ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of November 17, 2004, by and among Edison
Renewables, Inc., a Nevada Corporation with offices located at 0000 Xxxx Xxxx
Xxxxxx, #000, Xxxx Xxxx, Xxx Xxxx 00000 ("Buyer"), Xxxxxxxx ITS, LLC, a
California limited liability company with offices located at 000 X. Xxxxxx
Xxxx., Xxxxx 000 Xxxxxxx XX 00000 ("Seller") and Xxxxxxx X. Xxxxxxxx, ("Sole
Member");
WHEREAS, the Buyer desires to purchase from the Seller and the Seller desires to
sell to the buyer, certain specified assets relating to the Seller' business as
a full service internet service provider, as set forth in the Agreement; and
WHEREAS, the Board of Directors of the Buyer and the Sole Member of the Seller
have approved and adopted this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein set forth and
upon the terms and subject to the conditions hereof, the parties agree as
follows:
ARTICLE I. DEFINED TERMS
1.01 Definitions. As used in this Agreement, terms defined in the preamble and
recitals of this Agreement shall have the meanings set forth therein and the
following terms shall have the means set forth below:
"Agreement" means this Asset Purchase Agreement and all Schedules and Exhibits
attached hereto, as the same may from time to time be amended.
"Consideration" means the amount of consideration set forth in Section 2.02
hereof.
"Closing," means the single closing of the transactions contemplated by this
Agreement in Anaheim, California on the Closing Date set forth in Section 2.03
hereof.
"Code" means the Internal Revenue Code of 1986 and all regulations promulgated
thereunder, as the same from time to time have been amended.
"Consent," means any consent, approval or authorization of, notice to, or
designation, registration, declaration or filing with, any Person.
"Contract" means any contract, lease, agreement, license, arrangement,
commitment or understanding, oral or written, to which Buyer or Seller is a
party or by which it or any of its properties or assets may be bound or
affected.
"Environmental Law" means any Law relating to (a) the protection, preservation
of restoration of the environment (including air, water vapor, surface water,
ground-water, drinking water supply, surface land, subsurface land, plant and
animal life or any other natural resource) or to human health or safety or (b)
the exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal,
of Hazardous Substances.
"Governmental Authority" means any court or any Federal, state, municipal or
other government department, commission, board, bureau, agency or
instrumentality.
"Instrument" means any written Contract, deed, assignment, document of title,
note, power of attorney, obligation or other document.
"Knowledge" (or any variations thereof, including the terms "know" or "known")
means (a) with respect to Seller, the actual knowledge of any manager or member,
(b) with respect to Buyer, the actual knowledge of any shareholder, officer or
director, and (c) the knowledge that any Person referred to in clause (a) or (b)
should have after diligent investigation.
"Law" means (I) all Federal, state, local and foreign laws, rules and
regulations; (ii) all Orders; and (iii) all Permits.
"Liabilities" means all debts, duties, liabilities, Contracts, commitments,
taxes and other obligations of every kind and character of Seller, whether known
or unknown, and whether accrued, absolute, contingent or otherwise and whether
due or to become due.
"Lien" means any mortgage, pledge, option, escrow, hypothecation, lien, security
interest, financing statement, lease, charge, encumbrance, easement, conditional
sale or other title retention or security agreement or any other similar
restriction, claim or right of others, whether arising by Contract, operation of
Law or otherwise.
"Manager" means Xxxxxxx X. Xxxxxxxx, Sole Manager of Seller.
"Order" means any judgment, award, order, write, injunction or decree issued by
any Federal, state, local or foreign authority, court, tribunal, agency, or
other Governmental Authority, or by any arbitrator, to which Seller or its
assets are subject, or to which Buyer or its assets are subject, as the case may
be.
"Permits" means all permits, licenses, approvals, franchises, notices,
authorizations and similar filings, Federal, state, local or foreign, necessary
to carry on the Business by, or on behalf of, or for the benefit of, Seller or
Buyer (as the case may be) as currently conducted by, or on behalf of, or for
the benefit of, Seller or Buyer (as the case may be), or to own, operate or
lease the properties and assets owned, operated by leased by, or on behalf of,
or for the benefit of, any such Person, or to consummate the transactions
contemplated by this Agreement.
