ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement ("Agreement") is made as of the 26th day of July,
2007,
by and between Hyperion Energy, Inc. a Colorado corporation
("Hyperion") maintaining a business address of X.X. Xxx 000000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxx, an individual maintaining a
business address at X.X. Xxx 000000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the
“Stockholder”) and Accountabilities, Inc., a Delaware
corporation ("AI") with its principal business offices located at 000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS,
AI is in the business of providing (i) professional staffing services, primarily
to CPA firms and (ii) information technology/scientific staffing services and
workforce solutions to various businesses (collectively, the
“Business”);
WHEREAS,
the Stockholder owns all of the outstanding shares of the common stock of
Hyperion;
WHEREAS,
Hyperion desires to purchase from AI, and AI desires to sell to Hyperion
substantially all of the properties, rights and assets used by AI in conducting
the Business, all upon and subject to the terms and conditions hereinafter
set
forth.
NOW,
THEREFORE, in consideration of the mutual promises hereinafter set forth and
for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale and Delivery of
the AI Assets.
1.1. Purchase
and Sale of the AI
Assets.
(a) AI
Assets. Subject to
and upon the terms and conditions of this Agreement and excluding the assets
retained by AI as set forth in Section 1.1(b) herein, AI shall sell, transfer,
convey, assign and deliver, to Hyperion, and Hyperion shall purchase from AI,
all of the properties, rights and assets, of every kind and nature, real,
personal or mixed, tangible or intangible, wherever located, which are owned,
leased, licensed or used by AI in the conduct of the Business and which exist
on
the “Closing Date” (as defined in Section 1.5 below) (collectively, the "AI
Assets"), including, without limitation, the following assets:
(i) all
office supplies and similar
materials (the "Supplies");
(ii) all
contracts, agreements, leases,
arrangements and/or commitments of any kind, whether oral or written, relating
to the AI Assets (the "AI Contracts");
(iii) all
customer lists, files, records and
documents (including credit information) relating to customers and vendors
of
the Business and all other business, financial and employee books, records,
files, documents, reports and correspondence relating to the Business
(collectively, the "Records");
(iv) all
rights of AI, if any, under express
or implied warranties from the suppliers of AI in connection with the AI
Assets;
(v) all
furnishings, furniture, fixtures,
tools, machinery, equipment and leasehold improvements owned by AI and related
to the AI Assets, whether or not reflected as capital assets in the accounting
records of AI (collectively, the "Fixed Assets");
(vi) all
patents, trademarks, tradenames,
service marks, copyrights and applications therefor which are owned by AI and
related to the AI Assets and/or the operation of the Business;
(vii) all
computers, computer programs,
computer databases, hardware and software owned or licensed by AI and used
in
connection with the AI Assets and/or the operation of the Business;
(viii) all
municipal, state and federal
franchises, licenses, authorizations and permits of AI which are necessary
to
operate or are related to the AI Assets;
(ix) all
prepaid
charges, deposits, sums and fees of
AI relating to the AI Assets or arising out of the operation of the
Business;
(x) all
claims and rights of AI related to
or arising from the AI Assets or arising out of the operation of the
Business;
(xi) all
cash and cash
equivalents;
(xii) accounts
receivable and rights to
payment related to or arising out of the conduct of the Business;
(xiii) all
of the goodwill of the Business;
and
(xiv) all
other assets and properties of any
nature whatsoever held by AI either directly or indirectly, and used in,
allocated to, or required for the conduct of the Business.
(b) Retained
Assets. Notwithstanding anything to the contrary set forth in
this Agreement, the following assets of AI (the “Retained Assets”) are not
included in the sale of AI Assets contemplated hereby: (i) the Purchase Price
(as hereinafter defined) and the other rights of AI under or relating to this
Agreement, (ii) the corporate minute books, stock records, qualification to
conduct business as a foreign corporation, and other documents relating to
the
formation, maintenance or existence as a corporation of AI, except that AI
agrees that it will provide copies of any such document from the corporate
minute books as reasonably requested by Hyperion which Hyperion believes are
necessary for the use and operation of the AI Assets and the conduct of the
Business after the Closing Date, and (iii) any and all properties, rights and
assets used in the conduct of AI’s payroll debit card business or any business
conducted prior to June 2005.
1.2. Purchase
Price. The
purchase price for the AI Assets (the "Purchase Price") shall be a number of
shares (the “Shares”) of Hyperion’s common stock, $0.001 par value (the
“Hyperion Common Stock”) that is equal to the number of shares of the common
stock of AI issued and outstanding at the time of the Closing. The
Parties hereto intend that the Shares to be issued to AI shall represent one
hundred percent (100%) of Hyperion’s outstanding Common Stock after the
completion of this transaction, including the Share Cancellation (as defined
below).
1.3. Assumption
of
Liabilities.
(a) Assumed
Liabilities. Effective as of the Effective Date, Hyperion agrees
to assume and to pay, perform and discharge all liabilities and obligations
of
AI, except the liabilities and obligations described in Section 1.3(b)
below. The liabilities and obligations assumed by Hyperion will
include, but not be limited to (i) the fees and expenses of AI’s counsel,
accountants and other experts and all other expenses incurred by AI incident
to
the negotiation, preparation and execution of this Agreement and any agreement
entered into in connection herewith and the performance by AI of its obligations
hereunder or thereunder, (ii) arising under AI Contracts on and after the
Closing Date and with respect to the use and operation of the AI Assets by
Hyperion after the Closing Date and (iii) the obligation to issue shares of
Hyperion Common Stock in accordance with the terms of any options, warrants
or
convertible securities (the “Assumed Liabilities”).
(b) Liabilities
Retained by
AI. Hyperion shall not assume, be liable for or pay, and none of
the AI Assets shall be subject to, and AI shall retain, be unconditionally
liable for and pay, any liability or obligation (whether known or unknown,
matured or unmatured, stated or unstated, recorded or unrecorded, fixed or
contingent, currently existing or hereafter arising) of AI, under or in
connection with the Retained Assets.
1.4. Share
Cancellation. The Stockholder agrees that at the Closing,
Stockholder shall surrender for cancellation all of the shares of Hyperion
Common Stock (the “Hyperion Shares”) owned by him (the “Share Cancellation”) in
consideration of a Twelve- Thousand Five Hundred Dollar ($12,500) payment (the
“Share Payment”) which shall be shall be paid to the Stockholder on the tenth
(10th) day
following the date of the execution of this Agreement provided that during
such
ten (10) day period (i) no action, suit or proceeding or threat to bring any
action, suit or proceeding has been made by any third party challenging or
seeking to restrain, prohibit or obtain damages as a result of or in connection
with the transactions that are the subject of this Agreement and (ii) no claim
has been made by a third party alleging an ownership interest in or a right
to
acquire the Hyperion Shares. If the Share Payment is not made to
Shareholder by reason of a matter set forth in clause (i) or (ii) above, the
Share Payment shall be made at Closing. Pending the Closing, the
certificate(s) representing the Hyperion Shares (together with stock power(s)
duly executed in blank) shall be held in escrow by AI’s counsel and shall be
released to (x) Hyperion at the Closing and (y) to Shareholder in the event
of a
termination of this Agreement. In the event that this Agreement is
terminated for any reason other than the breach by AI, the Stockholder shall
return any payments made pursuant to this Section 1.4 to AI within five (5)
business days of such termination.
