STOCK EXCHANGE AGREEMENT
AMONG
DOVER PETROLEUM CORP., a Nevada corporation
AND
THE HOLDERS OF ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF
DOVER PETROLEUM EGYPT I, INC., a Florida corporation
February 26, 2002
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange of Dover Petroleum Shares for Dover Egypt Shares. . . 3
2.1 Basic Transaction. . . . . . . . . . . . . . . . . . . . 3
2.2 Exchange . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 The Closing. . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Deliveries at the Closing. . . . . . . . . . . . . . . . 3
3. Due Diligence Review Period. . . . . . . . . . . . . . . . . . 4
3.1 Due Diligence Review . . . . . . . . . . . . . . . . . . 4
3.2 Termination. . . . . . . . . . . . . . . . . . . . . . . 4
4. Representations and Warranties Concerning the Transaction. . . 4
4.1 Representations and Warranties of the Shareholders . . . 4
4.2 Representations and Warranties of Dover Petroleum. . . . 6
4.3 Representations and Warranties Concerning the
Transaction6
5. Pre-Closing Covenants. . . . . . . . . . . . . . . . . . . . . 9
5.1 General. . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Notices and Consents . . . . . . . . . . . . . . . . . . 9
5.3 Operation of Business. . . . . . . . . . . . . . . . . .10
5.4 Preservation of Business . . . . . . . . . . . . . . . .10
5.5 Full Access. . . . . . . . . . . . . . . . . . . . . . .10
5.6 Notice of Developments . . . . . . . . . . . . . . . . .10
5.7 Exclusivity. . . . . . . . . . . . . . . . . . . . . . .10
6. Post-Closing Covenants . . . . . . . . . . . . . . . . . . . .10
6.1 General. . . . . . . . . . . . . . . . . . . . . . . . .10
6.2 Confidentiality. . . . . . . . . . . . . . . . . . . . .10
7. Conditions to Obligation to Close. . . . . . . . . . . . . . .11
7.1 Conditions to Obligation of Dover Petroleum. . . . . . .11
7.2 Conditions to Obligation of the Shareholders . . . . . .11
8. Survival and Indemnification . . . . . . . . . . . . . . . . .12
8.1 Survival of Representations and Warranties . . . . . . .12
8.2 Indemnification Provisions for Benefit of Dover
Petroleum12
8.3 Indemnification Provisions for Benefit of the
Shareholders . . . . . . . . . . . . . . . . . . . . . .12
8.4 Matters Involving Third Parties. . . . . . . . . . . . .12
8.5 Other Indemnification Provisions . . . . . . . . . . . .13
9. Termination. . . . . . . . . . . . . . . . . . . . . . . . . .13
9.1 Termination of Agreement . . . . . . . . . . . . . . . .13
9.2 Effect of Termination. . . . . . . . . . . . . . . . . .14
10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . .14
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . .14
10.2 Construction . . . . . . . . . . . . . . . . . . . . . .14
10.3 Counterparts . . . . . . . . . . . . . . . . . . . . . .14
10.4 Entire Agreement . . . . . . . . . . . . . . . . . . . .14
10.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . .14
10.6 Facsimile Execution. . . . . . . . . . . . . . . . . . .14
10.7 Governing Law. . . . . . . . . . . . . . . . . . . . . .14
10.8 Headings . . . . . . . . . . . . . . . . . . . . . . . .15
10.9 Incorporation of Exhibits, Annexes, and Schedules. . . .15
10.10 Nature of Certain Obligations. . . . . . . . . . . . . .15
10.11 No Third-Party Beneficiaries . . . . . . . . . . . . . .15
10.12 Notices. . . . . . . . . . . . . . . . . . . . . . . . .15
10.13 Press Releases and Public Announcements. . . . . . . . .15
10.14 Severability . . . . . . . . . . . . . . . . . . . . . .15
10.15 Specific Performance . . . . . . . . . . . . . . . . . .15
10.16 Submission to Jurisdiction . . . . . . . . . . . . . . .16
10.17 Succession and Assignment. . . . . . . . . . . . . . . .16
Exhibit 4.3 Disclosure Schedule
Exhibit 4.3(a) The Transaction Documents
STOCK EXCHANGE AGREEMENT
Stock Exchange Agreement (the "Agreement") entered into on February
26, 2002, by and among Dover Petroleum Corp., a Nevada corporation
("Dover Petroleum") and the holders (collectively, the
"Shareholders") of all of the issued and outstanding $.0001 par
value common stock (the "Dover Egypt Shares") of Dover Petroleum
Egypt I, Inc., a Florida corporation ("Dover Egypt"). Dover
Petroleum and the Shareholders are hereinafter referred to
collectively as the "Parties."
This Agreement contemplates a transaction in which Dover Petroleum
will exchange One Million Six Hundred Thousand (1,600,000) of the
$.001 par value common shares of Dover Petroleum (the "Dover
Petroleum Shares") with the Shareholders for the Dover Egypt Shares,
whereupon Dover Egypt will become a wholly owned Subsidiary of Dover
Petroleum.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, liens, losses, expenses, and fees, including
court costs and attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
"Dover Petroleum" has the meaning set forth in the preface above.
"Dover Petroleum Shares" has the meaning set forth in the
preface above.