"Person" means any individual, partnership, joint venture, corporation, limited
liability company, limited liability partnership, trust, unincorporated
organization, Governmental Authority or other entity.
"Proceeding," means any action, suit, claim, investigation, review or other
action, at law or in equity, before any Federal, state, municipal or other
Governmental Authority.
"Promissory Note" means the promissory note described in Section 2.02(a) and
Exhibit B hereto.
"Purchased Assets" means the Seller's properties, assets and rights listed on
Exhibit A hereto.
"Retained Assets," means all assets, rights and properties, real and personal,
tangible and intangible, of Seller other than the Purchased Assets.
"Seller" means, Xxxxxxxx ITS, LLC, a California limited liability company.
"Shares" means the amount of shares of common stock issued to Seller set forth
is Section 2.02(c) hereof.
"Sole Member" means Xxxxxxx X. Xxxxxxxx who owns all of the issued and
outstanding membership interests of Seller.
1.02 Rules of Construction. Unless the context otherwise requires: (a) a term
has the meaning assigned to it; (b) and accounting term not otherwise defined
has the meaning assigned to it in accordance with generally accepted accounting
principles; (c) "or" its not exclusive; (d) words in the singular include the
plural, and works in the plural include the singular; (e) provisions apply to
successive events and transactions; (f) "herein", "hereof", "hereto" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and (g) any gender used in
this Agreement shall be deemed to include the neuter, masculine and feminine
gender.
ARTICLE II. PURCHASE AND SALE OF ASSETS
2.01 Sale of the Purchased Assets; Assumption of the Assumed Liabilities.
Upon the terms and subject to the conditions of this Agreement, at the
Closing Seller will sell, transfer, assign, convey and deliver to
Buyer, and Buyer will purchase, accept and acquire from Seller, the
Purchased Assets, free and clear of all Liens. Buyer will not assume
or otherwise have any responsibility for any liabilities of Seller.
2.02 Purchase Price. The aggregate purchase price to be paid by Buyer for
the Purchased Assets shall consist of (i) the Promissory Note
described in Section 2.02 (a) hereof and (ii) the shares described in
Section 2.02(b) hereof.
(a) Promissory Note. A promissory note payable to Seller shall be an
amount equal to one hundred seven thousand ($107,000) dollars
payable on or before one (1) year from the date of Closing of
this transaction. The terms and form of the Promissory Note shall
be as set forth on Exhibit B hereto.
(b) Share Consideration. 560,000 Shares of unregistered common stock
of Edison Renewables, Inc. (OTC-BB), $0.001 par value per share
shall be transferred to Seller at Closing.
(c) No Assumption of Liabilities. The Buyer is not assuming, and
shall not be deemed to have assumed, any obligations or
liabilities of Seller.
2.03 Closing. The Closing of the transactions contemplated by this
Agreement shall take place on or before November 19, 2004, at the
Executive Offices of Buyer, at 2:00 P.M. PDT, or such other date, time
and place as Buyer and Seller may mutually agree.
2.04 Closing Deliveries.
(a) Sellers' Deliveries. At the Closing, Seller shall have delivered
to Buyer;
(i) Such bills of sale, assignments and other Instruments (in
form and substance satisfactory to Buyer) as shall be
necessary or appropriate to vest in Buyer good and
marketable title to the Purchased Assets, free and clear of
all Liens;
(ii) Such Consents, Permits and other Instruments as Buyer may
reasonably request to enable it to utilize the Purchased
Assets without interruption;
(iii)A certificate, dated as of a date not more than thirty (30)
days prior to the Closing date, duly issued by the
appropriate governmental authority in the State of
California and in each state and country in which the Seller
is authorized to do business showing the Seller is in good
standing and authorized to do business in such jurisdiction;
(iv) Seller's Resolution of the Manager and Sole Member of Seller
approving the Seller entering into this Agreement and the
consummation of the transactions contemplated hereby.
