ASSET PURCHASE AGREEMENT
Exhibit
10.42
This
ASSET PURCHASE AGREEMENT (the "Agreement") dated this 8th day of February, 2008
(the "Effective Date"), by and between Able Oil Melbourne, Inc., a
Florida corporation with its principal place of business located at 00 Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, XX 00000 ("Seller"), Able Energy, Inc., a Delaware
corporation with its place of business at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 ("Parent") which owns all of the outstanding stock or other
ownership interests in the Seller and all of the Assets of the Seller, and Able Oil of Brevard, Inc., a
Florida corporation having an address at 00
Xxxxx Xxxxxx, Xxxxxxx xxxxxx, XX 00000 ("Buyer").
RECITALS:
A. Seller
owns and operates certain Assets (as hereinafter defined) used in connection
with Seller's supply and delivery of petroleum products to customers (the
"Business").
B. Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Assets.
C. The Buyer
is owned by Xxxx Xxxxxxxxxx, a former employee of Able Oil Melbourne,
Inc.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the Parties hereby agree as follows:
ARTICLE
1: INCORPORATION OF RECITALS
1.1 The foregoing
recitals are true and correct and are incorporated herein as though fully set
forth herein.
ARTICLE
2: PURCHASE AND SALE OF ASSETS
2.1 Upon the
terms and subject to the conditions set forth in this Agreement, at the Closing,
Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer
shall purchase and acquire from Seller, free and clear of any Liens or
encumbrances, all
of Seller's right, title and interest in the following
assets:
|
(a)
|
all
machinery, equipment, tools, spare parts, furniture, office equipment,
computer hardware, supplies, materials, vehicles and other items of
tangible personal property of every kind owned or leased by Seller
(wherever located and whether or not carried on Seller's books), used in
the Business, including the items described in Schedule
2.1(a) ("Tangible
Personal Property");
|
|
(b)
|
all
amounts owed to the Seller by its customers and others, determined in
accordance with generally accepted accounting principles("Accounts
Receivable") as set forth on Schedule
2.1(b)(1) and all materials
and goods, held for sale as part of the Business and related supplies
owned by Seller ("Inventory"),
as set forth on Schedule
2.1(b)(2);
|
|
(c)
|
any
and all intangible assets owned by or used in connection with the Business
including, going concern value, goodwill, telephone and telecopy listings
("Intangible Property"); and
|
|
(d)
|
Except
as otherwise provided, all operating permits, or tank permits, and other
permits, licenses, filings and other governmental authorizations,
agreements, contracts, and approvals (collectively, the "Transferable
Permits");
|
All of
the property and assets to be transferred to Buyer hereunder are herein referred
to collectively as the "Assets." All of the Assets shall be transferred subject
to normal wear and tear and without warranties of any kind, whether expressed or
implied, other than warranties of title, and are sold "AS IS, WHERE IS", WITH
ALL FAULTS AND DEFECTS" and "WITH NO REPRESENTATION OR WARRANTY AS TO CONDITION,
MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE", WHETHER
EXPRESS, IMPLIED OR STATUTORY. As used in this Agreement, "Lien" shall mean any
conditional sale agreement, charges, defect of title, easement, encroachment,
encumbrance, hypothecation, infringement, lien, mortgage, pledge, reservation,
restriction, security interest, title retention, or other security arrangement,
or any adverse right or interest, charge, or claim of any nature whatsoever of,
on, or with respect to any property or property interest, other than liens for
taxes not yet due and payable.
Notwithstanding
the foregoing, the transfer of the Assets pursuant to this Agreement shall not
include the assumption of any Liability related to the Assets unless Buyer
expressly assumes that Liability pursuant to Section 2.4. For
purposes of this Agreement, "Liability" shall
mean any direct or indirect, primary or secondary, liability, indebtedness,
obligation, penalty, cost, or expense, claim, deficiency, guaranty, or
endorsement of or by any person of any type, whether accrued, absolute or
contingent, liquidated or unliquidated, matured or um-natured, or
otherwise.
With
respect to the vehicles identified on Schedule
2.1(a), at
Closing, Seller shall transfer, and Seller must obtain or deliver, certificates
of title or registration in the name of Buyer, and must effect any registrations
in the name of Buyer with the Florida Department of Motor Vehicles or any other
governmental body for such vehicles. The Buyer will cooperate with the Seller to
effectuate the transfer of the vehicle registrations.
2.2 Excluded Assets.
Seller's income Tax records, corporate minute books and stock records
(collectively, the "Excluded Assets") are not part of the sale and purchase
contemplated hereunder, are excluded from the Assets, and shall remain the
property of Seller after the Closing.
