EXHIBIT 10.10
P.I. HOLDINGS NO. 3, INC.
and
GREKA ENERGY CORPORATION
--------------------------------
STOCK PURCHASE AGREEMENT
--------------------------------
for the Sale of
Windsor Energy US Corporation
Dated as of September 12, 2002
TABLE OF CONTENTS
Page
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ARTICLE I Definitions...................................................... 1
ARTICLE II Purchase and Sale............................................... 2
2.01 The Sale................................................. 2
2.02 Purchase Price........................................... 2
ARTICLE III Closing........................................................ 2
3.01 Date of Closing.......................................... 2
3.02 Actions at Closing....................................... 2
ARTICLE IV Representations and Warranties by the Seller.................... 3
4.01 Corporate/Limited Partnership Existence.................. 3
4.02 Capitalization of the Company............................ 4
4.03 Due Authorization........................................ 4
ARTICLE V Representations and Warranties by the Purchaser.................. 4
5.01 Purchase for Investment.................................. 5
5.02 Corporate Representations................................ 5
5.03 Due Authorization........................................ 5
5.04 No Broker................................................ 5
5.05 Hazardous Substances, Applicable Environmental Laws...... 5
ARTICLE VI Additional Agreements and Covenants of the Seller............... 5
6.01 Broker's Fee............................................. 6
6.02 Conduct of Business of the Company and ▇▇▇▇▇▇............ 6
6.03 Access................................................... 6
6.04 Exclusivity.............................................. 6
ARTICLE VII Additional Agreements and Covenants of the Purchaser........... 7
7.01 Confidential Information................................. 7
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ARTICLE VIII Conditions Precedent to the Obligations of the Purchaser...... 7
8.01 Representations, Warranties and Agreements............... 7
8.02 Board Resignations....................................... 7
8.03 Bylaws................................................... 7
8.04 Liens and Indebtedness of the Company.................... 7
8.05 Environmental Contingencies.............................. 8
8.06 ▇▇▇▇▇▇ Partnership Interest.............................. 8
8.07 Necessary Approvals...................................... 8
8.08 Compliance with Agreements............................... 8
8.09 No Contracts Terminated.................................. 8
8.10 No Damage to Assets...................................... 8
8.11 Third-Party Consents..................................... 8
8.12 Absence of Certain Litigation............................ 8
8.13 Torch Escrow............................................. 8
8.14 No Consents.............................................. 8
8.15 Opinions................................................. 9
8.16 Tax Effect............................................... 9
8.17 Resolution of Claims..................................... 9
8.18 Purchase Price Agreement................................. 9
ARTICLE IX Conditions Precedent to the Obligations of the Seller........... 9
9.01 Representations, Warranties and Agreements............... 9
9.02 Consents and Approvals................................... 9
9.03 Absence of Certain Litigation............................ 9
9.04 Acceptance Insurance Corporation Indemnity Obligation.... 10
9.05 Necessary Approvals...................................... 10
9.06 Compliance with Agreements............................... 10
9.07 No Consents.............................................. 10
9.08 Tax Effect............................................... 10
9.09 Liens and Indebtedness of the Company.................... 10
9.10 Resolution of Claims..................................... 10
9.11 Purchase Price Agreement................................. 10
ARTICLE X Survival of Representations and Warranties; Waivers............. 11
10.01 Survival................................................. 11
10.02 Waiver by the Purchaser.................................. 11
ARTICLE XI Termination..................................................... 11
11.01 Grounds for Termination.................................. 11
ARTICLE XII Escrow......................................................... 12
12.01 Additional Conditions for Reimbursement from Escrow...... 12
12.02 Escrow Deposit........................................... 12
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ARTICLE XIII Tax Implications............................................. 12
13.01 Tax Implications......................................... 12
ARTICLE XIV Limitation of Warranties; Release.............................. 12
14.01 Limitation of Warranties................................. 12
14.02 Release.................................................. 13
ARTICLE XV Miscellaneous................................................... 13
15.01 Expenses................................................. 13
15.02 Notices.................................................. 13
15.03 Applicable Law; Amendments; Headings..................... 14
15.04 Entire Agreement......................................... 15
15.05 Binding Effect; Assignments, Third Parties............... 15
15.06 Severability............................................. 15
15.07 Counterparts............................................. 15
15.08 Further Assurances....................................... 15
15.09 Attorneys' Fees.......................................... 15
15.10 Waiver of Conditions..................................... 16
15.11 Announcement............................................. 16
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of September 12,
2002 by and between P.I. Holdings No. 3, Inc., a Texas corporation (the
"Seller"), and Greka Energy Corporation, a Colorado corporation (the
"Purchaser"). P.I. Holdings No. 4, Inc., a Texas corporation ("PIH No. 4"),
joins this Agreement for the sole purpose of agreeing to be bound by those
provisions of this Agreement, to the extent specifically applicable to PIH No. 4
and its ownership of the ▇▇▇▇▇▇ Interest (as defined below), and for no other
purpose.
WITNESSETH:
WHEREAS, the Seller is the owner of 1,500 shares (the "Shares") of Common
Stock, par value $1.00 per share (the "Common Stock"), of Windsor Energy US
Corporation, a Delaware corporation (the "Company"), constituting all of the
issued and outstanding shares of capital stock of the Company;
WHEREAS, PIH No. 4 is the owner of .25% of the partnership interest
("▇▇▇▇▇▇ Interest") of ▇▇▇▇▇▇ Island Limited Partnership, a Texas limited
partnership ("▇▇▇▇▇▇");
WHEREAS, the Purchaser desires to acquire the Shares from the Seller, and
to acquire the ▇▇▇▇▇▇ Interest from PIH No. 4, and the Seller desires to sell
the Shares to the Purchaser, and PIH No. 4 desires to convey the ▇▇▇▇▇▇ Interest
to Purchaser, upon the terms and subject to the conditions hereinafter set
forth; and
WHEREAS, the Purchaser may direct that the Shares and the ▇▇▇▇▇▇ Interest
be sold and conveyed to one or more separate subsidiaries or affiliates of
Purchaser ("Purchaser Affiliate");
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
The terms set forth below in this Article I shall have the meanings
ascribed to them below or in the part of this Agreement referred to below:
Agreement: as defined above in the preamble.