(b) Buyer's Deliveries. At the Closing, Buyer shall have delivered to
Seller:
(i) The Promissory Note substantially in the form of Exhibit B
hereto;
(ii) Certificates representing 560,000 shares of unregistered
common stock of Edison Renewables, Inc. to Seller;
(v) A certificate, dated as of a date not more than thirty (30)
days prior to the Closing date, duly issued by the
appropriate governmental authority in the State of Nevada
and in each state and country in which the Buyer is
authorized to do business showing the Buyer is in good
standing and authorized to do business in such jurisdiction;
(vi) Buyer's Resolution of the board of directors of Buyer
approving the Buyer entering into this agreement and the
consummation of the transactions contemplated hereby.
ARTICLE III. CLOSING CONDITIONS
3.01 Conditions Precedent to the Obligations of Seller. All obligations of
Seller under this Agreement are subject to the fulfillment, at the
option of Seller, at or prior to the Closing Date, of each of the
following conditions;
(a) Buyer's Representations and Warranties. The representations and
warranties of Buyer herein contained shall be true on and as of
the Closing Date.
(b) Other Agreements. On the Closing Date, the Agreement(s) and such
other Instruments reasonably necessary to carry out the
transactions contemplated by this Agreement shall have been duly
executed and delivered by Buyer.
(c) No Litigation. No Proceeding shall have been commenced and still
be pending, no investigation by any Governmental Authority shall
have been commenced and still be pending, and no Proceeding shall
have been threatened against Seller or Buyer (i) seeking to
restrain, prevent or change the transactions contemplated hereby
or questioning the validity or legality of any of such
transactions, or (ii) which if resolved adversely to any party
would materially and adversely affect the financial condition,
business, property, assets or prospects of any such party.
(d) Documentation. All matters and proceedings taken in connection
with the sale of the Purchased Assets as herein contemplated,
including forms of instruments and matters of title, shall be
reasonably satisfactory to Seller and its counsel.
3.02 Conditions Precedent to the Obligations of Buyer. All obligations of
Buyer under this Agreement are subject to the fulfillment, at the
option of Seller, at or prior to the Closing Date, of each of the
following conditions;
(a) Seller's Representations and Warranties. The representations and
warranties of Seller and the Sole Member herein contained shall
be true on and as of the Closing Date.
(b) Consents. Buyer shall have received evidence satisfactory to
Buyer and its counsel, that all of the Consents disclosed in
Schedule 4.12 hereto have been duly obtained and that all Permits
and Consents necessary to the operation of the Purchased Assets
have been transferred to or issued to Buyer.
(c) Other Agreements. On the Closing Date, the Agreement(s) and the
Instruments of transfer of the Purchased Assets shall have been
duly executed and delivered by Seller and the parties hereto.
(d) No Litigation. No Proceeding shall have been commenced and still
be pending, no investigation by any Governmental Authority shall
have been commenced and still be pending, and no Proceeding shall
have been threatened against Seller or Buyer (i) seeking to
restrain, prevent or change the transactions contemplated hereby
or questioning the validity or legality of any of such
transitions, or (ii) which, if resolved adversely to such party,
would materially and adversely affect the financial condition,
business, property, assets or prospects of any such Person.
(e) Documentation. All matters and proceedings taken in connection
with the sale of the Purchased Assets as herein contemplated,
including forms of Instruments and matters of title, shall be
reasonably satisfactory to Buyer and its counsel.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND SOLE MEMBER
Seller and Sole Member hereby jointly and severally represent and
warrant to Buyer as follows:
4.01 Organization: Good Standing. Seller is a limited liability company
duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and in each jurisdiction in which
the nature of its business or the ownership or leasing of its
properties makes such qualification necessary. Seller has all
requisites corporate and other power and authority and legal right to
own operate and lease its properties, and to carry on its business as
now being conducted. True, complete and correct copies of its articles
of organization (including amendments thereto), operating agreement
(including amendments thereto) and minutes of the members of the
Seller have been or will be delivered to the Buyer approving the
entering into this Agreement and the transactions contemplated thereby
are correct and complete copies thereof in all respects.
4.02 Membership Units of Seller. The authorized Membership Units of the
Seller consist of 1 Unit, of which 0 Units are issued and outstanding.
