EXHIBIT 2.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into this 20th day of January, 2005 by and among Penge Corp., a Nevada
corporation with offices located at 0000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxx 0-000, Xxx
Xxxxx, Xxxxxx 00000 ("PURCHASER"), S&S Plant Farm., a Texas corporation with
offices located at 0000 Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000 (the "COMPANY") and
Xxxxxx and Xxxxxxx Xxxxxx, individuals ("SHAREHOLDER"). Capitalized terms used
in this Agreement which are not defined in context have the meanings specified
in EXHIBIT A attached hereto.
RECITALS
WHEREAS, Shareholder owns all of the issued and outstanding shares of
the capital stock of the Company (the "SHARES"); and
WIIEREAS, Shareholder desires to sell, and Purchaser desires to
purchase, all of the Shares in accordance with, and subject to the terms and
conditions set forth in, this Agreement (the "PURCHASE").
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
set forth in this Agreement, the receipt, adequacy and legal sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. THE PURCHASE.
1.1 PURCHASE AND SALE OF THE SHARES. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, Shareholder will sell
and transfer the Shares to Purchaser, and Purchaser will purchase the Shares
from Shareholder. Immediately following the closing, Purchaser will be the sole
shareholder of the Company. This sale includes all property, equipment,
inventory, arid customer lists and contracts owned by the Company as outlined in
the addenda to this Agreement. Any outstanding payables or debts of the Company
at the closing will be paid or dealt with in accordance with the subsequent
terms of this Agreement.
Property and asset exemption -Any term hereof to the contrary
notwithstanding, any receivable from Karstin, Inc., Integrated
Financial (which are companies owned by Shareholder), and the mobile
home owned personally by Shareholder will not be subject to or part of
the transaction contemplated hereby.
1.2 PURCHASE PRICE. Upon the terms and subject to the conditions of
this Agreement, Purchaser shall pay the sum of One Million Five Hundred Thousand
Dollars ($1,500,000) (the "PURCHASE PRICE") to Shareholder for the Shares in
accordance with the following schedule:
(a) Purchaser shall pay to Shareholder Three Hundred
Thousand Dollars ($300,000) in good funds on the Closing
Date on or before March 1, 2005, and Two Hundred Thousand
Dollars ($200,000) in good funds on January 10th, 2006.
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The Shareholder, subject to succeeding terms of this Agreement,
will pay all outstanding debts, leases and payables of the
Company on or before January 10th, 2006 using said $500,000.
The Shareholder will pay all outstanding debts, leases, and
payables of the Company on or before January 10th, 2006 of the
balances on the Date of Closing, with the exception of costs
incurred during the pre-closing period associated with the 2005
growing season revenues on or before January 10, 2006 using the
balance for same as of the date of Closing. The exempt property
and assets will not be subject to this payment. Notwithstanding
any other provisions contained herein to the contrary, costs
incurred by Shareholder during the pre-Closing period
associated with the 2005 growing season will be computed by
Shareholder and paid to Shareholder by Purchaser out of sales
of the Company's inventory from the date of Closing until no
later than June 1, 2005. On June 1, 2005 if Shareholder has not
been completely reimbursed for such costs, Purchaser will pay
the remaining amount owed in a lump sum and in full.
(b) Purchaser shall pay to Shareholder Five Hundred Thousand
Dollars ($500,000) in common stock in Penge Corp. at $0.30 a
share for a total of 1,667,000 shares which includes fully
paid par value;
(c) Purchaser shall pay to Shareholder Five Hundred Thousand
Dollars ($500,000) in the form of a secured promissory note
bearing 7% interest per annum simple. The amortization
schedule will be:
Year One and Two will be on a 20 year amortization
schedule with a $11,660.47 payment each quarter
beginning six months after the closing.
Year Three and Four will be on a 15 year amortization
schedule with a payment each quarter of $13,526.68.
Year Five will be on a 12 year amortization schedule
with a payment each quarter of $15,482.85.
After year Five, and on the first day of year 6, the
remaining principal balance will be due and payable
in a balloon payment.
(d) Shareholder will receive a 2nd mortgage behind whatever
debt, leases or payables that the Shareholder elects not to
payoff at closing from the $300,000 down payment. When the
Shareholder pays off the remaining debt, lease or payables
obligations by January 10th, 2006, the shareholder will then
be moved up to 1st lien position.
