Exhibit 10.09
FEBRUARY 28, 2011 AMENDMENT
TO THAT CERTAIN
PURCHASE AGREEMENT
By and Between
Earthwise Energy, Inc.
and
Energy Partners International
(collectively, the "Sellers")
and
Xxxxx Branch Exploration, L.L.C.
(the "Buyer")
Originally Dated January 13, 2011
FEBRUARY 28, 2011 AMENDMENT TO PURCHASE AGREEMENT
This February 28, 2011 Amendment (this "1ST AMENDMENT" to that certain
Purchase Agreement (the "PA"), dated January 13, 2011, is made and entered into
on March 1, 2011, by and between Earthwise Energy, Inc., a Nevada corporation
("EEI") and Energy Partners International, a Texas Joint Venture Partnership
("EPI") (collectively, EEI and EPI may be referred to herein as "SELLERS") and
Xxxxx Branch Exploration, L.L.C., a Texas limited liability company (referred to
herein as "BUYER"). Each party to this Agreement may be referred to herein as a
"PARTY" and collectively, as the "Parties".
WHEREAS, pursuant to Section 13.5 of the PA, each of the Parties wishes to
amend the PA as such changes are set forth in this 1st Amendment, understanding
that all capitalized terms not otherwise defined herein shall have the meanings
originally ascribed to such terms, as defined in the PA;
NOW, THEREFORE, based on and in consideration of the mutual covenants and
agreements contained herein, the Parties agree as follows:
1. Article I of the PA shall be amended to include the following definition:
"NON-PARTICIPATING JV INTERESTS" means any JV Venturer(s) and/or the JV
interests allocable to such JV Venturer(s) that are, as of the Effective
Time, or that become, at any time after the Effective Time but prior to
March 1, 2011, definable as Non-Participating Venturers (as such term is
defined in the JV Agreement) for any reason whatsoever, including, but not
limited to, non-payment and/or untimely payment of an Additional Assessment
or EEI Claims under the JV Agreement (as determined by EEI as Managing
Venturer).
2. Section 2.1 of the PA shall be amended to include a new Section 2.1.11, which
shall read as follows:
"2.1.11 All Non-Participating JV interests held, claimed, or in any way
allocable to or by EEI, as of the Effective Resignation Date, as well as any and
all interests or ownership of any kind or nature in the JV and/or the Well, if
any and if not otherwise yet included in the Properties, as defined.
3. Article 3 of the PA shall be amended to include a new Section 3.5, which
shall read as follows:
"3.5 ADDITIONAL CONSIDERATION. If, at the time of the Effective Resignation
Date, EEI is in the position of (a) being a Participating Venturer
with respect to any Non-Participating JV interests, whether resulting
from the JV Vote, any Additional Assessment, or otherwise, or (b)
acceding to the ownership of any partnership or JV interest of any JV
Venturer by reason of such partner's forfeiture of his JV interests,
or (c) having asserted rights to any such Non-Participating JV
interests by its affirmative acts, actions, and declarations involving
express and implied rights and remedies under the JV Agreement, then
and in that event, all of such additional interests, rights, and
entitlements (the "ADDITIONAL JV INTERESTS") in which EEI has any
right, title, or interest (if not already) shall be deemed to have
become part of the Properties being conveyed to Buyer under the PA,
conditioned on Buyer's agreement, hereby given, that additional
consideration to EEI shall be given in exchange for (among other
considerations hereinbefore agreed upon by the Parties) the conveyance
of the Additional JV Interests to Buyer in the form of an amount of
shares of Topaz's common stock that is equal in number to the Stock
Consideration set forth in Section 3.1 above (the "ADDITIONAL STOCK
CONSIDERATION"); and the provisions of Section 3.4 above shall also
apply to the Additional Stock Consideration."