2.3 Allocation of Purchase
Price. The Purchase Price shall be allocated in accordance with Schedule 2.3. After
the Closing, the parties shall make consistent use of that allocation for all
Tax purposes and in all filings, declarations and reports in respect thereof,
including the reports required to be filed under Section 1060 of the Code (e.g.,
IRS Form 8594). The parties shall report the tax consequences of the
transactions contemplated by this Agreement in a manner consistent with the
Purchase Price Allocations, as determined pursuant to this Section and shall not
take any action or position that is inconsistent therewith.
2.4 Assumption of
Liabilities. Subject to the terms and conditions of this Agreement, at
the Closing, Buyer shall assume the following assumed liabilities of the Seller
(the "Assumed Liabilities"):
(a) As set
forth on Schedule
2.4(a)
all of Seller's trade accounts payable incurred by the Seller in the ordinary
course of the Business as historically reflected on the financial statements of
the Seller ("Trade Payables") arising before the Closing that are not paid or
otherwise satisfied prior to Closing provided that such Trade Payables (i) arose
on or prior to the Closing Date, (ii) arose in the ordinary course of business,
(iii) arose in a manner consistent with the past practices of the
Seller;
(b) Those
obligations and liabilities under the assumed agreements listed on Schedule
2.4(b)
arising after the Closing Date.
2
The
Assumed Liabilities shall not include any agreements, contracts or commitments
that are not specifically identified herein as Assumed Liabilities. The Seller
shall retain those liabilities listed on Schedule 2.4(c) (the "Retained
Liabilities") and except for the Assumed Liabilities of the Seller, the Buyer
shall assume no Liabilities of the Seller.
2.5 Security Interest.
The Seller shall retain a security interest only on the Accounts Receivable set
forth on Schedule 2.5(a)
until those specific Trade Payables listed on Schedule
2.4
(a), have been paid in full, at which time the Buyer is authorized by the
Seller to file UCC 3 termination statements.
2.6 Further Documents and
Statements. Seller shall execute and deliver, without further
consideration, such documents and instruments in addition to those provided for
herein as may be reasonably requested by Buyer to transfer to, and vest in
Buyer, title to and possession of the Assets, whether at or after the
Closing.
2.7 Closing. The Closing
(the "Closing") shall take place at the offices of the Seller located at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. on February
8, 2008 or such other location and date as the parties may mutually agree in
writing (the "Closing Date"). At the option of Buyer, the Closing may take place
by delivering documents via mail or other delivery service on or prior to the
Closing Date.
2.8 Purchase Price and Payment
Thereof. The purchase price for the Assets (the "Purchase Price") shall
be Three Hundred Fifty Thousand ($375,000.00) Dollars.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF SELLER
AND PARENT
Seller
and Parent hereby jointly and severally represent and warrant to Buyer
that:
3.1 Organization and Good
Standing. They are corporations duly organized and validly existing under
the laws of the States of Delaware and Florida, respectively. Seller has not
received any notice from any governmental body alleging that the Seller was
required to qualify to do business in any jurisdiction, nor has Seller' failure
to qualify to do business in any other jurisdiction caused Seller any material
adverse consequences.
3.2 Due Authorization, Binding
Obligation. Each of Seller and Parent have all requisite power and
authority to enter into this Agreement and to perform its obligations hereunder
and thereunder, and Seller has authorized the execution, delivery and
performance of this Agreement by all necessary corporate action. This Agreement
has been duly executed and delivered by the Seller, and is, and upon execution
and delivery will be, the valid and legally binding obligation of the Seller,
and Parent, enforceable in accordance with their terms.
3.3 Parent and
Subsidiaries. Parent owns all the issued and outstanding shares or
ownership interests of the Seller. Parent has good, valid and marketable title
to the shares or ownership interests of the Seller and is the sole record or
beneficial owner of all issued and outstanding shares or ownership interests
of the Seller, free and
clear of any and all Liens. There are no outstanding rights of any character
relating to the shares or ownership interests of the Seller and no securities
convertible into or exchangeable for any of such shares or ownership
interests.
3.4 Governmental
Approval. The execution, delivery and performance of this Agreement by
the Seller and the consummation of the transactions provided for herein are not
subject to the jurisdiction of, or require the approval, authorization or
consent of any governmental body.
