Attached files
| file |
filename |
| 8-K - Bedrock Energy, Inc. | gulfstar8ka.txt |
| EX-2.4 - Bedrock Energy, Inc. | ex24.txt |
| EX-3.3 - Bedrock Energy, Inc. | ex33.txt |
| EX-2.2 - Bedrock Energy, Inc. | ex22.txt |
| EX-2.1 - Bedrock Energy, Inc. | ex21.txt |
| EX-16.1 - Bedrock Energy, Inc. | ex16.txt |
| EX-23.2 - Bedrock Energy, Inc. | ex232.txt |
| EX-10.2 - Bedrock Energy, Inc. | ex102.txt |
| EX-10.4 - Bedrock Energy, Inc. | ex104.txt |
| EX-10.1 - Bedrock Energy, Inc. | ex101.txt |
| EX-23.3 - Bedrock Energy, Inc. | ex233.txt |
| EX-10.3 - Bedrock Energy, Inc. | ex103.txt |
| EX-23.1 - Bedrock Energy, Inc. | ex231.txt |
SHARE EXCHANGE AGREEMENT
DATED AS OF
June 23, 2010
BY AND among
gulfstar energy corporation
AND
JASON SHARP
AND
TIMOTHY SHARP
AND
GULFSTAR ENERGY GROUP, LLC
ACQUISITION AGREEMENT
This AGREEMENT, dated as of June ___, 2010 (the "Agreement"), by and
among Gulfstar Energy Corporation, a Colorado Corporation, ("GEI"), and Jason
Sharp and Timothy Sharp ("Sellers"), owners of 11,659,659 interests representing
approximately 60% ("60%") of the issued and outstanding LLC interests of
Gulfstar Energy Group, LLC., a Mississippi Limited Liability Company. Gulfstar
Energy Group, LLC is hereafter referred to as "Gulfstar, LLC", and is a party to
this Agreement.
WHEREAS, the Board of Directors of GEI has approved the Acquisition of
Gulfstar LLC, as being in the best interests of GEI and its stockholders in
accordance with the applicable provisions of the Colorado Business Corporation
Code (the "CBCC");
WHEREAS, GEI, and Sellers desire to make certain representations,
warranties, covenants and agreements in connection with the Acquisition and also
to prescribe various conditions to the Acquisition; and
WHEREAS, this Agreement is intended to set forth the terms upon which
Gulfstar, LLC interests will be acquired by GEI concurrently, in conjunction
with and conditioned upon the simultaneous closing of an Acquisition Agreement
by and between Gulfstar Energy Corporation and Talon Energy Corp., (Exhibit A)
and the execution of an Acquisition Agreement by and between Gulfstar Energy
Corporation and Gulfstar Energy Group LLC for the remaining approximately 40%
("40%") of the Interests in Gulfstar Energy Group, LLC (attached as Exhibit B).
WHEREAS, this Agreement is intended to accomplish a tax free
acquisition pursuant to Section 351 of the Internal Revenue Code for benefit of
Sellers in conjunction with certain other Share Exchange/Acquisition Agreements
by and between GEI and Talon Energy, Inc., and GEI and Gulfstar LLC relating to
the 40% of the ownership interests of Gulfstar LLC;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
ARTICLE I
THE CONSIDERATION
SECTION 1.01 Consideration/Acquisition; Effective Time
The Acquisition shall become effective upon the delivery by Sellers of
the transaction documents sufficient to convey Sellers' entire interests in
Gulfstar, LLC duly executed upon delivery of the following consideration:
11,659,659 shares of restricted common stock of GEI shall be issued as
consideration to Sellers for conveyance of the 11,659,659 interests in
Gulfstar, LLC by Sellers, free and clear of all liens and encumbrances
and concurrent with and subject to the closing of a) Revised and
Amended Share Exchange and Acquisition Agreement with Talon Energy, LLC
(copy attached as Exhibit A hereto) and b) Share Exchange Agreement
with Gulfstar, LLC for the remaining 40% interest in Gulfstar, LLC
(Exhibit B).