1.5. Closing. The
closing
(the “Closing”) of the transactions contemplated by this Agreement shall take
place at the offices of AI in Manalapan, New Jersey, within five (5) days after
the date when each of the conditions set forth in Section 6 shall have been
fulfilled (or waived by the party entitled to waive such condition) or such
other time or date or such other location as the parties may mutually agree
(the
"Closing Date").
2. Representations
and Warranties of
AI. Except as set forth in the corresponding sections or
subsections of the AI Disclosure Schedule annexed hereto as Appendix I (the
"AI
Disclosure Schedule"; sometimes referred to herein as a "Disclosure Schedule"),
AI hereby represents and warrants to Hyperion, that:
2.1. Organization,
Good Standing and
Qualification. Each of AI and its Subsidiaries (as defined below)
is a corporation duly organized, validly existing as a corporation and in good
standing under the laws of its respective jurisdiction of
incorporation. AI and each of its Subsidiaries has all requisite
power and authority to own and operate its properties and assets and to carry
on
its business as presently conducted and is qualified to do business and is
in
good standing in each jurisdiction where the ownership or operation of its
properties or conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing is not, when taken together
with all other such failures, reasonably likely to have a material adverse
effect on its business, financial condition, operating results or prospects
(a
“Material Adverse Effect”). AI has made available to Hyperion a
complete and correct copy of its certificate of incorporation and by-laws (the
"Organizational Documents"), each as amended to date. Such
Organizational Documents as so made available are in full force and
effect.
As
used
in this Agreement, (i) the term "Subsidiary" means any entity, whether
incorporated or unincorporated, of which at least fifty percent of the
securities or ownership interests having by their terms ordinary voting power
to
elect at least fifty percent of the board of directors or other persons
performing similar functions is directly or indirectly owned by such party
or by
one or more of its respective Subsidiaries or by such party and any one or
more
of its respective Subsidiaries, (ii) reference to "the other party" means,
with
respect to AI, Hyperion and Stockholder and means with respect to Hyperion
and
Stockholder, AI, and (iii) the term "Person" means an association, corporation,
estate, general partnership, governmental entity (or any agency, department
or
political subdivision thereof), individual, joint stock company, joint venture,
limited liability company, limited partnership, trust, or any other organization
or entity.
2.2. Capital
Structure. The authorized capital stock of AI consists of
95,000,000 shares of Common Stock, $.0001 par value (the “AI Common Stock”) of
which 17,588,325 shares were issued and outstanding and no shares were held
in
treasury as of the date of this Agreement and 5,000,000 shares of Preferred
Xxxxx, x.0000 par value, of which no shares were outstanding as of the date
of
this Agreement. All of the outstanding shares of AI Common Stock have
been duly authorized and are validly issued, fully paid and
nonassessable. AI has no shares reserved for
issuance. Except as set forth in Section 2.2 of the AI Disclosure
Schedule, AI has no shares of AI Common Stock or Preferred Stock reserved for
issuance and there are no preemptive or other outstanding rights, options,
warrants, conversion rights, stock appreciation rights, redemption rights,
repurchase rights, agreements, arrangements or commitments to issue or sell
any
shares of capital stock or other securities of AI or any securities or
obligations convertible or exchangeable into or exercisable for, or giving
any
Person a right to subscribe for or acquire, any securities of AI, and no
securities or obligations evidencing such rights are authorized, issued or
outstanding. AI does not have outstanding any bonds, debentures,
notes or other obligations the holders of which have the right to vote (or
convertible into or exercisable for securities having the right to vote) with
its stockholders on any matter ("Voting Debt").
2.3. Corporate
Authority;
Approval. AI has all requisite corporate power and authority and
has taken all corporate action necessary in order to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby, subject only to approval of this Agreement by the holders
of a majority of the outstanding shares of AI Common Stock (the "AI Requisite
Vote"). This Agreement is a valid and binding agreement of AI
enforceable against AI in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (the "Bankruptcy and Equity
Exception"). The Board of Directors of AI has unanimously approved
this Agreement and the sale of the AI Assets and the other transactions
contemplated hereby.
2.4. Governmental
Filings; No
Violations.
(a) Other
than the filings and/or notices
(i) described in Section 4.19 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or the filing of a Registration Statement under
the
Securities Act of 1933, as amended (the "Securities Act"), (ii) to comply with
state securities or "blue-sky" laws, (such filings and/or notices of AI being
the "AI Governmental Consents"), no notices, reports or other filings are
required to be made by it with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by it from, any governmental
or regulatory authority, court, agency, commission, body or other governmental
entity ("Governmental Entity"), in connection with the execution and delivery
of
this Agreement by it and the consummation by it of the transactions contemplated
hereby, except those that the failure to make or obtain are not, individually
or
in the aggregate, reasonably likely to have a Material Adverse Effect on it
or
prevent, materially delay or materially impair its ability to consummate the
transactions contemplated by this Agreement.
(b) The
execution, delivery and performance
of this Agreement by AI does not, and the consummation by it of the transactions
contemplated hereby will not, constitute or result in (A) a breach or violation
of, or a default under, its Organizational Documents or the Organizational
Documents governing any of its Subsidiaries, (B) a breach or violation of,
or a
default under, the acceleration of any obligations or the creation of a lien,
pledge, security interest or other encumbrance on its assets or the assets
of
any of its Subsidiaries (with or without notice, lapse of time or both) pursuant
to, any agreement, lease, contract, note, mortgage, indenture, arrangement
or
other obligation ("Contracts") binding upon it or any of its Subsidiaries or
any
law, statute, ordinance, regulation,, decree or order (“Laws”) or governmental
or non-governmental permit or license to which it or any of its Subsidiaries
is
subject or (C) any change in the rights or obligations of any party under any
of
its Contracts, except, in the case of clause (B) or (C) above, for any breach,
violation, default, acceleration, creation or change that, individually or
in
the aggregate, is not reasonably likely to have a Material Adverse Effect on
it
or prevent, materially delay or materially impair its ability to consummate
the
transactions contemplated by this Agreement. Section 2.4(b) of its
Disclosure Schedule sets forth a correct and complete list of its Contracts
and
Contracts of its Subsidiaries pursuant to which consents or waivers are or
may
be required prior to consummation of the transactions contemplated by this
Agreement other than those where the failure to obtain such consents or waivers
is not reasonably likely to have a Material Adverse Effect on it or prevent
or
materially impair its ability to consummate the transactions contemplated by
this Agreement.
2.5. Broker
and
Finders. Neither it nor any of its officers, directors or
employees has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders fees in connection with the transactions
contemplated by this Agreement.