3
3.5 No Approvals or Notices
Required; No Conflict with Other Instruments. The execution, delivery and
performance of this Agreement by the Seller, and the consummation of the
transactions contemplated hereby will not conflict with, nor will it (a) violate
or require any consent or approval, filing or notice pursuant to any other
agreement, guarantee, contract or instrument by which the Seller or Parent or
any of the Assets are bound; or (b) result in the creation of any Lien, charge
or encumbrance upon any of the Assets.
3.6 Title. Seller has
good, valid and marketable title to, and ownership of, all of the Assets, free
and clear of all Liens; and has the right to convey the Assets to Buyer free and
clear of all
Liens; and will defend the title to the Assets in Buyer against the
claims of all persons. Seller has and shall convey to Buyer good and marketable
title to all of the Assets.
3.7 Licenses and Permits.
To the best of Seller's Knowledge, Seller has all necessary licenses, permits,
consents and approvals (collectively "Permits") from all appropriate
governmental bodies required for the operation of the Business, and there has
occurred no default under any such Permits that has any continuing effect, and
there is no current default under any such Permits. To the best of Seller and
Parent's Knowledge, they have not received any notification or communication
from any governmental body (i) asserting that Seller is not in compliance with
any of the laws, regulations or orders which such governmental body enforces, or
(ii) revoking or threatening to revoke any Permits. For purposes of this
Agreement, "Knowledge" means with respect to an individual: (i) that the
individual is actually aware of such fact or other matter; (ii) the Parent or
Seller will be deemed to have "Knowledge" of a particular fact or other matter
if any individual who is serving or who has at any time served, as a manager,
director, or officer of the Parent or Seller (or in any similar capacity)
however, specifically excluding Xxxx Xxxxxxxxxx, has or at any time had
Knowledge of such fact or other matter. Notwithstanding anything contained
herein, the Seller agrees to allow the Buyer to use the Fuel License # 59003
attached to Federal ID # 00-000-0000 (the "Fuel License"), until the Buyer has
received a new fuel license from the State of Florida, which is currently being
processed.
3.9 Real Property. The
Seller currently occupies the facilities located on the Real Property (the "Real
Property" or "Premises"). To the best of Seller's Knowledge, there is no written
lease agreement between the Seller and the record owner of the Real Property.
The Seller occupies the Premises based upon a verbal lease in which the Seller
is a month to month tenant (the "Lease").
3.10 Environmental
Matters. To the best of Seller's Knowledge, the Seller's use, maintenance
and operation of the Business has been, and is in compliance in all material
respects with all applicable United States federal, state, county or local
statutes, laws, regulations, rules, ordinances, codes, licenses and permits of
any governmental body relating to environmental matters and all other applicable
Environmental Laws. Seller has not received any written notice, report or other
information regarding any actual or alleged violation of any Environmental Laws
(whether accrued, absolute, contingent, unliquidated or otherwise), including
any investigatory, remedial or corrective obligations, relating to such Seller
or its facilities arising under Environmental Laws. For purposes of this
Agreement, "Environmental Laws"
shall mean all United States federal, state, local, statutes, regulations,
ordinances, all judicial and administrative orders and determinations, and all
common laws concerning public health and safety, and pollution or protection of
the environment, including without limitation all those relating to the
presence, use, production, generation, handling, transportation, treatment,
storage, disposal, distribution, labeling, testing, processing, discharge,
release, threatened release, control, or cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and in effect as
of the Closing Date.
4
3.11 Accounts Receivable.
To the best of Seller's Knowledge, all Accounts Receivable arose only in the
ordinary course of business, are not subject to any discounts, allowances or
set-offs, and are collectible in the ordinary course of business in the amounts
recorded in the books and records of the Seller.
3.12 Tax Returns and
Payments. The Seller has duly and timely filed all tax returns that are
or were required to be filed by or with respect to it, either separately or as a
member of a group of corporations or other entities pursuant to applicable legal
requirements and have paid all taxes due or claimed to be due by any
governmental body. To the best of the Seller's Knowledge, all tax returns of
Seller and Parent were correct and complete in all material respects and were
prepared in compliance with applicable laws and regulations. All taxes shown to
be due and payable on such tax returns, any assessments imposed, and all other
taxes due and payable by or on behalf of Seller on or before the Closing have
been paid or will be paid prior to Closing by Seller or Parent as applicable.
