PURCHASE AGREEMENT
EXHIBIT
2.1
THIS
PURCHASE AGREEMENT (the "Agreement") is made and entered into as of the 1st day
of July, 2008, by and among Energy King, Inc., formerly known as Buckeye
Ventures, Inc., a Nevada corporation (hereinafter referred to as "ENERGY KING"),
World Wide Motion Pictures Corporation., a Michigan corporation (hereinafter
referred to as "WWMPC"), and Xxxxxxxxxxx Corporation, a Michigan corporation
(hereinafter referred to as the "PURCHASER").
RECITALS
A. Pursuant to a Share
Exchange Agreement dated October 14, 2005 and amended January 10, 2006 (the
“Share Exchange Agreement”) and subsequent corporate reorganizations, ENERGY
KING acquired 48,000 issued and outstanding shares of the capital stock of WWMPC
(the “Shares”), making WWMPC a subsidiary of ENERGY KING. Pursuant to
an Operating Agreement dated February 22, 2006 and effective March 1, 2006 (the
“Operating Agreement”), WWMPC has been operating as an independent subsidiary of
ENERGY KING and its predecessor.
B. The Board of Directors of
ENERGY KING and WWMPC deem it to be advisable and in the best interests of said
corporations and their stockholders that WWMPC no longer be owned, in whole or
in part, by ENERGY KING.
C. PURCHASER is a
corporation that is controlled by certain associates of the management of
WWMPC.
D. ENERGY KING is willing to
sell the Shares to PURCHASER, and PURCHASER is willing to purchase all of said
outstanding capital stock.
NOW,
THEREFORE, in consideration of the mutual covenants, agreements, representations
and warranties contained in this Agreement, the parties hereto agree as
follows:
SECTION
1. PURCHASE OF
SHARES
1.1 Purchase of
Shares. ENERGY KING and PURCHASER hereby agree that PURCHASER
shall purchase the shares on the date hereof or on another date as soon as
practicable hereafter that is agreed to by the parties (the “Closing Date”) for
an aggregate purchase price of One Dollar ($1.00). The parties
acknowledge that the purchase price was arbitrarily determined and does not
necessarily bear any relation to the current or future net assets, net income or
value of WWMPC.
1.2 Delivery of
Shares. On the Closing Date, ENERGY KING will deliver to
PURCHASER the certificate(s) representing the Shares, duly endorsed (or with
executed stock powers) for transfer to PURCHASER. Simultaneously,
PURCHASER will deliver to ENERGY KING the purchase price for the
Shares.
SECTION
2. REPRESENTATIONS
AND WARRANTIES OF PURCHASER
PURCHASER hereby represents and
warrants to ENERGY KING as follows:
2.1 Organization and Good
Standing. PURCHASER is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan, and is
entitled to own or lease its properties and to carry on its business as and in
the places where such properties are now owned, leased or operated and such
business is now conducted. PURCHASER is duly licensed or qualified
and in good standing as a foreign corporation where the character of the
properties owned by it or the nature of the business transacted by it make such
licenses or qualifications necessary.
1
2.2 Compliance with
Laws. PURCHASER has complied with all federal, state, county
and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of
PURCHASER.
2.3 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not:
(i) violate
any provision of the Articles of Incorporation or By-Laws of
PURCHASER;
(ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which PURCHASER is a party
or by or to which it or any of its assets or properties may be bound or
subject;
(iii) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, PURCHASER, or upon the
properties or business of PURCHASER; or
(iv) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a materially adverse effect on
the business or operations of PURCHASER.
2.4 Actions and
Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving PURCHASER. There is no
action, suit, claim or administrative investigation or proceeding (whether or
not the defense thereof or liabilities in respect thereof are covered by
insurance) pending or to its knowledge threatened against or involving PURCHASER
or any of its properties or assets. To its knowledge, there is no
fact, event or circumstances that may give rise to any suit, action, claim,
investigation or proceeding.
2.5 Full
Disclosure. No representation or warranty by PURCHASER in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
to another party pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the businesses
of PURCHASER.
2.6 Authorization. This
Agreement, when executed and delivered by PURCHASER and the other parties
hereto, will constitute the valid and legally binding obligation of PURCHASER,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
any other laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies.
2
2.7 Purchase For Own
Account.
