SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT Made as of the 30th day of November, 2006, and amended as of March 2, 2007
EXHIBIT
2.3
SECOND
AMENDMENT
TO
Made
as of the 30th
day of November, 2006,
and
amended as of March 2, 2007
APRIL
16, 2007
SECOND
AMENDMENT TO
THIS
AMENDING AGREEMENT is made effective as of the 16th day of April,
2007
AMONG:
COLD
FLOW ENERGY ULC,
a
corporation incorporated under the laws of Alberta (“Purchaser”)
-
and
-
SURGE
GLOBAL ENERGY, INC.,
a
corporation incorporated under the laws of Delaware (“Surge”)
-
and
-
PEACE
OIL CORP.,
a
corporation incorporated under the laws of Alberta (“Target
Company”)
-
and
-
1229679
ALBERTA INC., 1216848 ALBERTA LTD., ▇▇▇▇ ▇▇▇▇▇▇ (individually and as trustee
of
the CAIRNS FAMILY TRUST), ▇▇▇▇ ▇▇▇▇▇▇ (individually and as trustee of the ▇▇▇▇▇▇
FAMILY TRUST), ▇▇▇▇ ▇▇▇▇▇▇▇▇ (as trustee of the STOUTHEARTED TRUST), ▇▇▇▇▇
▇▇▇
(as trustee of the LIU FAMILY TRUST) and ▇▇▇▇▇▇ ▇▇ (as trustee of the MA FAMILY
TRUST),
the
shareholders of Target Company (each a “Shareholder”
and
collectively, “Shareholders”)
WHEREAS
Purchaser,
Surge, Target Company and Shareholders (collectively, the “Parties”) have
entered into that certain stock purchase agreement dated as of November 30,
2006, as amended by that certain First Amendment to Stock Purchase Agreement
dated as of March 2, 2007 (collectively, the “Stock
Purchase Agreement”);
AND
WHEREAS
the
Parties have considered it desirable to amend, in the manner set forth herein
and among other things, certain provisions pertaining to the registration of
certain Surge Securities to be issued to the Shareholders upon the exchange
of
the exchangeable shares of Purchaser issued to the Shareholders pursuant to
the
Stock Purchase Agreement;
NOW
THEREFORE THIS AGREEMENT WITNESSES THAT
in
consideration of the premises and the mutual covenants and agreements herein
contained and contained in the Stock Purchase Agreement, and for other good
and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the Parties agree as follows:
ARTICLE
1
INTERPRETATION
1.1
Amending
Agreement
“this
Amending Agreement”, “hereto”, “herein”, “hereof”, “hereby”, “hereunder” and
similar expressions refer to this Second Amendment to Stock Purchase Agreement
and not to any particular article, section, subsection or other subdivision
hereof and includes any and every instrument supplemental or ancillary hereto
or
in implementation hereof.
1.2
Definitions
Unless
otherwise defined herein, all capitalized terms used in this Amending Agreement
which are defined in the Stock Purchase Agreement shall, for all purposes
hereof, have the meanings given to such terms in the Stock Purchase Agreement
unless the context otherwise specifies or requires.
1.3
Interpretation
Not Affected By Headings
The
division of this Amending Agreement into articles and sections and the insertion
of headings are for convenience of reference only and shall not affect the
construction or interpretation of this Amending Agreement.
ARTICLE
2
AMENDMENT
TO THE STOCK PURCHASE AGREEMENT
2.1
Amendment
to Subsection 10.4(a)
Subsection
10.4(a) of the Stock Purchase Agreement is hereby amended by deleting subsection
10.4(a) in its entirety and replacing such subsection with the following new
subsection 10.4(a):
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“(a)
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On
the earlier to occur of: (i) July 5, 2007 and (ii) within three (3)
business days following the Company’s closing of a financing (but in no
event sooner than May 15, 2007) sufficient to pay in full the First
Promissory Note, Surge shall prepare and file with the SEC a registration
statement on Form SB-2 (“SB-2
Registration Statement”)
registering the Surge Securities for resale by Shareholders. Surge
covenants to keep the SB-2 Registration Statement effective for up
to two
years following the date the SB-2 Registration Statement becomes
effective
or, if earlier, until Shareholders have completed the distribution
related
thereto. Surge shall prepare and file with the SEC such amendments
and
supplements to the SB-2 Registration Statement and the prospectus
used in
connection with such SB-2 Registration Statement as may be necessary
to
comply with the provisions of the Securities Act with respect to
the
disposition of all securities covered by the SB-2 Registration Statement.