There are no Liens for taxes on the Assets or on the Business or the Seller that
would in any way affect the Assets or the Business. No claim has ever been made
by an authority in a jurisdiction where the Parent or Seller does not file tax
returns that it is or may be subject to taxation by that jurisdiction. The
Parent and Seller to the best of their Knowledge have withheld and paid all
taxes required to have been withheld and paid in connection with any amounts
paid or owing to any employee, independent contractor, creditor, equity owner or
other person. Neither Parent nor Seller has been advised, has no knowledge, nor
should it have any knowledge, (I) that any of the tax returns of the Parent or
Seller have been or are being audited as of the date hereof, or (ii) of any
deficiency in assessment or proposed judgment to the taxes of the Parent or
Seller. There is no liability for any tax to be imposed upon the properties or
assets of the Parent or Seller as of the date of this Agreement that is not
adequately reserved for.
3.13 Legal Proceedings.
There are no actions, suits or proceedings, legal (governmental or otherwise)
pending or, to the Knowledge of Seller, threatened against or relating to the
Parent, the Seller, the Business or the Assets. Neither Seller nor Parent has
any Knowledge of any facts that could reasonably be expected to result in any
such action, suit or proceeding. Neither Seller nor Parent is a party to any
suit, action or proceeding pending, or threatened, which will prohibit, impair
or affect the Parent or the Seller's ability to complete the transactions
contemplated hereby.
3.14 Intellectual
Property.
(i) Following
Closing, the Buyer shall have the right to use the names "Able Oil Florida" and
"Able Oil Melbourne" and all derivations of the names "Able Oil Melbourne" and
"Able Oil Florida" (the "Intellectual Property") solely within the State of
Florida, and Seller and Parent on behalf of themselves and all of their
affiliates or subsidiaries hereby waive any rights thereto, and Seller and
Parent must not, after Closing, make use of such names, directly or indirectly
in the State of Florida.
(ii) Seller
represents that its, affiliate, Able Oil Co. ("Able Oil Co."), owns the
registered trademarks, "Able Oil", Registration number 1971758 and the design
plus word xxxx "Able Oil Co." Registration number 1970453, (collectively
referred to as the "Trademarks").
(iii) The
Trademarks have been duly registered in, filed in or issued by the United States
Patent And Trademark Office, and remain in full force and effect as of the
Closing Date. The Trademarks are owned by Able Oil Co. and Able Oil Co. has the
power to license the Trademarks to Buyer as set forth below
(iv) By
execution of this Agreement, Able Oil Co. hereby grants to the Buyer a fully
paid, royalty free, transferable, exclusive, irrevocable, perpetual license (the
"License") to utilize the Trademarks "Able Oil" in connection with the Buyer's
business, solely within the State of Florida, provided
the use of the Trademark is used solely in conjunction with the words
"Melbourne" or "Florida" so that the Buyer's entire xxxx is "Able Oil Melbourne"
and/or "Able Oil Florida".
5
(v) Able Oil Co. has
taken all reasonable precautions to maintain and protect the
Trademarks.
Neither
Seller nor Parent has received any communications alleging that it has violated
or, by conducting the business as presently conducted, would violate the
Trademarks, or any patents, trademarks, service marks, trade names, copyrights
or trade secrets or other proprietary rights of any other person, nor does the
Seller have knowledge of any basis therefore.
The
parties agrees that in the event Buyer maintains a website for its business, the
website will have a disclaimer that the Buyer is not affiliated with the Seller
or Able Energy, inc.
3.15 Employee Benefits. To
the best of Seller's Knowledge, the Seller is not a party to any "employee
benefit plan" as defined by the Employee Retirement Income Security Act of 1974,
as amended ("ERISA").
(a) Seller
has not at any time maintained, contributed to or had an obligation to
contribute to any plan that is subject to Title IV of ERISA.
(b) Seller
has not at any time contributed to or had an obligation to contribute to any
Multiemployer Plan under Section 4201 of ERISA.
3.16 No Misstatements or
Omissions. Neither this Agreement or any representation or warranty by
Seller or Parent contained in this Agreement contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements or facts contained therein or herein not misleading.
3.17 Reliance. The
foregoing representations and warranties are made by the Parent and Seller with
the knowledge and expectation that Buyer is relying thereon, and such
representations and warranties shall continue to and survive the Closing as
provided herein in Section 3.20.
3.18 Seller Loans. Except
as set forth on Schedule
3.18, the
Seller is not a guarantor or indemnitor of any indebtedness of Parent or of any
affiliate or subsidiary of Parent or of any other person. Set forth on Schedule
3.18 is a
list of any and all loans in which Seller is either a borrower, lender or
guarantor, including any loans, debts, obligations or other amounts owed by
Seller to any third party, or any related parties, including without limitation,
or any of Seller's affiliates or subsidiaries ("Seller Loans"). Seller
represents and warrants that as of the Closing, the continued existence of the
Seller Loans and the indebtedness evidenced therein, will not result in any tax
liability to Buyer or Seller or affect the transfer of
title of the Assets to the Buyer. Notwithstanding the foregoing, the
existence of any loans as set forth on the attached Schedule will not prevent
the Seller from conveying the Assets as contemplated by this Agreement to Buyer
free and clear of any and all encumbrances or Liens.