3. Representations
and Warranties of
Hyperion and Stockholder. Except as set forth in the
corresponding sections or subsections of the Hyperion Disclosure Schedule
annexed hereto as Appendix II (the "Hyperion Disclosure Schedule"), as the
case
may be, Hyperion and Stockholder, jointly and severally, hereby represent and
warrant to AI, that:
3.1. Organization,
Good Standing and Qualification. Hyperion is a corporation is
duly organized, validly existing as a corporation and in good standing under
the
laws of the State of Colorado has all requisite power and authority to own
and
operate its properties and assets and to carry on its business as presently
conducted and is qualified to do business and is in good standing in each
jurisdiction where the ownership or operation of its properties or conduct
of
its business requires such qualification. Hyperion has made available
to AI a complete and correct copy of its Organizational Documents, each as
amended to date. Such Organizational Documents as so made available
are in full force and effect.
3.2. Capital
Structure. The authorized capital stock of Hyperion consists of
(a) 100,000,000 shares of Hyperion Common Stock, of which 1,390,000 shares
were
issued and outstanding and no shares were held in treasury as of the date of
this Agreement and (b) 20,000,000 shares of Preferred Stock, par value $.001
per
share (“Hyperion Preferred Stock”), of which no shares are issued and
outstanding on the date hereof. All of the outstanding shares of
Hyperion Common Stock have been duly authorized and are validly issued, fully
paid and nonassessable. Hyperion has no shares of Hyperion Common
Stock or Hyperion Preferred Stock reserved for issuance and there are no
preemptive or other outstanding rights, options, warrants,
conversion rights, stock appreciation rights, redemption rights,
repurchase rights, agreements, arrangements or commitments to issue or to sell
any shares of capital stock or other securities of Hyperion or any securities
or
obligations convertible or exchangeable into or exercisable for, or giving
any
Person a right to subscribe for or acquire, any securities of Hyperion, and
no
securities or obligation evidencing such rights are authorized, issued or
outstanding. Hyperion does not have outstanding any Voting
Debt.
3.3. Corporate
Authority;
Approval. Hyperion each has all requisite corporate power and
authority and has taken all corporate action necessary in order to execute,
deliver and perform its obligations under this Agreement. This
Agreement is a valid and binding agreement of Hyperion, enforceable against
Hyperion in accordance with its terms, subject to the Bankruptcy and Equity
Exception. The Shares of Hyperion Common Stock, when issued pursuant
to this Agreement, will be validly issued, fully paid and nonassessable, and
no
stockholder of Hyperion will have any preemptive right of subscription or
purchase in respect thereof. The Board of Directors of Hyperion and
the Stockholder have unanimously approved this Agreement, the acquisition of
the
AI Assets, the issuance of the shares and the other transactions contemplated
hereby. The Shares of Hyperion Common Stock issued to AI pursuant to
this Agreement shall represent approximately 100.00% of the outstanding shares
of Hyperion Common Stock outstanding immediately after the Closing.
3.4. Governmental
Filings; No
Violations.
(a) Other
than (i) the filings and/or
notices under the Exchange Act or the filing of a Registration Statement under
the Securities Act of 1933, as amended (the "Securities Act"), (ii) to comply
with state securities or "blue-sky" laws, (such filings and/or notices of
Hyperion being the "Hyperion Governmental Consents", no notices, reports or
other filings are required to be made by Hyperion with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained
by
Hyperion from, any Governmental Entity, in connection with the execution and
delivery of this Agreement by it and the consummation by it of the transactions
contemplated hereby, except those that the failure to make or obtain are not,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect on it or prevent, materially delay or materially impair its ability
to
consummate the transactions contemplated by this Agreement.
(b) The
execution, delivery and performance
of this Agreement by Hyperion does not, and the consummation by it of the
transactions contemplated hereby will not, constitute or result in (A) a breach
or violation of, or a default under, its Organizational Documents, (B) a breach
or violation of, or a default under, the acceleration of any obligations or
the
creation of a lien, pledge, security interest or other encumbrance on its assets
(with or without notice, lapse of time or both) pursuant to, any contract
binding upon it or any Law or governmental or non-governmental permit
or license to which it is subject or (C) any change in the rights or obligations
of any party under any of its Contracts.
3.5. Absence
of Certain Changes. Except as expressly contemplated by this
Agreement or set forth in Section 3.5 of the Hyperion Disclosure Schedule,
since
February 28, 2007, there has not been (i) any change in the financial condition,
properties, prospects, business or results of operations of Hyperion, except
those changes that are not, individually or in the aggregate, reasonably likely
to have a Material Adverse Effect on it; or (ii) any change by it in accounting
principles, practices or methods.
3.6. Litigation
and
Liabilities. There are no (i) civil, criminal or administrative
actions, suits, claims, hearings, investigations or proceedings pending or,
to
its knowledge, threatened against Hyperion or any of its Affiliates (which
term,
as used in this Agreement, shall be as defined in Rule 12b-2 under the Exchange
Act) or (ii) obligations or liabilities, whether or not accrued, contingent
or
otherwise, including those relating to matters involving any Environmental
Law,
or any other facts or circumstances, that are reasonably likely to result in
any
claims against or obligations or liabilities of it or any of its
Affiliates.
3.7. Taxes. Hyperion
has
prepared in good faith and duly and timely filed (taking into account any
extension of time within which to file) all Tax Returns as defined below
required to be filed by it and all such filed tax returns are complete and
accurate in all material respects and: (i) it has paid all Taxes (as defined
below) that are shown as due on such filed Tax Returns or that it is obligated
to withhold from amounts owing to any employee, creditor or third party, except
with respect to matters contested in good faith; (ii) as of the date hereof,
there are not pending or, to its knowledge of its executive officers threatened,
any audits, examinations, investigations or other proceedings in respect of
Taxes or Tax matters; and (iii) there are not, to its knowledge, any unresolved
questions or claims concerning its Tax liability. Hyperion has no
liability with respect to Taxes. As used in this Agreement, (i) the
term "Tax" (including, with correlative meaning, the terms "Taxes", and
"Taxable") includes all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severance, stamp, payroll, sales, employment, unemployment,
disability, use, property, withholding, excise, production, value added,
occupancy and other taxes, duties or assessments of any nature whatsoever,
together with all interest, penalties and additions imposed with respect to
such
amounts and any interest with respect to such penalties and additions, and
(ii)
the term "Tax Return" includes all returns and reports (including elections,
declarations, disclosures, schedules, estimates and information returns)
required to be supplied to a Tax authority relating to Taxes
3.8. Broker
and
Finders. Neither Hyperion nor any of its officers, directors or
employees has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders fees in connection with the transactions
contemplated by this Agreement.
3.9. SEC
Reporting and
Compliance.
(a) Hyperion
filed a registration statement on Form 10SB under the Exchange Act which became
effective on May 15, 2007. Since that date, Hyperion has timely filed
with the Commission all registration statements, proxy statements, information
statements and reports required to be filed pursuant to the Exchange
Act.
(b) Hyperion
has delivered to AI true and complete copies of all registration statements,
information statements and other reports and filings (collectively, the “SEC
Documents”) filed by Hyperion with the Commission. None of the SEC
Documents, as of their respective dates, contained any untrue statement of
a
material fact or omitted to state a material fact necessary in order to make
the
statements contained therein not misleading.
