AGREEMENT
BY AND BETWEEN
FIRST SEISMIC CORPORATION
and
FORTESA CORPORATION
AND
▇▇▇▇▇▇ OIL AND GAS COMPANY
and
▇▇▇▇▇▇ OIL AND GAS COMPANY (SENEGAL), LTD.
THIES BLOCK
DATED: OCTOBER 23, 1999
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS 1
1.1 CERTAIN DEFINED TERMS 1
ARTICLE 2: PETROSEN RELEASE 3
2.1 RELEASE 3
2.2 FAILURE TO OBTAIN RELEASE 3
ARTICLE 3: STOCK ACQUISITION 4
3.1 PREFERRED SHARES 4
3.2 PURCHASE PRICE 4
3.3 ESCROW 4
3.4 PIPELINE PURCHASE ORDER 4
3.5 CONVERSION OF PREFERRED SHARES 5
ARTICLE 4: ADDITIONAL EQUITY 5
4.1 ADDITIONAL EQUITY 5
4.2 TERMS OF ADDITIONAL EQUITY 6
ARTICLE 5: CONSTRUCTION LOAN 6
5.1 CONSTRUCTION LOAN 6
ARTICLE 6: PIPELINE REIMBURSEMENT 6
ARTICLE 7: ASSIGNMENT AND RELEASE AND INDEMNIFICATION 7
ARTICLE 8: REPRESENTATIONS OF FIRST AND FORTESA 8
8.1 OWNERSHIP OF THE STOCK 8
8.2 ORGANIZATION AND GOOD STANDING;
QUALIFICATION 9
8.3 CAPITALIZATION 9
8.4 AUTHORIZATION AND VALIDITY 9
8.5 FINANCIAL STATEMENTS 10
8.6 NO VIOLATION 10
8.7 FINDER'S FEE 11
8.8 PENDING CLAIMS 11
8.9 COMMITMENTS 11
8.10 COMPLIANCE WITH LAWS 11
8.11 TAXES 12
(a) FILING OF TAX RETURNS 12
(b) PAYMENT OF TAXES 12
ARTICLE 9: REPRESENTATIONS OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ SENEGAL 13
9.1 ORGANIZATION AND GOOD STANDING 13
9.2 AUTHORIZATION AND VALIDITY 13
9.3 NO VIOLATION 14
9.4 FINDER'S FEE 14
9.5 ABSENCE OF BANKRUPTCY PROCEEDINGS 14
ARTICLE 10: ACCESS TO INFORMATION AND INSPECTION; DUE DILIGENCE 14
10.1 RECORDS AND FILES 14
ARTICLE 11: CLOSING CONDITIONS 15
11.1 FIRST AND FORTESA'S CLOSING CONDITIONS 15
11.2 ▇▇▇▇▇▇'▇ AND ▇▇▇▇▇▇ SENEGAL'S CLOSING CONDITIONS 15
ARTICLE 12: CLOSING 15
12.1 CLOSING 15
12.2 CLOSING OBLIGATIONS OF FIRST AND FORTESA 16
12.3 CLOSING OBLIGATIONS OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ SENEGAL 16
12.4 CLOSING OBLIGATIONS OF ▇▇▇▇▇▇ AND FIRST 17
ARTICLE 13: DEFAULT AND TERMINATION 17
13.1 REMEDIES 17
13.2 RIGHT OF TERMINATION 18
ARTICLE 14: MISCELLANEOUS 18
14.1 ARBITRATION 18
14.2 CONFIDENTIALITY 18
14.3 PUBLIC ANNOUNCEMENTS 18
14.4 NOTICES 19
14.5 POST-CLOSING 20
14.6 ENTIRE AGREEMENT 20
14.7 GOVERNING LAW 21
14.8 COUNTERPARTS 21
14.9 WAIVER 21
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14.10 BINDING EFFECT; ASSIGNMENT 21
14.11 TIME PERIODS 21
14.12 CONSTRUCTION 22
14.13 BOARD APPROVAL 22
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AGREEMENT
THIS AGREEMENT, dated effective as of the 23rd day of October, 1999,
is by and between First Seismic Corporation, a Delaware corporation ("First")
and its wholly owned subsidiary Fortesa Corporation, a Texas corporation
("Fortesa"), and ▇▇▇▇▇▇ Oil and Gas Company, a Delaware corporation
("▇▇▇▇▇▇"), and ▇▇▇▇▇▇ Oil and Gas Company (Senegal), Ltd., a corporation
registered under the laws of the Cayman Islands ("▇▇▇▇▇▇ Senegal").