"Applicable Rate" means the prime rate of interest announced from
time to time by First Union National Bank per annum.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction that forms or could
form the basis for any specified consequence.
"Closing" has the meaning set forth in Paragraph 2.3 below.
"Closing Date" has the meaning set forth in Paragraph 2.3 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
business and affairs of Dover Egypt that is not already generally
available to the public.
"Disclosure Schedule" has the meaning set forth in Paragraph 4.3
below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee
Pension Benefit Plan, (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c)
qualified defined benefit retirement plan or arrangement which is an
Employee Pension Benefit Plan (including any Multiemployer Plan), or
(d) Employee Welfare Benefit Plan or material fringe benefit plan or
program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Sec. 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Sec. 3(1).
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Resource Conservation and Recovery Act of 1976, and the Occupational
Safety and Health Act of 1970, each as amended, together with all
other laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies
thereof) concerning pollution or protection of the environment,
public health and safety, or employee health and safety, including
laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface
water, ground water, or lands or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Indemnified Party" has the meaning set forth in Paragraph 8.4 below.
"Indemnifying Party" has the meaning set forth in Paragraph 8.4 below.
"Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice),
all improvements thereto, and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations
thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations,
adaptations, derivations, and combinations thereof and including all
goodwill associated therewith, and all applications, registrations,
and renewals in connection therewith, (c) all copyrightable works,
all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications,
registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and marketing
plans and proposals), (f) all computer software (including data and
related documentation), (g) all other proprietary rights, and (h)
all copies and tangible embodiments thereof (in whatever form or
medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and
whether due or to become due), including any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet contained
within the Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in
Paragraph 4.3(h) below.
"Most Recent Fiscal Period" has the meaning set forth in Paragraph
4.3(h) below.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due
and payable, or for Taxes that the taxpayer is contesting in good
faith through appropriate proceedings, (c) purchase money liens and
liens securing rental payments under capital lease arrangements, and
(d) other liens arising in the Ordinary Course of Business and not
incurred in connection with the borrowing of money.
"Shareholders" has the meaning set forth in the preface above.
"Dover Egypt" has the meaning set forth in the preface above.
"Dover Egypt Shares" has the meaning set forth in the preface
above.
"Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the
common stock or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including
taxes under Code Sec. 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including
any interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Third Party Claim" has the meaning set forth in Paragraph 8.4(a)
below.
2. Exchange of Dover Petroleum Shares for Dover Egypt Shares.
2.1 Basic Transaction. On and subject to the terms and
conditions of this Agreement, Dover Petroleum agrees to acquire from
each of the Shareholders and each of the Shareholders agrees to
transfer to Dover Petroleum, such amount of the Dover Egypt Shares
owned by each such Shareholder for the number of Dover Petroleum
Shares specified below in this Paragraph 2.
2.2 Exchange. Dover Petroleum agrees, at the Closing, to
deliver to each Shareholder one (1) Dover Petroleum Share for each
one (1) Dover Egypt Share held by such Shareholder. The respective
holdings of Dover Egypt Shares by each Shareholder is as set forth
in Paragraph 1 of Exhibit 4.1.
2.3 The Closing. The closing of the exchange transaction
contemplated by this Agreement (the "Closing") shall take place at
the offices of Xxxxxx X. Xxxxxxx, P.A. in Boca Raton, Florida,
commencing at 10:00 a.m. local time on or before March 31, 2002, or
such other date as Dover Petroleum and the Shareholders may mutually
determine (the "Closing Date").
2.4 Deliveries at the Closing. At the Closing:
(a) each Shareholder will deliver to Dover Petroleum
the various certificates, instruments, and documents referred
to in Paragraph 7.1 below;
(b) Dover Petroleum will deliver to the Shareholders
the various certificates, instruments, and documents referred
to in Paragraph 7.2 below;
(c) each Shareholder will deliver to Dover Petroleum
stock certificates representing all of such Shareholder's
Dover Egypt Shares, endorsed in blank or accompanied by duly
executed assignment documents; and
(d) Dover Petroleum will deliver to each of the
Shareholders, either the Dover Petroleum Shares or an executed
irrevocable instruction (the "Issuance Instruction") to the
transfer agent of Dover Petroleum (the "Transfer Agent")
directing the Transfer Agent to issue the Dover Petroleum
Shares in accordance herewith.
3. Due Diligence Review Period.
3.1 Due Diligence Review. Dover Petroleum shall have a
period of time (the "Due Diligence Review Period") commencing upon
the date of execution hereof by the Parties hereto and ending at
5:00 P.M. fifteen (15) business days thereafter (the "Due Diligence
Review Period Expiration Date") to review such business, legal and
accounting due diligence matters, in such manner as Dover Petroleum
may deem necessary or appropriate, associated with Dover Egypt and
the Dover Egypt Shares.
3.2 Termination. Dover Petroleum shall have the absolute
right to terminate this Agreement, in the exercise of the sole and
exclusive discretion of Dover Petroleum, at any time prior to the
expiration of the Due Diligence Review Period Expiration Date. If
Dover Petroleum elects to cancel this Agreement, Dover Petroleum
shall deliver written notice to Shareholders of such election prior
to the Due Diligence Review Period Expiration Date, and thereupon,
this Agreement shall terminate and the Parties hereto shall be
released from any further obligation hereunder.
