STOCK PURCHASE AGREEMENT BETWEEN EGPI FIRECREEK, INC. AND THE STOCKHOLDERS OF REDQUARTZ LTD.
BETWEEN
AND
THE
STOCKHOLDERS OF REDQUARTZ LTD.
THIS
STOCK PURCHASE AGREEMENT (the “AGREEMENT”) is dated March 3, 2010, by and among
EGPI FIRECREEK, INC., a Nevada corporation (“EGPI”) and the stockholders of
REDQUARTZ, LTD set forth on Schedule
A (the “Sellers” or “Company”).
WHEREAS,
the Sellers are the owners of all of the issued and outstanding shares of common
stock, par value $0.01per share (the “Company Common Stock”) of REDQUARTZ, LTD a
company formed and exisiting under the laws of the country of Ireland (the
“Company”); and EGPI Firecreek Inc.
WHEREAS,
the Sellers desire to sell to EGPI and EGPI desires to purchase from the Sellers
all of said shares of the Company Common Stock;
NOW,
THEREFORE, in consideration of the foregoing and the following mutual covenants
and agreements, the Sellers and EGPI agree as follows:
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1.
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Sale of the Company
Common Stock. Upon the terms and conditions set forth in
this Agreement, the Sellers shall sell, assign, and transfer to EGPI at
the closing of this Agreement (the “Closing”), free and clear of all liens
and encumbrances and EGPI, upon the basis of the covenants, warranties and
representations of the Sellers set forth herein, shall purchase from the
Sellers at the Closing all of said shares of the Company Common Stock
owned by the Sellers.
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2.
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Purchase
Price. Subject to the terms of this Agreement and in
reliance on the representations and warranties of the Sellers, EGPI shall
purchase the Company Common Stock, and in full consideration therefore,
shall pay the Sellers at the Closing the consideration described in Schedule
B.
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3.
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Representations and
Warranties of the Sellers. Where a representation
contained in this Agreement is qualified by the phrase “to the best
knowledge of the Sellers” (or words of similar import), such expression
means that, after having conducted a due diligence review, the Sellers
believe the statement to be true, accurate, and complete in all material
respects. Knowledge shall not be imputed nor shall it include
any matters which such person should have known or should have been
reasonably expected to have known. The Sellers represent and
warrant to EGPI as follows:
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(a) Power and
Authority. The Sellers have full power and authority to
execute, deliver, and perform this Agreement and all other agreements,
certificates or documents to be delivered in connection herewith, including,
without limitation, the other agreements, certificates and documents
contemplated hereby (collectively the “Other Agreements”).
(b) Binding
Effect. Upon execution and delivery by the Sellers, this
Agreement and the Other Agreements shall be and constitute the valid, binding
and legal obligations of the Sellers, enforceable against the Sellers in
accordance with the terms hereof and thereof, except as the enforceability
hereof or thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors’ rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) Effect. Neither
the execution and delivery of this Agreement or the Other Agreements nor full
performance by the Sellers of their obligations hereunder or thereunder will
violate or breach, or otherwise constitute or give rise to a default under, the
terms or provisions of the Articles of Incorporation or Bylaws of the Company
or, subject to obtaining any and all necessary consents, of any contract,
commitment or other obligation of the Company or necessary for the operation of
the Company’s business (the “Business”) following the Closing or any other
material contract, commitment, or other obligation to which the Company is a
party, or create or result in the creation of any encumbrance on any of the
property of the Company. Except as otherwise disclosed to EGPI before
the date of this Agreement and disclosed on Schedule 3(c)
attached hereto, the Company is not in violation of its Articles of
Incorporation, its Bylaws, or of any indebtedness, mortgage, contract, lease, or
other agreement or commitment.
(d) No
Consents. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing Date, be obtained or made by the Sellers prior to the
Closing Date to authorize the execution, delivery and performance by the Sellers
of this Agreement or the Other Agreements.
(e) Capitalization. The
Company is authorized by its Articles of Incorporation to issue 100,000 shares
of the Company Common Stock. As of the date of this Agreement, there
are 100,000 shares of the Company Common Stock duly and validly issued and
outstanding, fully paid, and non-assessable. There are no outstanding
options, contracts, commitments, warrants, preemptive rights, agreements or any
rights of any character affecting or relating in any manner to the issuance of
the Company Common Stock or other securities or entitling anyone to acquire the
Company Common Stock or other securities of the Company.