Surge shall furnish to Shareholders such number of copies of a prospectus
in conformity with the requirements of the Securities Act, and such
other
documents as they may reasonably request in order to facilitate the
disposition of the Surge Securities owned by them. Surge shall notify
each
Shareholder by written notice to the address set forth on the books
of
Purchaser (unless Purchaser is notified in writing of a different
address
for a Shareholder) at any time when a prospectus relating thereto
is
required to be delivered under the Securities Act of the happening
of any
event as a result of which the prospectus included in the SB-2
Registration Statement as then in effect, includes an untrue statement
of
a material fact or omits to state a material fact required to be
stated
therein or necessary to make the statements therein not misleading
in the
light of the circumstances then existing. Such SB-2 Registration
Statement
shall only include the securities to be issued by Surge to the
Shareholders;”
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ARTICLE
3
GENERAL
3.1 Effect
of Amending Agreement
This
Amending Agreement amends the Stock Purchase Agreement to the extent set forth
herein, and the Stock Purchase Agreement shall, from this date forward, be
read
in conjunction with this Amending Agreement. The Stock Purchase Agreement and
this Amending Agreement shall, from this date forward, have effect as if all
the
provisions of the Stock Purchase Agreement and this Amending Agreement were
contained in one instrument. As amended hereby, all the terms and conditions
as
set forth in the Stock Purchase Agreement remain valid, binding and in full
force and effect upon the Parties.
3.2
Counterpart
and Facsimile Execution
This
Amending Agreement may be executed in counterpart, each of which when so
executed in counterpart shall have the same effect as if each Party had joined
in executing one and the same document, and notwithstanding their date of
execution, each counterpart shall be deemed to be dated and effective as of
the
day and year first set forth above. Any counterparts delivered by facsimile
shall be deemed for all purposes to be original counterparts of this Amending
Agreement.
3.3
Governing
Law
This
Amending Agreement shall, in all respects, be subject to and be interpreted,
construed and enforced in accordance with the laws in effect within the Province
of Alberta. Each Party hereby expressly attorns to the non-exclusive
jurisdiction of the courts of the Province of Alberta.
3.4 Further
Assurances
Each
of
the Parties hereto agrees to use reasonable commercial efforts to take, or
cause
to be taken, all such further actions and to do, or cause to be done, all things
necessary, proper or advisable to give effect to the true intent, meaning and
purpose of this Amending Agreement.
3.5
Enurement
The
provisions of this Amending Agreement shall enure to the benefit of, and be
binding upon, the Parties hereto and their respective successors and
assigns.
[Remainder
of Page Intentionally Blank]
3
IN
WITNESS WHEREOF
each of
the Parties has caused this Amending Agreement to be executed by its proper
officers, duly authorized on its behalf, with effect as of the day and year
first set forth above.
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COLD
FLOW ENERGY ULC
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Authorized Signing Officer By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Signing Officer |
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By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Authorized Signing Officer By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Signing Officer |
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PEACE
OIL CORP.
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Authorized Signing Officer By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Signing Officer |
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1229679
ALBERTA INC.
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Authorized Signing Officer |
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1216848
ALBERTA LTD.
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Authorized Signing Officer |
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_______________________________
Witness
|
/s/▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ individually and as trustee of
the
Cairns Family Trust
|
|
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_______________________________ Witness |
/s/
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ individually and as trustee of the
▇▇▇▇▇▇ Family Trust
|
|
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_______________________________
Witness
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ as trustee of the Stouthearted Trust |
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_______________________________
Witness
|
/s/
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ as trustee of the Liu Family Trust |
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_______________________________
Witness
|
/s/
▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ as trustee of the Ma Family Trust |
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