W I T N E S S E T H:
WHEREAS, by instrument dated December 17, 1997, the Societe Des
Petroles Du Senegal ("Petrosen") entered into a farmout agreement (the
"Farmout") with Fortesa and ▇▇▇▇▇▇ to explore and exploit hydrocarbons and
undertake certain work programs in connection with Petrosen's Thies Block in
the onshore area of the Republic of Senegal (the "Thies Block"); and
WHEREAS, Fortesa desires to assume ▇▇▇▇▇▇'▇ rights and obligations
under the Farmout, and ▇▇▇▇▇▇ is willing to accommodate Fortesa's desires, all
subject to certain terms and conditions more fully set forth hereinafter;
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, representations and warranties set forth in this Agreement, the
parties to this Agreement hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms, as used in this
Agreement, have the following meanings:
"Additional Equity" shall have the meaning given to it in Section 4.1.
"Agreement" means this Agreement between ▇▇▇▇▇▇, ▇▇▇▇▇▇ Senegal,
First and Fortesa.
"Assignment and Release" means the document attached hereto as Exhibit B.
"Closing" is defined in Section 12.1.
"Closing Date" is defined in Section 12.1.
"Escrowed Funds" shall have the meaning given to it in Section 3.3.
"Farmout" means that certain farmout agreement dated December 17, 1997,
entered into by Petrosen with Fortesa and ▇▇▇▇▇▇ to explore and exploit
hydrocarbons and undertake certain work programs in connection with Petrosen's
Thies Block in the onshore area of the Republic of Senegal.
"Farmout Rights" means all of ▇▇▇▇▇▇'▇ and ▇▇▇▇▇▇ Senegal's rights under
the Farmout, the Memorandum of Understanding of November 25, 1997, between
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Petrosen, the Memorandum of Understanding dated December 17,
1997, between Fortesa and ▇▇▇▇▇▇, the Joint Operating Agreement dated January
16, 1998 between ▇▇▇▇▇▇ Senegal, Fortesa and Petrosen and all other documents,
agreements or rights related to the Farmout.
"Governmental Authorizations" shall have the meaning given to it in
Section 8.10.
"Letter of Intent" shall have the meaning given to it in Section 3.4.
"Petrosen" means Societe Des Petroles Du Senegal.
"Petrosen Release" shall have the meaning given to it in Section 2.1.
"Pipeline" shall have the same meaning as given it in the Farmout.
"Preferred Shares" shall have the meaning given to it in Section 3.1.
"Purchase Order" shall have the meaning given to it in Section 3.4.
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"Purchase Price" means the sum of one million three hundred fifty
thousand and no/100 ($1,350,000.00) dollars U.S.
"Tax Returns" means any reports, including all schedules or attachments
thereto, required to be filed by First in connection with any tax by the
United States or any state or any political subdivision thereof or any foreign
jurisdiction to be filed on or before the Closing Date.
ARTICLE 2
PETROSEN RELEASE
2.1 RELEASE. Fortesa shall continue to exercise its most vigorous
efforts in good faith to secure from Petrosen in writing a complete and
absolute release of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal of any and all rights and
obligations that they jointly or severally may have under the Farmout
Agreement ("Petrosen Release"), which release shall be substantially in the
form attached hereto as Exhibit A.
2.2 FAILURE TO OBTAIN RELEASE. In the event Fortesa is unable to
obtain and furnish the Petrosen Release to ▇▇▇▇▇▇ by the seventh (7th) day
following the issuance of the Purchase Order referred to in Section 3.4
hereinafter, ▇▇▇▇▇▇ shall have the option, but not the obligation to require
that (i) the Escrowed Funds referred to in Section 3.3 hereinafter be
promptly returned to ▇▇▇▇▇▇, (ii) this Agreement be IPSO FACTO terminated and
that the parties hereto shall further obligations hereunder.
ARTICLE 3
STOCK ACQUISITION
3.1 PREFERRED SHARES. Subject to the completion of its due diligence
and satisfaction of the conditions of Closing, ▇▇▇▇▇▇ hereby agrees to
acquire on behalf of itself or ▇▇▇▇▇▇ Senegal from First 135,000 shares of
First's $0.01 par preferred stock ("Preferred Shares") for the sum of one
million three hundred fifty thousand and no/100 ($1,350,000.00) dollars U.S.
payable as set forth in Section 3.2 below ("Purchase Price").