3.19 Consents. After the
Closing, Seller and Parent will cooperate with Buyer, as is necessary to
transfer the Transferable Permits. Neither Seller nor any of its officers,
employees, or agents shall take any action that would (a) result in a Lien on
the Assets; (b) reasonably be expected to diminish the value of
the Assets after the Closing; or (c) that would reasonably be expected to
interfere with the business of Buyer to be engaged in after the Closing
utilizing the Assets.
3.20 Survival of Representations
and Warranties. All of the representations and warranties of the Parent
and Seller (and Able Oil Co. with regard to Section 3.14) contained in this
Agreement shall survive
the Closing hereunder and continue in full force and effect for a period of one
(1) year from the date of Closing except with respect to the representations
made in subparagraphs 3.12 and 3.14 which shall remain in full force and effect
until the expiration of any and all applicable statute of
limitations.
6
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF
BUYER
Buyer
represents and warrants to Seller that:
4.1 Organization and Good
Standing. Buyer is a Florida corporation duly organized, validly existing
and in good standing under the laws of the State of Florida.
4.2 Due Authorization; Binding
Obligation. Buyer has all requisite power and authority to enter into
this Agreement and to perform its obligations hereunder and thereunder. Buyer
has authorized the execution, delivery and performance of this Agreement by all
necessary corporate action, and this Agreement has been duly executed and
delivered by Buyer and is the valid and legally binding obligation of Buyer,
enforceable in accordance with its terms.
4.3 Real Property. To the
best of Buyer's Knowledge, there is no written lease agreement between the
Seller and the record owner of the Real Property.
4.4 Noncontravention;
Governmental Approvals. (a) Neither the execution, delivery or
performance of this Agreement, nor the consummation of the transactions
contemplated hereby or thereby will, with or without the giving of notice or the
lapse of time or both, (i) violate any provision of the certificate of
incorporation or bylaws of the Buyer or (ii) violate any law or order or other
restriction of any governmental entity to which the Buyer may be
subject.
(b) The
execution and delivery of this Agreement by the Buyer does not, and the
performance of this Agreement by the Buyer and the consummation of the
transactions contemplated hereby and thereby will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental body.
4.5 Certain Proceedings.
There is no pending proceeding that has been commenced against Buyer and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with transactions contemplated by this Agreement. To
Buyer's Knowledge, no such proceeding has been threatened.
4.6 Accuracy of
Representations. The representations and warranties of Buyer contained in
this Agreement, contain no untrue statement of a material fact and do not omit
or mistake a material fact necessary in order to make the statements contained
therein misleading in light of the circumstances in which they are
made.
4.7 Survival of
Representations. All of the representations and warranties of the Buyer
contained in this Agreement shall survive the Closing hereunder and continue in
full force and effect for a period of one (1) year from the date of
Closing.
ARTICLE
5: CONDITIONS OF CLOSING
5.1 Conditions Precedent to the
Obligations of Buyer. The Obligations of Buyer to close hereunder shall
be subject to the fulfillment and satisfaction, prior to or at Closing, of the
conditions set forth below or the written waiver thereof by Buyer.
7
(a) Seller
shall have duly executed and delivered to Buyer one or more bills of sale for
the Assets;
(b) The
Seller shall have delivered to Buyer (i) a certificate of its good standing as
of a recent date as issued by the Secretary of State of their respective states
of incorporation or organization (ii) a copy of its bylaws or operating
agreement certified as of the Closing Date by its Secretary or Assistant
Secretary, (iii) evidence that all Seller action necessary to be taken by it to
effectuate the transactions contemplated by this Agreement has been taken, and
(iv) certified copies of resolutions of the Board of Directors and shareholders
of the Seller in form and substance reasonably satisfactory to
Buyer;
(c) Seller
shall have filed and delivered termination statements for any and all Liens or
UCC financing statements, including, without limitation, the following UCC
financing statements filed with the State of Florida: UCC 4200603594938;
200603541311 and 200509699462.
