STOCK PURCHASE AGREEMENT
Exhibit
10.l
THIS IS A STOCK PURCHASE AGREEMENT
(this “Agreement”) dated as
of March 17, 2009
(the “Effective
Date”), by and
between Global Energy Holdings Group, Inc., a Delaware corporation (“Global”), and 2020
Energy, LLC, an Arizona limited liability company (“Purchaser”). Global
and Purchaser are each a “Party,” and
collectively the “Parties.”
WITNESSETH:
WHEREAS, Global is the record and
beneficial owner of five million three hundred one thousand three hundred
(5,301,300) shares of common stock, par value $0.001 per share (the “Common Stock”), of
New Generation Biofuels Holdings, Inc., a Florida corporation (“NGBF”);
WHEREAS,
Purchaser wishes to purchase the shares and Global desires to sell the shares to
Purchaser in accordance with the terms and conditions set forth
herein;
WHEREAS,
Global and NGBF are parties to that certain amended and restated sublicense
agreement, dated as June 15, 2006, between H2Diesel, Inc. (predecessor in
interest to NGBF) and Global (the “Sublicense
Agreement”), pursuant to which NGBF sublicenses to Global certain
technology and rights related to the manufacture of a vegetable oil based
biodiesel as set forth in the Sublicense Agreement; and
WHEREAS,
as an inducement to Purchaser to enter into this Agreement, Global
desires to assign to, and Purchaser desires to accept the assignment of,
Global’s rights and obligations under the Sublicense Agreement upon receipt of
NGBF’s written consent to such assignment and in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the
mutual covenants, agreements representations and warranties contained herein,
the Parties hereby agree as follows:
ARTICLE
I
PURCHASE OF
SHARES
Section
1.1 Purchase and Sale; Purchase
Price. Effective the date of this
Agreement, Global hereby sells, assigns and transfers to Purchaser, and
Purchaser hereby purchases from Global, for eleven cents ($0.11) per share, all
of the shares of Common Stock owned by Global (being 5,301,300 shares of Common
Stock) (the “Purchased
Shares”), for an aggregate purchase price of Five Hundred Eighty-Three
Thousand One Hundred Forty-Three and 0/100 Dollars ($583,143.00) (the “Purchase
Price”).
Section
1.2 Delivery of the Purchased
Shares. As soon as reasonably practicable following the
Effective Date, Global shall deliver (or shall cause to be delivered) the stock
certificates representing all of the Purchased Shares (the “Certificates”),
together with separate stock transfer powers duly completed, executed and
endorsed by Global for the transfer of the Purchased Shares to Purchaser (the
“Stock Transfer
Powers”), to the Escrow Agent (defined below in Section 1.3(a)), in
accordance with the Escrow Letter Agreement (defined below in Section
1.3(a)).
Section
1.3 Payment of Purchase Price;
Escrow.
(a) Purchaser
has deposited the full amount of the Purchase Price in escrow with Xxxxxx Xxxx
LLP, Purchaser’s counsel, located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, serving as an escrow agent (the “Escrow
Agent”). Upon delivery to the Escrow Agent of the
Certificates, together with the Stock Transfer Powers, the Escrow Agent shall
release the Purchase Price to Global in accordance with the Escrow Letter
Agreement among Global, Purchaser and the Escrow Agent, dated as of March 17,
2009 (the “Escrow
Letter Agreement”), by initiating a wire transfer in the full amount of
the Purchase Price in immediately available U.S. funds to Global pursuant to the
wire transfer instructions provided by Global in the Escrow Letter
Agreement.
(b) If
the Escrow Agent fails to release and pay to Global the full Purchase Price in
accordance with, and subject to the conditions of, Section 1.3(a),
Purchaser shall remain liable for (and indemnify Global for) the Purchase Price,
or any portion thereof that is not so released and paid.
(c) Purchaser
acknowledges that the Certificates to be delivered to the Escrow Agent will be
in the name of Global when delivered and accompanied with the Stock Transfer
Powers duly evidencing the transfer of the Purchased Shares to
Purchaser. Upon delivery in accordance with Section 1.3(a), the
Purchase Price will be released and paid to Global, regardless of any opinions
of counsel, consents of the issuer or transfer agent or other requirements NGBF
and/or its transfer agent may request or require to transfer the Purchased
Shares into the name of Purchaser upon the books and records of
NGBF.
ARTICLE
II
ASSIGNMENT OF SUBLICENSE
AGREEMENT
Section
2.1 Assignment of Sublicense
Agreement. Subject to satisfaction of the condition set forth
in Section 2.2,
Global shall assign the Sublicense Agreement and all of its rights thereunder
and shall delegate its obligations thereunder to Purchaser, and Purchaser shall
accept such assignment of the Sublicense Agreement and Global’s rights
thereunder and shall assume Global’s obligations under the Sublicense Agreement,
as promptly as practicable after satisfaction of the condition set forth in
Section 2.2
(the “Sublicense
Assignment”).