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3.2 PURCHASE PRICE. The Purchase Price shall be payable by the
payment of seven hundred fifty thousand and no/100 ($750,000.00) dollars U.S.
in cash with the balance due of six hundred thousand and no/100 ($600,000.00)
dollars U.S. being satisfied by a credit for that amount against expenditures
relative to the Farmout previously made by ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal, and
First and Fortesa hereby acknowledge the prior incurring and relevance of
such expenditures.
3.3 ESCROW. The cash portion of the purchase price for the Preferred
Shares shall be placed in escrow ("Escrowed Funds") contemporaneously with the
execution of this Agreement, subject to the terms and conditions of the Escrow
Agreement attached hereto as Exhibit B.
3.4 PIPELINE PURCHASE ORDER. Upon Fortesa obtaining a letter of
intent to fund the Additional Equity referred to in Section 4.1 hereinafter
in a form and with proposed investors whose financial condition are
reasonably satisfactory to ▇▇▇▇▇▇ ("Letter of Intent"), Fortesa shall issue a
purchase order relative to the manufacture of pipe to be used in construction
of the pipeline ("Pipeline") referred to in the Farmout ("Purchase Order").
3.5 CONVERSION OF PREFERRED SHARES.
(a) Commencing three (3) years from the date hereof, First shall have
the right to redeem ▇▇▇▇▇▇'▇ preferred shares free and clear of prior liens or
encumbrances upon terms to be mutually agreed upon, with the intention that
funds for such redemption shall come from a portion of the net cash flow from
the Thies Block operations after the satisfaction by Fortesa of the commitments
already made pursuant to the Farmout.
(b) Alternatively, ▇▇▇▇▇▇ shall have the right at its option to convert
its preferred shares into common shares of First on a schedule to be mutually
agreed and at a conversion rate based on one dollar liquidation value to one
common share, or upon terms to be mutually agreed.
(c) If ▇▇▇▇▇▇ exercises its common stock conversion option above, then
▇▇▇▇▇▇ shall have the right to sell any or all of its common shares into a
successful First
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secondary public offering and receive the net market proceeds per share received
by First from such an offering. If the quantity of shares to be sold by selling
shareholders in such offering is limited by underwriters or other reason, First
agrees to dedicate to ▇▇▇▇▇▇ up to fifty (50%) percent of the selling
shareholders' stock permitted to be sold in such offering.
ARTICLE 4
ADDITIONAL EQUITY
4.1 ADDITIONAL EQUITY. Commencing as of the date of this Agreement,
First shall undertake a bona fide effort in good faith to raise within a period
of sixty (60) days from the date hereof, a minimum of five hundred thousand and
no/100 ($500,000.00) dollars U.S. in additional private capitalization
("Additional Equity").
4.2 TERMS OF ADDITIONAL EQUITY. In no event shall the terms under which
the Additional Equity is raised be more favorable than those pursuant to which
▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal acquires the Preferred Shares; notwithstanding if
such terms should be more favorable then the parties hereto agree that the terms
pursuant to which ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal acquires or is to acquire the
Preferred Shares shall be adjusted accordingly.
ARTICLE 5
CONSTRUCTION LOAN
5.1 CONSTRUCTION LOAN. At such time as First has obtained the Letter of
Intent it shall promptly commence a bona fide effort in good faith to obtain a
binding and bona fide commitment for an interim construction loan in an amount
of up to one million and no/100 ($1,000,000.00) dollars U.S. for construction of
the Pipeline.
ARTICLE 6
PIPELINE REIMBURSEMENT
6.1 Within ninety (90) days after the completion of the Pipeline
installation, Fortesa shall submit to ▇▇▇▇▇▇
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a full accounting of its costs associated with the Pipeline. If the
cumulative costs are less than one million nine hundred forty and no/100
($1,940,000.00) dollars U.S., Fortesa shall pay to ▇▇▇▇▇▇ the difference
between that sum and the actual cumulative costs up to a total of fifty-five
thousand and no/100 ($55,000.00) dollars U.S. as reimbursement for the actual
surveying costs paid by ▇▇▇▇▇▇.
