PURCHASE AGREEMENT
Exhibit 10.36
This Purchase Agreement (“Agreement”) is dated as of the 8th day of November, 2005
between Global Energy Group, Inc., a Delaware corporation (“Company”) and Bear Hug, L.L.C., a Texas
limited liability company and CND, L.L.C., an Oklahoma limited liability company (the “Sellers”).
WHEREAS, the Sellers desire to sell to the Company, and the Company desires to purchase from the
Sellers, that certain exclusive license right to distribute lighting products in conjunction with
the Company’s HVAC products (the “License”) on the terms and subject to the conditions set forth
below.
NOW, THEREFORE, the parties hereby agree as follows:
1. Subscription. Upon the terms and subject to the conditions set forth in this Agreement,
and based on the representations, warranties, covenants and agreements of the Company contained in
this Agreement, the Company hereby irrevocably subscribes for and agrees to purchase the License
from the Sellers.
2. Sale and Purchase. Upon the terms and subject to the conditions set forth in this, and
based on the representations, warranties, covenants and agreements of the Company contained in this
Agreement, but only upon execution of this Agreement by the Sellers, the Sellers agree to sell to
the Company the License in exchange for a note to each Seller in an amount of $500,000 and in
substantially the form attached as Exhibit A (the “Notes”).
3. Closing.
(a) The closing (“Closing”) hereunder with respect to the issuance of the Notes shall
take place at the offices of the Sellers on the same day as the execution of this Agreement
by the Company and the Sellers, or at such other time and place as may be mutually agreed.
(b) Delivery of the License will be made to the Company against receipt by the Sellers
at the Closing of the Notes.
4. Representations and Warranties of the Sellers. The Sellers hereby represents and
warrants to the Company as follows:
4.1 Organization. The Sellers are limited liability companies duly organized, validly
existing and in good standing under the laws of their formation and have all requisite corporate
power and authority to own and lease their properties, to carry on their business as presently
conducted as proposed to be conducted and will agree to the transactions contemplated hereby.
4.2 Authority. The Sellers have all requisite power and authority to enter into this
Agreement and perform Sellers’ obligations hereunder. The execution, delivery and performance by
the Sellers of this Agreement have been duly authorized by all requisite corporate action. This
Agreement has been duly executed and delivered by the Sellers
and is a legal, valid and binding obligation of the Sellers, enforceable against the Sellers in
accordance with its terms (except as enforceability may be limited by laws of bankruptcy or
insolvency and general equitable principles).
4.3 No Conflicts. The execution, delivery and performance by the Sellers of this
Agreement will not violate any law, statute, rule, regulation, order, judgment or decree of any
court, arbitrator, administrative agency or other governmental body applicable to the Sellers, or
conflict with or result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation of any encumbrance upon any of the properties
or assets of the Sellers pursuant to, the Articles of Incorporation or Bylaws of the Sellers or any
note, indenture, mortgage, lease agreement or other agreement, contract or instrument to which the
Sellers is a party or by which it or any of its property bound or affected.
4.4 Approvals. Except for the filing of any notice subsequent to the Closing as may
be required under applicable securities laws, no permit, authorization, notice, consent or approval
is required in connection with the execution, delivery or performance of this Agreement by the
Sellers.
5. Representations and Warranties of the Company. The Company represents and warrants to
the Sellers as follows:
5.1 Authority. The Company has all requisite power and authority to enter into this
Agreement and perform the Company’s obligations hereunder. The execution, delivery and performance
of this Agreement by the Company have been duly authorized by all necessary action, corporate,
partnership, or otherwise, on the part of the Company. This Agreement has been duly executed and
delivered by the Company and is a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms (except as enforceability may be limited by laws
of bankruptcy or insolvency and general equitable principles).
5.2 No Conflicts. The execution, delivery and performance of this Agreement by the
Company will not conflict with or result in the breach of any term or provision of, or violate or
constitute a default under or impose a lien or security interest pursuant to, any charter
provision, bylaw, partnership agreement or similar organizational document of the Company, or under
any agreement, instrument, order, judgment, decree, law or regulation to which the Company is a
party or by which the Company is in any way bound or obligated.