Section
2.2 Written Consent of
NGBF.
Purchaser acknowledges that Section 16 of the Sublicense Agreement
prohibits the Sublicense Assignment as contemplated by Section 2.1
hereof. Therefore, Purchaser and Global shall use commercially
reasonable efforts to obtain a written consent from NGBF to the Sublicense
Assignment, provided, that
failure to obtain such written consent shall not constitute a breach of this
Agreement by either party. NGBF’s written consent to the Sublicense
Assignment is a condition precedent to Global’s obligation to assign the
Sublicense Agreement to Purchaser pursuant to Section 2.1 and to
Purchaser’s obligation to accept the assignment and assume Global’s obligations
under the Sublicense Agreement pursuant to Section
2.1.
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Section
2.3 Assignment and Assumption
Instrument. In order to effect the
Sublicense Assignment, upon obtaining the written consent of NGBF to the
Sublicense Assignment, as contemplated in Section 2.2, Global
and Purchaser shall execute and deliver to each other an assignment and
assumption agreement in the form attached to this Agreement as Exhibit
A.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
Section
3.1 Representations and
Warranties of Global. Global hereby
represents and warrants to Purchaser as follows:
(a) Global
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement
by Global has been duly and validly authorized by all necessary corporate and
stockholder action, and no other corporate proceedings on its or its
stockholders part are necessary to authorize this Agreement. This
Agreement has been duly and validly executed and delivered by Global, and,
assuming the due authorization, execution and delivery of this Agreement by
Purchaser, constitutes the legal, valid and binding obligation, enforceable
against Global in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(b) Global’s
execution, delivery and performance of this Agreement will not constitute a
violation of any provision of any law, rule or regulation applicable to Global
or conflict with, violate, result in a breach of, or constitute a default under,
Global’s certificate of incorporation or bylaws, or any agreement, instrument,
judgment, order or decree to which it is a party or by which it or its assets
are bound.
(c) Except
for filings required under federal or state securities laws and the written
consent of NGBF required for the Sublicense Assignment, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority or third party is required to be made or obtained by
Global in connection with the execution and delivery of this Agreement by
Global, or the performance by Global of its obligations hereunder.
(d) Global
is the holder of record and beneficial owner of the Purchased Shares, free and
clear of any liens, encumbrances or restrictions, other than restrictions on
transfer imposed by federal and applicable state securities
laws. There are no outstanding options, warrants or other rights or
agreements of any kind (other than this Agreement) for the purchase or
acquisition from, or the sale by, Global of any of the Purchased
Shares. Global is not a party to any voting trust, proxy or other
agreement or understanding with respect to the voting of the Purchased
Shares. Upon consummation of the transactions contemplated in this
Agreement, Purchaser will acquire valid title to the Purchased Shares free and
clear of any liens, restrictions or encumbrances, other than restrictions on
transfer imposed by federal and applicable state securities laws.
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(e) There
are no claims for investment banking fees, brokerage commissions, finder's fees
or similar compensation (other than professional fees to attorneys and
accountants) in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of
Global.
Section
3.2 Representations and
Warranties of Purchaser. Purchaser
hereby represents and warrants to Global as follows:
(a) Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of Arizona with its principal place of business in
Arizona, and has the requisite power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement by Purchaser has been duly and
validly authorized by all necessary limited liability company action, and no
other proceedings on the part of Purchaser or its managers or members are
necessary to authorize this Agreement. This Agreement has been duly
and validly executed and delivered by Purchaser, and, assuming the due
authorization, execution and delivery of this Agreement by Global, constitutes
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and subject to the effect of general principles of
equity (regardless of whether considered in a proceeding at law or in
equity).
(b) The
execution, delivery and performance of this Agreement by Purchaser will not
constitute a violation of any provision of any law, rule or regulation
applicable to Purchaser or conflict with, violate, result in a breach of, or
constitute a default under, the operating agreement (or other governing
documents) of Purchaser, or any agreement, instrument, judgment, order or decree
to which Purchaser is a party or by which it is bound.
(c) Except
for filings required under federal or state securities laws and the written
consent of NGBF required for the Sublicense Assignment, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority or third party is required to be made or obtained by
Purchaser in connection with the execution and delivery of this Agreement, or
the performance by Purchaser of its obligations hereunder.
(d) Purchaser
is an “accredited investor” as such term is defined in Rule 501 of Regulation D
under the Securities Act of 1933, as amended (the “Securities
Act”). Purchaser is acquiring the Purchased Shares for
investment purposes only, for its own account and not with a view to, or for
resale in connection with, the distribution or other disposition of the
Purchased Shares in contravention of the Securities Act or applicable state
securities laws (the “State
Acts”).