(f) Company Common Stock
Ownership. The Sellers have good, absolute, and marketable
title to 100,000 shares of the Company Common Stock as described herein, which
constitute 100 percent of the issued and outstanding shares of the Company
Common Stock. The Sellers have the complete and unrestricted right,
power and authority to sell their shares of the Company Common Stock pursuant to
this Agreement. The delivery of the Company Common Stock as herein
contemplated will vest in EGPI good, absolute and marketable title to the shares
of the Company Common Stock as described herein, free and clear of all liens,
claims, encumbrances, and restrictions of every kind.
(g) Company
Subsidiaries. The Company has no subsidiaries.
(h) Employees. On
the date of this Agreement, the Company has 0 employees.
(i) Financial
Statement. The Sellers have furnished EGPI an audited balance
sheet of the Company as of December 31, 2009 and the related statement of income
and retained earnings for the period covered thereby, and unaudited balance
sheet of the Company as of December 31, 2009 and the related statement of income
and retained earnings for the period covered thereby (collectively, the
“Financial Statement”). The Financial Statement (i) is in accordance
with the books and records of the Company; (ii) fairly presents the financial
condition of the Company at such dates and the results of its operations for the
periods therein specified; (iii) was prepared in accordance with Internationally
generally accepted accounting principles applied upon a basis consistent with
prior accounting periods; and (iv) with respect to all contracts and commitments
of the Company, reflects adequate reserves for all reasonably anticipated losses
and costs in excess of anticipated income. Specifically, but not by
way of limitation, the Financial Statement discloses all of the debts,
liabilities, and obligations of any nature (whether absolute, accrued,
contingent, or otherwise and whether due or to become due) of the Company on the
dates therein specified (except such debts, liabilities, and obligations as are
not required to be reflected therein in accordance with generally accepted
accounting principles).
(j) Tax Returns and
Audits. As of the date of this Agreement, the Company has duly
filed all federal, state, and local tax returns as required to be filed by it
(including, but not limited to, all payroll or other employment related tax
returns), and has paid all federal, state and local taxes, including, but not
limited to all payroll and employment taxes, required to be paid with respect to
the periods covered by such returns. The Company has not been
delinquent in the payment of any tax, assessment, or governmental charge, and
has not had any tax deficiencies proposed or assessed against it and has not
executed any waiver of the statute of limitations on the assessment or
collection of any tax.
(k) Litigation. Other
than as reflected on Schedule
3(m) attached hereto, the Company has disclosed all litigation,
arbitrations, claims, governmental or other proceedings (formal or informal), or
investigations pending, threatened, or in prospect (or any basis therefore known
to the Sellers) with respect to the Company, or any of its Business, properties,
or assets prior to the execution of this Agreement. The Company is
not affected by any present or threatened strike or other labor disturbance or,
to the knowledge of the Sellers, is any union attempting to represent any
employee of the Company as collective bargaining agent. The Company
is not in violation of, or in default with respect to, any law, rule,
regulation, order, judgment, or decree; nor are the Sellers or the Company
required to take any action in order to avoid such a violation or
default.
(l) Compliance with Laws and
Regulations. Except as otherwise disclosed in Schedule
3(n) attached hereto, to the knowledge of the Sellers, the Company is in
material compliance, with all laws, ordinances, codes, restrictions, regulations
(environmental and otherwise) and other legal requirements applicable to the
conduct of the Business, the noncompliance with which would be likely to have a
material adverse effect on the Business; and there are no lawsuits or
proceedings pending or, to their knowledge, threatened with respect to the
foregoing.
(m) No
Defaults. Other than as reflected on Schedule
3(o) attached hereto, to the knowledge of the Sellers, the Company is not
in default under any provision, of any lease, contract, commitment, obligation,
note, bond, debenture, mortgage, indenture, security agreement, guaranty, or
other instrument of indebtedness, and no existing condition exists which, with
the giving of notice or the passage of time, or both, would constitute such a
default, in either case, which default is or would be likely to have a material
adverse effect on the Business.
(n) Properties. The
Company has good and marketable title in fee simple absolute to all real
properties and good title to all other properties and assets used in its
business or owned by it (except real and other properties and assets as are held
pursuant to leases or licenses), free and clear of all liens, mortgages,
security interests, pledges, charges, and encumbrances, other than as shown on
the Financial Statement, including, but not limited to a tax lien for unpaid
real estate taxes. Moreover:
(i) No
real property owned, leased, licensed, or used by the Company lies in an area
which is, or to the knowledge of the Sellers will be, subject to zoning, use, or
building code restrictions which would prohibit, and no state of facts relating
to the actions or inaction of another person or entity or their ownership,
leasing, licensing, or use of that real property in the Business in which the
Company is now engaged or the business in which it contemplates
engaging.