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ARTICLE 7
ASSIGNMENT AND RELEASE AND INDEMNIFICATION
7.1 At such time as the Escrowed Funds are to be released to Fortesa
pursuant to the terms of the Escrow Agreement, the parties hereto shall enter
into the Assignment and Release attached hereto as Exhibit C ("Assignment and
Release") pursuant to which ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal shall assign to Fortesa
all of their rights under the Farmout, the Memorandum of Understanding of
November 25, 1997, between ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Petrosen, the Memorandum of
Understanding dated December 17, 1997, between Fortesa and ▇▇▇▇▇▇, the Joint
Operating Agreement dated January 16, 1998 between ▇▇▇▇▇▇ Senegal, Fortesa and
Petrosen and all other documents, agreements or rights related to the Farmout
(in the aggregate "Farmout Rights"), and First and Fortesa shall release ▇▇▇▇▇▇
and ▇▇▇▇▇▇ Senegal from and indemnify them against any and all obligations to
Fortesa and First under the Farmout Rights. The Assignment and Release shall be
deemed to include all contracts, agreements and understandings between ▇▇▇▇▇▇
and/or ▇▇▇▇▇▇ Senegal and any other party related or pertaining to the Thies
Block (including, without limitation, all confidentiality and non-competition
agreements entered into by ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal). The Assignment and Release
shall also be deemed to include all data related to the Thies Block (both
written and electronic or digitized). As soon as possible following the delivery
to Fortesa of the duly executed Assignment and Release, ▇▇▇▇▇▇ shall cause to be
delivered to Fortesa all such contracts and data (▇▇▇▇▇▇ shall be entitled to
retaining copies of any of the items to be delivered, or ▇▇▇▇▇▇ shall be
permitted access to any of such documents or data during normal business hours
upon its request for a period of four (4) years following the delivery of the
Assignment and Release.) In addition to the foregoing, within 60 days following
the delivery to Fortesa of the Assignment and Release, ▇▇▇▇▇▇ shall have
prepared and shall deliver to Fortesa a full and complete accounting of all
expenses incurred and all credits received by ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal in
connection with the Thies Block. The Assignment and Release shall be deemed to
include the conveyance to Fortesa of all credits to which ▇▇▇▇▇▇ or ▇▇▇▇▇▇
Senegal may be entitled under the terms of the Farmout or the Farmout
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Rights. Notwithstanding anything contained herein to the contrary, the
Parties hereto acknowledge that certain of the aforementioned data and other
materials may be subject to licensing and other agreements which shall
preclude ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal from delivering them to Fortesa.
7.2 The release and indemnification of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal by
First and Fortesa in the Assignment and Release is limited to the duties and
obligations of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal under the terms and provisions of
the Farmout and the related agreements described in Section 7.1, above. By
their execution and delivery to ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal of the Assignment
and Release, neither First nor Fortesa is assuming any liability or
obligation of ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal under the laws of the Republic of
Senegal for the acts or omissions of ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal outside of
their duties and obligations provided for in the various agreements which are
described in Section 7.1.
7.3 By their execution and delivery to Fortesa of the Assignment and
Release, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal shall be deemed to have released Fortesa and
First from any and all claims that either of the former may have against the
latter arising out of any of the agreements referred to in the preceding Section
7.1, and Fortesa shall be deemed to have performed fully all of its duties and
obligations to ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal under all of the terms and provisions
of such agreements.
ARTICLE 8
REPRESENTATIONS OF FIRST AND FORTESA
First and Fortesa hereby represent and warrant to ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Senegal that:
8.1 OWNERSHIP OF THE STOCK. First, to the extent the Preferred
Shares have not yet been issued, has the right to issue them, and to the
extent they have been issued, First owns, beneficially and of record, good
and marketable title to the Preferred Shares, all free and clear of all
security interests, liens, adverse claims, proxies, options, stockholders'
agreements and other encumbrances, but subject to restrictions on transfers
thereof imposed by the applicable securities laws and the regulations issued
thereunder. At the Closing, subject to the terms and
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conditions of this Agreement, First will convey to ▇▇▇▇▇▇ good and marketable
title to the Preferred Shares, free and clear of all security interests,
liens, adverse claims, proxies, options, stockholders' agreements and other
encumbrances. There exist no options, warrants, subscriptions, conversion
rights, rights of first refusal, or other rights to purchase, or securities
convertible into or exchangeable for, the Preferred Shares.
8.2 ORGANIZATION AND GOOD STANDING; QUALIFICATION. First and Fortesa
are corporations duly organized, validly existing and in good standing under the
laws of their states of incorporation, with all requisite corporate power and
authority to carry on the business in which they are engaged, to own the
properties they own, to execute and deliver this Agreement and to consummate
the transactions contemplated hereby.
8.3 CAPITALIZATION. As of the date of this Agreement, the authorized
capital stock of First consists of eleven million shares of capital stock,
comprised of (i) ten million shares of common stock, $0.01 par value, of which
9,046,867 shares are issued and outstanding, and (ii) one million shares of
preferred stock, $1.00 par value per share, 50,000 of which are issued or
outstanding. All of the issued and outstanding shares have been validly issued,
are fully paid and nonassessable, and were issued free of preemptive rights, in
compliance with any rights of first refusal, and in compliance with all legal
requirements.