All of the Membership Units of Seller are owned of record and
beneficially by the Sole Member. All of the outstanding Membership
Units of Seller are duly and validly issued, fully paid and
non-assessable. There are no outstanding rights of subscriptions,
warrants, calls, options, contracts or other agreements of any kind
issued or granted to any person by Seller to purchase or otherwise
acquire any Membership Units of Seller.
4.03 Authorization. (a) Seller has all requisite legal right, power,
authority and capacity to enter into this Agreement and to perform all
of its obligations hereunder. Seller has taken all necessary action to
authorize the sale hereunder on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed by Seller and
constitutes a legal, valid and binding obligation of Seller
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws from time to time in effect, which affect the
enforcement of creditors' rights in general and by general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); (b) Sole Member has the requisite
legal power and capacity to enter into this Agreement and the other
documents and Instruments to which it is a party and to consummate the
transactions contemplated hereby and thereby. This Agreement has been
duly executed and delivered by the Sole Member and constitutes the
legal, valid and binding obligation of the Sole Member, enforceable
against such Sole Member in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws from time to time in effect, which affect the
enforcement of creditors' rights in general and by general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.04 No Material Adverse Change. Since the date of the Letter of Intent
executed on June 25, 2004 between the Parties, there has not been any
material damage, destruction or loss to any of the Purchased Assets,
whether or not covered by insurance.
4.05 Tax Returns and Payments. Seller and/or Sole Member have duly and
timely filed all Federal, state local and foreign, income, excise,
sales, franchise, use, withholding, unemployment and other tax returns
and reports required to be filed and have duly paid all taxes and
other governmental charges upon it or its properties, assets, income,
franchises, licenses or sales for the Business. All such returns and
reports are true, correct and complete. There is not material unpaid
assessment or proposal by any Governmental Authority for additional
taxes for which Seller does not have adequate reserves for any fiscal
year. All monies required to be withheld by Seller from employees for
income taxes, Social Security and unemployment insurance taxes have
been collected or withheld, and either paid to the respective
Governmental Authority or set aside in accounts for such purpose, or
accrued, reserved against, and entered upon the books of Seller.
4.06 Title to Tangible Personal Property. Except as set forth in Schedule
4.07, Seller has good and marketable title to all of the Purchased
Assets, subject to no Lien.
4.07 Condition of Property. The Purchased Assets of Seller are in good
operating condition and repair, subject only to ordinary wear and
tear, and Seller has no reason to believe that such Purchased Assets
will not be in all material respects adequate for Buyer to operate
said assets.
4.08 Litigation. There is no suit, action or litigation, administrative,
arbitration or other Proceeding or governmental investigation or
inquiry pending or to the best knowledge of Seller and Sole Member
threatened that affects Seller or the Purchased Assets.
4.09 Governmental and Other Consents. No Consent or Permit of any person is
required for or with respect to Seller or Sole Member in connection
with the execution or delivery of this Agreement by Seller or Sole
Member or the consummation by Seller or Sole Member of the
transactions contemplated hereby other than the Consents or permits
specified in Schedule 4.11 hereto. Seller has, or prior to the Closing
will have, furnished to Buyer true and complete copies of any such
Consents or permits which shall have been obtained.
4.10 Compliance with other Instruments. Subject to obtaining the consents
and Permits listed in Schedule 4.11 hereto, neither the execution and
delivery of this Agreement by Seller or Sole Member nor the
consummation of the transactions contemplated hereby will (i) conflict
with or result in any violation of or constitute a default under any
term of the certificate of incorporation or formation of Seller or
by-laws of Seller, or (ii) conflict with or result in any violation of
or constitute a default under any law, Instrument, Lien or contract by
which Seller or Sole Member or its or their properties or assets are
bound, or (iii) result in the creation or imposition of any Lien or
give to any other Person any interest or right, including rights or
acceleration, termination or cancellation in or with respect to, or
otherwise affect, any of the properties, assets or business of Seller.