1.3 ACCEPTANCE OF CONSIDERATION. Shareholder accepts, and hereby agrees
that, the payment of the Purchase Price as provided for in Section 1.2
constitutes payment in full and is the sale consideration for the sale,
transfer, conveyance, assignment and delivery of the Shares to Purchaser by
Shareholder and for all of the other agreements of Shareholder provided for in
this Agreement.
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1.4 THE CLOSING. Upon the terms and subject to the conditions contained
in this Agreement, the closing of the transactions contemplated by this
Agreement (the "CLOSING") will take place on or before March 1, 2005 at such
place and/or such other time as the Parties may agree. For purposes of this
Agreement, the "CLOSING DATE" means the time and date on which the Closing
actually takes place.
1.5 SHAREHOLDER CLOSING DELIVERIES. At the Closing, Shareholder shall
deliver to Purchaser, or cause to be delivered to Purchaser, (i) stock
certificate( s) representing the Shares, duly endorsed (or accompanied by duly
executed stock powers), for transfer to Purchaser, and (ii) evidence of title
insurance in a form acceptable to Purchaser, and (iii) an executed copy of the
Employment Agreement (as defined below). At the Closing, Shareholder shall
retain all cash on hand at the business premises.
1.6 PURCHASER CLOSING DELIVERIES. At the Closing, Purchaser shall
deliver to Shareholder, or cause to be delivered to Shareholder, the Purchase
Price together with the Stock and hypothecation agreement pledging same to
Shareholder.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER AND THE COMPANY. Shareholder
and the Company hereby jointly and severally represent and warrant to Purchaser
as follows:
2.1 CORPORATE EXISTENCE. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas and
the Company has all requisite corporate power and authority to own, lease and
operate its properties and to carryon its business as currently conducted. The
Company is duly qualified to do business in each jurisdiction in which the
nature of its business makes such qualification necessary, except in those
jurisdictions where the failure to be so qualified would not have a Material
Adverse Effect.
2.2 CAPITALIZATION. The authorized capital stock of the Company
consists of 1,000,000 shares of common stock, $1.00 par value (the "COMMON
STOCK"), of which 1,000 shares are issued and outstanding and constitute the
Shares. There are no series or classes of stock of the Company other than the
Common Stock. All of the Shares have been duly authorized, validly issued and
are fully paid and nonassessable. The Company has no other shares of any kind
authorized or issued, no issued securities convertible into or exchangeable for
or carrying the right to acquire any equity security of the Company and no
issued options, warrants or other agreements or commitments under which the
Company is obligated to issue any additional shares or equity interests.
2.3 TITLE TO THE SHARES. Shareholder now owns, and on the Closing Date
will own, the Shares free and clear of any mortgage, imperfection of title,
lien, pledge, option, security interest, claim, charge or other encumbrance of
any kind (collectively, "ENCUMBRANCES").
2.4 SUBSIDIARIES. The Company has no subsidiaries.
2.5 AUTHORITY. This Agreement constitutes the legal, valid and binding
obligation of the Company and Shareholder, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; and (ii) as limited by general
principles of equity that restrict the availability of specific performance,
injunctive relief or other equitable remedies. Shareholder and the Company each
have all necessary power and authority under their organizational documents and
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applicable Legal Requirements to execute and deliver this Agreement and to carry
out their respective obligations hereunder. All actions on the part of
Shareholder and the Company necessary for the due authorization, execution and
delivery of this Agreement and the performance of their respective obligations
hereunder have been taken or will be taken prior to the Closing.
2.6 NO ADVERSE CONSEQUENCES. Neither the execution and delivery of this
Agreement by the Company nor the consummation of the transactions contemplated
hereby will (i) violate or conflict with any provision of the Company's Articles
of Incorporation or Bylaws, (ii) violate, in any material respect, any Legal
Requirement applicable to the Company, or (iii) connect with or result in the
breach of the terms, conditions or provisions of any material agreement to which
the Company is a party or by which it is bound.
The Shareholders will provide waiver of right of first refusal for the
sale of the common stock.
2.7 LITIGATION. There is no claim, litigation, Proceeding or
investigation of any kind pending by or against the Company and, to the
knowledge of Shareholder and the Company, there is no such claim, litigation,
proceeding or investigation threatened against the Company with the exception of
the disclosure of the class action suit as discussed with Purchaser in telephone
conversation pertaining to a water contamination claim made by homeowners in the
subdivision to the north of the real property owned by the Company ("Real
Property") in which no party had actual damage but claimed stigma damage to
their property as a result of an oil pipeline leak further to the northeast of
the subdivision and Xxxx Xx. and just south of Loop 250. The attorneys
representing Shareholder later dropped out due to lack of expert witnesses that
could testify that there was any threat to water quality and also to the fact
that properties comparable properties in the area have continued to sell for 85%
to 106% of their appraised values. Shareholder believes there is no material
damage to the Real Property.