8.4 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
by First and Fortesa of this Agreement and the other agreements contemplated
hereby to which either or both of them are or will be a party, and the
consummation by either or both of them of the transactions contemplated hereby
and thereby, have been duly authorized. This Agreement has been, and each other
agreement contemplated hereby to which First and/or Fortesa is or will be a
party will as of the Closing Date be, duly executed and delivered and
constitutes or will constitute the legal, valid and binding obligation of First
and Fortesa, enforceable in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and subject to principles of equity and public policy that
affect enforceability of agreements generally. First and Fortesa have the full
right, power, and authority to make the
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representations, warranties, covenants, indemnities, and agreements herein.
8.5 FINANCIAL STATEMENTS. First has furnished to ▇▇▇▇▇▇ the Financial
Statements, attached as Schedule 8.5. The Financial Statements fairly present,
in accordance with GAAP applied on a basis consistent with prior periods, the
consolidated financial position and results of operations and cash flow of First
as of the dates and for the periods indicated. There are no bankruptcy,
reorganization or arrangement proceedings pending against, being contemplated
by, or to First's knowledge threatened against, First or Fortesa.
8.6 NO VIOLATION. Neither the execution, delivery or performance of
this Agreement or the other agreements contemplated hereby nor the consummation
of the transactions contemplated hereby or thereby will (i) conflict with, or
result in a violation or breach of the terms, conditions and provisions of, or
constitute a default under, the Articles of Incorporation or Bylaws of First or
Fortesa or any material agreement, indenture or other instrument under which
First and/or Fortesa is bound or (ii) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any Governmental Authority having
jurisdiction over First or the properties or assets of First or Fortesa.
8.7 FINDER'S FEE. Neither First nor Fortesa has incurred any obligation
for any finder's, broker's or agent's fee in connection with the transactions
contemplated herein; provided, however, that in the event any such obligation is
alleged, First and Fortesa shall indemnify and hold ▇▇▇▇▇▇ harmless from any
loss, cost, or expense with respect thereto.
8.8 PENDING CLAIMS. There are no suits, legal actions, claims, demands,
tax liens, or controversies, no governmental proceeding or investigation, or no
administrative, conservation, regulatory or arbitration proceedings pending, or,
to the best of First's and Fortesa's knowledge, threatened against First or
Fortesa before any court, or by or before any governmental commission, bureau or
any regulatory authority, that if decided adversely to the interest of First or
Fortesa could adversely affect them or the rights of ▇▇▇▇▇▇ under this Agreement
or the documents to be delivered at the Closing. Neither First nor Fortesa has
knowledge of any set of facts
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or situation that is reasonably likely to give rise to any such suit, action,
proceeding or investigation that is reasonably likely to result in an
uninsured liability in excess of one hundred thousand and no/100 ($100,00.00)
dollars U.S. Neither First nor Fortesa is (i) subject to any material
continuing court or administrative order, writ, injunction or decree
applicable specifically to First or Fortesa or to their respective business,
assets, operations or employees or (ii) in default with respect to any such
order, writ, injunction or decree.
8.9 COMMITMENTS. To the best of First's and Fortesa's knowledge,
neither is in default under, nor has any event occurred that with the giving of
notice or lapse of time or both would constitute a default by First or Fortesa
under any material contract or arrangement that involves the payment of money.
8.10 COMPLIANCE WITH LAWS. To the best of their knowledge, except for
First's filing of its SEC reports, First and Fortesa have complied with all laws
and has filed with the proper authorities all necessary statements and reports
the failure to comply with or to file would have a material adverse effect on
either of them, there are no existing material violations by First or Fortesa of
any law that would adversely affect the property or business of First and
Fortesa and they possess all necessary material licenses, franchises, permits
and governmental authorizations, in full force and effect, to conduct their
business as now conducted (collectively, "Governmental Authorizations"), First
and Fortesa are not in material violation of any Governmental Authorization, and
no proceeding is pending, or to the knowledge of First or Fortesa, threatened,
which purports to challenge, revoke or limit any Governmental Authorization.
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8.11 TAXES.