4.11 Environmental Matters. To the knowledge of Seller or Sole Member (i)
Seller has conducted its business in compliance with all applicable
Environmental Laws for the operation of its business as presently
conducted; (ii) Seller has not received any notices, demand letters or
requests for information from any Governmental Authority or third
party indicating that Seller may be in violation of, or liable under,
and Environmental Law in connection with the ownership or operation of
its business; (iii) there are no civil, criminal or administrative
actions, suits, demands, claims, hearings, investigations or
Proceedings pending or, to the knowledge of Seller or Sole Member
threatened against Seller relating to any violation, or alleged
violation, of any applicable Environmental Law; (iv) neither Seller
nor any of its properties are subject to any material Liabilities or
expenditures (fixed or contingent) relating to any suit, settlement,
law or claim asserted or arising under any Environmental Law.
4.12 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller
without the intervention of any other Person in such manner as to give
rise to any valid claim for a "finder" fee, brokerage commission or
other like payment.
4.13 Investment Purposes. The Shares acquired by Seller are being acquired
for his own account, for investment purposes and not with a view to
any distribution within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). The Seller will not sell, assign,
mortgage, pledge, hypothecate, transfer or otherwise dispose of any of
the Shares unless (i) a registration statement under the Securities
Act with respect thereto is in effect and the prospectus included
therein meets the requirements of Section 10 of the Securities Act, or
(ii) the Company has received a written opinion of its counsel that,
after an investigation of the relevant facts, such counsel is of the
opinion that such proposed sale, assignment, mortgage, pledge,
hypothecation, transfer or disposition does not require registration
under the Securities Act or any state securities law.
4.14 No Registration. The Seller understands that the resale of the Shares
is not, and is not being, registered under the Securities Act and the
Shares must be held indefinitely unless they are subsequently
registered thereunder or an exemption from such registration is
available.
4.15 Accreditation/Sophistication. The Seller represents and warrants
further that (i) he is either an "accredited investor," as such term
is defined in Rule 501(a) promulgated under the Securities Act, or,
either alone or with his purchaser representative, has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the acquisition of the Shares; (ii)
he is able to bear the economic risks of an investment in the Shares,
including, without limitation, the risk of the loss of part or all of
his investment and the inability to sell or transfer the Shares for an
indefinite period of time; (iii) he has adequate financial means of
providing for current needs and contingencies and has no need for
liquidity in his investment in the shares; and (iv) he does not have
an overall commitment to investments which are not readily marketable
that is excessive in proportion to net worth and an investment in the
Shares will not cause such overall commitment to become excessive.
4.16 Information on Edison Renewables, Inc.. The Seller has reviewed all of
the reports, proxy and information statements and registration
statements filed by Edison
Renewables, Inc. with the Securities and Exchange Commission via the
XXXXX system and the Seller has been afforded the opportunity to
obtain such information regarding the Company as he has reasonably
requested to evaluate the merits and risks of the undersigned's
investment in the Shares. No oral or written representations have been
made or oral information furnished to the undersigned or his advisers
in connection with the investment in the Shares.
4.17 Legend. The undersigned acknowledges that a restrictive legend, in or
substantially in the following form, will be placed on any instrument,
certificate or other document evidencing the Shares:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have
been acquired for investment and not for distribution. They may
not be sold, assigned, mortgaged, pledged, hypothecated,
transferred or otherwise disposed of without an effective
registration statement for such shares under the Securities Act
of 1933 or an opinion of counsel for the Company that
registration is not required under such Act."
4.18 Accuracy of Documents. All Contracts, Instruments, Permits and other
documents delivered by Seller to Buyer for Buyer's review in
connection with this Agreement and the transactions contemplated
hereby, including, without limitation, all certificates of
incorporation, by-laws, corporate minutes, stock record books and tax
returns are true, correct and complete copies of all such Contracts,
Instruments, Permits and other documents.
4.19 Full Disclosure. No representation, warranty or statement by the
Seller in this Agreement contains any untrue statement of a material
fact, or omits to state a material fact necessary in order to make
such representations, warranties or statements not misleading. Without
limiting the generality of the foregoing, there is no fact known to
the Seller that has had, or which may be reasonably expected to have,
a Material Adverse Effect that has not been disclosed in this
Agreement.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.01 Organization. Buyer is a Corporation duly organized and validly under
the laws of he State of its incorporation, and has all requisite
corporate power and authority to own, operate and lease its properties
and assets.