(ii) The
real and other properties and assets owned, leased, or licensed by the Company
constitute all such properties and assets which are necessary to the business of
the Company as presently conducted or as it contemplates
conducting.
(o) Compliance with the
Environmental Laws. Except as otherwise disclosed on Schedule
3(s) attached hereto, to the knowledge of the Sellers, the Company has
not violated and is not in violation of the Federal Clean Air Act (42 U.S.C.
7401, et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.),
the Federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et
seq.), the Federal Comprehensive the Environmental Responsibility, Clean Up and
Liability Act of 1980 (42 U.S.C. 9601, et seq.), the Federal Toxic Substance
Control Act of 1976 (15 U.S.C. 2601, et seq.) or any state or local laws or
ordinances regulating the subjects covered by the federal statutes identified
above, including rules and regulations thereunder. Prior to the
Closing Date, the Company either directed, participated in and/or authorized
that studies of the environmental status of the Company’s properties and
operations of the Business be prepared, which studies are listed or otherwise
described in Schedule
3(s) hereto (collectively the “Studies”). The Studies, as well
as those other matters, correspondence, reports and the like disclosed in Schedule 3(s) hereto,
have been delivered to EGPI and EGPI’s counsel and environmental consultants and
are incorporated herein by reference as though set out herein. The
Sellers will hold EGPI harmless from any obligations, including fines or
penalties, if any, which may be assessed by any governmental agency, but
excluding damages, (i) that arose or may arise solely from operations by the
Company through the Closing Date, (ii) that arose or may arise solely from
operations by the Company prior to the Closing Date at sites other than at its
locations, and (iii) with respect to all off site disposal by the Company prior
to the Closing Date.
(p) Schedule of
Assets. As disclosed on Schedule
3(y) attached hereto, is a schedule of assets owned by the Company
containing (i) a true and complete listing of all property owned by the Company;
(ii) a true and complete legal description of all real properties in which the
Company has a leasehold interest, together with a description of each indenture,
lease, sublease, or other instrument under which the Company claims or holds
such leasehold interest, each of which is a good and valid leasehold interest,
and all of which are in effect and enforceable according to their respective
terms; (iii) a true and complete list of all patents, patent applications,
patent licenses, trademarks, trademark registrations, and applications
therefore, trade names, copyrights, and copyright registrations and applications
therefore owned by the Company; and (iv) as of December 31, 2009 a true and
complete list of all accounts receivable of the Company, together with
information as to the aging of each such account receivable. All
Assets are being transferred to the seller and all liabilities other than the
Shareholders Note Payables are being assumed by the seller.
(q) Compliance with Law and
Other Instruments. The business and operations of the Company
have been and are being conducted in accordance with all applicable laws, rules
and regulations of all authorities, except those which do not (either
individually or in the aggregate) materially and adversely affect the
Company.
Other
than as disclosed on Schedule 3(dd)
attached hereto, to the best knowledge of the Sellers, the Company has in all
respects performed all obligations required to be performed to date, and is not
in material default in any respect under any of the contracts, agreements,
leases, documents, or other commitments to which it is a party or otherwise
bound or affected. All parties having material contracts with the
Company are in material compliance therewith, and are not in material default
thereunder.
(r) Authority to
Sell. The Sellers have all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of the Company have been duly taken to authorize the execution,
delivery, and performance of this Agreement by the Sellers. This
Agreement has been duly authorized, executed and delivered by the Sellers; is
the legal, valid, and binding obligation of the Sellers; and is enforceable as
to it in accordance with its terms subject to any laws relating to bankruptcy or
any other similar laws.
No
consent, authorization, approval, order, license, certificate, or permit of or
from, or declaration of filing with, any federal, state, local, or other
governmental authority or any court or other tribunal is required by the Company
for the execution, delivery, or performance of this Agreement by the
Sellers. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which the Company
is a party, or to which any of its properties or assets are subject, is required
for the execution, delivery or performance of this Agreement; and the execution,
delivery, and performance of this Agreement will not violate, result in a breach
of, conflict with, or (with or without the giving of notice or the passage of
time or both) entitle any party to terminate or call a default under any
contract, agreement, instrument, lease, license, arrangement, or understanding,
or violate or result in a breach of any term of the articles of incorporation
(or other charter document) or bylaws of the Company or violate, result in a
breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on the Sellers or the Company or to which any of its operations,
business, properties, or assets are subject.