Best Efforts: means a party's best efforts in accordance with reasonable
commercial practice and without the incurrence of unreasonable expense.
Closing: as defined in Section 3.01.
Closing Date: as defined in Section 3.01.
Common Stock: as defined above in the recitals.
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Company: as defined above in the recitals.
Escrow Agreement: as defined in Section 12.02.
Escrow Deposit: as defined in Section 12.02.
Person: means any individual, firm, corporation, partnership, joint
venture, association, trust, unincorporated organization, government or agency,
or subdivision thereof or any other entity.
Purchase Price Agreement: as defined in Section 2.02.
Purchaser: as defined above in the preamble.
▇▇▇▇▇▇: as defined above in the recitals.
▇▇▇▇▇▇ Interest: as defined above in the recitals.
Seller: as defined above in the preamble.
Shares: as defined above in the recitals.
ARTICLE II
Purchase and Sale
2.01 The Sale. Subject to the terms and conditions of this Agreement, the
Seller shall sell, convey, transfer, assign and deliver to the Purchaser, or a
Purchaser Affiliate, all of the Shares and the Purchaser, or a Purchaser
Affiliate, shall purchase and acquire all of the Shares from the Seller. PIH No.
4 will convey the ▇▇▇▇▇▇ Interest to Purchaser or a Purchaser Affiliate. If the
sale of the Shares or the conveyance of the ▇▇▇▇▇▇ Interest is to a Purchaser
Affiliate, then the obligations to, and rights of, Purchaser under this
Agreement shall apply to the Purchaser Affiliate to the same extent as if the
sale or conveyance actually were to the Purchaser.
2.02 Purchase Price. The purchase price to be paid by the Purchaser for the
Shares and the ▇▇▇▇▇▇ Interest shall be the agreement of Purchaser to pay to
Seller the net profit participation to be agreed upon on or before Closing by
Seller, PIH No. 4 and Purchaser and attached to this Agreement as Schedule 2.02
(the "Purchase Price Agreement").
ARTICLE III
Closing
3.01 Date of Closing. The closing of the purchase and sale of the Shares
and the conveyance of the ▇▇▇▇▇▇ Interest contemplated hereby (the "Closing")
shall take place at 10:00 a.m. in the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on September 30, 2002 or such other
date as the parties may mutually agree upon (the "Closing Date").
3.02 Actions at Closing. At the Closing:
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(a) The Seller shall make available for inspection by the Purchaser
the certificate(s) representing the Shares, which certificate(s) shall be duly
endorsed by the Seller, or shall be presented together with stock powers in the
usual form duly executed by the Seller. Thereafter, the Seller shall deliver, or
cause to be delivered, to the Purchaser all such stock certificates (together
with stock powers, if any) or take such other action as reasonably requested by
the Purchaser to complete the conveyance of the Shares to Purchaser. PIH No. 4
will execute instruments necessary to convey the ▇▇▇▇▇▇ Interest to Purchaser.
(b) The Purchaser shall execute and deliver to Seller the Purchase
Price Agreement.
ARTICLE IV
Representations and Warranties by the Seller
Except as otherwise disclosed in this Agreement, the Seller represents and
warrants to and agrees with the Purchaser as follows:
4.01 Corporate/Limited Partnership Existence.
(a) The Company is a corporation incorporated, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own and operate ▇▇▇▇▇▇. Except for the
Company's ownership of 99.75% of the partnership interest of ▇▇▇▇▇▇, the Company
has no direct or indirect interest, either by way of stock, ownership or
otherwise, in any other firm, corporation, association, or partnership.
(b) Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Texas and has all requisite
corporate power and authority to own and operate the Company. Except for
Seller's ownership of the Company and the Company's ownership of 99.75% of the
partnership interest of ▇▇▇▇▇▇, Seller has no direct or indirect interest,
either by way of stock ownership or otherwise, in any other firm, corporation,
association or partnership.
(c) PIH No. 4 is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Texas and has all requisite
corporate power and authority to own the ▇▇▇▇▇▇ Interest. Except for PIH No. 4's
ownership of the ▇▇▇▇▇▇ Interest, PIH No. 4 has no direct or indirect interest,
either by way of stock ownership or otherwise, in any other firm, corporation,
association or partnership. This representation and warranty is made by PIH No.
4 only.
(d) ▇▇▇▇▇▇ is a limited partnership formed, validly existing and in
good standing under the laws of the State of Texas and has all requisite power
and authority to own and operate the ▇▇▇▇▇▇ Island oil production properties.
▇▇▇▇▇▇ has no direct or indirect interest, either by way of stock ownership or
otherwise, in any firm, corporation, association or partnership.
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4.02 Capitalization of the Company. The authorized capital stock of the
Company consists solely of 1,500 shares of Common Stock, par value $1.00 per
share, all of which are currently outstanding. All of the outstanding shares of
Common Stock are fully paid and nonassessable. The Company has no preferred
stock, treasury stock, or any other authorized series or class of stock. Except
as set forth on Schedule 4.02, the Shares will, on the Closing Date, be free and
clear of any security interest, liens or other encumbrances and the Purchaser
will receive good and marketable title to the Shares free and clear of security
interests, liens, adverse claims, options or other encumbrances. There are no
outstanding options, warrants or other or similar rights to purchase shares of
the Company's capital stock.