4. Representations and Warranties Concerning the Transaction.
4.1 Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to Dover Petroleum
that the statements contained in this Paragraph 4.1 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement
throughout this Paragraph 4.1) with respect to such Shareholder.
(a) Organization of Certain Shareholders. If the
Shareholder is a corporation or other entity, the Shareholder
is duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its organization.
(b) Authorization of Transaction. Each Shareholder
has full power and authority (including, if the Shareholder is
a corporation or other organization, full organizational power
and authority) to execute and deliver this Agreement and to
perform the obligations of Shareholder hereunder. This
Agreement constitutes the valid and legally binding obligation
of the Shareholder, enforceable in accordance with its terms
and conditions. The Shareholder need not give any notice to,
make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to
consummate the exchange transaction contemplated by this
Agreement.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
exchange transaction contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which any
Shareholder is subject or, if a Shareholder is an entity, any
provision of its organizational documents, or conflict with,
result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Shareholder is a
party or by which any Shareholder is bound or to which any of
the assets of such Shareholder is subject.
(d) Brokers' Fees. No Shareholder has any Liability
or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the exchange transaction
contemplated by this Agreement for which Dover Petroleum could
become liable or obligated.
(e) Investment. Each Shareholder:
(1) understands that the Dover Petroleum Shares have
not been, and will not be, registered under the Securities
Act, or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, which depends
upon, among other things, the accuracy of the required
representations and warranties of Shareholders;
(2) that there shall be imprinted on the face of each
certificate representing the Dover Petroleum Shares acquired
by Shareholders the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT WITH RESPECT TO SUCH SECURITIES, OR AN OPINION
OF THE ISSUER'S COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
(3) understands that the Dover Petroleum Shares must
be held indefinitely unless subsequently registered under the
Act or an exemption from such registration is available, and
Shareholders acknowledge that Dover Petroleum shall have no
obligation whatsoever to register the Dover Petroleum Shares
under that Act;
(4) understands the provisions of Rule 144 (the
"Rule") promulgated under the Act permit limited resale of
securities purchased in a private transaction, subject to the
satisfaction of certain conditions as set forth in the Rule;
(5) is acquiring the Dover Petroleum Shares solely for
the account of such Shareholder for investment purposes, and
not with a view to the distribution thereof;
(6) is a sophisticated investor with knowledge and
experience in business and financial matters;
(7) has had the opportunity to obtain such information
as such Shareholder desired in order to evaluate the merits
and the risks inherent in acquiring and holding the Dover
Petroleum Shares;
(8) is able to bear the economic risk and lack of
liquidity inherent in holding the Dover Petroleum Shares; and
(9) is familiar with the requirements to be designated
as an Accredited Investor, and is an Accredited Investor.
(f) Lack of Information. Shareholders understand that
Shareholders are acquiring the Dover Petroleum Shares without
being furnished any offering literature or prospectus. THE
SHAREHOLDERS ACKNOWLEDGES THAT SHAREHOLDERS HAVE OBTAINED SUCH
INFORMATION OR DATA AS SHAREHOLDERS MAY DEEM APPROPRIATE IN
ORDER TO PROVIDE THE SHAREHOLDERS WITH THE BASIS OF MAKING AN
INFORMED INVESTMENT DECISION WITH RESPECT TO THE ACQUISITION
OF THE DOVER PETROLEUM SHARES. The Shareholders have been
given the opportunity to meet with representatives of Dover
Petroleum and to have such representatives answer any
questions and provide any additional information regarding the
terms and conditions of an investment in the Dover Petroleum
Shares as deemed relevant by the Shareholder or as a result of
any independent investigations made by any Shareholder or by
any Shareholder's representative.
(g) Dover Egypt Shares. Each Shareholder holds of
record and owns beneficially the number of Dover Egypt Shares
set forth next the name of such Shareholder on Exhibit 4.1,
free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities
laws), Taxes, Security Interests, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands.
No Shareholder is a party to any option, warrant, purchase
right, or other contract or commitment that could require the
Shareholder to sell, transfer, or otherwise dispose of any
Dover Egypt Shares (other than this Agreement). The Dover
Egypt Shares held by each such Shareholder represents all of
the issued and outstanding capital stock of Dover Egypt owned
by such Shareholder.
4.2 Representations and Warranties of Dover Petroleum.
Dover Petroleum represents and warrants to the Shareholders that the
statements contained in this Paragraph 4.2 are correct and complete
as of the date of this Agreement and will be correct and complete as
of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this
Paragraph 4.2).
(a) Organization of Dover Petroleum. Dover Petroleum
is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Dover Petroleum has
full power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of Dover Petroleum,
enforceable in accordance with its terms and conditions.
Dover Petroleum need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the
exchange transaction contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
exchange transaction contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Dover
Petroleum is subject or any provision of its charter or bylaws
or conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Dover Petroleum is a
party or by which it is bound or to which any of its assets is
subject.
(d) Brokers' Fees. Dover Petroleum has no Liability
or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the exchange transaction
contemplated by this Agreement for which any Shareholder could
become liable or obligated.
(e) Investment. Dover Petroleum is not acquiring
Dover Egypt Shares with a view to or for sale in connection
with any distribution thereof within the meaning of the
Securities Act.