5.3 Approvals. No permit, authorization, notice, consent or approval is required in
connection with the execution, delivery or performance by the Company of this Agreement.
6. Parties in Interest. This Agreement shall bind and inure to the benefit of the Sellers
and the Company and their respective successors and assigns. The Company may not assign any right
or obligation hereunder without the prior written approval of the Sellers.
7. Entire Agreement. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements and understandings of the
parties with respect thereto.
8. Notices. All notices, demands and requests of any kind to be delivered to any party in
connection with this Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered or if sent by nationally-recognized overnight courier or by registered or
certified mail, return receipt requested and postage prepaid, to the addresses set forth on the
signature page hereto, or to such other address as the party to whom notice is to be given may have
furnished to the other in writing in accordance with the provisions of this Section 7. Any
such notice or communication shall be deemed to have been received: (i) in the case of personal
delivery on the date of such delivery; (ii) in the case of nationally-recognized overnight courier,
on the next business day after the date sent; and (iii) if by registered or certified mail, on the
third business day following the date postmarked.
9. Amendments. This Agreement may not be modified or amended, or any of the provisions
hereof waived, except by written agreement by the party against whom enforcement of the
modification or amendment is sought.
10. Counterparts. This Agreement may be executed in any number of counterparts, and all
such counterparts shall constitute one agreement.
11. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Oklahoma (without giving effect to principles of conflicts of laws).
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date
first written above.
| Global Energy Group, Inc. | ||||
By: |
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Name:
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Xxxx X. Xxxxxx | |||
Title:
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Chief Financial Officer | |||
| Bear Hug, L.L.C. | CND, L.L.C. | |||||||
By:
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By: | |||||||
Name:
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Xxxxx X. Xxxx | Name: | Xxxxx Xxxxxxxx | |||||
Title:
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Managing Member | Title: | CEO & President | |||||
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY OTHER JURISDICTION. THIS NOTE MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND OTHER APPLICABLE SECURITIES LAWS, OR A DETERMINATION SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER APPLICABLE LAW.
PROMISSORY NOTE
| $500,000 | November 8, 2005 |
FOR VALUE RECEIVED, GLOBAL ENERGY GROUP, INC., a Delaware corporation (“Maker”), promises to
pay to the order of, (“Holder”), an Texas limited liability company, or assigns,
the sum of FIVE HUNDRED THOUSAND and NO/100 DOLLARS ($500,000.00) together with interest on the
outstanding principal balance remaining unpaid from time to time until paid at eight percent (8%)
per annum.
1. PAYMENTS. The then unpaid principal amount of this Note, together with all accrued and unpaid
interest, shall be due and payable in full on September 30, 2015 (the “Maturity Date”).
2. APPLICATION OF PAYMENTS. All payments shall apply first to accrued interest and the remainder,
if any, to reduction of principal as permitted herein.
3. REQUIRED PAYMENTS. Prior to the Maturity Date, Maker shall be required to make annual payments
to Holder on December 31st of each year (the “Annual Payment Dates”) of the amount of
gross profit multiplied by twenty-five percent (25%). For the purposes of this Note, gross profit
is defined as the difference between the sales prices (less any returns and discounts) of the
Maker’s lighting products less the cost of goods sold of such products. Such required payments in
no way relate to any sales by the Maker other than those of its lighting products.
4. NO CONVERSION RIGHT. This Note is not convertible and does not confer upon Holder, as such, any
right whatsoever as a shareholder of Maker.