(a) This Agreement is made
with PURCHASER in reliance upon PURCHASER's representation to ENERGY KING, which
by PURCHASER's execution of this Agreement, PURCHASER hereby confirms, that the
Shares will be acquired for investment for PURCHASER's own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof without full compliance with all applicable federal and state securities
laws, and that PURCHASER has no present intention of selling, granting any
participation in, or otherwise distributing the same without full compliance
will all applicable federal and state securities laws. By executing this
Agreement, PURCHASER further represents that PURCHASER does not presently have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Shares. PURCHASER represents that it has full power and
authority to enter into and perform this Agreement.
(b) Notwithstanding the
foregoing, PURCHASER desires to ultimately transfer the Shares to those persons
that were shareholders of World Wide Motion Pictures Corporation, the publicly
traded Michigan corporation that is a predecessor of ENERGY KING and is no
longer in existence. As used in this Agreement “WWMO” shall refer to that former
Michigan corporation and “Legacy Shareholders” shall refer to the persons that
were shareholders of WWMO immediately prior to the closing of the Share Exchange
Agreement. PURCHASER acknowledges and agrees that any subsequent
attempt to transfer the Shares to the Legacy Shareholders may only be done in
compliance with all applicable federal and state securities
laws. Although PURCHASER ultimately desires to make that transfer, it
has not entered into any agreements to do so and might not be able to do so due
to the expense and difficulties that would be involved in complying with those
laws.
2.8 Disclosure of
Information. PURCHASER has had an opportunity to discuss
WWMPC’s business, management, financial affairs and the terms and conditions of
the sale of the Shares with ENERGY KING's and WWMPC’s management and
has had an opportunity to review ENERGY KING's reports as filed with Securities
And Exchange Commission. PURCHASER understands that such discussions, as well as
any written information issued by ENERGY KING or WWMPC, were intended to
describe the aspects of WWMPC’s business which ENERGY KING believes to be
material. PURCHASER has had full access to the financial statements of
WWMPC.
2.9 Restricted
Shares. PURCHASER understands that the Shares have not been,
and will not be, registered under the Securities Act of 1933, by reason of a
specific exemption from the registration provisions of the Act which depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of PURCHASER's representations as expressed herein. PURCHASER
understands that the Shares are "restricted Shares" under applicable U.S.
federal and state laws and that, pursuant to these laws, PURCHASER must hold the
Shares indefinitely unless they are registered with the Securities and Exchange
Commission and/or qualified by state authorities, or an exemption from such
registration and qualification requirements is available. PURCHASER acknowledges
that ENERGY KING has no obligation to register or qualify the Shares for
resale. PURCHASER further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale and the
holding period for the Shares which are outside of PURCHASER's or ENERGY KING’S
control, and which ENERGY KING is under no obligation to satisfy.
2.10 No Public
Market. PURCHASER understands that no public market now exists
for the Shares, and that ENERGY KING has made no assurances that a public market
will ever exist for the Shares.
3
2.11 Legends. PURCHASER
understands that the Shares bear the following legends:
"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SHARES
ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR
AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
2.12 Accredited
Investor. PURCHASER is an accredited investor as defined in
Rule 501(a) of Regulation D promulgated under the Act.
2.13 No
Finders. PURCHASER has taken no action which would give rise
to any claim by any person for brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby.
2.14 Risk
Factors. PURCHASER has conducted its own due diligence with
respect to all aspects of this transaction and is not relying on the due
diligence investigation by any other third parties. PURCHASER is
purchasing the Shares without any representation or warranty whatever, except as
expressly provided herein.
SECTION
3. REPRESENTATIONS
AND WARRANTIES OF WWMPC
WWMPC hereby represents and warrants to
PURCHASER as follows:
3.1 Organization and Good
Standing; Ownership of Shares. WWMPC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. WWMPC is duly licensed
or qualified and in good standing as a foreign corporation where the character
of the properties owned by it or the nature of the business transacted by it
make such licenses or qualifications necessary.
3.2 Capitalization. The
authorized capital stock of WWMPC consists of 60,000 shares of common stock of
which 60,000 shares are presently issued and outstanding, including the 48,000
Shares being sold hereunder. Other than this
Agreement, there are no outstanding subscriptions, rights, options, warrants or
other agreements obligating either WWMPC or ENERGY KING to issue, sell or
transfer any stock or other shares of WWMPC.