(f) Lack of Information. Dover Petroleum understands
that Dover Petroleum is acquiring the Dover Egypt Shares
without being furnished any offering literature or prospectus.
DOVER PETROLEUM ACKNOWLEDGES THAT DOVER PETROLEUM HAS
OBTAINED SUCH INFORMATION OR DATA AS DOVER PETROLEUM MAY DEEM
APPROPRIATE IN ORDER TO PROVIDE DOVER PETROLEUM WITH THE BASIS
OF MAKING AN INFORMED INVESTMENT DECISION WITH RESPECT TO THE
ACQUISITION OF THE DOVER EGYPT SHARES. Dover Petroleum has
been given the opportunity to meet with representatives of
Dover Egypt and to have such representatives answer any
questions and provide any additional information regarding the
terms and conditions of the acquisition of Dover Egypt as
deemed relevant by Dover Petroleum or as a result of any
independent investigation made by Dover Petroleum or by any
representative of Dover Petroleum.
4.3 Representations and Warranties Concerning the Transaction.
(a) The Shareholders have caused Xxxxxx Xxxxx, the
president and chairman of the board of directors of Dover
Egypt (the "Dover Egypt Responsible Party") to have provided,
and Dover Petroleum acknowledges having received, copies of
the certain agreements, documents and other information
associated with or otherwise connected to that certain Joint
Venture Agreement (the "Joint Venture Agreement") between
Dover Egypt and the other parties thereto (the "Joint
Venture") and that certain Option Agreement (the "Option
Agreement") between the Joint Venture and Dover Investments
Ltd., an Ontario corporation ("Dover Investments"), along with
copies of all of the schedules, exhibits, and documents
associated with the Joint Venture Agreement and the Option
Agreement (collectively, the "Transaction Documents"). In
connection with the Transaction Documents, Dover Petroleum is
aware that Dover Egypt is the owner and holder of fifty
percent of the Interests (as such term is defined in the Joint
Venture Agreement) and that the Option Agreement provides an
option (the "Option") to the Joint Venture to acquire all of
the right, title and interest of Dover Investments in and to
that certain Concession Agreement (the "Concession Agreement")
dated April 23, 2001 by and between Dover Investments, the
Arab Republic of Egypt (the "Government") and the Egyptian
General Petroleum Corporation ("Egyptian Petroleum"). The
Joint Venture Agreement requires Dover Egypt to provide funds
in an amount of at least $4,000,000.00 (the "Mandatory
Capital Contribution") for its Interest (as such term is
defined in the Joint Venture Agreement) in accordance with the
terms of the Joint Venture Agreement, which Mandatory Capital
Contribution will be used by the Joint Venture to funds its
obligations under the Option Agreement. Dover Petroleum is
aware that as of the date hereof, Dover does not have the
financial ability to provide the Mandatory Capital
Contribution, and as a result the Joint Venture may not be
able to fund the amounts required under the Option Agreement,
in which event the Option Agreement would be subject to
termination. Copies of the Joint Venture Agreement and the
exhibits thereto and the Option Agreement and the exhibits
thereto are attached hereto as Exhibit 4.3(a).
(b) Dover Petroleum is aware that the Dover Egypt
Responsible Party controls Dover Egypt and Dover Investments,
and, as a result, certain conflicts of interest may exist in
connection with the Joint Venture Agreement, the Option
Agreement, the Concession Agreement and this Agreement.
(c) Organization, Qualification, and Corporate Power.
Dover Egypt is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation. Dover Egypt is duly authorized to conduct
business and is in good standing under the laws of each
jurisdiction where such qualification is required. Dover
Egypt has full corporate power and authority and all licenses,
permits, and authorizations necessary to carry on the business
in which it is engaged and to own and use the properties owned
and used by it. Dover Egypt is not in default under or in
violation of any provision of its charter or bylaws.
(d) Capitalization. The entire authorized capital
stock of Dover Egypt consists of One Hundred Million
(100,000,000) shares of capital stock of which Eighty Million
(80,000,000) is designated as $.0001 par value common shares
and of which Twenty Million (20,000,000), is designated as
$.0001 par value preferred shares, and only the Dover Egypt
Shares are issued and outstanding. All of the issued and
outstanding Dover Egypt Shares have been duly authorized, are
validly issued, fully paid, and nonassessable, and are held of
record by the respective Shareholders as set forth in on
Exhibit 4.1. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments
that could require Dover Egypt to issue, sell, or otherwise
cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to
Dover Egypt. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the
capital stock of Dover Egypt.
(e) Noncontravention. Dover Egypt is not required to
give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
exchange transaction contemplated by this Agreement. Neither
the execution and the delivery of this Agreement nor the
consummation of the exchange transaction contemplated hereby
will:
(1) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or
other restriction of any government, governmental agency, or
court to which Dover Egypt is subject or any provision of the
charter or bylaws of Dover Egypt; or
(2) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Dover Egypt
is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security
Interest upon any of its assets).
(f) Title to Assets. Dover Egypt has good and
marketable title to, or a valid leasehold interest in, it
properties and assets, acquired as a result of the Transaction
Documents or otherwise, free and clear of all Security
Interests, except as indicated in the Transaction Documents.
Except for the assets acquired by Dover Egypt pursuant to the
Transaction Documents, Dover Egypt has no other assets
whatsoever.