2.8 COMPLIANCE WITH LAWS. The Company has at all relevant times
conducted its business in compliance, in all material respects, with its
Articles of Incorporation and its Bylaws. To the knowledge of Shareholder and
the Company, the Company is not in violation of any applicable Legal
Requirement, other than violations which would not have a Material Adverse
Effect. To the knowledge of Shareholder and the Company, the Company has not
been charged with, or threatened with a charge of, a violation of any Legal
Requirement.
2.9 OWNED REAL PROPERTY. EXHIBIT B lists and describes all real
property that the Company owns. With respect to each such parcel of owned real
property:
(a) the Company has good and marketable title to the Real
Property, free and clear of any Encumbrance, easement,
covenant, or other restriction, except for installments of
special assessments not yet delinquent and recorded easements,
covenants, and other restrictions which do not impair the
current use, occupancy, or value, or the marketability of
title, of the property subject thereto. A copy of the survey
with legal description is available and will be part of the
closing documents provided by the Shareholder.
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In a telephone conversation with Purchaser, the Shareholder
disclosed the use of the mobile home located on the Real
Property which is also Shareholder's current residence, which
is in violation of certain restrictions on said property. A
temporary use permit was granted by the City of Midland for
the use of said mobile home on the property which was limited
to an 18 month period. Such permit expired some 10 years ago.
There have been no complaints registered concerning it for
years and said mobile home is surrounded on three sides by
various greenhouse additions, which greatly limits its
visibility. Shareholder will remove the mobile home from the
premises of the Real Property if they ever vacate the premises
or in the event a complaint should be brought to the City of
Midland, whichever event shall first occur.
(b) there are no pending or threatened condemnation
proceedings, lawsuits, or administrative actions relating to
the Property or other matters affecting adversely the current
use, occupancy, or value thereof.
(c) the legal description for the Real Property contained in
the deed thereof describes such Real Property fully and
adequately, the buildings and improvements are located within
the boundary lines of the described parcels of land, are not
in violation of applicable setback requirements, zoning laws,
and ordinances (and none of the properties or buildings or
improvements thereon are subject to "permitted non-conforming
use" or "permitted non-conforming structure" classifications),
and do not encroach on any easement which may burden the land,
and the land does not serve any adjoining property for any
purpose inconsistent with the use of the land, and the
property is not located within any flood plain or subject to
any similar type restriction for which any permits or licenses
necessary to the use thereof have not been obtained;
(d) all facilities, with exception of the mobile home
mentioned in subparagraph (a) immediately above, have received
all approvals of governmental authorities (including licenses
and permits) required in connection with the ownership or
operation thereof and have been operated and maintained in
accordance with applicable laws, rules, and regulations;
(e) there are no leases, subleases, licenses, concessions, or
other agreements, written or oral, granting to any party or
parties the right of use or occupancy of any portion of the
Real Property owned by the Corporation, and the Company has
leased approximately three acres running all along the
western-most boundary line of the Real Property which has been
fenced in by the tenant and locked by him and for which tenant
has executed both a lease and an indemnification of the
Company for any accident or mishap which might occur on that
leased premises;
(f) there are no outstanding options or rights of first refusal
to purchase the Real Property, or any portion thereof or
interest therein;
(g) there are no parties (other than the Company) in possession
of the Real Property;
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(h) all facilities located on the Real Property are supplied
with utilities and other services necessary for the operation
of such facilities, including gas, electricity, water,
telephone, sanitary sewer, and storm sewer, all of which
services are adequate in accordance with all applicable laws,
ordinances, rules, and regulations and are provided via public
roads or via permanent, irrevocable, appurtenant easements
benefiting the Real Property; and the Purchaser acknowledges
the property is in a rural setting. Public utilities are not
all available such as storm sewers, sanitary sewers, and
public water supply. Private septic systems are in place as
well as multiple irrigation xxxxx;
(i) the Real Property abuts on and has direct vehicular access
to a public road, or has access to a public road via a
permanent, irrevocable, appurtenant easement benefiting the
Real Property, and access to the Real Property is provided by
paved public right-of-way with adequate curb cuts available.