(c) Hyperion
has not filed, and nothing has
occurred with respect to which Hyperion would be required to file, any report
on
Form 8-K since May 15, 2007. Prior to and until the Closing, Hyperion
will provide to AI copies of any and all amendments or supplements to the SEC
Documents filed with the Commission and all subsequent registration statements
and reports filed by Hyperion subsequent to the filing of the SEC Documents
with
the Commission and any and all subsequent information statements, proxy
statements, reports or notices filed by the Hyperion with the Commission or
delivered to the stockholders of Hyperion.
(d) Hyperion
is not an investment company
within the meaning of Section 3 of the Investment Company Act.
(e) All
of the outstanding shares of
Hyperion Common Stock are “restricted securities,” as defined under Rule 144 of
the Securities Act, and all of such shares were issued in private transactions
not involving a public offering. Hyperion is in compliance in all material
respects with Rule 144 applicable to it and the Hyperion Common
Stock.
(f) Hyperion
is a “blank check company”
subject to the requirements of Rule 419 of the Securities
Act. Hyperion is in compliance in all material respects with Rule 419
applicable to it and the Hyperion Stock.
(g) Hyperion
is also a “shell company”
under Rule 12b-2 of the Securities Act because it has no assets (other than
cash) and no operations.
(h) Between
the date hereof and the Closing
Date, Hyperion shall continue to timely satisfy the filing requirements of
the
Exchange Act and all other requirements of applicable securities laws, including
Rule 144 and Rule 419.
(i) Hyperion
has otherwise complied with
the Securities Act, Exchange Act and all other applicable federal and state
securities laws.
3.10. Financial
Statements. The balance sheets, and statements of income,
changes in financial position and stockholders’ equity contained in the SEC
Documents (the “Hyperion Financial Statements”) (i) have been prepared in
accordance with GAAP applied on a basis consistent with prior periods (and,
in
the case of unaudited financial information, on a basis consistent with year-end
audits), (ii) are in accordance with the books and records of Hyperion, and
(iii) present fairly in all material respects the financial condition of
Hyperion at the dates therein specified and the results of its operations and
changes in financial position for the periods therein specified. The
financial statements included on Form 10-SB for the period from inception,
February 16, 2007, through February 28, 2007, are as audited by, and include
the
related opinions of Xxxxxxxxx & Co., LLP, Hyperion’s independent certified
public accountants.
3.11. Compliance
with Laws. The business of Hyperion has not been and is
not being, conducted in violation of any Laws. No investigation or
review by any Governmental Entity with respect to it is pending or, to the
knowledge of its executive officers, threatened, nor has any Governmental Entity
indicated an intention to conduct the same. To the knowledge of its
executive officers, no material change is required in its processes, properties
or procedures in connection with any such Laws, and it has not received any
notice or communication of any material noncompliance with an y such Laws that
has not been cured as of the date hereof. Hyperion has all Permits
necessary to conduct its business as presently conducted.
3.12. Absence
of Undisclosed Liabilities. Hyperion does not have any
material obligation or liability (whether accrued, absolute, contingent,
liquidated or otherwise, whether due or to become due), arising out of any
transaction entered into at or prior to the Closing, except (a) as disclosed
in
the SEC Documents, (b) to the extent set forth on or reserved against in the
balance sheet of Hyperion as of February 28, 2007 (the “Hyperion Balance Sheet”)
or the Notes to the Hyperion Financial Statements, (c) current liabilities
incurred and obligations under agreements entered into in the usual and ordinary
course of business since February 28, 2007 (the “Hyperion Balance Sheet Date”),
none of which (individually or in the aggregate) materially and adversely
affects the condition (financial or otherwise), properties, assets, liabilities,
business operations, results of operations or prospects of Hyperion, taken
as a
whole (the "Condition of Hyperion"), and (d) by the specific terms of any
written agreement, document or arrangement attached as an exhibit to the SEC
Documents.
3.13. Absence
of Assets, Business, etc. Hyperion has not conducted any business
activities other than those incident to its formation, the filing of the Form
10SB and the execution and delivery of this Agreement and Hyperion, other than
as set forth in Section 3.13 of the Hyperion Disclosure Schedule:
(a) does
not have any
Subsidiaries;
(b) is
not a party to any written or oral
Contracts;
(c) owns
no real or personal property or
other assets;
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(d)
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does
not have and has never had
any employees or adopted or maintained any Employee Benefit
Plans.
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3.14. Stockholder
Matters. Stockholder has good and marketable title to the
Hyperion Shares free and clear of any lien, claim, charge or
encumbrance. Stockholder has full power and authority to execute and
deliver this Agreement and to perform his obligations hereunder. The
execution, delivery and performance of this Agreement by Stockholder will not
violate, conflict with or result in the breach of the terms of any other
agreement, instrument, judgment, order or decree to which Stockholder is a
party
or may be subject.
4. Closing
Deliveries.
4.1. By
AI with respect to Sale of AI
Assets. AI shall deliver to Hyperion at the Closing each of the
following documents:
(a) a
Xxxx of Sale in the form attached
hereto as Exhibit A, duly executed by AI;
(b) an
Assignment and Assumption of
Contracts and Liabilities executed by AI evidencing AI's assignment and
Hyperion's assumption of the Assumed Liabilities contemplated by Section 1.3
hereof in the form attached hereto as Exhibit B (the "Assignment and
Assumption Agreement");
(c) cross
receipt executed by AI, in the
form of Exhibit C ("Cross Receipt");
(d) a
certificate executed by the President
of AI that all representations and warranties made herein by AI are true and
correct and that all terms, conditions and provisions of this Agreement have
been performed and complied with at the time of Closing;
(e) a
certificate from the secretary of AI
attesting to the accuracy of resolutions to be attached thereto approved by
the
Board of Directors of AI authorizing the sale of the AI Assets and providing
incumbency information for the individual signing this Agreement on behalf
of
AI;
(f) such
certificates or other documents as
may be reasonably requested by Hyperion, including, without limitation,
certificates of legal existence, good standing and certified charter documents
from the Secretary of State of Delaware, and certificates of the Chief Executive
Officer of AI with respect to minutes, resolutions, by-laws and any other
relevant matters concerning AI in connection with the transactions contemplated
by this Agreement.
4.2. By
Hyperion with respect to Purchase
of AI Assets. Hyperion shall deliver to AI at the Closing each of
the following documents:
(a) a
certificate representing the
Shares;
(b) the
Assignment and Assumption Agreement
(Exhibit B), executed by Hyperion;
(c) the
Cross Receipt (Exhibit C),
executed by Hyperion;
(d) a
certificate executed by the President
of Hyperion that all representations and warranties made herein are
true and correct and that all terms, conditions and provisions of this Agreement
have been performed and complied with at the time of Closing; and
(e) a
certificate of the secretary of
Hyperion attesting to the accuracy of the resolutions to be attached thereto
approved by the Board of Directors of Hyperion approving the purchase of the
AI
Assets and providing incumbency information for the individual signing this
Agreement on behalf of Hyperion.