SECTION 1.02 Effects of the Acquisition.
At the Effective Time and by virtue of the closing Acquisition, GEI
will own approximately 60% of the outstanding interests of Gulfstar, LLC.
ARTICLE II
THE CLOSING
SECTION 2.01 Closing.
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article VIII, and
subject to the satisfaction or waiver of the conditions set forth in Article VI,
the closing of the Acquisition (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VI are satisfied
or, to the extent permitted thereunder, waived, at the offices of Michael A.
Littman, located at 7609 Ralston Road, Arvada, CO 80002 or at such other time
and place as may be agreed to in writing by the parties hereto (the date of such
Closing being referred to herein as the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GEI
Except as set forth in the applicable section of the disclosure
schedule delivered by GEI to Sellers prior to the execution of this Agreement
(the "GEI Disclosure Schedule"), GEI represents and warrants to Sellers as
follows:
SECTION 3.01 Organization of GEI; Authority.
GEI is an Entity duly organized, validly existing and in good standing
under the laws of the State of Colorado. GEI has all requisite corporate power
and corporate authority to enter into the transaction documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by GEI of the transaction documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of GEI, including,
without limitation, the approval of the board of directors of GEI. GEI is duly
qualified or licensed to do business as a foreign Entity and is in good standing
in each jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification necessary,
except where the failure to obtain such qualification or license would not,
individually or in the aggregate, have a material adverse effect. GEI has
heretofore delivered or made available to Sellers complete and correct copies of
the certificate of incorporation and by-laws of GEI, the minute books and stock
transfer records of GEI, as in effect as of the date of this Agreement.
SECTION 3.02 Capitalization.
The authorized capital stock of GEI consists of 100,000,000 shares of
GEI Common Stock, of which 1,410,000 shares are outstanding on the date hereof
and 10,000,000 of Preferred Stock, of which no shares are outstanding on the
date hereof. No other shares of any other class or series of GEI Common Stock or
securities exercisable or convertible into or exchangeable for GEI Common Stock
("GEI Common Stock Equivalents") are authorized, issued or outstanding, except
that 3,500,000 shares are issuable under the Talon Revised and Amended Share
Exchange and Acquisition Agreement and up to 8,340,341 shares are issuable under
Exhibit B hereto, the Gulfstar Energy Group, LLC (40%) Share Exchange Agreement.
The outstanding shares of GEI Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable and were not issued in violation of,
and are not subject to, any preemptive, subscription or similar rights. To GEI's
knowledge, none of the outstanding shares of GEI Common Stock was issued in
violation of any Law, including without limitation, federal and state securities
laws. There are no outstanding warrants, options, subscriptions, calls, rights,
agreements, convertible or exchangeable securities or other commitments or
arrangements relating to the issuance, sale, purchase, return or redemption,
and, to GEI's knowledge, voting or transfer of any shares, whether issued or
unissued, of GEI Common Stock, GEI Common Stock Equivalents or other securities
of GEI. On the Closing Date, the shares of GEI Common Stock for which shares of
Sellers Common Stock shall be issued in the Acquisition will have been duly
authorized and, when issued and delivered in accordance with this Agreement,
such shares of GEI Common Stock will be validly issued, fully paid and
nonassessable.
SECTION 3.03 No Violation; Consents and Approvals.
The execution and delivery by GEI of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of GEI (b) any Law
applicable to GEI or the property or assets of GEI, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
creation of any lien upon any of the properties of GEI under any contract to
which GEI is a party or by which GEI or any assets of GEI may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in Section 3.04 of the GEI Disclosure Schedule and as to
which requisite waivers or consents will have been obtained prior to the Closing
or which, individually or in the aggregate, would not have a material adverse
effect on GEI. No Governmental Approval is required to be obtained or made by or
with respect to GEI in connection with the execution and delivery of this
Agreement or the consummation by GEI of the transactions contemplated hereby.
SECTION 3.04 Litigation; Compliance with Laws.