(s) Records. The
books of account and minute books of the Company are complete and correct, and
reflect all those transactions involving its business which properly should have
been set forth in such books.
(t) Representations and
Warranties True and Complete. All representations and
warranties of the Sellers in this Agreement and the Other Agreements are true,
accurate and complete in all material respects as of the Closing
Date.
(u) No Knowledge of
Default. The Sellers have no knowledge that any
representations and warranties of EGPI contained in this Agreement or the Other
Agreements are untrue, inaccurate or incomplete or that EGPI is in default under
any term or provision of this Agreement or the Other Agreements.
(v) No Untrue
Statements. No representation or warranty by the Sellers in
this Agreement or in any writing furnished or to be furnished pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits, or
will omit to state any material fact required to make the statements herein or
therein contained not misleading.
(w) Reliance. The
foregoing representations and warranties are made by the Sellers with the
knowledge and expectation that EGPI is placing complete reliance
thereon.
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4.
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Representations and
Warranties of EGPI. Where a representation contained in
this Agreement is qualified by the phrase “to the best knowledge of EGPI”
(or words of similar import), such expression means that, after having
conducted a due diligence review, EGPI believes the statement to be true,
accurate, and complete in all material respects. Knowledge
shall not be imputed nor shall it include any matters which such person
should have known or should have been reasonably expected to have
known. EGPI hereby represents and warrants to the Sellers as
follows:
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(a) Power and
Authority. EGPI has full power and authority to execute,
deliver and perform this Agreement and the Other Agreements.
(b) Binding
Effect. Upon execution and delivery by EGPI, this Agreement
shall be and constitute the valid, binding and legal obligations of EGPI
enforceable against it in accordance with the terms hereof or thereof, except as
the enforceability hereof and thereof may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors’ rights generally, and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) SEC
Filings. All filings of EGPI with the Securities and Exchange
Commission are available on the ▇▇▇▇▇ website maintained by the Securities and
Exchange Commission.
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5.
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Actions of the Company
Pending the Closing Date. The Sellers agree that from
the date hereof until the Closing
Date:
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(a) Operations. The
Sellers will use their best efforts to cause the Company to (i) be operated in
keeping with its customary practices and in compliance with all applicable laws,
rules and regulations; and (ii) not engage in any transaction or make any
commitment or expenditure.
(b) No Change in Corporate
Charter. No change will be made in the Articles of
Incorporation or Bylaws of the Company except as may be first approved in
writing by EGPI.
(c) No Change in
Compensation. No increase will be made in the compensation
payable to or to become payable by the Company to any officer, employee, or
agent, nor will any bonus payment or arrangement be made by the Company to or
with any officer, employee, or agent thereof, except as may be first approved in
writing by EGPI.
(d) No
Default. The Company shall timely pay and/or not suffer any
default with respect to any of its contracts, commitments or
obligations. The Company shall also continue to pay as they become
due all accounts payable of the Company.
(e) No
Contracts. No contract or commitment will be entered into by
or on behalf of the Company, except as may be first approved in writing by
EGPI.
(f) Banking
Relations. No change will be made affecting the banking and
safe deposit arrangements of the Company, except as may be first approved in
writing by EGPI.
(g) Insurance. The
Company shall keep all of its property and assets covered hereby insured in
accordance with the present practice, and maintain, preserve and keep all
improvements on its properties, all equipment, machinery and other personal
property covered hereby in reasonably good condition and state of repair,
reasonable wear excepted.
(h) No
Liabilities. The Company shall not issue nor sell any of its
stock, bonds, notes, or other corporate securities, nor incur any obligation or
liability except current liabilities incurred in the ordinary course of
business, nor mortgage, pledge, grant security interests covering, or
additionally subject to lien or encumbrance any of its properties except as may
be first approved in writing by EGPI.
(i) Reduction of
Assets. The Company shall not reduce any of its assets from
what is reflected on the Schedule of Assets to be furnished to EGPI as described
in Schedule
3(y) hereof.