3.3 Taxes. WWMPC
has prepared and delivered to ENERGY KING all appropriate information
required to prepare and file federal, state and local tax returns relating to
WWMPC for all periods prior to and through the date hereof for which
any such returns have been required to be filed by it or by ENERGY
KING and, to the best of WWMPC’s knowledge, ENERGY KING has filed
all said returns and paid all taxes shown to be due by said returns
or on any assessments received by it or has made adequate provision for the
payment thereof.
3.4 Compliance with
Laws. WWMPC has complied with all federal, state, county and
local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of
WWMPC.
4
3.5 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not:
(i) violate
any provision of the Articles of Incorporation or By-Laws of WWMPC;
(ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which WWMPC is a party or by
or to which it or any of its assets or properties may be bound or
subject;
(iii) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, WWMPC, or upon the
properties or business of WWMPC; or
(iv) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a materially adverse effect on
the business or operations of WWMPC.
3.6 Actions and
Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving WWMPC. Except as set forth
below, there is no action, suit, claim or administrative investigation or
proceeding (whether or not the defense thereof or liabilities in respect thereof
are covered by insurance) pending or to its knowledge threatened against or
involving WWMPC or any of its properties or assets. Except as set
forth below, to its knowledge, there is no fact, event or circumstances that may
give rise to any suit, action, claim, investigation or
proceeding. WWMPC and ENERGY KING have had certain disputes regarding
their respective rights and obligations under the Share Exchange Agreement and
Operating Agreement which have yet to be resolved.
3.7 Liabilities. WWMPC
does not have any direct or indirect indebtedness, liability, claim, loss,
damage, deficiency, obligation or responsibility, known or unknown, fixed or
unfixed, liquidated or unliquidated, secured or unsecured, accrued or absolute,
contingent or otherwise, including, without limitation, any liability on account
of taxes, any other governmental charge or lawsuit (all of the foregoing
collectively defined to as "Liabilities"), which were not fully, fairly and
adequately reflected on its unaudited financial statements dated June 30, 2008
(the “Financial Statement”). As of the Closing Date, WWMPC will not
have any Liabilities, other than Liabilities fully and adequately reflected on
said Financial Statement, except for Liabilities incurred in the ordinary course
of business or any Liabilities that would not have a material adverse impact on
the financial condition of WWMPC.
3.8 Operations of
WWMPC. From the date of the Financial Statement and through
the Closing Date hereof WWMPC has not and will not have:
(i) except in
the ordinary course of its business, incurred any indebtedness for borrowed
money;
(ii) declared
or paid any dividend or declared or made any distribution of any kind to any
shareholder, or made any direct or indirect redemption, retirement, purchase or
other acquisition of any shares in its capital stock;
5
(iii) made any
loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business;
(iv) except in
the ordinary course of business, incurred or assumed any indebtedness or
liability (whether or not currently due and payable);
(v) disposed
of any assets of WWMPC except in the ordinary course of business;
(vi) materially
increased the compensation of any employee of WWMPC;
(vii) increased,
terminated, amended or otherwise modified any plan for the benefit of employees
of WWMPC;
(viii) issued
any shares of WWMPC or rights to acquire any shares of WWMPC; or
(ix) except in
the ordinary course of business, entered into or modified any contract,
agreement or transaction.
3.9 Full
Disclosure. No representation or warranty by WWMPC in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
a party pursuant hereto or in connection with the negotiation, execution or
performance of this Agreement, contains or will contain any untrue statement of
a material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the businesses of
WWMPC.
3.10 Authorization. This
Agreement, when executed and delivered by WWMPC and the other parties hereto,
will constitute a valid and legally binding obligation of WWMPC, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies.
3.11 No
Finders. WWMPC has taken no action which would give rise to
any claim by any person for brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby.
SECTION
4. REPRESENTATIONS
AND WARRANTIES OF ENERGY KING
ENERGY KING hereby represents and
warrants to PURCHASER and WWMPC as follows:
4.1 Organization and Good
Standing. ENERGY KING is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is
entitled to own or lease its properties and to carry on its business as and in
the places where such properties are now owned, leased, or operated and such
business is now conducted. ENERGY KING is duly licensed or qualified
and in good standing as a foreign corporation where the character of the
properties owned by ENERGY KING or the nature of the business transacted by it
make such license or qualification necessary.