4.03 Due Authorization. The execution, delivery and performance of this
Agreement by the Seller and by PIH No. 4, the performance of all the terms and
conditions hereof to be performed by each of Seller and PIH No. 4, and the
consummation of the transactions contemplated hereby have been duly authorized
and approved by all requisite corporate and shareholder action on the respective
parts of the Seller and PIH No. 4. This Agreement constitutes a valid and
binding obligation of the Seller and of PIH No. 4, enforceable in accordance
with its terms (except as such enforcement may be limited by any applicable
bankruptcy, insolvency or similar laws generally affecting the enforcement of
creditors' rights or other principles of equity, regardless of whether
enforcement is considered in a proceeding in equity or at law). The execution,
delivery and performance of this Agreement will not conflict with any provision
of the Certificate of Incorporation of the Seller or PIH No. 4 and any
amendments thereto, Bylaws of the Seller or PIH No. 4 and any amendments
thereto, or of any contract to which the Seller or PIH No. 4 is a party or
otherwise bound.
Knowledge of Seller and PIH No. 4. For purposes of this Agreement, "knowledge"
means the conscious awareness of the Seller or PIH No. 4 of facts or other
information which would make the statements false or inaccurate. The knowledge
of the Seller or PIH No. 4 does not include any notice or knowledge that may be
imputed to or constructively attributed to the Seller or PIH No. 4, nor does
knowledge imply that any special inquiry or investigation has been undertaken by
Seller or PIH No. 4 with respect to the subject matter of the statement. The
Shares were acquired by Seller during July 2001 through foreclosure, and the
▇▇▇▇▇▇ Interest was acquired thereafter by PIH No. 4 through foreclosure. The
Seller's and PIH No. 4's knowledge is limited in many respects including the
limited period of ownership of the Shares and the ▇▇▇▇▇▇ Interest. The
representations and warranties contained in this Agreement are to the knowledge
of Seller and PIH No. 4. However, Purchaser shall have the right to
reimbursement under Article XII upon a representation or warranty or Condition
set forth in Section 12.01 being incorrect or inaccurate irrespective of the
knowledge or lack of knowledge of Seller or PIH No. 4 in making said
representations and warranties.
ARTICLE V
Representations and Warranties by the Purchaser
The Purchaser represents and warrants to and agrees with the Seller as
follows:
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5.01 Purchase for Investment. The Purchaser represents that the Shares to
be acquired by it under the terms of this Agreement are being acquired for
investment and not with a view to the disposition of all or any part thereof,
and the Purchaser agrees that no disposition of all or any part thereof will be
made under circumstances which would violate the Securities Act of 1933, as
amended, or applicable state securities laws.
5.02 Corporate Representations. The Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and has all requisite corporate power
to carry on its business as now conducted. The Purchaser is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
wherein the failure so to qualify would materially and adversely affect its
business or assets, and is so qualified wherever the nature of its business or
the character of its properties or both make such qualification necessary.
5.03 Due Authorization. The execution, delivery and performance of this
Agreement by the Purchaser, the performance of all the terms and conditions
hereof to be performed by it and the consummation of the transactions
contemplated hereby have been duly authorized and approved by all requisite
corporate action on the part of the Purchaser, and no further corporate action
or approval by the shareholders of the Purchaser will be necessary on the part
of the Purchaser to make this Agreement a valid and binding obligation of the
Purchaser. This Agreement constitutes a valid and binding obligation of the
Purchaser, enforceable in accordance with its terms (except as such enforcement
may be limited by any applicable bankruptcy, insolvency or similar laws
generally affecting the enforcement of creditors' rights or other principles of
equity, regardless of whether enforcement is considered in a proceeding in
equity or at law). The execution, delivery and performance of this Agreement
will not conflict with any provision of the Certificate of Incorporation of the
Purchaser and any amendments thereto, Bylaws of the Purchaser and any amendments
thereto, or of any contract to which the Purchaser is a party or otherwise
bound.
5.04 No Broker. The Purchaser has not engaged any broker or finder or
otherwise acted so as to give rise to any claims for a broker's commission or
finder's fee in connection with the transactions contemplated hereby.
5.05 Hazardous Substances, Applicable Environmental Laws. Purchaser is
relying upon Purchaser's independent due diligence for environmental matters,
and not upon any representation, warranty or statement of Seller, PIH No. 4, any
affiliate of either, or any of their respective directors, officers, employees,
agents, shareholders or representatives, and with respect to environmental
matters, the sale of the Shares and the ▇▇▇▇▇▇ Interest is "AS-IS".
ARTICLE VI
Additional Agreements and Covenants of the Seller
The Seller covenants and agrees with the Purchaser as follows:
5
6.01 Broker's Fee. The Seller and PIH No. 4 agree to pay any fee or
commission due to any broker or finder employed by either the Seller or PIH No.
4 for its services in connection with this Agreement and the transactions
contemplated herein. Seller and PIH No. 4 shall indemnify and hold the Purchaser
harmless from and against any and all claim, loss, liability, claims, fines,
expenses, costs (including attorney's fees and expenses) and causes of action,
accruing or arising as a result of any fee or commission due to any broker or
finder employed by the Seller or PIH No. 4 for its services in connection with
this Agreement and the transactions contemplated herein.
6.02 Conduct of Business of the Company and ▇▇▇▇▇▇. From the date hereof
until the Closing Date, except as otherwise consented to by the Purchaser in
writing or as provided in this Agreement, and except as set forth on Schedule
6.02, the Seller and PIH No. 4, as applicable, shall cause the Company and
▇▇▇▇▇▇ to conduct their respective business in the ordinary course consistent
with past practices and to use their respective reasonable best efforts to
preserve intact their respective business organization and relationships with
third parties and to keep available the services of their respective present
employees.