(f) such
certificates or other documents as
may be reasonably requested by AI, including, without limitation, certificates
of legal existence, good standing and certified charter documents from the
Secretary of State of Colorado, and certificates of an officer of Hyperion
with
respect to directors’ resolutions, by-laws and other matters.
4.3. By
Stockholder with respect to Share
Cancellation. Stockholder shall deliver to Hyperion at the
Closing for cancellation a certificate representing 1,390,000 shares of Hyperion
Common Stock duly endorsed for transfer or accompanied by a stock power duly
executed in black.
4.4. By
AI with respect to Share
Cancellation. AI shall deliver to Stockholder by wire transfer at
the Closing a cash payment in the amount of Twenty-Five Thousand Dollars
($25,000).
5. Covenants. Except
as
expressly contemplated or permitted by this Agreement, or to the extent that
AI
shall otherwise consent in writing, during the period from the date of this
Agreement and continuing until the Closing, Hyperion agrees that:
5.1. Ordinary
Course. Hyperion shall conduct no business activities other than
as contemplated by the Agreement or required by law.
5.2. Dividends;
Changes in
Stock. Except to the extent contemplated by this Agreement,
Hyperion shall not, nor shall it propose to, (i) declare or pay any dividends
on
or make other distributions in respect of any of its capital stock or other
outstanding securities or interests, (ii) split, combine or reclassify any
of
its capital stock or issue or authorize or propose the issuance of any other
securities in replacement of, in lieu of or in substitution for shares of its
capital stock, or (iii) repurchase, redeem or otherwise acquire, or permit
any
Subsidiary to repurchase, redeem or otherwise acquire, any shares of its capital
stock.
5.3. Issuance
of
Securities. Hyperion shall not issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of its
capital stock of any class, any Voting Debt or any securities convertible into,
or any rights, warrants, calls, subscriptions or options to acquire, any such
shares, Voting Debt or convertible securities.
5.4. Governing
Documents. Hyperion shall not amend or propose to amend their
Organizational Documents.
5.5. No
Acquisitions. Hyperion shall not acquire or agree to acquire by
merging or consolidating with, or by purchasing an equity interest in or portion
of the assets of, or by any manner, any business or any corporation,
partnership, association or other business organization or division thereof
or
otherwise acquire or agree to acquire any assets.
5.6. Other
Actions. Hyperion shall not take any action that would or is
reasonably likely to result in any of its representations and warranties set
forth in this Agreement being untrue or in its failure to perform covenants
it
is obliged to perform hereunder or in any of the conditions to the Closing
set
forth in Section 6 not being satisfied.
5.7. Advice
of Changes;
Filings. Hyperion shall confer on a regular and frequent basis
with AI and promptly advise AI in writing of any change or event having (in
either case), or which, insofar as can reasonably be foreseen could have (in
either case), a Material Adverse Effect on it (financial or otherwise),
prospective results of operations or net worth. Hyperion shall
promptly provide to AI (or its counsel) copies of all filings made by it with
any Federal, state or foreign Governmental Entity in connection with this
Agreement and the transactions contemplated hereby or which are material to
the
operation of the business conducted by it.
5.8. Notice
of Untrue
Facts. Hyperion will promptly advise the other party if, at any
time before the Proxy Statement/Prospectus (as defined in Section 5.14) is
mailed to the stockholders of AI or before the meeting of AI’s stockholders held
pursuant to Section 5.14 hereof, the Proxy Statement/Prospectus as the same
relates to it, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
5.9. Consents
Without Any
Condition. Hyperion shall not make any agreement or reach any
understanding not approved in writing by the other party as a condition for
obtaining any consent, authorization, approval, order, license, certificate,
or
permit required for the consummation of any of the transactions contemplated
by
this Agreement.
5.10. Legal
Requirements. Hyperion will take all reasonable actions necessary
to comply promptly with all legal requirements which may be imposed on it with
respect to the transactions contemplated by this Agreement (which actions shall
include, without limitation, furnishing all information required in connection
with approvals of or filings with any other Governmental Entity and filing
initial notices and obtaining an administrative consent order or otherwise
satisfying the requirements of any state or federal environmental laws with
respect to properties owned, leased, or operated by it on or before the date
of
this Agreement and through the Closing Date, to the extent such properties
are
subject to such laws) and will promptly cooperate with and furnish information
to AI in connection with any such requirements imposed upon Hyperion in
connection with the transactions contemplated by this Agreement. It
will take all reasonable actions necessary to obtain (and will cooperate with
the other party obtaining) any consent, authorization, order or approval of,
or
any exemption by, any Governmental Entity or other public or private
third party, required to be obtained or made by Hyperion in
connection with the transactions contemplated by this Agreement or the taking
of
any action contemplated thereby or by this Agreement.
5.11. Access
to
Information. Upon reasonable notice and subject to restrictions
contained in confidentiality agreements to which Hyperion is subject, Hyperion
shall afford to the officers, employees, accountants, counsel and other
representatives of AI, access, during normal business hours during the period
prior to the Closing, to all of its properties, books, contracts, commitments
and records and during such period, it shall furnish promptly to the other
(a) a
copy of each report, schedule, registration statement and other document filed
or received by it during such period pursuant to the requirements of federal
securities laws and (b) all other information concerning its business,
properties and personnel as AI may reasonably request.
5.12. Additional
Agreements; Best
Efforts. Hyperion will use its best efforts to take, or cause to
be taken, all action and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make
effective the transactions contemplated by this Agreement, including cooperating
fully with AI. In case at any time after the Closing Date any further
action is necessary or desirable to carry out the purposes of this Agreement
or
to vest Hyperion with full title to all properties, assets, rights, approvals,
immunities and franchises of the Business, the proper officers and directors
of
each party to this Agreement shall take all such necessary action.
5.13. Additional
Covenants of Hyperion and
Stockholder. During the period from the date of this Agreement
and continuing until the Closing, Hyperion and Stockholder agree that (except
as
expressly contemplated or permitted by this Agreement or to the extent that
AI
shall otherwise consent in writing):
(a) SEC
Reports. Hyperion
shall duly and timely file all reports and other documents required to be filed
by it with the SEC and will deliver complete and accurate copies thereof to
AI
at the time of filing. None of such reports and other documents will
contain at the time of filing any untrue statement of a material fact or omit
to
state any material fact (excluding any such misstatement or omission made in
reliance upon information provided by AI) required to be stated therein or
necessary to make the statements therein not misleading, and all of such reports
shall comply as to form in all material respects with all of the applicable
rules and regulations promulgated under the Exchange Act and the Securities
Act,
as the case may be.
(b) OTC
Bulletin Board
Listing. Hyperion shall take all actions reasonably requested by
AI in connection with arranging for the Hyperion Common Stock to be listed
on
the OTC Bulletin Board.
(c) Resignation
of
Directors. Consistent with applicable law, Hyperion shall procure
prior to the Closing Date, the resignation of the Stockholder as sole director
of Hyperion and shall cause Hyperion’s Board of Directors, prior to the
effectiveness of such resignation and prior to the Closing Date, to elect to
the
Board of Directors of Hyperion, effective as of the Closing Date, such number
of
individuals as shall be designated by AI prior to the Closing.