(j) Access to
Records. The Sellers shall cause the Company to afford EGPI
and their attorneys, accountants, investment bankers and other representative’s
access, during normal business, to all of its business operations, properties,
books, files, and records, and will cooperate in their examination
thereof. No such examination, however, shall constitute a waiver or
relinquishment by EGPI of their right to rely upon covenants, representations,
and warranties of the Sellers made herein or pursuant hereto. Until
the Closing Date or the termination of this Agreement, whichever shall occur
first, and after the termination of this Agreement in the event this Agreement
does not close, EGPI will hold in confidence all information so obtained by EGPI
as a result of such examination.
(k) Compliance. The
Sellers shall cause the Company and its officers and employees to comply with
all applicable provisions of this Agreement.
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6.
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Conditions Precedent
to Obligations of EGPI. All obligations of EGPI under
this Agreement are subject to the fulfillment, prior to or at the Closing
Date, of the following conditions which must be satisfied as herein
specified. In connection with any item to be furnished by the
Sellers prior to the Closing Date to EGPI under this Paragraph 6, each
such item shall be furnished within five days from the date hereof, and
EGPI, as well as the counsel of EGPI, must be reasonably satisfied with
any such item within 10 days after receipt of any such item. If
EGPI, or the counsel of EGPI, is not reasonably satisfied within 10 days
after receipt of any such item to be furnished under this Paragraph 7,
then EGPI may, at its sole option, declare that this Agreement is null and
void, whereupon no party shall have any liability to the other hereunder
or in connection with any other instrument executed in connection with the
transactions contemplated herein. As used herein, the term
“reasonably satisfied” shall mean that if any item furnished under this
Paragraph 6 is not at material variance with information previously
furnished to EGPI or if such item is as specified in this Paragraph 6,
then the conditions of this Paragraph 6 shall be deemed to have been
satisfied. Such conditions are as
follows:
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(a) Representations and
Warranties True at the Closing Date. The representations and
warranties of the Sellers herein shall be deemed to have been made again as of
the Closing Date, and then be true and correct, subject to any changes
contemplated by this Agreement. The Sellers shall have performed all
of the obligations to be performed by them hereunder on or prior to the Closing
Date.
(b) Proof of
Authority. EGPI’s counsel shall have received evidence
reasonably sufficient to such counsel that the Sellers have all requisite
authorizations necessary for consummation by the Sellers of the transactions
contemplated hereby, and there has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation which might reasonably be expected to result
in any such injunction or order is pending.
(c) Deliveries at the Closing
Date. The Sellers shall have delivered to EGPI at the Closing
Date all of the documents required to be delivered hereunder.
(d) Status of
Litigation. With respect to any matters affecting the Company
and in litigation as described in Schedule 3(m)
attached hereto, EGPI shall have the right to make an independent review of such
matters. If EGPI is not satisfied with such review, then EGPI shall
have the option to terminate this Agreement pursuant to the terms of this
Paragraph 6. All litigation matters are to be retained by Seller. EGPI Firecreek
shall be fully indemnified by Seller of all litigation claims and
cases.
(e) Corporate Records,
etc. The Sellers shall have delivered to EGPI copies of the
Articles of Incorporation, Bylaws, minute books, and other corporate governance
materials used since the inception of the Company.
(f) Resignations of Directors
and Officers. The Sellers shall have delivered to EGPI at the
Closing the written resignations of all of the directors and officers of the
Company.
(g) Other
Matters. All corporate and other proceedings and actions taken
in connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to EGPI and its
counsel, whose approval shall not be unreasonably withheld.
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7.
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Conditions Precedent
to Obligations of the Sellers. All obligations of the
Sellers under this Agreement are subject to the fulfillment, prior to or
at the Closing Date, of the following
conditions:
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(a) Representations and
Warranties True at Closing Date. The representations and
warranties of EGPI herein shall be deemed to have been made again at the Closing
Date, and then be true and correct, subject to any changes contemplated by this
Agreement. EGPI shall have performed all of the obligations to be
performed by EGPI hereunder on or prior to the Closing Date.
(b) Proof of
Authority. Counsel for the Sellers shall have received
evidence reasonably sufficient to such counsel that EGPI has all requisite
authorizations necessary for consummation by EGPI of the transactions
contemplated hereby, and there has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation that might reasonably be expected to result
in any such injunction or order is pending.
(c) No
Orders. There has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation which might reasonably be expected to result
in any such injunction or order is pending.