6.03 Access. Seller will, and shall cause the Company, PIH No. 4 and ▇▇▇▇▇▇
to, cooperate fully in permitting Purchaser to make a full investigation of the
Company, PIH No. 4 and ▇▇▇▇▇▇ upon reasonable notice and in consummating the
transactions contemplated hereby. Seller will, and shall cause the Company, PIH
No. 4 and ▇▇▇▇▇▇ to, upon reasonable notice, afford Purchaser and its
representatives and agents full access to the offices, buildings, real
properties, machinery and equipment, inventory and supplies, records, files,
books of account, tax returns, agreements and commitments, corporate record
books and stock books, partnership files, and personnel of same, and will permit
Purchaser and its representatives and agents to contact and interview the
Company's, PIH No. 4's and ▇▇▇▇▇▇'▇ personnel, suppliers, vendors, referral
sources and any other persons that Purchaser shall reasonably determine to be
necessary for it to make a full investigation of the Company, PIH No. 4 and
▇▇▇▇▇▇. Seller will furnish to Purchaser all such further information concerning
the business and affairs of the Company, PIH No. 4 and ▇▇▇▇▇▇ as Purchaser may
reasonably request.
6.04 Exclusivity. From the date hereof until October 1, 2002, or earlier
termination of this Agreement, the Seller shall not, and the Seller shall cause
the Company, PIH No. 4 and ▇▇▇▇▇▇ not to, directly or indirectly, through any
officer, director, stockholder, partner, employee, representative, agent or
affiliate, solicit, entertain, encourage, assist (including by way of furnishing
nonpublic information) or take other action, either directly or indirectly, to
facilitate any inquiries or the making of any proposal that constitutes an
acquisition proposal of the Company or ▇▇▇▇▇▇ from any person or entity, or
engage in any discussions or negotiations relating thereto or in furtherance
thereof, or accept any acquisition proposal competitive to the Purchaser's
rights hereunder. Seller shall, and Seller shall cause the Company, PIH No. 4
and ▇▇▇▇▇▇ to, immediately cease and cause to be terminated any existing
discussions or negotiations with any parties other than Purchaser currently
conducted or prior to the date of this Agreement with respect to an acquisition
proposal.
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ARTICLE VII
Additional Agreements and Covenants of the Purchaser
The Purchaser covenants and agrees with the Seller as follows:
7.01 Confidential Information. In the event that this Agreement is
terminated, the confidentiality of any data or information received by the
Purchaser regarding the business and assets of the Company and its affiliates
will be maintained by the Purchaser and its representatives in accordance with
the Confidentiality Agreement dated June 26, 2001, executed by the Purchaser.
Notwithstanding the terms of the Confidentiality Agreement, Purchaser is
permitted to engage in discussions with the Company's former debenture holders
(now noteholders) and with Persons involved with the SouthCoast settlement
agreement for the purpose of resolving any and all claims the Company's former
debenture holders (now noteholders) or Persons involved with the SouthCoast
settlement agreement may have against the Company, ▇▇▇▇▇▇, or any affiliate of
the Company or any officer, director, employee, or shareholder thereof.
ARTICLE VIII
Conditions Precedent to the Obligations of the Purchaser
The obligations of the Purchaser hereunder are subject to the fulfillment,
or waiver by the Purchaser, prior to or at the Closing Date of each of the
following conditions:
8.01 Representations, Warranties and Agreements. The representations and
warranties of the Seller and of PIH No. 4 herein contained shall be true as of
and at the Closing Date with the same effect as though made at such date, except
as affected by transactions permitted or contemplated by this Agreement; the
Seller and PIH No. 4 shall have performed and complied with all covenants and
agreements required by this Agreement to be performed or complied with by it
prior to the Closing Date; and the Seller and PIH No. 4 shall have executed and
delivered to the Purchaser an officer's certificate dated the Closing Date to
such effect.
8.02 Board Resignations. The Company shall have received the resignations
of all members of the Company's Board of Directors and the officers of the
Company, effective as of the Closing Date.
8.03 Bylaws. The Purchaser shall have received a copy of the Company's
corporate Bylaws and ▇▇▇▇▇▇'▇ partnership agreement as in effect on the Closing
Date certified as true, correct and complete.
8.04 Liens and Indebtedness of the Company. Prior to Closing, Seller and
Purchaser shall have agreed as to whether the liens encumbering the assets of
the Company and ▇▇▇▇▇▇, and the associated indebtedness or a portion thereof
held by Compass Bank, an Alabama state bank ("Compass Bank"), shall be
terminated, terminated for tax purposes or conveyed to Purchaser.
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8.05 Environmental Contingencies. In the event Purchaser completes at its
expense by September 30, 2002 environmental Phase I reports of the Company's
sites of operation, such reports shall not have revealed contingencies unknown
to the Purchaser as of the date hereof which are reasonably unacceptable to
Purchaser.
8.06 ▇▇▇▇▇▇ Partnership Interest. Seller shall cause PIH No. 4 to convey
all of its interest in ▇▇▇▇▇▇ to Purchaser.
8.07 Necessary Approvals. Consummation of the transactions contemplated
herein shall have been approved by the Purchaser's Board of Directors.
8.08 Compliance with Agreements. The Seller shall have performed and
complied with all agreements or conditions required by this Agreement to be
performed and complied with by the Seller prior to or on the Closing Date.
8.09 No Contracts Terminated. Other than as set forth on Schedule 8.09, no
contract or contracts, which in the aggregate would materially adversely affect
the business of the Company or ▇▇▇▇▇▇, shall have been terminated prior to the
Closing Date.