6
4.2 The
Shares. ENERGY KING is the owner of record and beneficially of
all of the Shares free and clear of all claims, liens and encumbrances, and the
Shares have not been sold, pledged, assigned or otherwise transferred, except
pursuant to this Agreement.
4.3 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate
any provision of the Articles of Incorporation or By-Laws of ENERGY
KING;
(ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which ENERGY KING is a party
or by or to which it or any of its assets or properties may be bound or
subject;
(iii) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, ENERGY KING, or upon
the Shares, properties or business of ENERGY KING; or
(iv) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein.
4.4 Actions and
Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving ENERGY KING. Except as set
forth below, there is no action, suit ,claim or administrative investigation or
proceeding (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) pending or, to its knowledge,
threatened against or involving ENERGY KING or any of its properties or
assets. Except as set forth below, to its knowledge, there is no
fact, event or circumstances that may give rise to any suit, action, claim,
investigation or proceeding. WWMPC and ENERGY KING have had certain
disputes regarding their respective rights and obligations under the Share
Exchange Agreement and Operating Agreement which have yet to be
resolved.
4.5 Brokers or
Finders. No broker's or finder's fee will be payable by ENERGY
KING in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by ENERGY
KING.
4.6 Authority to Execute and
Perform Agreements. ENERGY KING has the full legal right and
power and all authority and approval required to enter into, execute and deliver
this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of ENERGY KING enforceable in accordance with its terms, except as
may be limited by bankruptcy, moratorium, insolvency or other similar laws
generally affecting the enforcement of creditors' rights. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and the performance by ENERGY KING of this
Agreement, in accordance with its respective terms and conditions will not:
(i) require
the approval or consent of any governmental or regulatory body, the Shareholders
of ENERGY KING or the approval or consent of any other person;
(ii) conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with any notice or lapse of time or both would constitute) a
default under, any order, judgment or decree applicable to ENERGY KING or any
instrument, contract or other agreement to which ENERGY KING is a party or by or
to which ENERGY KING is bound or subject; or
7
(iii) result in
the creation of any lien or other encumbrance on the assets or properties of
ENERGY KING.
4.7 Full
Disclosure. No representation or warranty by ENERGY KING in
this Agreement or in any document or schedule to be delivered by it pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished pursuant hereto or in connection with the execution or performance of
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state any fact necessary to make any statement herein
or therein not materially misleading or necessary to a complete and correct
presentation of all material aspects of the business of ENERGY
KING. The foregoing notwithstanding, all of the aforementioned
representations and warranties are qualified to the extent that any of the
companies or businesses acquired or to be acquired pursuant to ENERGY KING’s
acquisition program may include events, conditions or circumstances involving
matters contemplated by such representations and warranties, the disclosure of
which will not be made pursuant to this Agreement.
4.8 Taxes. ENERGY
KING has prepared and filed all appropriate federal, state and local tax returns
relating to WWMPC for all periods prior to and through the date hereof for which
any such returns have been required to be filed by it and has paid all taxes
related to WWMPC shown to be due by said returns or on any assessments received
by it or has made adequate provision for the payment thereof.
4.9 Transfer of Entertainment
Business Assets to WWMPC. As provided for in the Share
Exchange Agreement and Operating Agreement, all assets of ENERGY KING’s
predecessor related to its motion picture, television, media and entertainment
business have been transferred to WWMPC and ENERGY KING retains no interest in
those assets (other than through its current ownership of the
Shares). ENERGY KING has not placed any liens on or granted any
interest in any of those assets that have not been approved by the Board of
Directors of WWMPC.
4.10 Warranties and
Representations of WWMPC are True. To the best of ENERGY
KING’s knowledge, all of the warranties and representations made herein by WWMPC
are true and accurate.
SECTION
5. COVENANTS
5.1 Corporate Examinations and
Investigations. Prior to the Closing Date, the parties
acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial
condition of the other as they each may reasonably require. No
investigation by a party hereto shall, however, diminish or waive in any way any
of the representations, warranties, covenants or agreements of the other party
under this Agreement.
