnitee, as the
case may be, who was the sole employer.
ss.8.02 FURTHER ACTIONS
At any time and from time to time, each party agrees, at its or their
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Agreement.
ss.8.03 AVAILABILITY OF EQUITABLE REMEDIES
Since a breach of the provisions of this Agreement could not adequately
be compensated by money damages, any party shall be entitled, either before or
after the Closing, in addition to any other right or remedy available to it, to
an injunction restraining such breach or a threatened breach and to specific
performance of any such provision of this Agreement, and in either case no bond
or other security shall be required in connection therewith, and the parties
hereby consent to the issuance of such an injunction and to the ordering of
specific performance.
ss.8.04 SURVIVAL
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive the Closing for a period of two
(2) years and any delivery of the purchase price by F10, irrespective of any
investigation made by or on behalf of any party. The statements contained in any
other document executed by GFY, the SHAREHOLDERS or the SHAREHOLDERS relating
hereto or thereto or delivered to F10 in connection with the transactions
contemplated hereby or thereby, or in any statement, certificate, or other
instrument delivered by or on behalf of GFY, the SHAREHOLDERS or the
SHAREHOLDERS pursuant hereto or thereto or delivered to F10 in connection with
the transactions contemplated hereby or thereby shall be deemed representations
and warranties, covenants and agreements, or conditions, as the case may be, of
GFY, the SHAREHOLDERS and the SHAREHOLDERS hereunder for all purposes of this
Agreement (including all statements, certificates, or other instruments
delivered pursuant hereto or thereto or delivered in connection with the
transactions contemplated hereby or thereby).
ss.8.05 MODIFICATION
This Agreement and the Exhibits hereto set forth the entire
understanding of the parties with respect to the subject matter hereof (except
as provided in Section 8.04), supersede all existing agreements among them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party (except as provided in Section 8.05).
ss.8.06 NOTICES
Subject to Section 8.05, all notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been given only if
mailed, certified return receipt requested, or if sent by Federal Express or
other well recognized private courier ("Courier") or if personally delivered to,
or if sent by fax with the original thereof sent by Courier to:
If to F10: F10 Oil & Gas Properties, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
If to GFY or the SHAREHOLDERS: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
All notices, requests and other communications shall be deemed received
on the date of acknowledgment or other evidence of actual receipt in
the case of certified mail, Courier delivery or personal delivery or,
in the case of fax delivery, upon the date of fax receipt provided that
the original is delivered within two (2) business days. Any party
hereto may designate different or additional parties for the receipt of
notice, pursuant to notice given in accordance with the foregoing.
ss.8.07 WAIVER
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing and signed by or on behalf of
the waiving party.
ss.8.08 JOINT AND SEVERAL OBLIGATIONS
The representations, warranties, covenants, and agreements of GFY and
the SHAREHOLDERS in this Agreement are joint and several.
ss.8.09 BINDING EFFECT
The provisions of this Agreement shall be binding upon and inure to the
benefit of GFY and F10 and their respective successors and assigns and the
SHAREHOLDERS and their assigns, heirs, and personal representatives, and shall
inure to the benefit of the Indemnitees and their respective successors,
assigns, heirs, and personal representatives.
ss.8.10 NO THIRD-PARTY BENEFICIARIES
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Section 8.10).
ss.8.11 SEPARABILITY
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
ss.8.12 HEADINGS
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
ss.8.13 COUNTERPARTS; GOVERNING LAW
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of Nevada, without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as
of the date first written above.
"F10" "▇▇▇"
▇▇▇ OIL & GAS PROPERTIES, INC. GFY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ --------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
THE SHAREHOLDERS
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Angeles ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Angeles ▇▇▇▇▇▇▇