8.10 No Damage to Assets. At the Closing Date the machinery, equipment,
inventory, or other tangible property of the Company and ▇▇▇▇▇▇ shall not have
suffered non-insured or non-indemnified loss or damage to an extent which
substantially affects the value of the properties and assets of the Company or
▇▇▇▇▇▇. Loss or damage shall be considered to affect substantially the value of
said properties and assets within the meaning of this paragraph if the book
value of such properties and assets so lost or damaged exceeds five percent (5%)
in book value of all such tangible properties and assets.
8.11 Third-Party Consents. All necessary consents, approvals and waivers
from third parties and governmental authorities shall have been obtained.
8.12 Absence of Certain Litigation. There shall be no pending or threatened
litigation or other proceeding seeking to enjoin, restrain or prohibit the
consummation of the transactions contemplated by this Agreement or questioning
its validity, legality or binding effect.
8.13 Torch Escrow. All funds (approximately $1,000,000) now on deposit at
The Chase Manhattan Bank plus all accrued interest thereon (the "Torch Funds")
pursuant to that certain Escrow Agreement dated October 23, 1995 by and among
the Company, Torch Energy Finance Fund Limited Partnership I, Torch Operating
Company and Texas Commerce Bank, as amended by First Amendment to Escrow
Agreement dated November 12, 1996 shall remain with the Company at Closing free
and clear of any claim or ownership by Seller or any affiliate of Seller.
8.14 No Consents. Except for those obtained at or before Closing, Purchaser
is satisfied that no additional authorizations, consents, approvals, exemptions
of or filings or registrations with, any court or governmental department,
commission, bureau, board, agency or instrumentality is or will be necessary for
the valid execution and delivery of this Agreement by the Purchaser, the Seller
or PIH No. 4, or the performance by the Purchaser, the Seller, or PIH No. 4 of
their respective obligations hereunder, and that the execution and delivery of
this Agreement does not constitute the violation by the Purchaser of any
statute, law or regulation to which the Purchaser may be subject.
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8.15 Opinions. Purchaser shall have received the opinion of counsel for
Seller, satisfactory to Purchaser, regarding (i) the bankruptcy proceedings
related to Joint Plan of Reorganization for the Company and ▇▇▇▇▇▇, arising out
of Case Nos. ND 98-14790-RR and ND 98-14791, United States Bankruptcy Court,
Central District of California, Northern Division; and (ii) the foreclosure of
the Shares and of the ▇▇▇▇▇▇ Interest.
8.16 Tax Effect. All tax implications of this transaction upon Purchaser
shall have been resolved to Purchaser's satisfaction.
8.17 Resolution of Claims. The claims of the noteholders and any claims
that may arise out of the SouthCoast settlement shall have settled or otherwise
resolved to Purchaser's satisfaction. The Purchaser shall be satisfied that
Seller has paid the property tax described in Schedule 12.01.6 and has paid
Seller's broker pursuant to Section 6.01.
8.18 Purchase Price Agreement. The Purchase Price Agreement shall have been
agreed upon by Seller, PIH No. 4 and Purchaser.
8.19 Financial Statements. Purchaser shall have received Financial
Statements as of June 30, 2002 in the form set forth in Schedule 12.01.2 and
otherwise satisfactory to Purchaser.
ARTICLE IX
Conditions Precedent to the Obligations of the Seller
The obligations of the Seller hereunder are subject to the fulfillment, or
waiver by the Seller in writing, prior to or at the Closing Date of each of the
following conditions:
9.01 Representations, Warranties and Agreements. The representations and
warranties of the Purchaser herein contained shall be true as of and at the
Closing Date with the same effect as though made at such date, except as
affected by transactions permitted or contemplated by this Agreement; the
Purchaser shall have performed and complied with all covenants and agreements
required in this Agreement to be performed or complied with prior to the Closing
Date; and the Purchaser shall have delivered to the Company and the Seller an
officer's certificate, executed by it and dated the Closing Date, to such
effect.
9.02 Consents and Approvals. All necessary consents, approvals and waivers
from third parties and governmental authorities shall have been obtained.
9.03 Absence of Certain Litigation. There shall be no pending litigation or
other proceeding seeking to enjoin, restrain or prohibit the consummation of the
transactions contemplated by this Agreement or questioning its validity,
legality or binding effect.
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9.04 Acceptance Insurance Corporation Indemnity Obligation. Prior to the
Closing, Purchaser shall have obtained the full and final release of all
obligations of Compass Bank, Compass Bancshares, Inc. and the Seller under or in
connection with that certain General Indemnity Agreement by and among ▇▇▇▇▇▇,
Compass Bancshares, Inc., Compass Bank, the Seller, and the Company as principal
and/or indemnitors, and The Connecticut Surety Company, Star Insurance Company,
Acceptance Insurance Company and/or Redland Insurance Company as surety, and/or
any successor or subsequent surety. In the event cash or cash equivalents or
other property is substituted for the General Indemnity Agreement, in whole or
in part, the Purchaser shall have obtained the full and final release of such
cash, cash equivalent or other property which shall be delivered to and be the
property of Seller or the affiliate of Seller designated by Seller.
9.05 Necessary Approvals. Consummation of the transactions contemplated
herein shall have been approved by the Seller's Board of Directors.
9.06 Compliance with Agreements. The Purchaser shall have performed and
complied with all agreements or conditions required by this Agreement to be
performed and complied with by the Purchaser prior to or on the Closing Date.
9.07 No Consents. Except for those obtained at or before Closing, each of
Seller and PIH No. 4 is satisfied that no additional authorizations, consents,
approvals, exemptions of or filings or registrations with, any court or
governmental department, commission, bureau, board, agency or instrumentality
are or will be necessary for the valid execution and delivery of this Agreement
by the Seller, PIH No. 4 or the Purchaser or the performance by the Seller, PIH
No. 4 and the Purchaser of their respective obligations hereunder, and that the
execution and delivery of this Agreement does not constitute the violation by
the Seller or PIH No. 4 of any statute, law or regulation to which the Seller or
PIH No. 4 may be subject.