(d) Discharge
of
Liabilities. Prior to the Closing Date, the Stockholder shall
satisfy or cause Hyperion to satisfy and discharge all liabilities of Hyperion
which would otherwise exist on the Closing Date such that Hyperion will have
no
liabilities, whether actual or contingent, on the Closing Date.
(e) Indebtedness. Hyperion
shall
not, incur (which shall be deemed to include entering into credit agreements,
lines of credit or similar arrangements) any indebtedness for borrowed money
or
guarantee any such indebtedness or issue or sell any debt securities or warrants
or rights to acquire any debt securities of it or any of its Subsidiaries or
guarantee any debt securities of others.
(f) Acquisitions
of
Property. Hyperion agrees it will not, without the prior written
consent of AI, acquire or lease any additional real or personal property,
including, without limitation, capital equipment or inventories.
(g) No
Related
Transaction. Hyperion shall not enter into or become a party to
any contract, lease, agreement or transaction with any member of its board
of
directors, any of its officers or management employees or with any business
organization owned or controlled by any of them, from the date of the execution
of this Agreement to the Closing Date.
5.14. Registration
Statement, Joint Proxy
Statement/Prospectus and Related Matters.
(a) As
promptly as practicable after the
date of this Agreement, Hyperion and AI shall prepare, and Hyperion shall file
with the SEC, a joint proxy statement/prospectus (the “Proxy
Statement/Prospectus”) to be sent to the stockholders of AI in connection with
the meeting of AI’s stockholders (the “AI Stockholders’ Meeting) to vote on the
approval of the sale of the AI Assets hereunder and the other transactions
contemplated hereby. In connection therewith, Hyperion shall prepare
and file with the SEC a registration statement on Form S-4 pursuant to which
the
shares of Hyperion Common Stock to be issued pursuant to this Agreement will
be
registered with the SEC (the “Registration Statement”), and in which the Proxy
Statement/Prospectus will be included as a prospectus. Hyperion
shall use reasonable best efforts to cause the Registration Statement to become
effective as soon after filing as practicable. Hyperion shall make
all other necessary filings with respect to this Agreement and the transactions
contemplated hereby under the Securities Act of 1933 and the Securities Exchange
Act of 1934 and the rules and regulations of the SEC thereunder.
(b) AI
shall take such action as may be
necessary to ensure that (i) the information to be supplied by AI for inclusion
in the Registration Statement shall not at the time the Registration Statement
is declared effective by the SEC contain any untrue statement of a material
fact
required to be stated in the Registration Statement or necessary in order to
make the statements in the Registration Statement, in light of the circumstances
under which they were made, not misleading, and (ii) the information supplied
by
AI for inclusion in the Proxy Statement/Prospectus shall not, on the date the
Proxy Statement/Prospectus is first mailed to stockholders of AI or Hyperion,
and at the time of the AI’s Stockholders’ Meeting contain any statement that, at
such time and in light of the circumstances under which it shall be made, is
false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements made in the
Proxy Statement/Prospectus not false or misleading, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for AI’s Stockholders’ Meeting that
has become false or misleading. If at any time prior to the Closing
any event relating to AI or any of its Affiliates, officers or directors should
be discovered by AI that should be set forth in an amendment to the Registration
Statement or a supplement to the Proxy Statement/Prospectus, AI shall promptly
so inform Hyperion.
(c) Hyperion
shall take such action as may
be necessary to ensure that (i) the information to be supplied by it for
inclusion in the Registration Statement shall not at the time the Registration
Statement is declared effective by the SEC contain any untrue statement of
a
material fact required to be stated in the Registration Statement or necessary
in order to make the statements in the Registration Statement, in light of
the
circumstances under which they were made, not misleading, and (ii) the
information supplied by it for inclusion in the Proxy Statement/Prospectus
shall
not, on the date the Proxy Statement/Prospectus is first mailed to stockholders
of AI, and at the time of AI’s Stockholders’ Meeting contain any statement that,
at such time and in light of the circumstances under which it shall be made,
is
false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements made in the
Proxy Statement/Prospectus not false or misleading, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for AI’s Stockholders’ Meeting that
has become false or misleading. If at any time prior to the Closing
any event relating to Hyperion or any of their respective Affiliates, officers
or directors should be discovered by Hyperion, as the case may be, that should
be set forth in an amendment to the Registration Statement or a supplement
to
the Proxy Statement/Prospectus, the party discovering same shall promptly so
inform AI.
(d) AI
shall each call a meeting of
stockholders to be held as promptly as practicable for the purpose of voting
on
the sale of the AI Assets pursuant to this Agreement and the other transactions
contemplated hereby.
6. Conditions.
6.1. Conditions
to Each Party’s
Obligation to Close Transaction. The respective obligations of
each party to effect the Transactions contemplated by this Agreement shall
be
subject to the satisfaction prior to the Closing Date of the following
conditions:
(a) This
Agreement and the transactions
contemplated hereby shall have been approved and adopted by the affirmative
vote
of the holders of a majority of the outstanding shares of AI Common
Stock.
(b) Hyperion
shall have received all state
securities or “Blue Sky” permits and other authorizations necessary to issue the
Hyperion Common Stock pursuant to this Agreement.
(c) No
temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect.
(d) The
Registration Statement shall have
become effective under the Securities Act, no stop order suspending the
effectiveness of the Registration Statement shall then be in effect, and no
proceedings for that purpose shall then be threatened by the SEC or shall have
been initiated by the SEC and not concluded or withdrawn.
6.2. Conditions
of Obligations of
Hyperion. The obligations of Hyperion to effect the transactions
contemplated by this Agreement are subject to the satisfaction of the following
conditions unless, to the extent permitted below, waived by
Hyperion:
(a) The
representations and warranties of
AI set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement, and (except to the extent such
representations and warranties speak as of an earlier date) as of the Closing
Date as though made on and as of the Closing Date, except as otherwise
contemplated by this Agreement, and Hyperion shall have received a certificate
signed on behalf of AI by the President and Chief Financial Officer of AI to
such effect.
(b) AI
shall have performed in all material
respects all obligations, covenants and agreements required to be performed
by
it under this Agreement at or prior to the Closing Date, and Hyperion shall
have
received a certificate signed on behalf of AI by the president and Chief
Financial Officer of AI to such effect.
6.3. Conditions
of Obligations of
AI. The obligation of AI to effect the transactions contemplated
by this Agreement is subject to the satisfaction of the following conditions
unless waived by AI:
(a) The
representations and warranties of
Hyperion and Stockholder set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and (except to the
extent such representations speak as of an earlier date) as of the Closing
Date
as though made on and as of the Closing Date, except as otherwise contemplated
by this Agreement and AI shall have received a certificate signed on behalf
of
Hyperion by the President of Hyperion to such effect.
(b) Hyperion
and Stockholder shall have
performed in all material respects all obligations required to be performed
by
it under this Agreement at or prior to the Closing Date, and AI shall have
received a certificate signed on behalf of Hyperion by the President of Hyperion
to such effect.
(c) The
consents set forth in Section
6.3(c) of the AI Disclosure Schedule shall have been obtained.