(a) There are: (i) no claims, actions, suits, investigations or proceedings
pending or, to the knowledge of GEI, threatened against, relating to or
affecting GEI, the business, the assets, or any employee, officer, director,
stockholder, or independent contractor of GEI in their capacities as such, and
(ii) no orders of any Governmental Entity or arbitrator outstanding against GEI,
the business, the assets, or any employee, officer, director, stockholder, or
independent contractor of GEI in their capacities as such, or that could prevent
or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby.
(b) GEI has complied and is in compliance in all material respects with all laws
applicable to GEI, its business or its assets. Neither GEI has received notice
from any Governmental Entity or other Person of any material violation of law
applicable to GEI, its business or assets. GEI has obtained and holds all
required Licenses (all of which are in full force and effect) from all
Government Entities applicable to GEI, its business or their assets. No
violations are or have been recorded in respect of any such license and no
proceeding is pending, or, to the knowledge of GEI, threatened to revoke or
limit any such license.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF Sellers
SECTION 4.01 Organization of Gulfstar, LLC; Authority.
Gulfstar, LLC is an LLC duly organized, validly existing and in good
standing under the laws of the State of Mississippi. Gulfstar, LLC is duly
qualified or licensed to do business as a foreign Entity and is in good standing
in each jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification necessary,
except where the failure to obtain such qualification or license would not,
individually or in the aggregate, have a material adverse effect. Gulfstar, LLC
has heretofore delivered or made available to Sellers complete and correct
copies of the certificate of incorporation and Bylaws of Gulfstar, LLC, the
minute books, and membership interest records of Gulfstar, LLC as in effect as
of the date of this Agreement.
SECTION 4.02 Representations and Warranties
Except as set forth in the applicable section of the disclosure
schedule delivered by Sellers to GEI prior to the execution of this Agreement
(the "Sellers Disclosure Schedule"), Sellers represent and warrant to GEI as
follows:
(a) Sellers represent there are no outstanding: (i) securities convertible into
or exchangeable for interests of any type in Gulfstar, LLC; or (ii) options,
warrants or other rights to purchase or subscribe for interests in Gulfstar,
LLC; or (iii) contracts, commitments, agreements, understandings or arrangements
of any kind relating to the issuance of any equity ownership in Gulfstar, LLC
or, any convertible or exchangeable securities or any options, warrants or
rights, of any type or kind. There is no outstanding right, option or other
agreement of any kind to purchase or otherwise to receive from Gulfstar, LLC, or
any interest holder of Gulfstar, LLC, any ownership shares in Gulfstar, LLC, and
there is no outstanding right or security of any kind convertible into such
ownership interest.
SECTION 4.03 No Violation; Consents and Approvals.
The execution and delivery by Sellers of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not conflict with, or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) any laws applicable to
Sellers or the property or assets of Sellers or Gulfstar, LLC, or (b) give rise
to any right of termination, cancellation or acceleration under, or result in
the creation of any lien upon any of the properties of Gulfstar, LLC under any
contracts to which Gulfstar, LLC is a party or by which Gulfstar, LLC or any of
its assets may be bound, except, in the case of clauses (b) and (c), for such
conflicts, violations or defaults as to which requisite waivers or consents will
have been obtained prior to the Closing or which, individually or in the
aggregate, would not have a material adverse effect as to Gulfstar, LLC. No
Governmental Approval is required to be obtained or made by or with respect to
Sellers or Gulfstar, LLC in connection with the execution and delivery of this
Agreement or the consummation by Sellers of the transactions contemplated
hereby, except where the failure to obtain such Governmental Approval would not,
individually or in the aggregate, have an material adverse effect on Gulfstar,
LLC.
SECTION 4.04 Litigation; Compliance with Laws.
(a) There are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of Sellers, threatened against,
relating to or affecting Gulfstar, LLC, its business, its assets, or any
employee, officer, director, stockholder, or independent contractor of Gulfstar,
LLC in their capacities as such, and (ii) no orders of any Governmental Entity
or arbitrator are outstanding against Gulfstar, LLC, its business, its assets,
or any employee, officer, director, interest holder , or independent contractor
of Gulfstar, LLC in their capacities as such, or that could prevent or enjoin,
or delay in any respect, consummation of the transactions contemplated hereby.