9.08 Tax Effect. All tax implications of this transaction upon Seller, PIH
No. 4 and their affiliates shall have been resolved to Seller's and PIH No. 4's
satisfaction.
9.09 Liens and Indebtedness of the Company. Prior to Closing, Seller and
Purchaser shall have agreed as to whether the liens encumbering the assets of
the Company and ▇▇▇▇▇▇, and the associated indebtedness or a portion thereof
held by Compass Bank, an Alabama state bank ("Compass Bank"), shall be
terminated, terminated for tax purposes or conveyed to Purchaser.
9.10 Resolution of Claims. The claims of the noteholders and any claims
that may arise out of the SouthCoast settlement shall have settled or otherwise
resolved to Seller's and PIH No. 4's satisfaction.
9.11 Purchase Price Agreement. The Purchase Price Agreement shall have been
agreed upon by Seller, PIH No. 4 and Purchaser.
ARTICLE X
Survival of Representations and
Warranties; Waivers
10
10.01 Survival. The representations and warranties of the Parties set forth
in this Agreement and in any certificate or instrument delivered in connection
herewith shall survive the Closing; provided however, any claims for breaches of
such representations and warranties by Seller or PIH No. 4 shall be subject to
and limited by Article XII hereof.
10.02 Waiver by the Purchaser. If, prior to the Closing, the Seller knows
of the material breach by it of any of its warranties, representations,
covenants or agreements contained herein, it shall immediately notify the
Purchaser of such breach. If the Purchaser has or receives knowledge prior to
the Closing of the material breach of any warranty, representation, covenant or
agreement of the Seller then the Purchaser shall have as its sole remedy the
right either to terminate this Agreement by written notice to the Seller prior
to the Closing (in which event both parties shall be released from any further
obligations and liabilities hereunder and the effect of such termination shall
be as described in Section 11.02(a)) or to proceed to Closing (in which event
the Purchaser shall be deemed to have waived all complaints and rights of the
Purchaser to any damages by reason of such breach); provided however, that any
waiver by Purchaser under this Section 10.02, other than a written waiver signed
by the Purchaser, shall not constitute a reason to deny a Claim (as defined in
Section 12.02(c)) for reimbursement from the Escrow Deposit pursuant to Article
XII.
ARTICLE XI
Termination
11.01 Grounds for Termination. This Agreement may be terminated at any time
on or prior to the Closing Date:
(a) By the mutual written agreement of the Seller and the Purchaser;
(b) By the Seller, at its option, if any of the conditions set forth
in Article IX have not been satisfied as provided therein;
(c) By the Purchaser, at its option, if any of the conditions set
forth in Article VIII have not been satisfied as provided therein;
(d) By operation of Section 10.02; or
(e) By the Seller or the Purchaser if (i) the consummation of such
transactions are not closed irrespective of the reason therefor, on or prior to
September 30, 2002, or such other date as agreed to in writing by Seller and
Purchaser; or (ii) the consummation of such transactions would violate any
nonappealable final order, decree or judgment of any court or governmental body
having competent jurisdiction enjoining, restraining or otherwise preventing, or
awarding substantial damages in connection with, or imposing a material adverse
condition upon, the consummation of this Agreement or the transactions
contemplated hereby; or (iii) any schedule or exhibit to this Agreement is
added, updated or modified by one party in any manner unacceptable to the other
party.
11
(f) Effect of Termination. If this Agreement is terminated by the
Seller or by the Purchaser as permitted under Section 11.01 hereof or otherwise,
such termination shall be without liability to any party to this Agreement or
any affiliate, stockholder, director, officer, employee, agent or representative
of such party.
ARTICLE XII
Escrow
Redacted.
ARTICLE XIII
Tax Implications
13.01 Tax Implications. Neither Seller, PIH No. 4 nor Purchaser make any
representation or warranty regarding the tax effect of this transaction on the
other party.
ARTICLE XIV
Limitation of Warranties; Release
14.01 Limitation of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER THE SELLER NOR PIH NO. 4 MAKES ANY WARRANTY OR COVENANT OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITATION OF THE GENERALITY OF
THE IMMEDIATELY PRECEDING SENTENCE, WITH RESPECT TO ANY ASSETS OF THE COMPANY OR
OF ▇▇▇▇▇▇, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SELLER AND PIH NO. 4
EXPRESSLY DISCLAIM AND NEGATE (i) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY AND (ii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SELLER AND PIH NO.
4 EXPRESSLY DISCLAIM AND NEGATE ANY IMPLIED OR EXPRESS WARRANTY AS TO THE
ACCURACY OF ANY OF THE INFORMATION FURNISHED WITH RESPECT TO THE COMPANY,
▇▇▇▇▇▇, THE VALUE OF THE SHARES, THE VALUE OF THE ▇▇▇▇▇▇ INTEREST, OR THE VALUE
OF THE ASSETS OF THE COMPANY OR OF ▇▇▇▇▇▇ OR THE CONDITION OR STATE OF REPAIR
THEREOF, OR ANY LIABILITIES OF THE COMPANY OR ▇▇▇▇▇▇, OR ANY OF THEIR RESPECTIVE
ASSETS. The Purchaser acknowledges and affirms that it has as of Closing made
its own independent investigation, analysis and evaluation of the Company and of
▇▇▇▇▇▇ and their respective properties, assets, business, financial condition,
operations and prospects. The Purchaser has not been limited in its ability to
conduct its due diligence. The Purchaser is a sophisticated purchaser of oil and
gas properties.