(d) Buyer shall
have the exclusive right to represent themselves as the successors of the
Business previously conducted by the Seller. Seller shall at the Closing,
transfer to Buyer all of their right to, and title and interest in, the
corporate name and "Able Oil Melbourne" and any derivative thereof, within the
State of Florida. At Closing, Seller shall amend its Articles of Incorporation,
to change the Seller's name so as not to be confusingly similar to "Able Oil
Melbourne", and that does not contain the words or "Able Oil Melbourne". Seller
shall deliver the amendment to articles of incorporation to Buyer at Closing for
Buyer to file with the Florida Department of State. Seller and Parent and any
affiliates each agree to never use any of these words in the names of any entity
or in any tradenames in which they have an interest within the State of Florida.
Seller hereby waives any objection to Buyer's use of the corporate name "Able
Oil Florida" or "Able Oil Melbourne" and any derivative thereof, and hereby
agrees to execute any documents necessary to effectuate the name change
contemplated herein.
(e) Buyer
shall obtain such permits, licenses, filings and other governmental
authorizations, agreements or a transfer of same which in Buyer's sole
discretion permits Buyer to operate the Business.
5.2 Conditions Precedent to the
Obligations of Seller. The Obligations of Seller to close hereunder shall
be subject to the fulfillment and satisfaction, prior to or at Closing, of the
conditions set forth below or the written waiver thereof by Seller
(a) The
representations and warranties of Buyer in this Agreement shall be true and
correct in all material respects as of the Closing Date;
(b) Buyer
shall have delivered to Seller the Purchase Price as provided in Section 2.8
hereof;
(c) Buyer
shall have delivered to Seller (i) a copy of its Certificate of Formation,
certified as of a recent date by the Secretary of State of Florida, (ii) a copy
of its Bylaws certified as of the Closing Date by the Secretary or an Assistant
Secretary, and (iii) evidence that all Buyer action necessary to be taken to
effectuate the transactions contemplated by this Agreement has been
taken;
(d) Buyer
shall have taken such other action as may be necessary or appropriate to
consummate the transactions provided for, and in accordance with, the terms and
conditions of this Agreement.
8
ARTICLE
6: INDEMNIFICATION
6.1 Parent and Seller
Indemnity. Parent and Seller hereby jointly and severally agree to
indemnify and hold the Buyer and its affiliates, agents, successors and assigns
(collectively, the "Buyer's Indemnified Parties") harmless from and
against:
(a) any and
all actions, suits, proceedings, demands, assessments, judgments, losses,
liabilities, obligations, damages, costs, debts, claims, actions, tax
liabilities, penalties, costs and expenses, including without limitation,
attorneys fees and other professional fees and disbursement (collectively
hereinafter "Losses") based upon, attributable to or resulting from the failure
of any representation or warranty of Parent or Seller set forth herein, or any
representation or warranty contained in any certificate delivered by or on
behalf of the Parent or Seller pursuant to this Agreement, to be true and
correct in all respects as of the date made;
(b) any and
all Losses based upon, attributable to or resulting from the breach of any
covenant or other agreement on the part of the Parent or Seller under this
Agreement;
(c) any and
all Losses based in whole or in part upon, attributable to or resulting directly
or indirectly from Parent or Seller's past ownership, or from the acts of Seller
or any of its affiliates or any of its subsidiaries, excluding the day to day
operations, prior to Closing.
(d) any and
all expenses incident to the foregoing.
6.2 Buyer indemnity.
Buyer hereby agrees to indemnify and hold the Seller and his affiliates, agents,
successors and assigns (collectively, the "Seller's Indemnified Parties")
harmless from and against:
(a) any and
all Losses based upon, attributable to or resulting from the failure of any
representation or warranty of the Buyer set forth herein, or any representation
or warranty contained in any certificate delivered by or on behalf of the Buyer
pursuant to this Agreement, to be true and correct as of the date
made;
(b) any and
all Losses based upon, attributable to or resulting from the breach of any
covenant or other agreement on the part of the Buyer under this
Agreement;
(c) any and
all Losses based in whole or part upon, attributable to or resulting solely from
the negligent acts or willful misconduct of Buyer following
Closing;
(d) any and
all Losses based in whole or part upon, attributable to or resulting solely from
the Buyer's use of the Fuel License during the period commencing on the
Effective Date through the date the Buyer obtains a new fuel license.
(e) any and all
expenses incident to the foregoing.
6.3 Indemnification
Procedures.