(b) Sellers and Gulfstar, LLC have complied and are in compliance in all
material respects with all laws applicable to Gulfstar, LLC, its business or its
assets. Sellers have not received notice from any Governmental Entity or other
Person of any material violation of law applicable to Gulfstar, LLC, its
business or its assets. Gulfstar, LLC has obtained and holds all required
licenses (all of which are in full force and effect) from all Government
Entities applicable to it, its business or its assets. No violations are or have
been recorded in respect of any such license and no proceeding is pending, or,
to the knowledge of Sellers threatened to revoke or limit any such License.
SECTION 4.05 Financial Statements.
Sellers have provided financial statements complete and true and
accurate in all respects, disclosing all liabilities, and assets of Gulfstar,
LLC. . Additionally, Sellers shall have provided to GEI all books and records
sufficient to produce financial statements and accounting in accordance with
federal income tax accounting consistently applied, complete and true and
accurate in all respects, disclosing all liabilities, income, expenses and
assets of Gulfstar, LLC.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Access to Information.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents, and with respect to
Gulfstar, LLC it shall provide to GEI with respect to Gulfstar, LLC, full
access, upon reasonable notice and during normal business hours, to such party's
and Acquieree's facilities and the financial, legal, accounting and other
representatives of such party and Gulfstar, LLC with knowledge of the business
and the assets of such party and Gulfstar, LLC and, upon reasonable notice,
shall be furnished all relevant documents, records and other information
concerning the business, finances and properties of such party and its
subsidiaries and Gulfstar, LLC that the other party and its respective counsel,
accountants, representatives and agents, may reasonably request. No
investigation pursuant to this Section 5.01 shall affect or be deemed to modify
any of the representations or warranties hereunder or the condition to the
obligations of the parties to consummate the Acquisition; it being understood
that the investigation will be made for the purposes among others of the board
of directors of each party determining in its good faith reasonable business
judgment the accuracy of the representations and warranties of the other party.
In the event of the termination of this Agreement, each party, if so requested
by the other party, will return or destroy promptly every document furnished to
it by or on behalf of the other party in connection with the transactions
contemplated hereby, whether so obtained before or after the execution of this
Agreement, and any copies thereof (except for copies of documents publicly
available) which may have been made, and will use reasonable efforts to cause
its representatives and any representatives of financial institutions and
investors and others to whom such documents were furnished promptly to return or
destroy such documents and any copies thereof any of them may have made.
SECTION 5.02 No Shop; Acquisition Proposals.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, neither Sellers nor Gulfstar, LLC nor GEI shall,
nor shall they authorize or permit any of their respective officers, directors
or employees or Gulfstar, LLC employees or any investment banker, financial
advisor, attorney, accountant or other representative retained by it to,
solicit, initiate or encourage (including by way of furnishing information), or
take any other action to facilitate, any inquiries or the making of any proposal
which constitutes, or may reasonably be expected to lead to, any Takeover
Proposal (as hereinafter defined), or negotiate with respect to, agree to or
endorse any Takeover Proposal (except in any case if the board of directors or
special committee of GEI, as the case may be, determines in good faith, based
upon the written opinion of its outside legal counsel, that the failure to do so
would constitute a breach of the fiduciary duties of the GEI' board of directors
or special committee, as the case may be, to its stockholders under applicable
law). Sellers shall promptly advise GEI and GEI shall promptly advise Sellers,
as the case may be, orally and in writing of any such inquiries or proposals and
shall also promptly advise GEI or Gulfstar, LLC, as the case may be, of any
developments or changes regarding such inquiries or proposals. Sellers and GEI
shall immediately cease and cause to be terminated any existing discussions or
negotiations with any persons, other than Sellers, GEI conducted heretofore with
respect to any Takeover Proposal. Gulfstar, LLC and GEI agree not to release (by
waiver or otherwise) any third party from the provisions of any confidentiality
or standstill agreement to which Gulfstar, LLC or GEI is a party.