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(e) Purchaser
has such knowledge and experience in financial and business matters that
Purchaser is capable of evaluating the merits and risks of the investment
contemplated by this Agreement and making an informed investment decision with
respect thereto.
(f) Purchaser
understands that the Purchased Shares have not been registered under the
Securities Act or any State Acts, and may not be transferred unless subsequently
registered thereunder or pursuant to an exemption from registration, and that a
legend indicating such restrictions will be placed on the certificates
representing such shares.
(g) Except
as expressly set forth in Section 3.1(d),
Global makes no representation or warranty of any kind with respect to NGBF or
the Purchased Shares, and Purchaser hereby acknowledges that in making its
investment decision with respect to the purchase of the Purchased Shares, it has
not relied on any representation or warranty by Global with respect to NGBF or
the Purchased Shares, except for the representation and warranty made in Section
3.1(d).
(h) There
are no claims for investment banking fees, brokerage commissions, finder's fees
or similar compensation (other than professional fees to attorneys and
accountants) in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of
Purchaser.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 No Waivers,
Amendments.
(a) No
failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(b) No
amendment, modification or supplement to this Agreement shall be enforced
against any Party unless such amendment, modification or supplement is signed by
all of the Parties.
(c) Any
provision of this Agreement may be waived if, but only if, such waiver is in
writing and is signed by the Party against whom the enforcement of such waiver
is sought.
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Section
4.2 Notices. Any notice provided for in this Agreement shall
be made in writing and will be deemed properly delivered if either personally
delivered or sent by facsimile transmission (upon receipt of a machine-generated
confirmation of delivery), overnight courier or mailed certified or registered
mail, return receipt requested, postage prepaid, to the recipient as
follows:
(a) If
to Global, to the attention of its President and Chief Executive Officer, at
0000 Xxxxxxxxx Xxxx XX, Xxxxx 000, Tower Place 200, Atlanta, Georgia 30326, or
to such other attention and address as Global may have specified by notice to
Purchaser from time to time;
(b) If
to Purchaser, to the attention of Purchaser at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000, or to such other attention and address as Purchaser
may have specified by notice to Global from time to time.
Any such
notice shall be effective (x) if delivered personally or by facsimile
transmission, when received, (y) if sent by overnight courier, on the date
contained in a written confirmation of delivery provided by such courier, or (z)
if mailed postage-prepaid and with return receipt requested, five (5) days after
being mailed as described above.
Section
4.3 Governing Law; Submission to
Jurisdiction.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts executed and to be performed entirely
within that state.
(B) GLOBAL
AND PURCHASER HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK COUNTY OR NASSAU COUNTY OR FEDERAL COURT OF THE UNITED
STATES OF AMERICA SITTING IN THE EASTERN OR SOUTHERN DISTRICTS OF NEW YORK IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO THIS
AGREEMENT, AND CONSENT TO SERVICE OF PROCESS WITH RESPECT TO SUCH COURTS IN AND
OF THE STATE OF NEW YORK BEING MADE BY REGISTERED OR CERTIFIED MAIL TO IT IN
ACCORDANCE WITH SECTION
4.2.
Section
4.4 Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section
4.5 Construction. The language used in this Agreement will be
deemed to be the language chosen by the Parties to express their mutual intent,
and no rule of strict construction will be applied against any
Party.
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Section
4.6 Entire Agreement; No Other
Representations. This Agreement,
including the exhibits hereto, constitutes the entire agreement and
understanding between the Parties relating to the subject matter hereof and
supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof. None of the Parties has made
any representations or warranties concerning the subject matter of this
Agreement except those set forth in Article III
hereof.
Section
4.7 Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdictions, it being intended that
all rights and obligations of the Parties hereunder shall be enforceable to the
fullest extent permitted by law.
Section
4.8 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original and which together shall constitute
one and the same agreement.
Section
4.9 Parties in
Interest. Neither this Agreement nor
any of the rights of the Parties hereunder shall be assigned by any of the
Parties without the prior written consent of the other Party. This
Agreement and all the provisions hereof shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted
assigns.
Section
4.10 Further
Assurances. The Parties agree to
execute, acknowledge, deliver, file and record such further certificates,
amendments, instruments, agreements and documents, and to do all such other acts
and things, as may be required by law or as may be necessary or advisable to
carry out the intent and purposes of this Agreement.
Section
4.11 Survival. The representations, warranties, covenants and
agreements of the Parties contained in this Agreement shall survive the purchase
and sale of the Purchased Shares pursuant to this Agreement. The
representations and warranties of the Parties contained in this Agreement shall
expire three (3) years from the date of this Agreement, except that if, prior to
such expiration, a Party has made a claim or claims in writing to another Party
of a breach of one or more representations and warranties by such Party, such
representations and warranties shall survive for purposes of resolution of such
claim or claims.