The Real Property has direct vehicular access to a public city
paved street; however access on the Real Property is not
paved. There are no curb cuts available in this rural setting.
2.10 LEASED REAL PROPERTY. Exhibit B also lists and describes briefly
all Real Property leased or subleased to the Company. The mobile home is not
included with the assets.
2.11 TANGIBLE ASSETS. EXHIBIT C lists and describes all buildings,
machinery, equipment and other tangible assets owned by the Company. The Company
has good and marketable title to all such tangible assets, free and clear of any
Encumbrances. The Company owns or leases all buildings, machinery, equipment,
and other tangible assets necessary for the conduct of its business as presently
conducted. Each such tangible asset is free from defects (patent and latent),
has been maintained in accordance with normal industry practice, is in good
operating condition and repair (subject to normal wear and tear), and is
suitable for the purposes for which it presently is used.
2.12 ENVIRONMENTAL AND SAFETY LAWS. The Company is not in violation in
any material respect of any applicable statute, law or regulation relating to
the environment or occupational health and safety.
2.13 TAX RETURNS AND PAYMENTS. The Company has filed all Tax Returns
(federal, state and local) required to be filed by it, and all such filed Tax
Returns are complete and accurate in all material respects. To the knowledge of
the Company and the Shareholder, all Taxes shown to be due and payable on such
Tax Returns, any assessments imposed, and all other Taxes (including Taxes that
the Company is obligated to withhold from amounts owing to any employee,
creditor or third party) due and payable by the Company have been paid or will
be paid prior to the time they become delinquent. To the knowledge of the
Company and the Shareholder, the Company has not been advised (i) that any of
its Tax Returns, federal, state, local, foreign or other, has been or is being
audited as of the date hereof, or (ii) of any deficiency in assessment or
proposed adjustment to its Taxes. There exists no liability for any Tax or
potential Tax to be imposed upon the properties or assets of the Company as of
the date of this Agreement that is not adequately provided for and reserved
against on the Financial Statements (as defined below). The financial statements
are 1m-audited, not reviewed, based on FIT basis and information furnished by
the stockholder/company - they do not comply with GAAP nor do they have any
additional required information that would show investing and cash management of
the company.
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2.14 AGREEMENTS; ACTIONS. There are no agreements, understandings or
proposed transactions between the Company, on the one hand, and the Shareholder
or any of the Company's officers or directors, on the other.
2.15 UNDISCLOSED LIABILITIES. The Company does not have any liability
or obligation (whether absolute, accrued, contingent or other, and whether due
or to become due) which is not accrued, reserved against or disclosed in the
Current Balance Sheet, other than liabilities incurred in the ordinary course of
business consistent with past practice since the date of the Current Balance
Sheet, which individually or in the aggregate are not material to the Company or
would not have a Material Adverse Effect.
2.16 BOOKS AND RECORDS. Complete copies of the books of account, minute
books, stock certificate books and stock transfer ledgers of the Company will be
made available to Purchaser and their auditors.
2.17 INVENTORY. EXHIBIT D lists and describes all inventory owned by
the Company as of __________ (date).
2.18 BANK ACCOUNTS. EXHIBIT E contains a complete and accurate list of
all the banks or other financial institutions at which the Company maintains
accounts or safe deposit boxes, together with numbers of such accounts and boxes
and the names of the persons authorized to draw thereon or permitted access
thereto. All cash in such accounts is held in demand deposits and is not subject
to any restriction or limitation as to withdrawal. All current banking is done
at Midland branch of American State Bank. Any further information pertaining to
bank accounts, etc., will be provided in Exhibit E.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Shareholder as follows:
Purchaser also makes the same warranties to Shareholder as made to the
Purchaser in 2.13, 2.7, and 2.8 regarding payment of taxes, litigation, and
compliance with the law. Any changes to these representations and warranties
prior to closing must be disclosed.
All stock of Purchaser to be issued to Shareholder in this transaction
is fully paid and non-assessable.
3.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
3.2 AUTHORITY. This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms. Purchaser has the absolute and unrestricted right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
Purchaser has all necessary power and authority under its organizational
documents and all applicable Legal Requirements to execute and deliver this
Agreement and to carry out its obligations hereunder. All actions on the part of
Purchaser necessary for the due authorization, execution and delivery of this
Agreement and the performance of its obligations hereunder have been taken or
will be taken prior to the Closing.