5.2 Expenses. Each
party hereto agrees to pay its own costs and expenses incurred in negotiating
this Agreement and consummating the transactions described herein.
5.3 Further
Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its reasonable best efforts to
fulfill or obtain the fulfillment of the conditions to the Closing, including,
without limitation, the execution and delivery of any documents or other papers,
the execution and delivery of which are necessary or appropriate to the
Closing.
8
5.4 Stock
Certificates. At the Closing, ENERGY KING shall have delivered
the certificates representing the Shares duly endorsed (or with executed stock
powers) for transfer to PURCHASER.
5.5 Announcement and Form
8-K. The press release that will be issued by ENERGY KING
regarding the transactions contemplated herein and the Form 8-K to be filed by
ENERGY KING with the SEC will be in substantially the form attached hereto as
Exhibit A.
5.6 Prior Agreements to
Survive. Nothing contained herein shall be deemed to
terminate or release any claims of the respective rights and obligations of
ENERGY KING and WWMPC pursuant to the Share Exchange Agreement or the Operating
`Agreement or the rights and obligations of ENERGY KING and Xxxx Xxxxxxx
pursuant to the Employment Contract between ENERGY KING’s predecessor and Xxxx
Xxxxxxx that was entered into on October 20, 1983 and amended on March 1,
2006. It is agreed that (i) references in those agreements to World
Wide Motion Pictures Corporation, a Michigan corporation, refer to the public
corporation that is the predecessor of ENERGY KING and not to WWMPC which was
formerly known as World Wide Entertainment Inc.; (ii) the references to WWMPC as
the “Subsidiary” in those agreements does not require WWMPC to continue as a
subsidiary of ENERGY KING for those Agreements to remain effective; and (iii)
the provisions of Section 2)i and 2)ii of the Operating Agreement regarding the
election of directors to the Boards of ENERGY KING and WWMPC will be terminated
as of the Closing Date.
5.7 Cooperation in Identifying
Legacy Shareholders. As described in Section 2.7, PURCHASER
intends to ultimately distribute the Shares to the Legacy Shareholders if it is
able to do so in compliance with the applicable federal and state securities
laws without unreasonable effort or expense. In order to do so, it
will first need to identify those Legacy Shareholders. ENERGY KING
agrees that it will cooperate with PURCHASER in that effort by requesting a list
of Non Objecting Beneficial Owners (“NOBO List”) and providing PURCHASER with a
copy of its shareholders list. PURCHASER will pay the full cost of
obtaining that NOBO List and shareholder list.
SECTION
6. SURVIVAL OF
REPRESENTATIONS AND WARRANTIES OF ENERGY KING
Notwithstanding
any right of PURCHASER fully to investigate the affairs of WWMPC, the former
shall have the right to rely fully upon the representations and warranties of
ENERGY KING contained in this Agreement or in any document delivered by ENERGY
KING or any of its representatives, in connection with the transactions
contemplated by this Agreement. All such representations and
warranties shall survive the execution and delivery hereof and the Closing Date
hereunder for twelve (12) months following the Closing.
SECTION
7. SURVIVAL OF
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND WWMPC
Notwithstanding
any right of ENERGY KING fully to investigate the affairs of PURCHASER and
WWMPC, ENERGY KING has the right to rely fully upon the representations and
warranties of PURCHASER and WWMPC contained in this Agreement or in any document
delivered by PURCHASER and WWMPC or any of their representatives, in connection
with the covenants and agreements shall survive the execution and delivery
hereof and the Closing Date hereunder for twelve (12) months following the
Closing.
9
SECTION 8. INDEMNIFICATION
8.1 Obligation of ENERGY KING to
Indemnify. Subject to the limitations on the survival of
representations and warranties contained in Section 5, ENERGY KING hereby agrees
to indemnify, defend and hold harmless PURCHASER and WWMPC from and against any
losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorneys' fees and disbursements) (a "Loss")
based upon, arising out of or otherwise due to any inaccuracy in or any breach
of any representation, warranty, covenant or agreement of ENERGY KING contained
in this Agreement or in any document or other writing delivered pursuant to this
Agreement.
8.2 Obligation of PURCHASER to
Indemnify. Subject to the limitations on the survival of
representations and warranties contained in Section 6, PURCHASER agrees to
indemnify, defend and hold harmless ENERGY KING from and against any Loss, based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement of PURCHASER contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement..