(d) The
SEC shall have consented to the use
of “carve-out” financial statements in the Registration Statement and in the
Report on Form 8-K required to be filed by Hyperion following the
Closing.
7. Post-Closing
Agreements. AI and Hyperion, as the case may be, agree that from
and after the Closing Date:
7.1. Further
Assurances and
Data.
(a) At
any time and from time to time after
the Closing Date, at Hyperion's reasonable request and without further
consideration, AI shall execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, all at
Hyperion's sole cost and expense, as Hyperion may reasonably request to more
effectively transfer, convey and assign to Hyperion, and to confirm Hyperion's
title to, all the AI Assets, to put Hyperion in actual possession and operating
control thereof, to assist Hyperion in exercising all rights with respect
thereto, and to carry out the purpose and intent of this
Agreement. Immediately after the Closing Date, AI shall, to the
extent applicable, authorize the release to Hyperion of all files pertaining
to
the AI Assets held by any federal, state, county or local authorities, agencies
or instrumentalities. AI and Hyperion will cooperate in
communications with suppliers and customers to accomplish the transfer of the
AI
Assets to Hyperion.
(b) The
parties agree that from and after
the Closing Date, as to any monies received that rightfully belong to the other
party, they shall remit such monies promptly to the other party.
7.2. Cooperation
in
Litigation. Each party hereto will reasonably cooperate with the
other in the defense or prosecution of any litigation or proceeding already
instituted or which may be instituted hereafter against or by such party
relating to or arising out of the use of the AI Assets prior to the Closing
Date
(other than litigation arising out of the transactions contemplated by this
Agreement). The party requesting such cooperation shall pay the
out-of-pocket expenses (including legal fees and disbursements) of the party
providing such cooperation and of its officers, directors, employees, other
personnel and agents reasonably incurred in connection with providing such
cooperation, but shall not be responsible to reimburse the party providing
such
cooperation for such party's time spent in such cooperation or the salaries
or
costs of fringe benefits or similar expenses paid by the party providing such
cooperation to its officers, directors, employees, other personnel and agents
while assisting in the defense or prosecution of any such litigation or
proceeding.
7.3. Consents. AI
will use
its commercially reasonable best efforts to obtain by the Closing Date, consents
from each landlord relating to all real property leases identified on Section
2.16 of the AI Disclosure Schedule, consenting to the assumption of each such
real property lease by Hyperion, and any other consents required under any
Contract or otherwise in connection with the transactions contemplated by this
Agreement. To the extent that any interest in any of the AI Assets is
not capable of being assigned, transferred, conveyed or registered without
the
consent, waiver or authorization of, or registration with, a third person
(including, but not limited to, a governmental, regulatory or administrative
authority), or if such assignment, transfer, conveyance, registration or
attempted assignment, transfer, conveyance or registration would constitute
a
breach of any AI Asset, or a violation of any law, statute, decree, rule,
regulation or other governmental edict or is not immediately practicable, this
Agreement shall not constitute an assignment, transfer or conveyance of such
interest, or an attempted assignment, transfer or conveyance of such interest
(such interests being hereinafter collectively referred to as “Restricted
Interests”). The entire beneficial interest in any AI Assets subject
to a restriction as described above, and any other interest in such AI Assets
which are transferable notwithstanding such restriction, shall be transferred
from AI to Hyperion as provided in Section 1.1(a). To the extent
that any required consents, waivers, authorizations and registrations are not
obtained, or until the impracticalities of transfer referred to therein are
resolved, AI shall (i) provide to Hyperion, at the request of Hyperion, the
benefits of any Restricted Interests, (ii) cooperate in reasonable and
lawful arrangements designed to provide such benefits to Hyperion and
(iii) enforce, at the request of Hyperion for the account of Hyperion, any
rights of AI arising from any Restricted Interests (including the right to
elect
to terminate in accordance with the terms thereof upon the advice of
Hyperion).
8. Indemnification. The
Stockholder agrees to defend, indemnify and hold harmless AI and its officers,
directors, employees, managers, members, agents, advisers and representatives
(collectively, the “Indemnitees”) from and against, and pay or reimburse the
Indemnitees for, any and all claims, demands, liabilities, obligations, losses,
fines, costs, expenses, royalties, litigation, deficiencies or damages (whether
absolute, accrued, contingent or otherwise and whether or not resulting from
third party claims), including interest and penalties with respect thereto
and
out-of-pocket expenses and reasonable attorneys’ and accountants’ fees and
expenses incurred in the investigation or defense of any of the same or in
asserting, preserving or enforcing any of their respective rights hereunder
(collectively, “Losses”, and each individually, a “Loss”), resulting from or
arising out of:
(a) any
breach of the Representations and
Warranties of Hyperion and/or Stockholder set forth in this
Agreement;
(b) any
transaction, liability or
obligation, whether absolute or contingent, that occurs or arises out of the
business operations or activities of Hyperion on or prior to the Closing
Date;
(c) Any
taxes arising out of the operations
of Hyperion prior to the Closing Date.
8.1. Indemnification
Procedures. In the case of any claim asserted by a third party
against a party entitled to indemnification under this Agreement (the
“Indemnified Party”), notice shall be given by the Indemnified Party to the
party required to provide indemnification (the “Indemnifying Party”) promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and the Indemnified Party shall permit the Indemnifying
Party (at the expense of such Indemnifying Party) to assume the defense of
any
claim or any litigation resulting therefrom, provided, that (i) counsel
for the Indemnifying Party who shall conduct the defense of such claim or
litigation shall be reasonably satisfactory to the Indemnified Party, and the
Indemnified Party may participate in such defense at such Indemnified Party’s
expense, and (ii) the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its indemnification
obligation under this Agreement except to the extent that such failure results
in a lack of actual notice to the Indemnifying Party and such Indemnifying
Party
is materially prejudiced as a result of such failure to give
notice. Except with the prior written consent of the Indemnified
Party, no Indemnifying Party, in the defense of any such claim or litigation,
shall consent to entry of any judgment or enter into any settlement that
provides for injunctive or other nonmonetary relief affecting the Indemnified
Party or that does not include as an unconditional term thereof the giving
by
each claimant or plaintiff to such Indemnified Party of a release from all
liability with respect to such claim or litigation. In no event shall
a party guilty of fraud or willful misconduct be entitled to indemnity with
respect to any matter involving such fraud or willful misconduct. In
the event that the Indemnified Party shall in good faith determine that the
Indemnified Party may have available to it one or more defenses or counterclaims
that are inconsistent with one or more of those that may be available to the
Indemnifying Party in respect of such claim or any litigation relating thereto,
the Indemnified Party shall have the right at all times to take over and assume
control over the defense, settlement, negotiations or litigation relating to
any
such claim at the sole cost of the Indemnifying Party, provided, that if
the Indemnified Party does so take over and assume control, the Indemnified
Party shall not settle such claim or litigation without the written consent
of
the Indemnifying Party, such consent not to be unreasonably
withheld. In the event that the Indemnifying Party does not accept
the defense of any matter as above provided, the Indemnified Party shall have
the full right to defense against any such claim or demand, and shall be
entitled to settle or agree to pay in full such claim or demand, subject to
the
written consent of the Indemnifying Party such consent not to be unreasonably
withheld. In any event, except to the extent that they have an
interest adverse to the other, the parties hereto shall cooperate in the defense
of any claim or litigation subject to this Section 8 and the records of each
shall be available to the other with respect to such defense.