SECTION 5.03 Legal Conditions to Acquisition; Reasonable Efforts.
Sellers, Gulfstar, LLC and GEI shall take all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed
with respect to the Acquisition and will promptly cooperate with and furnish
information to each other in connection with any such requirements imposed upon
any of them or any of their Subsidiaries in connection with the Acquisition.
Sellers, Gulfstar, LLC and GEI will, take all reasonable actions necessary to
obtain (and will cooperate with each other in obtaining) any consent,
authorization, order or approval of, or any exemption by, any Governmental
Entity or other public or private third party, required to be obtained or made
by Sellers, Gulfstar, LLC, or GEI in connection with the Acquisition or the
taking of any action contemplated thereby or by this Agreement.
SECTION 5.04 Tax Matters.
(a)Notwithstanding that it is the express intention of the parties hereto that
this acquisition shall constitute a tax free acquisition pursuant to Internal
Revenue Code 351 no representation is made that this is a non-taxable
transaction.
ARTICLE VI
CONDITIONS OF THE ACQUISITION
SECTION 6.01 Conditions to Each Party's Obligation to Effect the Acquisition.
The respective obligations of each party to effect the Acquisition and
the other transactions contemplated herein shall be subject to the satisfaction
at or prior to the Effective Time of the following conditions, any or all of
which may be waived, in whole or in part to the extent permitted by applicable
law:
(a) No Injunctions or Restraints. No governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, execution order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the
Acquisition or any transaction contemplated by this Agreement; provided,
however, that the parties shall use their reasonable commercial efforts to cause
any such decree, judgment, injunction or other order to be vacated or lifted.
(b) Closing of the Gulfstar Energy Corporation Acquisition
Agreement. Concurrently the Gulfstar Energy Revised and Amended Share
Exchange and Corporation Acquisition Agreement with Talon Energy, Inc. shall
be closed as a condition of closing hereunder.
SECTION 6.02 Additional Conditions of Obligations of GEI.
The obligations of GEI to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by GEI:
(a) Representations and Warranties. The representations and warranties
of Gulfstar, LLC set forth in this Agreement shall be true and correct in all
material respects (except for those representations and warranties qualified by
materiality, which shall be true and correct in all respects) as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement.
(b) Performance of Obligations of Gulfstar, LLC. Sellers and Gulfstar,
LLC shall have performed in all material respects all conditions, covenants,
agreements and obligations required to be performed by it under this Agreement
at or prior to the Closing Date.
(c) No Material Adverse Change to Gulfstar, LLC. From the date hereof
through and including the Effective Time, no event shall have occurred which
would have a material adverse effect on Gulfstar, LLC.
(d) Third Party Consents. Sellers and Gulfstar, LLC shall have obtained
all consents and approvals, required to be obtained prior to or at the Closing
Date, from third parties or governmental and regulatory authorities in
connection with the execution, delivery and performance by Gulfstar, LLC of this
Agreement and the consummation of the transactions contemplated hereby.
(e) No Governmental Order or Other Proceeding or Litigation. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(f) Deliveries.
At the Closing, Sellers and Gulfstar, LLC shall have delivered to GEI
or GEI shall have otherwise obtained:
(i) Gulfstar, LLC's Indebtedness. All outstanding Indebtedness of Gulfstar, LLC
shall have been fully disclosed or re-negotiated in substance reasonably
satisfactory to GEI;
(ii) Books & Records. All books, records, and financial information, whatsoever,
of Gulfstar, LLC shall be delivered at closing to GEI; and
(iii) Title Data and Leases. Gulfstar, LLC shall provide all of the title data,
leases, contracts, conveyances, division orders, and title opinions to GEI.
(g) The Share Exchange Agreement for the 40% of Gulfstar, LLC interests
shall be valid, executed, and made pending subject to a subsequent registration
statement.
SECTION 6.03 Additional Conditions of Obligations of Sellers.