(d) Other
Matters. All corporate and other proceedings and actions taken
in connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to the Sellers
and their counsel, whose approval shall not be unreasonably
withheld.
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8.
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The Nature and
Survival of Representations, Covenants and
Warranties. All statements and facts contained in any
memorandum, certificate, instrument, or other document delivered by or on
behalf of the parties hereto for information or reliance pursuant to this
Agreement, shall be deemed representations, covenants and warranties by
the parties hereto under this Agreement. All representations,
covenants and warranties of the parties shall survive the Closing Date and
all inspections, examinations, or audits on behalf of the parties, shall
expire 18 months following the Closing
Date.
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9.
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Indemnification by the
Sellers. The Sellers agrees to indemnify and hold
harmless EGPI and/or the Company against and in respect to all damages (as
hereinafter defined) up to $3.6 million dollars Damages, as
used herein shall include any claim, salary, wage, action, tax, demand,
loss, cost, expense, liability (joint or several), penalty, and other
damage, including, without limitation, counsel fees and other costs and
expenses reasonably incurred in investigating or attempting to avoid same
or in opposition to the imposition thereof, or in enforcing this
indemnity, resulting to EGPI and/or the Company from any inaccurate
representation made by or on behalf of the Sellers in or pursuant to this
Agreement, breach of any of the warranties made by or on behalf of the
Sellers in or pursuant to this Agreement, or breach or default in the
performance by the Sellers of any of the obligations to be performed by
him hereunder. Hereunder, EGPI shall determine whether EGPI,
the Company or both EGPI and the Company are entitled to be indemnified
and such determination shall be binding on the
Sellers.
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Notwithstanding
the scope of the Sellers’ representations and warranties herein, or of any
individual representation or warranty, or any disclosure to EGPI herein or
pursuant hereto, or the definition of damages contained in the preceding
sentence, or EGPI’s knowledge of any fact or facts at or prior to the Closing
Date, damages shall also include all debts, liabilities, and obligations of any
nature whatsoever (whether absolute, accrued, contingent, or otherwise, and
whether due or to become due) of the Company, as of the date hereof not
reflected in the Financial Statement or any other exhibit furnished hereunder,
whether known or unknown by the Sellers; all claims, actions, demands, losses,
costs, expenses, and liabilities resulting from any litigation from causes of
action arising prior to the Closing Date involving the Company or any
stockholders thereof other than the Sellers, whether or not disclosed to EGPI;
all claims, actions, demands, losses, costs, expenses, liabilities and penalties
resulting from (i) the Company’s infringement or claimed infringement upon or
acting adversely to the rights or claimed rights of any person under or in
respect to any copyrights, trademarks, trademark rights, patents, patent rights
or patent licenses; or (ii) any claim or pending or threatened action with
respect to the matters described in clause (i); all claims, actions, demands,
losses, costs, expenses, liabilities or penalties resulting from the Company’s
failure in any respect to perform any obligation required by it to be performed
at or prior to the effective date hereof or at or prior to the Closing Date, or
by reason of any default of the Company, at the effective date hereof or at the
Closing Date, under any of the contracts, agreements, leases, documents, or
other commitments to which it is a party or otherwise bound or affected; and all
losses, costs, and expenses (including without limitation all fees and
disbursements of counsel) relating to damages.
The
Sellers shall reimburse and/or pay on behalf of EGPI and/or the Company on
demand for any payment made or required to be made by EGPI and/or the Company at
any time after the Closing Date based upon the judgment of any court of
competent jurisdiction or pursuant to a bona fide compromise or settlement of
claims, demands or actions, in respect to the damages to which the foregoing
indemnity relates. EGPI shall give, or EGPI shall cause the Company
to give, the Sellers written notice within 30 days after notification of any
litigation threatened or instituted against the Company which might constitute
the basis of a claim for indemnity by EGPI and/or the Company against the
Sellers.
Notwithstanding
anything contained in this Agreement to the contrary, the right to
indemnification described in this paragraph shall expire 18 months after the
Closing Date.
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10.
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Records of the
Company. For a period of five years following the
Closing Date, the books of account and records of the Company pertaining
to all periods prior to the Closing Date shall be available for inspection
by the Sellers for use in connection with tax
audits.
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11.