(a) FILING OF TAX RETURNS. First and Fortesa have duly and timely filed
or will duly and timely file (in accordance with any extensions duly granted by
the appropriate governmental agency, if applicable) with the appropriate
governmental agencies all returns (including information returns) and reports,
including all schedules or attachments thereto, required by the United States or
any state or any political subdivision thereof or any foreign jurisdiction to be
filed on or before the Closing Date by First and/or Fortesa in connection with
any tax ("Tax Returns"). All such Tax Returns are, or will be, complete and
accurate and properly reflect the taxes of First and Fortesa for the periods
covered hereby. First and Fortesa have duly and timely filed or will duly and
timely file (in accordance with any extensions duly granted by the appropriate
governmental agency, if applicable) all consolidated and combined unitary Tax
Returns required to be filed for each taxable period through and including the
Closing Date which Tax Returns were required to include Fortesa. All such Tax
Returns are, or will be, complete and accurate and properly reflect the taxes of
First and Fortesa for the periods covered thereby.
(b) PAYMENT OF TAXES. First and Fortesa have paid or accrued all
taxes that have become due with respect to any Tax Returns that they have filed.
ARTICLE 9
REPRESENTATIONS OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ SENEGAL
▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal represent to First and Fortesa that:
9.1 ORGANIZATION AND GOOD STANDING.
(a) ▇▇▇▇▇▇ is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with all requisite
corporate power and authority to carry on the business in which it is engaged,
to own the properties it owns, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
(b) ▇▇▇▇▇▇ Senegal is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation, with
all
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requisite corporate power and authority to carry on the business in which it is
engaged, to own the properties it owns, to execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
9.2 AUTHORIZATION AND VALIDITY. The execution, delivery and performance
by ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal of this Agreement and the other agreements
contemplated hereby to which ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal is or will be a party,
and the consummation of the transactions contemplated hereby and thereby, have
been duly authorized. This Agreement has been, and each other agreement
contemplated hereby to which ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal is or will be a party
will as of the Closing Date be, duly executed and delivered and constitutes or
will constitute legal, valid and binding obligations of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Senegal, enforceable against them in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and subject to principles of equity and
public policy that affect enforceability of agreements generally.
9.3 NO VIOLATION. Neither the execution, delivery or performance of
this Agreement or the other agreements contemplated hereby nor the consummation
of the transactions contemplated hereby or thereby will (i) conflict with, or
result in a violation or breach of the terms, conditions and provisions of, or
constitute a default under, the Articles of Incorporation or Bylaws of ▇▇▇▇▇▇ or
▇▇▇▇▇▇ Senegal or any material agreement, indenture or other instrument under
which either of them is bound or (ii) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any Governmental Authority having
jurisdiction over ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal or the properties or assets of
▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal.
9.4 FINDER'S FEE. Neither ▇▇▇▇▇▇ nor ▇▇▇▇▇▇ Senegal has not incurred
any obligation for any finder's, broker's or agent's fee in connection with the
transactions contemplated hereby.
9.5 ABSENCE OF BANKRUPTCY PROCEEDINGS. There are no bankruptcy,
reorganization or arrangement proceedings pending against, being contemplated
by, or to ▇▇▇▇▇▇'▇ and/or ▇▇▇▇▇▇ Senegal's knowledge threatened against either
of them.
ARTICLE 10
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ACCESS TO INFORMATION AND INSPECTION; DUE DILIGENCE
10.1 RECORDS AND FILES. From the date hereof until the Closing,
First and Fortesa will give or cause to be given to ▇▇▇▇▇▇ and its
representatives at reasonable times during normal business hours reasonable
access to examine, at their actual location, all accounting records,
payments, receipts, books, records, board minutes books, proxy statements,
annual reports, United States Securities and Exchange Commission ("SEC")
compliance filings, federal, state and foreign tax returns and records,
significant contracts, equity and other agreements pertaining to First and
Fortesa insofar as the same may now be in existence and in the possession or
control of First or Fortesa.
ARTICLE 11
CLOSING CONDITIONS
11.1 FIRST AND FORTESA'S CLOSING CONDITIONS. The obligations of First
and Fortesa under this Agreement are subject, at the option of First, to the
satisfaction at or prior to the Closing of the following conditions:
All representations of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal contained in Article 9
will be true in all material respects at and as of the Closing as if such
representations were made at and as of the Closing, and ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Senegal will have performed and satisfied all agreements required by this
Agreement to be performed and satisfied by them at or prior to the Closing.
11.2 ▇▇▇▇▇▇'▇ AND ▇▇▇▇▇▇ SENEGAL'S CLOSING CONDITIONS. The obligations
of First and Fortesa under this Agreement are subject, at the option of ▇▇▇▇▇▇,
to the satisfaction at or prior to the Closing of the following conditions:
All representations of First and Fortesa contained in Article 8 will be
true in all material respects at and as of the Closing as if such
representations were made at and as of the Closing, and First and Fortesa will
have performed and satisfied all agreements required by this Agreement to be
performed and satisfied by them at or prior to the Closing.