The obligation of Sellers to effect the Acquisition and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by Sellers
(a) Representations and Warranties. The representations and warranties of GEI
set forth in this Agreement shall be true and correct in all material respects
(except for those representations and warranties qualified by materiality) as of
the date of this Agreement and as of the Closing Date as though made on and as
of the Closing Date, except as otherwise contemplated by this Agreement.
(b) Performance of Obligations of GEI. GEI shall have performed in all material
respects all conditions, covenants, agreements and obligations required to be
performed by them under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Change to GEI. From the date hereof through and
including the Effective Time, no event shall have occurred which would have a
material adverse effect on GEI.
(d) No Governmental Order or Other Proceeding or Litigation. No order of any
Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other transaction documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(e) Deliveries. At the Closing, GEI shall have approved the appointment of Jason
Sharp, Robert McCann, Stephen Warner, William F. Young and Ed Nichols to the
Board of Directors of GEI.
(f) GEI shall simultaneously close under the Revised and Amended Share Exchange
and Acquisition Agreement with Talon Energy, attached as Exhibit A.
(g) GEI and Gulfstar Energy Group LLC shall have executed the Share Exchange
Agreement for the 40% interest in and Gulfstar Energy Group LLC (attached as
Exhibit B).
ARTICLE VII
TERMINATION
SECTION 7.01 Termination.
This Agreement may be terminated at any time prior to the Effective
Time, by GEI or Sellers as set forth below:
(a) by mutual consent; or
(b) by GEI upon written notice to Sellers, if: (A) any condition to the
obligation of GEI to close contained in Article VI hereof has not been satisfied
by 60 days after date hereof (the "End Date") (unless such failure is the result
of GEI' breach of any of its representations, warranties, covenants or
agreements contained herein) or (B) the GEI stockholders do not approve the
Acquisition; or
(c) by Sellers upon written notice to GEI, if any condition to the obligation of
Sellers to close contained in Article VI hereof has not been satisfied by the
End Date (unless such failure is the result of Sellers breach of any of its
representations, warranties, covenants or agreements contained herein);
(d) by GEI if the board of directors of GEI determines in good faith, based upon
the written opinion of its outside legal counsel, that the failure to terminate
this Agreement would constitute a breach of the fiduciary duties of the GEI
board of directors to the GEI stockholders under applicable law; or
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
None of the representations and warranties of the parties set forth in this
Agreement shall survive the Closing. Following the Closing Date with respect to
any particular representation or warranty, no party hereto shall have any
further liability with respect to such representation and warranty. None of the
covenants, agreements and obligations of the parties hereto shall survive the
Closing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.02 Notices.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
If to GEI to: Gulfstar Energy Corporation
3410 Embassy Drive
West palm Beach, Florida, 33401
Phone: 800-820-1632
Attn: Stephen Warner, chief Financial Officer
If to Sellers to: Tim Sharp
Gulfstar Energy Group, LLC
725 South Main Street
Morgantown, KY 42261
Phone: 270-526-8980
or such other address or number as such party may hereafter specify for the
purpose by notice to the other party hereto.
SECTION 9.02 Amendment; Waiver.
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 9.03 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
SECTION 9.04 Governing Law.
This Agreement shall be construed in accordance with and governed by
the law of the State of Colorado without regard to principles of conflict of
laws.
SECTION 9.05 Waiver of Jury Trial.
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 9.06 Consent to Jurisdiction.
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Colorado or any federal
court sitting in Colorado for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Colorado and on the
individuals designated in Section 10.01 shall be effective service of process
for any action, suit or proceeding brought against it in any such court.
SECTION 9.07 Counterparts; Effectiveness.
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.08 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership.
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Acquisition until consummation thereof.
SECTION 9.09 Headings.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECTION 9.10 No Strict Construction.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 9.11 Severability.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the parties hereto have caused this Acquisition
Agreement to be duly executed as of the day and year first above written.
GULFSTAR ENERGY CORPORATION
By:
Name:
Title:
SELLER: JASON SHARP
By:
Name:
Title:
SELLER: TIMOTHY SHARP
By:
Name:
Title:
GULFSTAR ENERGY GROUP, LLC
By: ______________________