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Destruction of
Property. If, on or before the Closing Date, any
substantial portion of the fixed assets of the Company shall suffer a loss
of fire, flood, tornado, hurricane, riot, accident or other calamity,
whether or not insured, to such an extent that in the opinion of EGPI
there will be such a delay in repairing or replacing said assets so as to
materially affect the future operations of the Company, then EGPI may, at
its sole option, terminate this Agreement without cost, expense, or
liability to either party.
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12.
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Default by
EGPI. If the Sellers do not default hereunder and EGPI
defaults hereunder, the Sellers sole remedy shall be to terminate this
Agreement.
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13.
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Default by the
Sellers. If EGPI does not default hereunder and the
Sellers default hereunder, EGPI may elect to terminate this Agreement as
well as any other agreement executed by EGPI in connection with the
transactions contemplated by this Agreement, including but not limited to
any independent nondisclosure agreement or any other independent
agreements, whereupon no party shall be liable to the others hereunder, or
EGPI may assert any remedy, including specific performance, which EGPI may
have by reason of any such default of the Company or the
Sellers. From and after the Closing Date, subject to the terms
and provisions hereof, in the event of a breach by any party of the terms
of this Agreement or any obligation of a party which survives the Closing
Date, the non-defaulting party may assert any remedy, either at law or in
equity, to which such non-defaulting party may be
entitled.
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14.
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Cooperation. The
parties hereto will each cooperate with the other, at the other’s request
and expense, in furnishing information, testimony, and other assistance in
connection with any actions, proceedings, arrangements, disputes with
other persons or governmental inquiries or investigations involving the
parties hereto or the transactions contemplated
hereby.
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15.
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Further Conveyances
and Assurances. After the Closing Date, the Sellers, the
Company, and EGPI will, without further cost or expense to, or
consideration of any nature from the other, execute and deliver, or cause
to be executed and delivered, to the other, such additional documentation
and instruments of transfer and conveyance, and will take such other and
further actions, as the other may reasonably request as more completely to
consummate the transactions contemplated
hereby.
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16.
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Closing
Date. The Closing of the purchase and sale of the
Company Common Stock contemplated hereunder (the “Closing”) shall be on or
before December 31, 2009, subject to acceleration or postponement from
time to time as the parties hereto may mutually agree (the “closing
Date”). The Closing shall be at March 4, 2010 at 2:00 p.m.
Eastern time on the Closing Date, unless another hour or place is mutually
agreed upon by the parties hereto.
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17.
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Deliveries on the
Closing Date by the Sellers. At the Closing, the Sellers
shall deliver the following:
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(a) Certificates
representing 100,000 shares of the Company Common Stock, duly endorsed by the
Sellers, free and clear of all liens, claims, encumbrances, and restrictions of
every kind except for the restrictive legend required by Rule 144 promulgated
under the Securities Act.
All
documents reflecting any actions taken, received or delivered by the Sellers
pursuant to this Paragraph 19 shall be reasonably satisfactory in form and
substance to EGPI and its counsel.
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18.
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Deliveries on the
Closing Date by EGPI. At the Closing, EGPI shall deliver
the following:
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(a) The
Consideration.
(b) The
proof of authority described in Paragraph 7(b) hereof.
(c) Any
other document which may be necessary to carry out the intent of this
Agreement.
All
documents reflecting any actions taken, received or delivered by EGPI pursuant
to this Paragraph 19 shall be reasonably satisfactory in form and substance to
the Sellers and their counsel.
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19.
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No
Assignment. This Agreement shall not be assignable by
any party without the prior written consent of the other parties, which
consent shall be subject to such party’s sole, absolute and unfettered
discretion.
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20.
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Brokerage. The
parties hereto agree to indemnify and hold harmless each other against,
and in respect of, any claim for brokerage or other commissions relative
to this Agreement, or the transactions contemplated hereby, based in any
way on agreements, arrangements, understandings or contracts made by
either party with a third party or parties
whatsoever.
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21.
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Mediation and
Arbitration. All disputes arising or related to this
Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Atlanta,
Georgia. If such mediation fails, then any such dispute shall
be resolved by binding arbitration under the Commercial Arbitration Rules
of the American Arbitration Association in effect at the time the
arbitration proceeding commences, except that (a) Georgia law and the
Federal Arbitration Act must govern construction and effect, (b) the
locale of any arbitration must be in Atlanta, Georgia, and (c) the
arbitrator must with the award provide written findings of fact and
conclusions of law. Any party may seek from a court of
competent jurisdiction any provisional remedy that may be necessary to
protect its rights or assets pending the selection of the arbitrator or
the arbitrator’s determination of the merits of the
controversy. The exercise of such arbitration rights by any
party will not preclude the exercise of any self-help remedies (including
without limitation, setoff rights) or the exercise of any non-judicial
foreclosure rights. An arbitration award may be entered in any
court having jurisdiction.