8.3 Obligation of WWMPC to
Indemnify. Subject to the limitations on the survival of
representations and warranties contained in Section 6, WWMPC agrees to
indemnify, defend and hold harmless ENERGY KING from and against any Loss, based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement of WWMPC contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
SECTION
9. THE
CLOSING
The
Closing shall take place simultaneously with the execution of this Agreement or
at such other later time or place as may be agreed upon by the parties
hereto. At the Closing, the parties shall provide each other with
such documents as may be necessary or appropriate in order to consummate the
transactions contemplated hereby including evidence of due authorization of the
Agreement and the transactions contemplated hereby.
SECTION
10. TERMINATION
This
Agreement may be terminated at any time prior to the Closing by either PURCHASER
or ENERGY KING if (i) the Closing has not occurred before July 31, 2008,
(ii) a governmental order prohibiting the transactions contemplated by this
Agreement has become final and non-appealable or (iii) if both parties have
mutually consented to the termination in writing.
SECTION
11. MISCELLANEOUS
11.1 Waivers. The
waiver of a breach of this Agreement or the failure of any party hereto to
exercise any right under this Agreement shall in no event constitute waiver as
to any future breach whether similar or dissimilar in nature or as to the
exercise of any further right under this Agreement.
11.2 Amendment. This
Agreement may be amended or modified only by an instrument of equal formality
signed by the parties or the duly authorized representatives of the respective
parties.
11.3 Assignment. This
Agreement is not assignable except by operation of law.
11.4 Notices. Until
otherwise specified in writing, the mailing addresses of both parties of this
Agreement shall be as follows:
10
ENERGY
KING: ENERGY KING, INC.
0000 Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxx
WWMPC:
WORLD WIDE MOTION
PICTURESCORPORATON
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX
00000
Attention: Xxxx Xxxxxxx
PURCHASER:
XXXXXXXXXXX
CORPORATION
0000 Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Any
notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
11.5 Entire
Agreement. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase of the Shares and the
related transactions described herein. No amendment of this Agreement
shall be enforceable unless signed by the party to be charged with performance
thereto.
11.6 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
11.7 Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or other provision
of this Agreement shall in no way affect the validity or enforcement of any
other provision or any part thereof.
11.8 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
11.9 Professional
Advice.Each party hereto has been provided with adequate opportunity to
consult with legal, tax and accounting professionals of their own independent
selection regarding the legal, tax and accounting implications of entering into
this Agreement and hereby warrants, covenants and agrees that he/she/it has not
relied on any oral or written communication or advice by another party or any
agent, accountant or attorney of another party except as otherwise specifically
set forth herein.
11.10 Expenses. Each
of the parties hereto shall pay its own
expenses in connection with this Agreement and the transactions contemplated
hereby, including without limitation the fees and expenses of legal counsel and
certified public accountants.
11.11 Successors and
Assigns. All rights and obligations created by this Agreement
shall be binding upon and inure to the benefit of the parties hereto,
their successors and permitted assigns. Whenever used, the singular
number shall include the plural, the plural the singular, and the use of any
gender shall include all genders.
11
11.12 Governing
Law. This Agreement shall be controlled, construed and
enforced in accordance with the laws of California applicable to agreements made
and to be performed in that jurisdiction. The parties agree
that all actions or proceedings arising directly or indirectly from this
Agreement shall be brought in courts having a location within Los Angeles
County, California and in relation thereto hereby consent to the jurisdiction of
any local, state or federal court that has jurisdiction in that
County.
IN WITNESS WHEREOF, the
parties have executed this Agreement on the date first above
written.
| ENERGY KING, INC. | |
| By: /s/ Xxxxxxx Xxxxxxx | |
|
Xxxxxxx Xxxxxxx,
CEO
|
|
| WORLD WIDE MOTION PICTURESCORPORATION | |
| By: /s/ Xxxx Xxxxxxx | |
|
Xxxx Xxxxxxx,
President
|
|
| XXXXXXXXXXX CORPORATION | |
| By: /s/ Xxxxx Xxxxxxx | |
|
Xxxxx Xxxxxxx,
President
|
12
EXHIBIT
A
Form
of Press Release and Form 8-K
13