(g) Subsidiaries. Dover Egypt has no Subsidiaries.
(h) Financial Statements. Dover has not prepared nor
will it have as of the Closing Date any Financial Statements.
(i) Undisclosed Liabilities. Dover Egypt does not
have any Liability (and there is no Basis for any present or
future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against any of them giving
rise to any Liability), except Liabilities which have been
disclosed to Dover Petroleum as part of the Transaction
Documents.
(j) Legal Compliance. Dover Egypt, and its
predecessors and Affiliates has complied with all applicable
laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder)
of federal, state, local, and foreign governments (and all
agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against any of them alleging any
failure so to comply.
(k) Tax Matters.
(1) Dover Egypt has not filed any Tax Returns, but
does not believe that any authority will assess any
additional Taxes up to the Closing Date. There is no dispute
or claim concerning any Tax Liability of Dover Egypt either
(A) claimed or raised by any authority in writing or (B) as to
which any of the directors and officers (and employees
responsible for Tax matters) of Dover Egypt has Knowledge
based upon personal contact with any agent of such authority.
(2) Dover Egypt has not waived any statute of
limitations in respect of Taxes or agreed to any extension of
time with respect to a Tax assessment or deficiency.
(l) Real Property.
(1) Dover Egypt does not own any real property.
(2) The Transaction Documents list and describe the
interests of Dover Egypt in the Joint Venture and the interest
that may become available to Dover Egypt in the Concession
Agreement pursuant to the Option Agreement. .
(m) Intellectual Property. Dover Egypt does not own
any Intellectual Property.
(n) Tangible Assets. Dover Egypt does not own or
lease any buildings, machinery, equipment, and other tangible
assets.
(o) Inventory. Dover Egypt does not own any Inventory.
(p) Contracts. The Transaction Documents identify
each material written agreement between Dover Egypt and any
third party. With respect to each such agreement:
(1) the agreement is legal, valid, binding,
enforceable, and in full force and effect;
(2) the agreement will continue to be legal, valid,
binding, enforceable, and in full force and effect on
identical terms following the consummation of the exchange
transaction contemplated hereby;
(3) no party is in breach or default, and no event has
occurred which with notice or lapse of time would constitute a
breach or default, or permit termination, modification, or
acceleration, under any such agreement;
(4) no party has repudiated any provision of any such
agreement.
(q) Notes and Accounts Receivable. Dover Egypt does
not own any notes or accounts receivable.
(r) Powers of Attorney. There are no outstanding
powers of attorney executed on behalf of any of Dover Egypt.
(s) Insurance. Dover Egypt does not own or possess
any Insurance.
(t) Litigation. Dover Egypt is not involved in any
material litigation matters, and the Dover Egypt Responsible
Party has no reason to believe that any action, suit,
proceeding, hearing, or investigation may be brought or
threatened against Dover Egypt.
(u) Product Warranty. Dover Egypt does not
manufacture, sell, lease, or deliver any products, and Dover
Egypt has no Liability (and there is no Basis for any present
or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against Dover Egypt giving
rise to any Liability) in connection with any Product Warranty.
(v) Product Liability. Dover Egypt has no Liability
(and there is no Basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim,
or demand against Dover Egypt giving rise to any Liability)
arising out of any injury to individuals or property as a
result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by any of Dover Egypt.
(w) Employees. Dover Egypt has no employees other
than its executive officers.
(x) Employee Benefits. Dover Egypt does not maintain
any Employee Benefit Plan.
(y) Guaranties. Dover Egypt is not a guarantor or
otherwise is liable for any Liability or obligation (including
indebtedness) of any other Person.
(z) Environment, Health, and Safety. Dover Egypt and
its predecessors and Affiliates has complied with all
Environmental, Health, and Safety Laws, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of
them alleging any failure so to comply.
(aa) Disclosure. The representations and warranties
contained in this Paragraph 4.3 do not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements and information
contained in this Paragraph 4.3 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows
with respect to the period between the execution of this Agreement
and the Closing.
5.1 General. Each of the Parties will use such Parties'
best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the
exchange transaction contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in
Paragraph 7 below).
5.2 Notices and Consents. The Shareholders will cause Dover
Egypt to give any notices to third parties, and will cause Dover
Egypt to use its best efforts to obtain any third-party consents
that Dover Petroleum may reasonably request in connection with the
exchange transaction contemplated hereby.
5.3 Operation of Business. The Shareholders will not cause
or permit Dover Egypt to engage in any practice, take any action, or
enter into any transaction outside the Ordinary Course of Business.
Without limiting the generality of the foregoing, the Shareholders
will not cause or permit Dover Egypt to declare, set aside, or pay
any dividend or make any distribution with respect to its capital
stock or redeem, purchase, or otherwise acquire any of its capital
stock.
5.4 Preservation of Business. The Shareholders will cause
Dover Egypt to keep its business and properties substantially
intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors,
suppliers, customers, and employees, if any.
5.5 Full Access. Each of the Shareholders will permit, and
the Shareholders will cause Dover Egypt to permit, representatives
of Dover Petroleum to have full access at all reasonable times, and
in a manner so as not to interfere with the normal business
operations of Dover Egypt to all premises, properties, personnel,
books, records (including Tax records), contracts, and documents of
or pertaining to Dover Egypt.