5.01 Authorization. Buyer has full power, authority and legal right to
execute and deliver, and to perform its obligations under, this
Agreement, and has taken all necessary action to authorize the
purchase hereunder on the terms and conditions of this Agreement and
to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed by Buyer, and
constitutes a legal, valid and binding obligation of Buyer enforceable
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or other similar laws
from time to time in effect, which affect the enforcement of
creditors' rights in general and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.02 Capitalization. The authorized capital stock of the Buyer consists of
200,000,000 shares of common stock, $.001 par value per share, of
which 16,692,724 shares are issued and outstanding. All of the
outstanding shares of capital stock of Buyer are duly and validly
issued, fully paid and non-assessable. Except as disclosed in its
public filings, there are (i) no shares of capital stock or other
equity securities convertible into equity securities of Buyer
outstanding; and (ii) no outstanding rights of subscriptions,
warrants, calls, options, contracts or other agreements of any kind
issued or granted to any person by Buyer to purchase or otherwise
acquire any equity securities or securities convertible into equity
securities of Buyer. There are no Liens on or other restrictions
affecting any of the capital stock of Buyer being transferred to
Seller. Buyer has delivered to Seller complete and correct copies of
Buyer's certificate of incorporation, by-laws, minutes authorizing or
relating to this transaction, as requested by Seller, all of which
include all amendments as of the date hereof and which are in full
force and effect on the date hereof.
5.03 Compliance with Instruments, Consents, Adverse Agreements. Neither the
execution and the delivery of this Agreement nor the consummation of
the transactions contemplated hereby will conflict with or result in
any violation of or constitute a default under the certificate of
incorporation or the Bylaws of Buyer, or any Law, Instrument, Lien or
other Contract by which Buyer is bound. Buyer has, or prior to the
Closing will have, obtained any Consent or Permit which is required on
the part of Buyer in connection with the execution or delivery of this
Agreement or the consummation of the transactions contemplated hereby.
5.04 Litigation. There is no suit, action or litigation, administrative,
arbitration or other Proceeding or governmental investigation pending
or, to the knowledge of Buyer, threatened which might, severely or in
the aggregate, materially and adversely affect the financial condition
or prospects of Buyer or Buyer's ability to acquire the Purchased
Assets as contemplated by this Agreement.
5.05 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Buyer without
the intervention of any other person in such manner as to give rise to
any valid claim for a finder's fee, brokerage commission or other like
payment.
5.06 SEC Reports. Edison Renewables, Inc.has filed with the SEC via the
XXXXX System all reports, proxies and information statements since
January 1, 2003, and all schedules and exhibits thereto (the "SEC
Reports"), required to be filed by it pursuant to the Exchange Act.
Each of the SEC Reports, as of its respective date, did not contain
any untrue statement of material fact or fail to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
5.07 Accuracy of Documents. All Contracts, Instruments, Permits and other
documents delivered by Buyer to Seller for Seller's review in
connection with this Agreement and the transactions contemplated
hereby, including, without limitation, all certificates of
incorporation, by-laws, corporate minutes, stock record books and tax
returns are true,
correct and complete copies of all such Contracts, Instruments,
Permits and other documents.
5.08 Full Disclosure. No representation, warranty or statement by the
Seller in this Agreement contains any untrue statement of a material
fact, or omits to state a material fact necessary in order to make
such representations, warranties or statements not misleading. Without
limiting the generality of the foregoing, there is no fact known to
the Seller that has had, or which may be reasonably expected to have,
a Material Adverse Effect that has not been disclosed in this
Agreement.
ARTICLE VI. POST CLOSING COVENANTS
6.01 Survival of Representations and Warranties. The parties hereto agree
that, notwithstanding any right of Buyer fully to investigate the
affairs of Seller and notwithstanding any knowledge of facts
determined or determinable by Buyer pursuant to such investigation or
right of investigation, Buyer has the right to rely fully upon the
representations and warranties of Seller contained in this Agreement
and on the accuracy of any document, certificate, Instrument, Exhibit
or Schedule given or delivered to Buyer herewith or at the Closing.