[Signatures
on following pages]
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IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed as of the date first written
above.
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By:
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/s/ Rom
Xxxxxxxxxxxx
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Name:
Rom Xxxxxxxxxxxx
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Title: Executive
Vice President
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IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the
date first written above.
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2020
ENERGY, LLC
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By:
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/s/ Xxxxxxx
Xxxxxx
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Name:
Xxxxxxx Xxxxxx,
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Its
sole member
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EXHIBIT
A
FORM OF ASSIGNMENT AND
ASSUMPTION INSTRUMENT
ASSIGNMENT
OF SUBLICENSE AGREEMENT
BY
TO
2020 ENERGY, LLC
This
Assignment and Assumption Agreement (this "Instrument") is made
and entered into as of _______ __, 2009, by and between Global Energy Holdings
Group, Inc., a Delaware corporation (“Assignor”), and 2020
Energy, LLC, an Arizona limited liability company (“Assignee”).
WHEREAS, Assignor and Assignee have
entered into that certain stock purchase agreement, dated as of March 17, 2009
(the “Agreement”), by which
Assignor has sold to Assignee, and Assignee has purchased from Assignor, all of
the outstanding capital stock of New Generation Biofuels Holdings, Inc., a
Florida corporation (“NGBF”), that are
owned by Assignor, pursuant to the terms and conditions set forth in the
Agreement;
WHEREAS,
Assignor and NGBF are parties to that certain amended and restated sublicense
agreement, dated as June 15, 2006, between H2Diesel, Inc. (predecessor in
interest to NGBF) and Assignor (the “Sublicense
Agreement”), pursuant to which NGBF sublicenses to Assignor certain
technology and rights related to the manufacture of a vegetable oil based
biodiesel as set forth in the Sublicense Agreement;
WHEREAS, under the Agreement,
Assignor has agreed to assign and delegate the Sublicense Agreement and all of
its rights and obligations thereunder to Assignee, and Assignee has agreed to
accept such assignment and assume Assignor’s obligations under the Sublicense
Agreement (the “Assignment”), subject
to receipt from NGBF of a written consent to the Assignment; and
WHEREAS,
NGBF has executed and delivered a written consent, dated _______ __, 2009, to
the Assignment.
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Assignment
and Assumption. Effective as of the date
hereof, Assignor hereby assigns, transfers, conveys, and delivers, absolutely,
unconditionally and irrevocably, to Assignee all of Assignor’s right, title, and
interest in and to the Sublicense Agreement and hereby delegates all of
Assignor’s duties and obligations thereunder. Assignee hereby accepts
the assignment of the Sublicense Agreement and assumes and agrees to observe and
perform all of the duties and obligations, and to pay and discharge when due all
of the liabilities of Assignor to be observed, performed, paid or discharged
under the Sublicense Agreement.
2. Further
Actions. Each of the parties hereto covenants and agrees to
execute and deliver, at the reasonable request of the other party hereto, such
further instruments and to take such other actions, as such other party may
reasonably request, to more effectively consummate the assignment contemplated
by this Instrument.
3. Section
Headings. The section headings contained in this Instrument
are for reference purposes only and shall not affect the meaning or
interpretation of this Instrument.
4. Notice. All
notices, requests and other communications to be given by any party hereunder
shall be in writing and delivered in accordance with Section 4.2 of the
Agreement.
5. Governing
Law; Submission to Jurisdiction.
(a) This
Instrument shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts executed and to be performed entirely
within that state.
(b) ASSIGNOR
AND ASSIGNEE HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK COUNTY OR NASSAU COUNTY OR FEDERAL COURT OF THE UNITED
STATES OF AMERICA SITTING IN THE EASTERN OR SOUTHERN DISTRICTS OF NEW YORK IN
CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO THIS
INSTRUMENT, AND CONSENT TO SERVICE OF PROCESS WITH RESPECT TO SUCH COURTS IN AND
OF THE STATE OF NEW YORK BEING MADE BY REGISTERED OR CERTIFIED MAIL TO IT IN
ACCORDANCE WITH SECTION
4.
6. Binding
Effect. This Instrument shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
7. Counterparts. This
Instrument may be executed in any number of counterparts, each of which shall be
an original, and all of such counterparts together shall constitute one and the
same instrument.
[Signatures
on following pages]
IN WITNESS WHEREOF, the
undersigned has executed this Instrument as of the date first written
above.
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ASSIGNOR:
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By:
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Rom
Xxxxxxxxxxxx
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Executive
Vice President
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IN WITNESS WHEREOF, the
undersigned has executed this Instrument as of the date first written
above.
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ASSIGNEE:
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2020
ENERGY, LLC
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By:
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Xxxxxxx
Xxxxxx,
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Its
sole member
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* * * * *