ARTICLE 12
CLOSING
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12.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") will be held at 10:00 a.m., at the offices of ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, within no later
than seventy-two (72) hours after receipt by ▇▇▇▇▇▇ of notification from First
and/or Fortesa that they are prepared to deliver the Petrosen Release to ▇▇▇▇▇▇
and to satisfy ▇▇▇▇▇▇'▇ conditions of Closing and execute and deliver to
▇▇▇▇▇▇ the Assignment and Release, or at such other date or place as the parties
may agree in writing (the "Closing Date"). At the Closing, in addition to
compliance with Sections 12.2 and 12.3 hereinafter, the parties hereto shall
execute and deliver the Assignment and Release and all other documents
contemplated herein not previously executed and delivered.
12.2 CLOSING OBLIGATIONS OF FIRST AND FORTESA. At Closing, First and
Fortesa will deliver to ▇▇▇▇▇▇ the following:
(a) Certificates representing all of the Preferred Shares, duly
endorsed and in proper form for transfer to ▇▇▇▇▇▇ by delivery under
applicable law, or accompanied by duly executed instruments of transfer in
blank;
(b) A copy of resolutions of the Board of Directors of First
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, certified by the Secretary of First as being
true and correct copies of the originals thereof subject to no modifications or
amendments;
(c) A certificate of an executive officer of First, dated the Closing
Date (i) as to the truth and correctness of the representations of First and
Fortesa under Article 8 as of the Closing Date, (ii) as to the performance of
and compliance by First and Fortesa with the obligations of First and Fortesa
contained herein on and as of the Closing Date and (iii) certifying that all
conditions precedent of First and Fortesa to the Closing have been satisfied or
are waived.
(d) The Petrosen Release
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12.3 CLOSING OBLIGATIONS OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ SENEGAL. At Closing,
▇▇▇▇▇▇ will deliver to First and Fortesa the following:
(a) A copy of the Unanimous Action or other resolution of the Board of
Directors of ▇▇▇▇▇▇ authorizing the execution, delivery and performance of this
Agreement and all related documents and agreements, each certified by ▇▇▇▇▇▇'▇
Secretary as being true and correct copies of the originals thereof subject to
no modifications or amendments;
(b) A certificate of an officer of ▇▇▇▇▇▇, dated the Closing Date (i)
as to the truth and correctness of the representations of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Senegal under Article 9 on and as of the Closing Date, (ii) as to the
performance of and compliance by ▇▇▇▇▇▇ or ▇▇▇▇▇▇ Senegal with all covenants
contained herein on and as of the Closing Date and (iii) certifying that all
conditions precedent of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal to the Closing have been
satisfied or are waived.
(c) Subsequent to the Closing, the terms provided for in Section 7.1
within the time period set forth in such section.
12.4 CLOSING OBLIGATIONS OF ▇▇▇▇▇▇ AND FIRST. Upon satisfaction of the
obligations contained in sections 12.2 and 12.3 above, ▇▇▇▇▇▇ and First shall
jointly give the written notice referred to in Section 2 (b) of the Escrow
Agreement to the Escrow Agent and execute the Assignment and Release.
ARTICLE 13
DEFAULT AND TERMINATION
13.1 REMEDIES. Subject to the provisions of Section 14.1 hereinafter,
upon failure of either party to comply with this Agreement by the Closing Date,
as it may be extended in accordance with this Agreement, the other party will be
entitled to pursue, exercise and enforce any and all remedies, rights, powers
and privileges available at law or in equity
13.2 RIGHT OF TERMINATION. This Agreement and the transactions
contemplated hereby may be terminated at any time at or prior to the Closing:
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(a) By mutual consent of the parties; or
(b) Pursuant to the express provisions hereof.
ARTICLE 14
MISCELLANEOUS
14.1 ARBITRATION. Any dispute or disagreement arising from this Agreement
which cannot be solved amicably within a term of thirty (30) days from the date
of notification of the disagreement sent by one party to the other, shall be
definitively solved by arbitration, pursuant to the Rules of the American
Arbitration Association then in force. The arbitration shall take place in
Houston, Texas, with each party to pay its own expenses. The arbitration
decision shall be final and binding upon the parties.