All statements contained in any such document, certificate, Exhibit or
Schedule or other Instrument given or delivered by Seller to Buyer
herewith or at the closing shall be deemed to be a representation and
warranty under this Agreement. All covenants, representations,
warranties and agreements made in this Agreement or in any Exhibit,
Schedule, Instrument, certificate or document delivered herewith or at
the Closing shall survive the execution and delivery thereof and the
Closing hereunder to the maximum extent provided by applicable Law.
6.02 Obligation of Seller and Sole Member to Indemnity. Seller and Sole
Member agree to jointly and severally indemnity, defend, save and hold
Buyer (and its managers, members, employees and agents) harmless from
and against any and all damage, liability, loss, expense, assessment,
judgment or deficiency of any nature whatsoever (including, without
limitation, reasonable attorneys' fees and other costs and expenses
incident to any suite, action or proceeding) (together "Losses")
incurred or sustained by Buyer which arises out of or results from (i)
the breach of any representation or warranty of Seller or Sole Member
set forth in Article IV, (ii) the breach of or failure to perform any
covenant of Seller or Sole Member set forth in this Agreement
(including, but not limited to, any post closing covenant), and (iii)
any and all Liabilities and obligations of Seller other than the
Assumed Liabilities. In the event that Buyer is entitled to
indemnification pursuant to this Section 6.02 and the same is not
promptly paid, Buyer shall have the right to deduct the amount it
should have received pursuant to this Section 6.02 from any Payment it
is obligated to pay Seller pursuant to Section 2.02 (b) hereof.
6.03 Obligation of Buyer to Indemnify. Buyer hereby agrees to indemnify,
defend, save and hold Seller (its directors, officer, employees and
agents) harmless from and against any and all Losses incurred or
sustained by Seller which arise out of or results from (i) the breach
of any representation or warranty of Buyer set forth Article V above,
and (ii) the breach of or failure to perform any covenant of Buyer set
forth in this Agreement.
6.04 Procedures for Indemnification. Promptly after service of notice of
any claim or of process by any third person in any matter in respect
of which indemnity may be sought
from a party pursuant to this Agreement, the party so served will
notify the indemnifying party of the receipt thereof. The indemnifying
party will have the receipt thereof. The indemnifying party will have
the right to participate in, or assume, at its own expense, the
defense of any such claim or process (with counsel reasonably
acceptable to the indemnified party) or settlement thereof. After
notice from the indemnifying party of its election so to assume the
defense thereof, the indemnifying party will not be liable to the
indemnified party for any legal or other expense incurred by the
indemnified party in connection with such defense. Such defense will
be conducted expeditiously (but with due regard for obtaining the most
favorable outcome and the indemnified party will be advised promptly
of all material developments. The indemnifying party will not settle
any such claim without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld or delayed.
With respect to any matter which is the subject of any such claim and
as to which the indemnified party fails to give the other party such
notice as aforesaid, and such failure adversely affects the ability of
the indemnifying party to defend such claim or materially increases
the amount of indemnification which the indemnifying party is
obligated to pay hereunder, the amount of indemnification which the
indemnified party will be entitled to receive will be reduced to an
amount which the indemnified party would have been entitled to receive
has such notice been timely given. No settlement of any such claim as
to which the indemnifying party has not elected to assume the defense
thereof will be made without the prior written consent of the
indemnifying party, which consent will not be unreasonable withheld or
delayed.
6.05 Further Assurances. Following the Closing, at the request of Buyer,
Seller and Sole Member shall execute and deliver to Buyer such further
documents and take such reasonable action as may be necessary or
appropriate to (i) confirm the sale, transfer, assignment, conveyance
and delivery of the Purchased Assets, (ii) vest in Buyer all of
Seller's right, title and interest to the Purchased Assets or (iii) by
required pursuant to SEC rules and regulations.
ARTICLE VII. MISCELLANEOUS
7.01 Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined
by any court of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the application of
such provision to such person or circumstances other than those to
which it is so determined to be invalid and unenforceable, shall not
be affected thereby, and each provision hereof shall be validate and
shall be enforced to the fullest extent permitted by law.