9. Transfer
and Sales
Tax. Notwithstanding any provisions of law imposing the burden of
such taxes on AI or Hyperion, as the case may be, Hyperion shall be responsible
for and shall pay (a) all sales, bulk sales, use and transfer taxes, and (b)
all
governmental charges, if any, upon and due in connection with the sale or
transfer of any of the AI Assets hereunder.
10. Termination.
10.1. Time
of
Termination. This Agreement may be terminated at any time prior
to the Closing, whether before or after approval of the matters presented in
connection with the transactions contemplated by this Agreement by the
stockholders of AI:
(a) By
mutual consent of Hyperion and
AI.
(b) (i)
By either Hyperion or Stockholder
on the one hand or AI on the other hand if there shall be a material breach
of
any representation, warranty, covenant, obligation or agreement on the part
of
the other party set forth in this Agreement which breach shall not have been
cured, in the case of a representation or warranty, prior to the Closing, or
in
the case of a covenant, obligation or agreement, within two (2) business days
following receipt by the breaching party of notice of such breach; or (ii)
by
either Hyperion or AI if any permanent injunction or other order of a court
or
other competent authority preventing the consummation of the transactions
contemplated by this Agreement shall have become final and
non-appealable.
(c) By
either Hyperion or AI if the
stockholders of AI do not approve the transactions contemplated by this
Agreement.
10.2. Effect
of
Termination. In event of a termination of this Agreement by
either AI or Hyperion as provided in Section 10.1, this Agreement shall
forthwith become void; provided, however, that no such termination shall relieve
any party hereto from any liability for breach of this Agreement.
10.3. Remedies
Not
Exclusive. No remedy conferred by any of the specific provisions
of this Agreement is intended to be exclusive of any other remedy, and each
and
every remedy shall be cumulative and shall be in addition to every other remedy
given under this Agreement or now or hereafter existing at law or in equity
or
by statute or otherwise, including, without limitation, the remedy of specific
performance. The election of any one or more remedies by Hyperion or
AI shall not constitute a waiver of the right to pursue other available
remedies.
11. Notices. Any
notices
or other communications required or permitted hereunder shall be in writing
and
shall be sufficiently given if delivered personally or sent by facsimile (with
transmission confirmed), Federal Express, registered or certified mail, return
receipt requested, postage prepaid, addressed as follows or to such other
address or facsimile number of which the parties may have given
notice:
To
AI: With
a copy to:
Accountabilities,
Inc. Xxxxxxxx,
Xxxxxxxx & Xxxxxx, P.C.
000
Xxxxx
Xxxx, Xxxxx
000 000
Xxxx Xxxx Xxxx, X.X. Xxx 000
Xxxxxxxxx,
XX 00000 Xxxxxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxx,
President Fax: 000-000-0000
Attention: Xxxxxx
X.
Xxxxxxxx, Esq.
To
Hyperion or the
Stockholder: With
a copy to:
Xxxxxx
Xxxx Xxxxxx
Xxxxx]
[Address] [Address]
Unless
otherwise specified herein, such notices or other communications shall be deemed
received (a) on the date delivered, if delivered personally, by facsimile or
by
Federal Express; or (b) three business days after being sent, if sent by
registered or certified mail.
12. Successors
and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns, except that neither party may assign its obligations hereunder without
the prior written consent of the other party hereto.
13. Entire
Agreement; Amendments;
Attachments.
13.1. Entire
Agreement;
Amendment. This Agreement, all schedules and exhibits hereto, and
all agreements and instruments to be delivered by the parties pursuant hereto
represent the entire understanding and agreement between the parties hereto
with
respect to the subject matter hereof and supersede all prior oral and written,
and all contemporaneous oral negotiations, commitments and understandings
between such parties. Hyperion and AI, by the consent of their
respective Boards of Directors, or officers authorized by such Boards, may
amend
or modify this Agreement, in such manner as may be agreed upon, by a written
instrument executed by Hyperion and AI.
13.2. Attachments. If
the
provisions of any schedule or exhibit to this Agreement are inconsistent with
the provisions of this Agreement, the provisions of this Agreement shall
prevail. The exhibits and schedules attached hereto or to be attached
hereafter are hereby incorporated as integral parts of this
Agreement.
14. Expenses. Expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be borne by the parties in accordance with the terms of the letter
agreement of even date herewith among AI and Hyperion.
15. Legal
Fees. In the
event that legal proceedings are commenced by any party hereto against any
other
party hereto in connection with this Agreement or the transactions contemplated
hereby, the party which does not prevail in such proceedings shall pay the
reasonable attorneys' fees and costs incurred by the prevailing party in such
proceedings.
16. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to conflicts of law principles.
17. Section
Headings. The
section headings are for the convenience of the parties and in no way alter,
modify, amend, limit, or restrict the contractual obligations of the
parties.
18. Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
19. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which, when taken together, shall be one and
the
same document.
20. Public
Disclosure. Neither party shall make any public statement about,
nor issue any press release concerning this Agreement or the transactions
contemplated hereby without first consulting with the other party hereto as
to
the form and substance of any such press release or public disclosure; provided,
however, that nothing in this Section 18 shall be deemed to prohibit any party
hereto from making any disclosure that its counsel deems necessary or advisable
in order to satisfy such party's disclosure obligation imposed by
law.
21. Employees;
WARN
Act. Effective on the Closing Date, AI shall terminate the
employment of all employees engaged in the Business (the “Terminated
Employees”), and shall terminate any employment agreements with such Terminated
Employees. As of the Closing Date, Hyperion shall offer employment to
all of the Terminated Employees (such hired persons being the “Hired
Employees”), at initial salaries and with initial benefits comparable to those
immediately prior to the termination. For the purposes of determining
and measuring benefits provided to any given Hired Employee by Hyperion, each
Hired Employee will be given credit for the Hired Employee’s term of service to
AI. For a period of at least forty-five (45) days from and after the
Effective Date, Hyperion shall employ substantially all, but in no event less
than 70%, of the Hired Employees and shall not terminate more than 50 full
time
employees who were employed by AI as of the Closing Date. Hyperion
shall be liable and responsible for any obligations under the Worker Adjustment
and Retraining Notification Act, as amended (the “WARN Act”), arising out
of Hyperion’s breach of this Section 21 with respect to the Hired
Employees.
(a) IN
WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of the date first above
written.
|
ACCOUNTABILITIES,
INC.
|
|||
|
Dated:
July 26,
2007
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |||
| Title: President | |||
| Hyperion Energy, Inc. | |||
|
Dated:
July 26,
2007
|
By:
|
/s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | |||
| Title: Xxxxxx Xxxx | |||
|
Dated:
July 26, 2007
|
By:
|
/s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | |||
| Individually | |||