12
14.02 Release. Purchaser acknowledges and agrees that its sole right and
remedy for any expense, loss, cost, liability, damage or deficiency resulting
from or relating to this Agreement is as set forth in Section 12.02(c). Without
limiting the foregoing, Purchaser releases and discharges Seller, ▇▇▇ ▇▇. ▇,
▇▇▇▇▇▇▇ ▇▇▇▇, Compass Bancshares, Inc., all affiliates of each of the foregoing,
and all directors, officers, employees, shareholders, representatives, and
agents of each of the foregoing from any and all Claims, causes of action and
liabilities of every kind or nature, whether arising in tort, contract, common
law or federal or state law, including without limitation any federal, state or
local environmental law, regulation or rule, in any way relating to this
Agreement or the performance or nonperformance thereof or relating to the
Company or ▇▇▇▇▇▇. PURCHASER HEREBY EXPRESSLY WAIVES ALL RIGHTS UNDER SECTION
1542 OF THE CALIFORNIA CIVIL CODE WHICH READS AS FOLLOWS: "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."
ARTICLE XV
Miscellaneous
15.01 Expenses. Each party hereto shall be responsible to bear, pay and
discharge all of its respective expenses incurred in connection with the
execution and performance of this Agreement, except as otherwise specifically
provided herein.
15.02 Notices. Any notices or waivers to be given to any party hereto shall
be in writing and shall be deemed to have been duly given when delivered
personally or when received if sent by certified or registered mail, return
receipt requested, or by facsimile transmission directed to the following
parties at the addresses noted (or such other address as a party may specify by
like notice):
13
SELLER
------
P.I. Holdings No. 3, Inc.
c/o Compass Bank
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 713/966-2339
E-Mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 205/488-5832
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
PURCHASER
---------
Greka Energy Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 212/218-4679
E-Mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With copy to:
Greka Energy
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 805/347-1072
E-Mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Any party hereto may change its address for notice and communications by giving
notice in writing, stating its new address for notices, to the other parties
hereto.
15.03 Applicable Law; Amendments; Headings. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California. This Agreement may not be modified or terminated orally. The
headings and the table of contents contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
14
15.04 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and, except
for the Confidentiality Agreement dated June 26, 2001 executed by the Purchaser
which is hereby incorporated herein by reference, merges and supersedes all
prior discussions, agreements and understandings of every kind and nature among
them. No party shall be bound by any condition, definition, warranty or
representation, other than as expressly set forth or provided for in this
Agreement or as may be, on or subsequent to the date hereof, set forth in a
writing signed by the party or parties to be bound thereby. This Agreement may
not be amended, modified, waived or terminated orally or discharged unless by
full performance by the parties hereto or by a writing signed by the parties
hereto. Any waiver by any party of the breach of any term or condition of this
Agreement shall not constitute a waiver of any subsequent breach of the same or
any other term of this Agreement.
15.05 Binding Effect; Assignments, Third Parties. Except as otherwise
provided herein, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. No party
hereto shall assign this Agreement or any part hereof without the prior written
consent of the other party. No such assignment shall release a party of any of
its obligations under this Agreement. Nothing in this Agreement shall entitle
any Person other than the Seller, PIH No. 4, and to the extent applicable, any
affiliate, shareholder, officer, director, employee, representative or agent
thereof, or the Purchaser, or their respective successors and assigns permitted
hereby, to any legal or equitable claim, cause of action, remedy or right of any
kind.
15.06 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
15.07 Counterparts. This Agreement may be executed via facsimile and in a
number of identical counterparts, each of which for all purposes is deemed an
original, and all of which constitute collectively one (1) agreement, but in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
15.08 Further Assurances. The Seller and the Purchaser agree to deliver or
cause to be delivered to each other on the Closing Date, and at such other times
thereafter as shall be reasonably agreed, any such additional instrument as
either of them may reasonably request for the purpose of carrying out this
Agreement, and which reasonably may be provided without cost or expense.
15.09 Attorneys' Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the provisions
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorney fees and costs from the other party or parties, which fees and costs
shall be in addition to any other relief which may be awarded.
15
15.10 Waiver of Conditions. Either party may waive any condition precedent,
term or condition of this Agreement in favor of such party but such a waiver
shall be ineffective unless in writing and executed by an authorized
representative of a party hereto.
15.11 Announcement. Prior to Closing, a party may make a public disclosure
or issue any press release or other communication regarding the subject matter
of this Agreement as is required by applicable law or by the rules of a relevant
stock exchange. Otherwise, each party shall obtain the consent of the other
party as a condition to making any public disclosure or issuing any press
release prior to Closing.
The parties hereto have executed this Agreement as of the date first above
written.
PURCHASER
GREKA ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: Chairman, CEO & President
SELLER
P.I. HOLDINGS NO. 3, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print name: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print title: President
For purposes set forth in the Preamble
P. I. HOLDINGS NO. 4., INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print name: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print title: President
16
FIRST AMENDMENT TO THE
STOCK PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") dated as of September 27, 2002 to the
Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of September
12, 2002 by and between P.I. Holdings No. 3, Inc., a Texas corporation (the
"Seller"), and Greka Energy Corporation, a Colorado corporation (the
"Purchaser"), and to which P.I. Holdings No. 4, Inc., a Texas corporation ("PIH
No. 4") is a party, is entered into by and among Seller, Purchaser and PIH No.
4.
RECITALS:
WHEREAS, the parties hereto desire to amend certain provisions of the Stock
Purchase Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Stock Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Terms. Capitalized terms used herein and not defined herein shall have
the meaning set forth in the Stock Purchase Agreement.
2. Amendment to Sections 3.01, 11.01 and 6.04. Sections 3.01 and 11.01 of
the Stock Purchase Agreement (Date of Closing and Grounds for Termination) are
hereby amended by deleting the phrase "September 30, 2002" and substituting in
its place "October 22, 2002". Section 6.04 of the Stock Purchase Agreement
(Exclusivity) is hereby amended by deleting the phrase "October 1, 2002" and
substituting in its place "October 22, 2002".