5.6 Notice of Developments. The Shareholders will give
prompt written notice to Dover Petroleum of any material adverse
development causing a breach of any of the representations and
warranties concerning Dover Egypt in Paragraph 4.3. Each Party will
give prompt written notice to the other Parties of any material
adverse development.
5.7 Exclusivity. None of the Shareholders will (and none
of the Shareholders will vote their Dover Egypt Shares in favor of),
nor will the Shareholders cause or permit Dover Egypt (and the
Shareholders will notify Dover Petroleum immediately if any Person
makes any) of the following:
(a) solicit, initiate, or encourage the submission of
any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities,
or any substantial portion of the assets of Dover Egypt
(including any acquisition structured as a merger,
consolidation, or share exchange); or
(b) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort
or attempt by any Person to do or seek any of the foregoing.
6. Post-Closing Covenants. The Parties agree as follows
with respect to the period following the Closing.
6.1 General. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes
of this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments
and documents) as any other Party reasonably may request, all at the
sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Paragraph 8
below). The Shareholders acknowledge and agree that from and after
the Closing, Dover Petroleum will be entitled to possession of all
documents, books, records (including Tax records), agreements, and
financial data of any sort relating to Dover Egypt.
6.2 Confidentiality. Each of the Shareholders will treat
and hold as such all of the Confidential Information, refrain from
using any of the Confidential Information except in connection with
this Agreement, and deliver promptly to Dover Petroleum or destroy,
at the request and option of Dover Petroleum, all tangible
embodiments (and all copies) of the Confidential Information which
are in such Parties' possession. In the event that any of the
Shareholders is requested or required (by oral question or request
for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, then such Shareholder will
notify Dover Petroleum promptly of the request or requirement so
that Dover Petroleum may seek an appropriate protective order or
waive compliance with the provisions of this Paragraph 6.2. If, in
the absence of a protective order or the receipt of a waiver
hereunder, any of the Shareholders is, on the advice of counsel,
compelled to disclose any Confidential Information to any tribunal
or else stand liable for contempt, then such Shareholder may
disclose the Confidential Information to the tribunal; provided,
however, that the disclosing Shareholder shall use such
Shareholder's reasonable best efforts to obtain, at the reasonable
request of Dover Petroleum, an order or other assurance that
confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as Dover Petroleum
shall designate. The foregoing provisions shall not apply to any
Confidential Information which is generally available to the public
immediately prior to the time of disclosure.
7. Conditions to Obligation to Close.
7.1 Conditions to Obligation of Dover Petroleum. The
obligation of Dover Petroleum to consummate the exchange transaction
at the Closing is subject to satisfaction of the following
conditions, unless Dover Petroleum waives any condition specified in
this Paragraph 7.1 by executing a writing so stating at or prior to
the Closing:
(a) the representations and warranties set forth in
Paragraphs 4.1 and 4.3 above shall be true and correct in all
material respects at and as of the Closing Date;
(b) the Shareholders shall have performed and complied
with all of their covenants hereunder in all material respects
through the Closing;
(c) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would prevent consummation of
any of the exchange transaction contemplated by this
Agreement, cause the exchange transaction contemplated by this
Agreement to be rescinded following consummation, affect
adversely the right of Dover Petroleum to own Dover Egypt
Shares and to control Dover Egypt or affect adversely the
right of Dover Egypt to own its assets and to operate its
business (and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect); and
(d) the Shareholders shall have delivered to Dover
Petroleum a certificate to the effect that each of the
conditions specified above in Paragraphs 7.1(a) through 7.1(c)
is satisfied in all respects.
(e) all actions to be taken by the Shareholders in
connection with consummation of the exchange transaction
contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the
exchange transaction contemplated hereby will be reasonably
satisfactory in form and substance to Dover Petroleum.
7.2 Conditions to Obligation of the Shareholders. The
obligation of the Shareholders to consummate the exchange
transaction at the Closing is subject to satisfaction of the
following conditions, unless the Shareholders waive any condition
specified in this Paragraph 7.2 by executing a writing so stating at
or prior to the Closing:
(a) the representations and warranties set forth in
Paragraph 4.2 above shall be true and correct in all material
respects at and as of the Closing Date;
(b) Dover Petroleum shall have performed and complied
with all of its covenants hereunder in all material respects
through the Closing;
(c) no action, suit, or proceeding shall be pending
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would prevent consummation of
any of the exchange transaction contemplated by this Agreement
or cause the exchange transaction contemplated by this
Agreement to be rescinded following consummation (and no such
injunction, judgment, order, decree, ruling, or charge shall
be in effect);
(d) Dover Petroleum shall have delivered to the
Shareholders a certificate to the effect that each of the
conditions specified above in Paragraph 7.2(a)-7.2(c) is
satisfied in all respects; and
(e) Dover Petroleum shall have received the
resignations, effective as of the Closing, of each director
and officer of Dover Egypt, and in substitution thereof shall,
effective as of the Closing, Dover Petroleum shall have
appointed such directors and officers of Dover Egypt as may be
determined appropriate by Dover Petroleum.
(f) all actions to be taken by Dover Petroleum in
connection with consummation of the exchange transaction
contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the
exchange transaction contemplated hereby will be reasonably
satisfactory in form and substance to the Shareholders.