7.02 Waivers. Any failure by any party to this Agreement to comply with any
of its obligations, agreements or covenants hereunder may be waived by
Seller in the case of a default by Buyer and by Buyer in the case of a
default by Seller or Sole Member. Buyer and Seller will not be deemed
as a consequence of any act, delay, failure, omission, forbearance or
other indulgences granted from time to time by Buyer or Seller: (I) to
have waived, or to be stopped from exercising, any of its rights or
remedies under this Agreement, or (ii) to have modified, changed,
amended, terminated, rescinded, or superseded any of the terms of this
Agreement, unless such waiver, modification, amendment, change,
termination, rescission, or suppression is express, in writing and
signed by a duly authorized officer of Seller or a duly authorized
Manager of Buyer, as the case may be. No single or partial exercise by
Buyer or Seller of any right or remedy will preclude other or further
exercise thereof or preclude the exercise of any other right or
remedy, and a waiver expressly made in writing on one occasion will be
effective only in that specific instance and only for the precise
purpose for which given, and will not be construed as a consent to or
a waiver of any right or remedy on any future occasion or a waiver of
any right or remedy against any other Person.
7.03 Notices. All notices, consents, demands, requests, approvals and other
communications which are required or may be give hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered (including by overnight courier service) or mailed certified
first class mail, postage prepaid:
(a) If to Seller or Sole Member
Xxxxxxxx ITS, LLC
000 X. Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Manager
With a copy to:
Xxxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx Xx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
(b) If to Buyer:
Edison Renewables, Inc.
0000 Xxxx Xxxx Xxxxxx, #000
Xxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx - Vice President/Director/Secretary
With a copy to:
Xxxx X. Xxxx, Esq.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Or to such other person or persons at such address or
addresses as may be designated by written notice to the
other parties hereunder. Notice shall be deemed delivered at
the time received for personal delivery, or when mailed at a
United States Post Office Box or branch office.
7.04 Binding Effect, Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors
and assigns; provided, however, that nothing in this Agreement shall
be construed to confer any rights, remedies,
obligations or liabilities on any Person other than the parties hereto
or their respective successors and assigns.
7.05 Entire Agreement; Amendment; This Agreement, together with the other
instruments delivered in connection herewith, embodies the entire
agreement and understanding of the parties hereto and supersedes any
prior agreement or under-standing between the parties with respect to
the subject matter of this Agreement. This Agreement cannot be amended
or terminated orally, but only by writing duly executed by the
parties.
7.06 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same document.
7.07 Headings. Headings of the sections in this Agreement are for reference
purposes only and shall not be deemed to have any substantive effect.
7.08 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
7.09 Costs and Expenses. Each party hereto shall bear its own costs and
expenses incurred in connection with the transactions contemplated
hereby.
7.10 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
7.11 Arbitration. Any disputes arising under this Agreement, including
without limitation, those involving specific performance or other
equitable relief, shall be submitted to binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association.
The arbitration shall be conducted only in Anaheim, California, before
a single arbitrator selected by the parties or, if they are unable to
agree on an arbitrator, before a panel of three arbitrators, one
selected by the Buyer, one selected by the Seller and the Sole Member
and the third selected by the other two arbitrators. This submission
and agreement shall be specifically enforceable. The prevailing party
or parties in any such arbitration or in any action to enforce this
agreement to arbitrate shall be entitled to all reasonable costs and
expenses, including fees and expenses of the arbitrators, attorneys
and accountants, incurred in connection therewith. THE AWARD OF THE
ARBITRATORS SHALL BE FINAL AND BINDING AND JUDGMENT ON THE AWARD MAY
BE ENTERED BY ANY COURT OF COMPETENT JURISDICTION.
IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of the date first written above.
Seller:
Xxxxxxxx ITS, LLC, a limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
Sole Member:
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Buyer:
Edison Renewables, Inc.
By: /s/ Xxxxx Xxxxx Xxxx
------------------------
Name: Xxxxx X. Xxxx
Title: VP/Director/Secretary