3. Effect on Stock Purchase Agreement. Except as expressly modified hereby
or as necessary to conform to the express terms hereof, all terms and conditions
of the Stock Purchase Agreement, shall remain in full force and effect.
4. Counterparts; Facsimile Copies. This Amendment may be executed in
several counterparts, and by the parties on separate counterparts, and all such
counterparts, which so executed and delivered, shall constitute but one and the
same agreement, and a facsimile copy shall have the same force and effect as an
original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
GREKA ENERGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: VP Asset Management
P.I. HOLDINGS NO. 3, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print name: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print title: President
P. I. HOLDINGS NO. 4., INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print name: ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Print title: President
SECOND AMENDMENT TO THE
STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") dated as of October 22, 2002 to
the Stock Purchase Agreement, as previously amended, dated as of September 12,
2002 by and between P.I. Holdings No. 3, Inc., a Texas corporation (the
"Seller"), and Greka Energy Corporation, a Colorado corporation (the
"Purchaser"), and to which P.I. Holdings No. 4, Inc., a Texas corporation ("PIH
No. 4") is a party, is entered into by and among Seller, Purchaser and PIH No. 4
(the "Stock Purchase Agreement").
RECITALS:
WHEREAS, the parties hereto previously entered into that certain First
Amendment to the Stock Purchase Agreement dated as of September 27, 2002; and
WHEREAS, the parties hereto desire to amend certain provisions of the Stock
Purchase Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Stock Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Terms. Capitalized terms used herein and not defined herein shall have
the meaning set forth in the Stock Purchase Agreement.
2. Purchase Price. Section 2.02 is hereby deleted and the following is
inserted in lieu thereof: "The purchase price to be paid by the Purchaser for
the Shares and the ▇▇▇▇▇▇ Interest is $10 together with the obligations of
Purchaser under this Agreement (the "Purchase Price Agreement")."
3. Amendment to Sections 3.01, 6.04 and 11.01. Sections 3.01, 6.04 and
11.01 of the Stock Purchase Agreement (Date of Closing, Exclusivity and Grounds
for Termination) are hereby amended by deleting the phrase "October 22, 2002"
and substituting in its place "November 1, 2002".
4. Liens and Indebtedness of the Company. Section 8.04 is hereby deleted
and the following is inserted in lieu thereof: "The liens encumbering the assets
of the Company and ▇▇▇▇▇▇ and the associated indebtedness held by Compass Bank,
an Alabama state bank ("Compass Bank") will be conveyed to Purchaser at closing
without recourse, representation or warranty or any type."
6. Tax Effect. Section 8.16 is hereby deleted.
7. Resolution of Claims. The first sentence of Section 8.17 is hereby
deleted because the claims of the noteholders, including but not limited to, the
debenture holders, and any claims that may arise out of the SouthCoast
settlement have been settled, or otherwise resolved, by Purchaser to Purchaser's
satisfaction, or are accepted by Purchaser.
8. Tax Effect. Section 9.08 is hereby deleted.
9. Liens and Indebtedness of the Company. Section 9.09 is hereby deleted
and the following is inserted in lieu thereof: "The liens encumbering the assets
of the Company and ▇▇▇▇▇▇ and the associated indebtedness held by Compass Bank,
an Alabama state bank ("Compass Bank") will be conveyed to Purchaser at Closing
without recourse, representation or warranty or any type."
10. Resolution of Claims. Section 9.10 is hereby deleted.
11. Escrow. Article XII is hereby deleted and the following is inserted in
lieu thereof:
Redacted.
12. Tax Implications. Article XIII is amended by adding sections 13.02,
13.03 and 13.04 as follows:
"13.02. Any tax benefit which accrued to Seller or any of its
affiliates for all tax years and portions of tax years prior to the closing
attributable to the ownership of the Company will be retained by Seller and
affiliates of Seller.
"13.03. Seller, at its expense, and subject to review by Purchaser,
will cause the 2002 ▇▇▇▇▇▇ tax return to be prepared and filed.
"13.04. The indebtedness of the Company and of ▇▇▇▇▇▇ to Compass Bank
is intended to be cancelled only for tax purposes, and the tax attributes
(including net operating losses) and tax basis of assets associated therewith
will be reduced in accordance with Internal Revenue Code Section 108."
13. References. All references in the Stock Purchase Agreement and other
closing documents to Section 12.02(c) thereof (including, but not limited to,
those references in Sections 10.02 and 14.02 and item 7 of Schedule 12.01 of the
Stock Purchase Agreement) are hereby deleted and replaced with "Section
12.03(a)(5)".
14. Schedule 2.02. Schedule 2.02 is hereby deleted.
15. Schedule 4.02. Schedule 4.02 is "None".
16. Schedule 12.01. Section 2 of Schedule 12.01 is amended by adding the
following: "The Financial Statements overstate indebtedness owed to Compass Bank
by approximately $8,000,000. Seller shall direct that the Financial Statements
be corrected and delivered to Purchaser on or before October 31, 2002."
17. Effect on Stock Purchase Agreement. Except as expressly modified hereby
or as necessary to conform to the express terms hereof, all terms, conditions
and provisions of the Stock Purchase Agreement shall remain in full force and
effect.
18. Counterparts; Facsimile Copies. This Amendment may be executed in
several counterparts, and by the parties on separate counterparts, and all such
counterparts, which so executed and delivered, shall constitute but one and the
same agreement, and a facsimile copy shall have the same force and effect as an
original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
GREKA ENERGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: Secretary
P.I. HOLDINGS NO. 3, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: Secretary
P. I. HOLDINGS NO. 4., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print title: Secretary