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4. CERTAIN COVENANTS OF THE PARTIES.
4.1 ACCESS AND INVESTIGATION. During the period from the date of this
Agreement through the Closing (the "PRE-CLOSING PERIOD"), the Company shall, and
shall cause its Representatives to provide Purchaser and Purchaser's
Representatives with (i) reasonable access to the Company's personnel (as
approved by the Company), assets, contracts, books and records, and other
documents and data relating to the Company, (ii) copies of such contracts, books
and records, and other documents and data as Purchaser may reasonably request,
and (iii) such additional financial, operating and other data and information
regarding the Company, as Purchaser may reasonably request.
All of this information is the Property of the Company and will remain
as such, including work papers and all electronic information, hard copy
information, and all duplicates whether held by the purchaser or their auditors.
Purchaser will hold such information in complete confidence.
4.2 OPERATION OF THE COMPANY'S BUSINESS. During the Pre-Closing Period
the Company shall conduct its business and operations in substantially the same
manner as such business and operations have been conducted prior to the date of
this Agreement. Without limiting the generality of the foregoing, the Company
shall not declare, set aside, or pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase, or otherwise acquire any of
its capital stock.
4.3 PRESERVATION OF BUSINESS. The Company shall keep its business and
properties substantially intact, including its present operations, physical
facilities, working conditions, and relationships with lessors, licensors,
suppliers, customers, and employees.
4.4 EMPLOYMENT AGREEMENT. At or before the Closing, Shareholder shall
execute and deliver to Purchaser an employment agreement in form and substance
mutually agreeable to the parties hereto (the "EMPLOYMENT AGREEMENT"). The
parties agree that the Shareholder will continue to run S&S Plant Farm under a
salary plus bonus agreement and that the Purchaser is only interested in
completing this deal if the Shareholder agrees to continue to run and grow S&S
Plant Farm for the foreseeable future.
4.5 NON-COMPETE.
(a) COVENANT NOT TO COMPETE. During the two-year period
following the Closing Date (the "RESTRICTED PERIOD"),
Shareholder shall not, directly or indirectly, engage in
competition with the Company in any manner or capacity (e.g.,
as an advisor, principal, agent, partner, officer, director,
stockholder, employee, member of any association or otherwise)
in any phase of the business which the Company is conducting
during the Restricted Period or hire any current employee of
the Company or former employee of the Company within one month
of their termination, in an area described by a radius whose
central point is the center of the City of Midland, Texas
which extends for a 100 miles. Excepted from this Covenant Not
to Compete are other businesses owned by or with which
Shareholders are associated, including Tiffany's Restaurant,
Karstin Inc., Totally Tomato Co., and Landscaping, whether
commercial or residential and di11 contracting businesses.
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(b) NONSOLICITATION AGREEMENT. During the Restricted Period,
Shareholder shall not (a) induce or attempt to induce, any
employee of the Company or any affiliate of the Company to
leave the employ of the Company or such affiliate, or in any
way interfere adversely with the relationship between any such
employee and the Company or such affiliate; (b) induce or
attempt to induce any employee of the Company or any affiliate
of the Company to work for, render services to, provide advice
to, or supply confidential business information or trade
secrets of the Company or any affiliate of the Company to any
third person, firm or corporation; or (c) induce or attempt to
induce any customer, supplier, licensee, licensor or other
business relation of the Company or affiliate of the Company
to cease doing business with the Company or such affiliate, or
in any way interfere with the relationship between any such
customer, supplier, licensee, licensor or other business
relation and the Company or such affiliate.
(c) INDIRECT COMPETITION. Shareholder will not, directly or
indirectly, assist or encourage any other person in carrying
out, directly or indirectly, any activity that would be
prohibited by the above provisions of this Section 4.7 if such
activity were carried out by Shareholder, either directly or
indirectly. In particular Shareholder agrees that he will not,
directly or indirectly, induce any employee of the Company to
carry out, directly or indirectly, any such activity.
(d) BLUE PENCIL DOCTRINE. If the duration or geographical
extent of, or business activities covered by, this Section 4.7
are in excess of what is valid and enforceable under
applicable law, then such provision shall be construed to
cover only that duration, geographical extent or activities
that are valid and enforceable. Shareholder acknowledges the
uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which
renders its provisions valid and enforceable to the maximum
extent (not exceeding its express terms) possible under
applicable law.