(a) In the event
that any legal proceedings shall be Instituted or that any claim or demand
("Claim") shall be asserted by any person in respect of which payment may be
sought under Section
6.2 hereof, the indemnified party shall reasonably and promptly cause
written notice of the assertion of any Claim of which it has knowledge which is
covered by this indemnity to be forwarded to the indemnifying party. The
indemnifying party shall have the right, at its sole option and expense, to be
represented by counsel of its choice, which must be reasonably satisfactory to
the indemnified party, and to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any Losses
indemnified
9
against
hereunder. If the indemnifying party elects to defend against, negotiate, settle
or otherwise deal with any Claim which relates to any Losses indemnified against
hereunder, it shall within five (5) days (or sooner, if the nature of the Claim
so requires) notify the indemnified party of its intent to do so. If the
indemnifying party elects not to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder,
fails to notify the indemnified party of its election as herein provided, or
contests its obligation to indemnify the indemnified party for such Losses under
this Agreement, the indemnified party may defend against, negotiate, settle or
otherwise deal with such Claim. If the indemnified party defends any Claim, then
the indemnifying party shall reimburse the indemnified party for the expenses of
defending such Claim upon submission of periodic bills. If the indemnifying
party shall assume the defense of any Claim, the indemnified party may
participate, at his or its own expense, in the defense of such Claim; provided,
however, that such indemnified party shall be entitled to participate in any
such defense with separate counsel at the expense of the indemnifying party if,
(a) so requested by the indemnifying party to participate or (b) in the
reasonable opinion of counsel to the indemnified party, a conflict or potential
conflict exists between the indemnified party and the indemnifying party that
would make such separate representation advisable; and provided, further, that
the indemnifying party shall not be required to pay for more than one such
counsel for all indemnified parties in connection with any Claim. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such Claim.
(b) After any
final judgment or award shall have been rendered by a court, arbitration board
or administrative agency of competent jurisdiction and the expiration of the
time in which to appeal therefrom, or a settlement shall have been consummated,
or the indemnified party and the indemnifying party shall have arrived at a
mutually binding agreement with respect to a Claim hereunder, the indemnified
party shall forward to the indemnifying party notice of any sums due and owing
by the indemnifying party pursuant to this Agreement with respect to such matter
and the indemnifying party shall be required to pay all of the sums so due and
owing to the indemnified party by wire transfer of immediately available funds
within 10 business days after the date of such notice.
(c) The
failure of the indemnified party to give reasonably prompt notice of any Claim
shall not release, waive or otherwise affect the indemnifying party's
obligations with respect thereto except to the extent that the indemnifying
party can demonstrate actual loss and prejudice as a result of such
failure.
ARTICLE
7: NON-COMPETITION
7.1 Non-Competition. In
consideration of Buyer's agreement to enter into this Agreement, and as a
condition thereto, the Seller covenants and agrees as follows:
For
a period of five (5) years from and after the Closing Date, neither Parent, nor
Seller nor any of its affiliates, subsidiaries, successors or assigns shall
directly, or indirectly, (i) participate in any business that is engaged in the
sale of diesel fuel, and (ii) for a period of one (1) year, participate in any
business that is engaged in the sale of any energy products other than diesel
fuel anywhere in the State of Florida. For purposes of this provision, the term
"participate in" shall include, but not be limited to, having any direct or
indirect interest in any entity, whether as owner, stockholder, partner, joint
venturer, member, creditor or otherwise, other than ownership of not more than
5% of the outstanding stock or securities of any class that is publicly traded,
or acting as a director, officer, manager, employee, agent, consultant or
independent contractor of any entity. If the final judgment of a court of
competent jurisdiction declares that any term or provision of this Section is
invalid or unenforceable, the parties hereto agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration or area of the term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be appealed.
Notwithstanding the above, the Seller's use, ownership and maintenance of the
domain name xxx.xxxxxxxxxx.xxx will not violate this Section 7.1, provided the
domain name is not
used to conduct business in the State of Florida.
10
7.2 Non-Solicitation.
During the five (5) year period from and after the Closing Date, neither the
Parent, Seller nor any of their affiliates, successors or assigns shall induce
or attempt to induce any employee of the Buyer to leave the employ of the
Buyer.
7.3 Breach. The Seller
acknowledges that any breach or threatened breach of any of the provisions of
this Section will cause irreparable injury to the Buyer, for which an adequate
monetary remedy does not exist. Accordingly, in the event of any such breach or
threatened breach, the Buyer shall be entitled, in addition to the exercise of
other remedies, to seek and (subject to court approval) obtain injunctive
relief, without necessity of posting a bond, restraining the Seller and its
affiliates or subsidiaries from committing such breach or threatened
breach.