8. Survival and Indemnification.
8.1 Survival of Representations and Warranties. All of the
representations and warranties of the Shareholders contained in this
Agreement shall not survive the Closing hereunder (even if Dover
Petroleum knew or had reason to know of any misrepresentation or
breach of warranty at the time of Closing) and shall be merged
therein. All of the representations and warranties of Dover
Petroleum contained in this Agreement shall not survive the Closing
hereunder (even if Shareholders knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and
shall be merged therein.
8.2 Indemnification Provisions for Benefit of Dover
Petroleum. Subsequent to the Closing, Shareholders shall not have
any indemnification obligation in favor of Dover Petroleum in the
event Shareholders breaches (or in the event any third party alleges
facts that, if true, would mean any Shareholder has breached) any of
its representations, warranties and covenants contained herein.
8.3 Indemnification Provisions for Benefit of the
Shareholders. Subsequent to the Closing, Dover Petroleum shall not
have any indemnification obligation in favor of Shareholders in the
event Dover Petroleum breaches (or in the event any third party
alleges facts that, if true, would mean Dover Petroleum has
breached) any of its representations, warranties and covenants
contained herein.
8.4 Matters Involving Third Parties.
(a) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this Paragraph 8, then the Indemnified Party
shall promptly notify each Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder
unless (and then solely to the extent) the Indemnifying Party
thereby is prejudiced.
(b) Any Indemnifying Party will have the right to
defend the Indemnified Party against the Third Party Claim
with counsel of its choice reasonably satisfactory to the
Indemnified Party so long as the Indemnifying Party notifies
the Indemnified Party in writing within fifteen (15) days
after the Indemnified Party has given notice of the Third
Party Claim that the Indemnifying Party will indemnify the
Indemnified Party from and against the entirety of any Adverse
Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
the Third Party Claim; the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the
financial resources to defend against the Third Party Claim
and fulfill its indemnification obligations hereunder; the
Third Party Claim involves only money damages and does not
seek an injunction or other equitable relief; settlement of,
or an adverse judgment with respect to, the Third Party Claim
is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice
materially adverse to the continuing business interests of the
Indemnified Party; and the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with
Paragraph 8.4(b) above:
(1) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the
defense of the Third Party Claim;
(2) the Indemnified Party will not consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld
unreasonably); and
(3) the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld
unreasonably).
(d) In the event any of the conditions in Paragraph
8.4(b) above is or becomes unsatisfied, however:
(1) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any
manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith);
(2) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable
attorneys' fees and expenses); and
(3) the Indemnifying Parties will remain responsible
for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of,
or caused by the Third Party Claim to the fullest extent
provided in this Paragraph 8.
8.5 Other Indemnification Provisions. Each of the
Shareholders hereby agrees that such Shareholder will not make any
claim for indemnification against Dover Egypt by reason of the fact
that such Shareholder was a director, officer, employee, or agent of
Dover Egypt or was serving at the request of any such entity as a
partner, trustee, director, officer, employee, or agent of another
entity (whether such claim is for judgments, damages, penalties,
fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such claim is pursuant to any statute, charter
document, bylaw, agreement, or otherwise) with respect to any
action, suit, proceeding, complaint, claim, or demand brought by
Dover Petroleum against such Shareholder (whether such action, suit,
proceeding, complaint, claim, or demand is pursuant to this
Agreement, applicable law, or otherwise).
9. Termination.
9.1 Termination of Agreement. Certain of the Parties may
terminate this Agreement as provided below:
(a) Dover Petroleum and the Shareholders may terminate
this Agreement by mutual written consent at any time prior to
the Closing;
(b) Dover Petroleum may terminate this Agreement by
giving written notice to the Shareholders at any time prior to
the Due Diligence Review Period Expiration Date.
(c) Dover Petroleum may terminate this Agreement by
giving written notice to the Shareholders at any time prior to
the Closing:
(1) in the event any of the Shareholders has breached
any material representation, warranty, or covenant contained
in this Agreement in any material respect, Dover Petroleum has
notified the Shareholders of the breach, and the breach has
continued without cure for a period of ten (10) business days
after the notice of breach; or
(2) if the Closing shall not have occurred on or
before March 31, 2002, by reason of the failure of any
condition precedent under Paragraph 7.1 hereof (unless the
failure results primarily from Dover Petroleum itself
breaching any representation, warranty, or covenant contained
in this Agreement); and
(d) the Shareholders may terminate this Agreement by
giving written notice to Dover Petroleum at any time prior to
the Closing:
(1) in the event Dover Petroleum has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, any of the
Shareholders has notified Dover Petroleum of the breach, and
the breach has continued without cure for a period of ten (10)
business days after the notice of breach; or
(2) if the Closing shall not have occurred on or
before March 31, 2002, by reason of the failure of any
condition precedent under Paragraph 7.2 hereof (unless the
failure results primarily from any of the Shareholders
themselves breaching any representation, warranty, or covenant
contained in this Agreement).
9.2 Effect of Termination. If any Party terminates this
Agreement pursuant to Paragraph 9.1 above, all rights and
obligations of the Parties hereunder shall terminate without any
Liability of any Party to any other Party (except for any Liability
of any Party then in breach).