5. CONDITIONS PRECEDENT.
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser to effect the Purchase and otherwise consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at or prior to
the Closing, of each of the following conditions:
(a) Each of the representations and warranties made by the
Company and Shareholder in this Agreement shall have been
accurate in all material respects as of the date of this
Agreement, and shall be accurate in all material respects as
of the Closing Date as if made at the Closing Date;
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(b) All of the covenants and obligations that the Company and
Shareholder are required to comply with or to perform at or
prior to the Closing shall have been complied with and
performed in all material respects;
(c) Purchaser shall have received the written resignations of
all of the directors and officers of the Company, effective
as of the Closing Date;
(d) Shareholder shall have executed and delivered the
Employment Agreement to Purchaser;
5.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND SHAREHOLDER.
The obligations of the Company and Shareholder to effect the Purchase and
otherwise consummate the transactions contemplated by this Agreement are subject
to the satisfaction, at or prior to the Closing, of the following conditions:
(a) Each of the representations and warranties made by
Purchaser in this Agreement shall have been accurate in all
material respects as of the date of this Agreement, and shall
be accurate in all material respects as of the Closing Date
as if made at the Closing Date; and
(b) All of the covenants and obligations that Purchaser is
required to comply with or to perform at or prior to the
Closing shall have been complied with and performed in all
material respects.
6. SURVIVAL OF REPRESENTATIVES AND WARRANTIES. All of the representations and
warranties of the parties contained in this Agreement shall survive the Closing
and continue in full force and effect for a period of two years thereafter
(subject to any applicable statutes of limitations).
7. MISCELLANEOUS PROVISIONS.
7.1 EXPENSES. Each of the Company, Shareholder and Purchaser shall pay
all costs , and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement and all of the
transactions contemplated hereby.
7.2 ATTORNEYS' FEES. If any legal action or other legal Proceeding
relating to this Agreement or the enforcement of any provision thereof is
brought against any party hereto, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
7.3 NOTICE. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile number set forth beneath the name of such party below (or
to such other address or facsimile number as such party shall have specified in
a written notice given to the other parties hereto):
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If to the Company:
S&S Plant Farm.
0000 Xxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000 Attn:
President Telephone:
000-000-0000
If to the Shareholders:
Xxxxxx and Xxxxxxx Xxxxxx
0000 Xxxxxx Xxx. Xxxxxxx,
Xxxxx 00000 Telephone:
000-000-0000
If to Purchaser:
Penge Corp.
0000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxx 0-000 Xxx
Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either of the above addresses may be changed at any time by notice given as
provided above; PROVIDED, HOWEVER, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, sent by facsimile or by overnight courier, and three (3)
business days after the date of mailing, if mailed by certified mail, return
receipt requested.
7.4 HEADINGS. The headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
7.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
7.6 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of Texas
(without giving effect to principles of conflicts of laws).
7.7 JURISDICTION: SERVICE OF PROCESS. Any action or Proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the State
of Texas, County of Midland, or, if it has or can acquire jurisdiction, in the
United States District Court for the Western District of Texas and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or Proceeding and waives any objection to
the venue laid therein. Process in any action or Proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
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7.8 SUCCESSORS AND ASSIGNS. No party to this Agreement may assign any
of its rights hereunder without the prior written consent of the other parties
hereto. Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties.
7.9 WAIVER.
No failure on the part of a pal1y to this Agreement to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of any party hereto in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
No party shall be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of such
party; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
7.10 AMENDMENTS. This Agreement may not be amended, modified, altered
or supplemented other than by means of a written instrument duly executed and
delivered on behalf of Purchaser, the Company and Shareholder.
7.11 SEVERABILITY. In the event that any provision of this Agreement,
or the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, al1d the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
7.12 ENTIRE AGREEMENT. This Agreement (together with the Exhibits
attached hereto) sets forth the entire understanding of the parties relating to
the subject matter thereof and supersede all prior agreements and understandings
among or between any of the parties relating to the subject matter thereof.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have caused this Agreement to be executed and
delivered as of the effective Date.
COMPANY PURCHASER
S&S Plant Farm Penge Corp.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
---------------------------- ---------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxxx
---------------------------- ---------------------------
Title: V.P. CEO
---------------------------- ---------------------------
SHAREHOLDER
------------------- -----------------------
Xxxxxx Xxxxxx Xxxxxxx Xxxxxx
0000 Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
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