ARTICLE
8: CONFIDENTIAL INFORMATION
8.1 Confidential
Information. Following the execution of this Agreement and for a period
of thirty (30)
months after the Closing Date:
(a) Seller
will maintain in confidence and will not disclose any confidential or
proprietary information or trade secrets of Buyer including, without limiting
the foregoing, the identify of any of the Buyer's customers or suppliers, and
the prices at which Buyer has sold or purchased products or services, any Buyer
financial or business information or tax information and any and all other
business information about the Buyer or its business operations, nor will Seller
use confidential or proprietary information or trade secrets for its own
purposes to the detriment of Buyer.
(b) Buyer
will maintain in confidence and will not disclose any confidential or
proprietary information or trade secrets of Seller including, without limiting
the foregoing, the identify of any of Seller's customers or suppliers, and the
prices at which Seller has sold or purchased products or services, any of
Seller's financial or business information or tax information and any and all
other business information about the Seller or its business operations, nor will
Buyer use confidential or proprietary information or trade secrets for its own
purposes to the detriment of Seller.
(c) The
parties acknowledge that money damages would be an inadequate remedy for a breach of
this Section
8.1 and that, in addition to money damages, an aggrieved party should be
entitled to injunctive relief.
ARTICLE
9: GENERAL PROVISIONS
9.1 Notices. All notices,
requests, demands or other communications hereunder shall be in writing and
shall be deemed to have been given upon delivery personally or upon mailing by
registered
mail, postage prepaid or by delivery by reputable overnight courier service, to
each party at the address set forth hereinabove, or at such other address as
each party may designate in writing to the other.
9.2 Entire Agreement;
Amendment. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or terminated orally. No
change, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the same is
sought to be enforced.
11
9.3 Successors and
Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. Except as aforesaid, a
party hereto may not assign this Agreement or any of its or his rights or
obligations hereunder without the written consent of the other party, provided
that Buyer may assign his rights and obligations hereunder to an entity owned by
him.
9.4 Severability. In the
event that any one or more of the provisions of this Agreement shall be declared
to be illegal or unenforceable under any law, rule or regulation of any
government having jurisdiction over the parties hereto, such illegality or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement, to the extent legally permissible an arrangement
which reflects the original intent of the parties shall be substituted for such
invalid or unenforceable provision.
9.5 Governing Law. All
matters concerning the validity and interpretation of and performance under this
Agreement shall be governed by the laws of the State of Florida.
9.6 Execution of
Documents. At any time and from time to time hereafter, the parties
hereto will execute and deliver such further instruments, documents and
certificates and other written assurances as shall reasonably be required in
order to consummate the transactions contemplated hereunder.
9.7 Counterparts. This
Agreement may be executed in counterparts all of which shall be deemed to be
duplicate originals.
9.8 Enforcement Costs. If
any civil action, arbitration or other legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post judgment proceedings), incurred in that civil action, arbitration or
legal proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other charges billed by the attorney to the prevailing party.
9.9 Further Acts and
Assurances. Each party hereby covenants and agrees with the other parties
that it will take such reasonably necessary actions and will use their reasonable
efforts to take all other actions and to obtain all consents, approvals, and
amendments of agreements required of them to carry out the transactions
described herein, including but not limited to the effective transfer of all
Permits and the Transferable Permits from the Seller to the Buyer.
9.10 Brokers. Neither the
Seller, Parent or Buyer have engaged any broker in regard to the transactions
contemplated by this Agreement. No person is or will become entitled to receive
any brokerage or finder's fee, advisory fee or other similar payment for the
transactions contemplated by this Agreement.
[SIGNATURES ON THE
FOLLOWING PAGE]
12
IN
WITNESS WHEREOF, the parties hereunto have executed this Agreement as of the
date fi above written.
| SELLER: | PARENT: |
| ABLE OIL MELBOURNE, INC | ABLE ENERGY, INC., |
| a Florida corporation | a Delaware corporation |
| By: /s/ Xxxxxxxxxxx Xxxxxx | By: /s/ Xxxxxxx Xxxxx |
| Xxxxxxxxxxx Xxxxxx, President | Name: Xxxxxxx Xxxxx |
| Title: CEO | |
| ABLE OIL CO., | |
| A New Jersey corporation | |
| BUYER: | |
| By: /s/ Xxxxxxxxxxx Xxxxxx | |
| ABLE OIL OF BREVARD, INC., | |
| Name: Xxxxxxxxxxx Xxxxxx | a Florida Corporation |
| Title: President | |
| Binding only as to | By: Xxxx X. Xxxxxxxxxx |
| Section 3.14 Intellectual Property | |
| Its: /s/ Xxxx X. Xxxxxxxxxx |
13