10. Miscellaneous.
10.1 Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing
and signed by Dover Petroleum and the Shareholders. No waiver by
any Party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent such occurrence.
10.2 Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
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. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including
without limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that
there exists another representation, warranty, or covenant relating
to the same subject matter (regardless of the relative levels of
specificity) which the Party has not breached shall not detract from
or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
10.3 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
10.4 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among
the Parties and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
10.5 Expenses. Each of the Parties will bear their own costs
and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the exchange transaction
contemplated hereby. Dover Petroleum acknowledges that Dover Egypt
may bear all or a part of the Shareholders' costs and expenses
(including any of their legal fees and expenses) in connection with
this Agreement or the exchange transaction contemplated hereby.
10.6 Facsimile Execution. Facsimile signatures on
counterparts of this Agreement are hereby authorized and shall be
acknowledged as if such facsimile signatures were an original
execution.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Florida without giving effect to any choice or conflict of law
provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
10.8 Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
10.9 Incorporation of Exhibits, Annexes, and Schedules. The
Exhibits, Annexes, and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
10.10 Nature of Certain Obligations. The covenants of each of
the Shareholders in Paragraph 2.1 above concerning the sale of such
Shareholder's Dover Egypt Shares to Dover Petroleum and the
representations and warranties of each of the Shareholders in
Paragraph 4.1 above concerning the exchange transaction contemplated
hereby are several obligations. Accordingly, the Shareholder deemed
to have made the representation, warranty, or covenant that if
breached and causes any Adverse Circumstances to Dover Petroleum
will be solely responsible to the extent provided in Paragraph 8
above for such Adverse Consequences Dover Petroleum.
10.11 No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties
and their respective successors and permitted assigns.
10.12 Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any Party may
send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth below
using registered or certified mail, return receipt requested,
postage prepaid, personal delivery, recognized overnight delivery
service, telecopy or electronic mail, and such notice, request,
demand, claim, or other communication shall be deemed to have been
duly given three (3) days after mailing if sent by registered or
certified mail, on the day same is provided to the party undertaking
personal delivery, provided that such party provides an
acknowledgment of the delivery thereof at the address indicated
thereon, on the day after same is provided to the recognized
overnight delivery service, provided that such party provides an
acknowledgment of the delivery thereof at the address indicated
thereon and on the day same is transmitted by telecopy or electronic
mail, provided that the party sending same obtains a written
confirmation of the electronic delivery thereof. Any Party may
change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth. The addresses
of the Parties are as set forth below:
If to the Shareholders: To the Address listed on
Exhibit 4.1
If to Dover Petroleum: 00000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx X0X 0X0
Xxxxxx
If to Dover Egypt: 0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
10.13 Press Releases and Public Announcements. No Party
shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior
written approval of Dover Petroleum; provided, however, that any
Party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure). After the Closing,
Dover Petroleum shall make such press releases or public
announcements as may be determined by Dover Petroleum, in the
exercise of the reasonable judgement of Dover Petroleum.
10.14 Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.15 Specific Performance. Each of the Parties acknowledges
and agrees that the other Parties would be damaged irreparably in
the event any of the provisions of this Agreement are not performed
in accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agrees that the other Parties shall
be entitled to an injunction or injunctions (without the necessity
of posting a bond therefor) to prevent breaches of the provisions of
this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in
Paragraph 10.16 below), in addition to any other remedy to which
they may be entitled, at law or in equity.
10.16 Submission to Jurisdiction. Each of the Parties submits
to the jurisdiction of any state or federal court sitting in Palm
Beach County, Florida, in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of
the action or proceeding may be heard and determined in any such
court. Each Party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law or at
equity. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other
court. Each of the Parties waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives
any bond, surety, or other security that might be required of any
other Party with respect thereto. Each Shareholder hereby appoints
the Secretary of State of the State of Florida as such Shareholder's
agent to receive on behalf of such Shareholder service of copies of
the summons and complaint and any other process that might be served
in the action or proceeding. Any Party may make service on any
other Party by sending or delivering a copy of the process as
follows (or in any other manner permitted by law or at equity):
(a) to the Party to be served at the address and in
the manner provided for the giving of notices in Paragraph
10.12 above; or
(b) to the Shareholder to be served in care of the
Secretary of State of the State of Florida.
10.17 Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein
and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of such Parties' rights,
interests, or obligations hereunder without the prior written
approval of Dover Petroleum and the Shareholders.
(Signatures appear next page)
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the date first above written.
Dover Petroleum, Corp.
By: /s/ Xxx XxXxxxxxx
Xxx Xxxxxxxxx, President
Dover Egypt Responsible
Party
Dover Petroleum Egypt
I, Inc.
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
SHAREHOLDER COUNTERPART SIGNATURE PAGE
SHAREHOLDER:
Xxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Exhibit 4.1
Shareholder Representations and Warranties
1. Shares Issued:
Shareholder Address Shares Owned
Xxxxxx Xxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx 1,000,000
Xxxxxxx X0X 0X0 Xxxxxx
Xxxxx Xxxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx 000,000
Xxxxxxx X0X 0X0 Xxxxxx
Xxxxxx X. Xxxxxxx 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000 100,000
Total 1,600,000
Exhibit 4.3(a)
The Transaction Documents