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22.
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Attorneys’
Fees. In the event that it should become necessary for
any party entitled hereunder to bring suit against any other party to this
Agreement for a breach of this Agreement, the parties hereby covenant and
agree that the party who is found to be in breach of this Agreement shall
also be liable for all reasonable attorneys’ fees and costs of court
incurred by the other parties. Provided, however, in the event
that there has been no breach of this Agreement, whether or not the
transactions contemplated hereby are consummated, each party shall bear
its own costs and expenses (including any fees or disbursements of its
counsel, accountants, brokers, investment bankers, and finder’s
fees).
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23.
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Benefit. All
the terms and provisions of this Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto, and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns.
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24.
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Notices. All
notices, requests, demands, and other communications hereunder shall be in
writing and delivered personally or sent by registered or certified United
States mail, return receipt requested with postage prepaid, or by telecopy
or e-mail, if to the Sellers, addressed as set forth on Schedule A and if
to EGPI, addressed to Mr. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, EGPI Firecreek, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇)
▇▇▇-▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇, and e-mail
▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Any party hereto may change
its address upon 10 days’ written notice to any other party
hereto.
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25.
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Construction. Words
of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held
to include the plural, and vice versa, unless the context requires
otherwise.
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26.
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Waiver. No
course of dealing on the part of any party hereto or its agents, or any
failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or
partial exercise of any such right, power or privilege shall not preclude
any later exercise thereof or any exercise of any other right, power or
privilege hereunder or thereunder.
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27.
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Cumulative
Rights. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of
any other right or remedy.
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28.
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Invalidity. In
the event any one or more of the provisions contained in this Agreement or
in any instrument referred to herein or executed in connection herewith
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not
affect the other provisions of this Agreement or any such other
instrument.
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29.
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Time of the
Essence. Time is of the essence of this
Agreement.
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30.
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Incorporation by
Reference. The Exhibits and Schedules to this Agreement
referred to or included herein constitute integral parts to this Agreement
and are incorporated into this Agreement by this
reference.
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31.
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Multiple
Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A
facsimile transmission or PDF copy of this signed Agreement shall be legal
and binding on all parties hereto.
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32.
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Controlling
Agreement. In the event of any conflict between the
terms of this Agreement or any of the Other Agreements or exhibits
referred to herein, the terms of this Agreement shall
control.
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33.
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Press Releases and
Public Announcements. No party shall issue any press
release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of
the other parties; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in
which case the disclosing party will use its efforts to advise the other
parties prior to making the
disclosure).
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34.
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Law Governing;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, without
regard to any conflicts of laws provisions thereof. Each party
hereby irrevocably submits to the personal jurisdiction of the United
States District Court for ▇▇▇▇▇▇ County, Georgia over any suit, action or
proceeding arising out of or relating to this Agreement. Each
party hereby irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the
venue of any such mediation, arbitration, suit, action or proceeding
brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been
brought in an inconvenient forum.
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35.
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Entire
Agreement. This instrument and the attachments hereto
contain the entire understanding of the parties and may not be changed
orally, but only by an instrument in writing signed by the party against
whom enforcement of any waiver, change, modification, extension, or
discharge is sought.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
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EGPI/FIRECREEK,
INC.
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/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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By
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Chief Executive
Officer
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Attachments:
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Schedule
A
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Stockholders
of REDQUARTZ LTD
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Schedule
B
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Description
of Consideration
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Schedule
3(c)
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Violations
under Documents
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Schedule
3(m)
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Litigation
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Schedule
3(n)
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Compliance
with Laws and Regulations
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Schedule
3(o)
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Defaults
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Schedule
3(p)
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Permits
and Approvals
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Schedule
3(s)
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Compliance
with the Environmental Laws
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Schedule
3(y)
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Assets
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Schedule
3(aa)
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Labor
Matters
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Schedule
3(dd)
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Contracts
in Default
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Schedule
A
To an
Agreement of March 3, 2010
By and
Among EGPI and Stockholders of REDQUARTZ, LTD
(“Sellers”
or “Company”)
[SELLERS
SIGNATURES ATTACHED ON THE FOLLOWING PAGE(S))