14.2 CONFIDENTIALITY. Each party shall maintain the confidentiality of
the existing of this Agreement and its terms, and neither party shall divulge
any aspect hereof to any third party until such disclosure is permitted by
separate formal agreement, or the other party's express prior written consent is
obtained; provided, however, that each party shall be permitted to disclose the
existence of this Agreement to its parent companies, and respective bankers,
accountants, attorneys and consultants, except for Petrosen or Ministries or
other governmental agencies of the Republic of Senegal,
14.3 PUBLIC ANNOUNCEMENTS. No party shall make formal statements or
releases to the press or any governmental organization (excluding any loan
application made to OPIC) or other third party concerning the existence or
content of this Agreement without the express prior written approval of such
statement or release by the other party, except where such formal statement or
release is required to be made in order to comply with applicable laws
(including without limitation any requirements of the United States Securities
Exchange Commission) upon advice of counsel, the other party shall act in a
cooperative and expeditious manner in reviewing such. The parties shall endeavor
at all times to act jointly and consistently in respect of any such statements
or releases, subject at all time to the foregoing requirement.
14.4 NOTICES. Except as otherwise expressly provided in this Agreement,
all communications required or
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permitted under this Agreement will be in writing and any such communication
or delivery will be deemed to have been duly given and received when actually
delivered to the address set forth below of the party to be notified
personally (by a recognized commercial courier or delivery service that
provides a receipt) or by telecopier (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent
by telecopy), addressed as follows:
If to ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇ Senegal:
▇▇▇▇▇▇ OIL AND GAS COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Co Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ OIL AND GAS COMPANY (SENEGAL), LTD.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Co Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to First and/or Fortesa:
FIRST SEISMIC CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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FORTESA CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may, by written notice so delivered to the other, change the address
to which delivery will thereafter be made.
14.5 POST-CLOSING. After the Closing has occurred, First shall
promptly furnish to ▇▇▇▇▇▇ a copy of its annual reports, proxy statement, SEC
filing and other financial information and investor communications at such time
as they are filed or released for so long as ▇▇▇▇▇▇ is a shareholder of First.
14.6 ENTIRE AGREEMENT. This Agreement and the Escrow Agreement embody
the entire agreement between the parties with respect to the subject matter of
this Agreement (superseding all prior agreements, including the Letter of Intent
and Confidentiality Agreement), arrangements, understandings and solicitations
of interest or offers related to the subject matter of this Agreement), and may
be supplemented, altered, amended, modified or revoked by writing only, signed
by both of the parties to this Agreement. The headings in this Agreement are for
convenience only and will have no significance in the interpretation of any term
or provision of this Agreement.
14.7 GOVERNING LAW. This Agreement will be governed and construed and
enforced in accordance with the laws of the State of Texas, without regard to
rules concerning conflicts of laws.
14.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each and every counterpart will be deemed for all purposes one
agreement.
14.9 WAIVER. Any of the terms, provisions, covenants, representations
or conditions contained in this Agreement may be waived only by a written
instrument executed by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision of this Agreement will
in no manner affect such party's right to enforce the same. No waiver by any
party
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of any condition, or of the breach of any term, provision, covenant or
representation contained in this Agreement, whether by conduct or otherwise, in
any one or more instances, will be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or of the breach of any other term, provision, covenant or
representation.
14.10 BINDING EFFECT; ASSIGNMENT. All the terms, provisions, covenants,
representations and conditions of this Agreement will be binding upon and inure
to the benefit of and be enforceable by the parties to this Agreement and their
respective successors and assigns; but this Agreement and the rights and
obligations hereunder will not be assignable or delegable by any party without
the prior written consent of the non-assigning or non-delegating parties,
which may be withheld at the sole discretion of such parties.
14.11 TIME PERIODS. Time is of the essence in the performance of
this Agreement.
14.12 CONSTRUCTION. Each party hereby acknowledges and agrees that such
party has consulted legal counsel in connection with the negotiation of this
Agreement and that such party has bargaining power equal to that of the other
party in connection with the negotiation and execution of this Agreement.
Accordingly, the parties agree the rule of contract construction to the effect
that an agreement will be construed against the draftsman will have no
application in the construction or interpretation of this Agreement.
14.13 BOARD APPROVAL. Notwithstanding anything contained herein to the
contrary, the parties hereto recognize that this Agreement is subject to the
approval by the Board of Directors of First, Fortesa, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Senegal.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
FIRST SEISMIC CORPORATION
/s/ [illegible] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
/s/ [illegible] Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Chairman
----------------------------------
FORTESA CORPORATION
/s/ [illegible] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
/s/ [illegible] Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: President
----------------------------------
▇▇▇▇▇▇ OIL AND GAS COMPANY
/s/ [illegible] By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
/s/ [illegible] Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
▇▇▇▇▇▇ OIL AND GAS COMPANY (SENEGAL), LTD.
/s/ [illegible] By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
/s/ [illegible] Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
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