5. EVENTS OF DEFAULT. The occurrence of any events or conditions described in this Section shall
constitute an Event of Default hereunder:
a. Maker shall fail to make any payments of principal of or interest on any amount due
hereunder when due.
b. Maker shall default in connection with any agreement for borrowed money or other credit
with any creditor other than Holder which entitles said creditor to accelerate the maturity thereof
and such default is not cured within the grace period provided thereunder or within 10 business
days after such default, whichever is later; provided, however, that for such purposes, the default
shall be deemed to occur on the date the default event occurs without taking into account any grace
period provided in such other agreement or credit arrangement.
c. Maker shall file a voluntary petition in bankruptcy or a voluntary petition or answer
seeking liquidation, reorganization, arrangement, readjustment of its debts, or for any other
relief under the Bankruptcy Code, or under any other act or law pertaining to insolvency or debtor
relief, whether state, Federal, or foreign, now or hereafter existing; Maker shall enter into any
agreement indicating its consent to, approval of, or acquiescence in, any such petition or
proceeding; Maker shall apply for or permit the appointment by consent or acquiescence of a
receiver, custodian or trustee of Maker for all or a substantial part of its property; Maker shall
make an assignment for the benefit of creditors; or Maker shall be unable or shall fail to pay its
debts generally as such debts become due, or Maker shall admit, in writing, its inability or
failure to pay its debts generally as such debts become due.
d. There shall have been filed against Maker an involuntary petition in bankruptcy or seeking
liquidation, reorganization, arrangement, readjustment of its debts or for any other relief under
the Bankruptcy Code, or under any other act or law pertaining to insolvency or debtor relief,
whether State, Federal or foreign, now or hereafter existing; Maker shall suffer the involuntary
appointment of a receiver, custodian or trustee of Maker or for all or a substantial part of its
property or an action for such appointment shall be commenced against Maker; or Maker shall suffer
the issuance of a warrant of attachment, execution or similar process against all or any
substantial part of the property of Maker or an action seeking the issuance of such a warrant,
execution or similar process shall be commenced against Maker.
e. One or more judgments or decrees shall be entered against Maker involving in the aggregate
a liability (not paid or fully covered by insurance) of $500,000 or more and the same is not
stayed, fully bonded off or cured within ten (10) days thereafter.
6. ACCELERATION. Upon the occurrence of any Event of Default (as defined herein) the whole
indebtedness (including principal and accrued interest) remaining unpaid, shall, at the option of
Holder, become immediately due, payable, and collectible.
7. NO WAIVER BY HOLDER. No delay or failure on the part of Holder in exercising any power or right
under this Note shall operate as a waiver of any power or right, nor shall any single or partial
exercise of any power or right preclude further
exercise of that power or right. The rights and remedies specified in this Note are cumulative and
not exclusive of any right or remedies that Holder may otherwise possess.
8. WAIVER OF PRESENTMENT, COLLECTION COSTS, ETC. Maker waives presentment for payment, protest,
notice of dishonor or default and notice of protest and nonpayment of this Note. Should it become
necessary to collect this Note through an attorney, by legal proceedings, or otherwise, Maker
promises to pay all costs of collection, including costs incurred in connection with probate
proceedings or bankruptcy or other creditors’ rights proceedings. Such costs of collection shall in
all cases include the reasonable fees and disbursements of attorneys, paralegals or other legal
advisors, whether prior to or at trial, or in appellate proceedings.
9. ASSIGNMENT. The provisions of this Note bind, and are for the benefit of, the respective
successors and assigns of Holder, jointly and severally. This Note may not be assigned by Maker
without the written consent of Holder.
10. NOTICES. All notices, requests, demands and other communications which are required or may be
given hereunder shall be in writing and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy or similar electronic
transmission method; one day after it is sent, if sent by recognized expedited delivery service;
and five days after it is sent, if mailed, first class mail, postage prepaid and telecopies
simultaneous with such mailing. In each case notice shall be sent to the address set forth in the
books and records of Maker or to such other address as such party shall have specified by notice in
writing to the other parties.
11. APPLICATION OF TEXAS LAW. This Note, and the application or interpretation thereof, shall be
governed exclusively by its terms and by the laws of the State of Oklahoma.
12. NO SECURITY. This Note is not secured.
IN WITNESS WHEREOF, Maker has executed and delivered this Note the date stated above.
By:
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| Name: | ||||||
| Its: | ||||||