4. Article 3 of the PA shall be amended to include a new Section 3.6, which
shall read as follows:
"3.6 DELIVERY AND FACILITATION OF ADDITIONAL STOCK CONSIDERATION. The
Additional Stock Consideration shall be deliverable and payable to EEI
by or through Buyer on or before ten (10) days after March 1, 2011, as
follows: Buyer warrants and represents to EEI that Buyer has arranged
for and contracted with Topaz, for independent consideration, for the
delivery to Buyer's credit (and Buyer's subsequent delivery to EEI on
March 1, 2011) of a written subscription agreement (the "2ND
SUBSCRIPTION") for the Additional Stock Consideration, which EEI (and
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Topaz, in advance of 3/1/11) will execute in duplicate, original
format on March 1, 2011, accompanied by a written resolution of
Topaz's board of directors (the "2ND ISSUANCE RESOLUTION") approving
the issuance of the Additional Stock Consideration and, in addition,
an authorization letter (the "2ND AUTHORIZATION LETTER"), executed by
a properly authorized Topaz officer, instructing Topaz's stock
registration Agent to immediately issue and deliver the Topaz common
stock certificate representing the Additional Stock Consideration in
EEI's name. The true and correct forms of the 2nd Subscription, 2nd
Issuance Resolution, and 2nd Authorization Letter shall be exactly
equivalent to those forms attached hereto as Exhibit "D" and made a
part hereof. EEI's receipt of the certificate for the Additional Stock
Consideration following March 1, 2011 shall be requisite for the title
to EEI's ownership or interest(s) in the Additional JV Interests to
vest with Buyer hereunder. The Parties agree to communicate and
cooperate to the extent possible to (a) facilitate the certificate's
delivery as soon as practicable, but in no event longer than ten (10)
days, after March 1, 2011, and (b) afford all Parties notice of EEI's
physical receipt of such certificate. EEI understands that the subject
shares comprising the Additional Stock Consideration are not
registered under the Act, on the grounds that the issuance of
securities in relation to this Agreement is exempt from registration
under the Act. EEI further understands that the shares comprising the
Additional Stock Consideration may not be sold, transferred or
otherwise disposed of without registration under the Act or an
exemption therefrom, and that said shares may not be sold pursuant to
Rule 144 promulgated under the Act unless all of the conditions of
that Rule are met or established. When issued by the Agent in the name
of "Earthwise Energy, Inc." in accordance with this PA, the said
shares shall be validly issued, as fully paid and nonassessable and
shall be free and clear of all liens imposed by or through Buyer, the
Agent, and/or Topaz; and neither the issuance nor the delivery of the
said Additional Stock Consideration is subject to any preemptive or
any similar right of any stockholder of Topaz or of any other Person."
5. Section 7.3 of the PA shall be amended to include a new Section 7.3.4, which
shall read as follows:
"7.3.4 Notwithstanding the provisions of Section 7.3.2 or Section 7.3.3
above, the Parties agree that, as of the expiration of the voting
period specified in the JV Letter attached hereto as Exhibit "J", if a
majority approval of EEI's conveyance of the JV Interests and EEI's
resignation as Managing Venturer of the JV has not been timely
obtained via the JV Vote AND, as a result, the provisions of Section
3.5 and Section 3.6 above become effective at that time, thus causing
the shares for the Additional Stock Consideration to be deliverable to
EEI as prescribed therein, then and in that event, the Parties agree
that (1) the Effective Resignation Date shall be March 15, 2011, (2)
EEI shall send a final letter to the JV Venturers prior to the
Effective Resignation Date to inform them of, at a minimum, the
outcome of the original JV Vote, the Effective Resignation Date
(coupled with a notice of a specific second vote to install Buyer as
the new Managing Venturer of the JV), in a written format to be
approved by Buyer in advance thereof, and the intention of Buyer to
issue the AFE, and (3) irrespective of any other provisions therein to
the contrary, the Escrow Agreement attached hereto as Exhibit "K"
shall be modified such that 54.58% of the full amount of the Escrow
Funds shall be immediately released to EEI on or before fifteen days
prior to the Effective Resignation Date (if any set of circumstances,
as anticipated in this PA, give rise to the issuance of the Additional
Stock Consideration, together with the actions described in this
Section 7.3.4, the same shall collectively be referred to herein as
the "ALTERNATE RESIGNATION ACTIONS")."
6. Section 10.2 of the PA shall be amended to include the following sentence at
the end of the section:
"The Parties agree that, in the event that the Alternate Resignation
Actions are triggered by any set of circumstances, as herein anticipated,
EEI shall deliver to Buyer all Records pertaining to the JV within fifteen
(15) days after the Effective Resignation Date."
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the Parties have executed this February 28, 2011
Amendment to the PA as of the date first set forth above, to be effective as of
the same date.
SELLERS:
EARTHWISE ENERGY, INC.,
A Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Its: President / CEO
ENERGY PARTNERS INTERNATIONAL'
A Texas Joint Venture partnership
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx,
Executive Vice President of
Earthwise Energy, Inc., in its
capacity as Managing Venturer
of Energy Partners International
BUYER:
XXXXX BRANCH EXPLORATION, L.L.C.,
A Texas limited liability company
By: /s/ S. Xxxx Xxxxxxxx
--------------------------------------
S. Xxxx Xxxxxxxx, Manager
ESCROW AGENT:
By: /s/ S. Xxxx Xxxxxxxx
--------------------------------------
S. Xxxx Xxxxxxxx, Manager
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