STOCK PURCHASE AGREEMENT
Exhibit 10.1
STOCK
PURCHASE AGREEMENT, dated as of December 29, 2008 (this “Agreement”), by and
between XXXX XXXXX as president of Manhattan Investments, Inc. (“Purchaser”), as
representative for the stockholders set forth on Exhibit A of this Agreement
(individually a “Stockholder” and
collectively “Stockholders”); and
GREEN ENERGY HOLDING CORPORATION, a Nevada corporation (“Seller”).
W I T N E
S S E T H
WHEREAS,
Seller desires to sell to Purchaser a total of 14,370,300 shares of the Seller’s
common stock, par value $0.001 (the “Common Stock”) (the
“Shares”),
representing 96.5 % of the Seller’s issued and outstanding shares of the
Common Stock of the Seller, on the terms and conditions set forth in this Stock
Purchase Agreement (“Agreement”),
and
WHEREAS,
Purchaser desires to buy the Shares on the terms and conditions set forth
herein, and
NOW
THEREFORE, in consideration of the promises and respective mutual agreements
herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE
1
SALE
AND PURCHASE OF THE SHARES
1.1 Sale of the
Shares. Subject to the terms and conditions herein set forth,
on the basis of the representations, warranties and agreements herein contained,
at the Closing Seller agrees to sell, assign, transfer and deliver the Shares to
Purchaser, and Purchaser agrees to purchase the Shares from the
Seller.
1.2 The
Closing. The purchase of the Shares shall take place at the
office of the Seller in Greenwood Village, Colorado or such other place as
Purchaser and Seller may mutually agree within two business days after the
satisfaction of all conditions set forth in Article 5, on or about December
29, 2008, herein referred to as the “Closing
Date”.
1.3 Instruments of Conveyance
and Transfer. At the Closing, Seller shall
deliver certificates representing the Shares to Purchaser in the name
of each of the Stockholders (“Certificate”), as
shall be effective to vest in each Stockholder all right, title and interest in
and to all of the Shares.
1.4 Consideration and Payment
for the Shares. In consideration for the Shares, Purchaser
shall pay to the Seller a total purchase price of $175,000(the “Purchase Price”). The
said $ 175,000 shall be paid into an escrow account and disbursed pursuant to an
escrow agreement attached hereto as Exhibit B.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller and, for purposes of this Article, Green Energy Corp., its wholly-owned
subsidiary, represents, warrant and undertake to the Purchaser that, except as
set forth in the Disclosure Schedule:
2.1 Due
Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada (a) with
full power and authority to own, lease, use, and operate its properties and to
carry on its business as and where now owned, leased, used, operated and
conducted. All actions taken by the current directors and stockholders of the
Seller have been valid and in accordance with the laws of the State of Colorado
and all actions taken by the Seller have been duly authorized by the current
directors and stockholders of the Seller as appropriate. The Seller
has one (wholly-owned) subsidiary as described in the Disclosure
Schedule.
2.2 Seller
Authority. The Seller has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated herein.
2.3 Due
Authorization. The execution, delivery and performance by the
Seller of this Agreement has been duly and validly authorized and no further
consent or authorization of the Seller, its Board of Directors or its
stockholders is required.
2.4 Valid
Execution. This Agreement has been duly executed and delivered
by the Seller.
2.5 Binding
Agreement. This Agreement constitutes, and upon execution and
delivery thereof by the Seller, will constitute, a valid and binding agreement
of the Seller, enforceable against the Seller in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditor’s rights generally or the availability of equitable
remedies.
2.6 No Violation of Corporate
Documents or Agreements. The execution and delivery of this
Agreement by the Seller and the performance by the parties hereto of its
obligations hereunder will not cause, constitute, or conflict with or result in
(i) any breach or violation, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under any of the provisions of, or constitute a
default under, any license, indenture, mortgage, charter, instrument,
certificate of incorporation, bylaw, judgment, order, decision, writ,
injunction, or decree or other agreement or instrument or proceeding to which
the Seller or its stockholders are a party, or by which they may be bound, nor
will any consents or authorizations of any party other than those hereto by
required, (ii) an event that would cause the Seller to be liable to any party,
or (iii) an event that would result in the creation or imposition or any lien,
charge or encumbrance on any asset of the Seller or on the securities of the
Seller to be acquired by the Purchaser.
2.7 Authorized Capital, No
Preemptive Rights, No Liens; Anti-Dilution. As of the date
hereof, the authorized capital of the Seller is 50,000,000 shares of Common
Stock, par value
$0.001
per share, and 1,000,000 shares of Preferred Stock, par value $0.01 per
share. The issued and outstanding capital stock of the Seller is
1,106,109 shares of Common Stock. There are no issued or outstanding shares of
Preferred Stock. All of the shares of capital stock are duly
authorized, validly issued, fully paid and non-assessable. No shares
of capital stock of the Seller are subject to preemptive rights or similar
rights of the stockholders of the Seller or any liens or encumbrances imposed
through the actions or failure to act of the Seller, or otherwise. As
of the date hereof (i) there are no outstanding options, warrants, convertible
securities, scrip, rights to subscribe for, puts, calls, rights of first
refusal, tag-along agreements, nor any other agreements, understandings, claims
or other commitments or rights of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for any shares of capital
stock of the Seller, or arrangements by which the Seller is or may become bound
to issue additional shares of capital stock of the Seller, and (ii) there are no
agreements or arrangements under which the Seller is obligated to register the
sale of any of its securities under the Securities Act of 1933, as amended
(“Securities Act”) and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Seller (or in the Seller’s
certificate of incorporation or bylaws or in any agreement providing rights to
security holders) that will be triggered by the transactions contemplated by
this Agreement. The Seller has furnished to Purchaser true and correct copies of
the Seller’s certificate of incorporation and bylaws.
2.8 No
Governmental Action Required. The execution and delivery by
the Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental
official.
2.9 Compliance with
Applicable Law and Corporate Documents. To the best of its knowledge, the
Seller is in compliance with and conforms to all statutes, laws, ordinances,
rules, regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
2.10 Financial
Statements. (a) The Purchaser has received a copy of the
audited financial statements of the Seller for the fiscal year ended June 30,
2007 and of the unaudited financial statements for the six months ended
September 30, 2008 (“Financial
Statements”). The Financial Statements fairly present the
financial condition of the Seller at the dates indicated and its results of
their operations and cash flows for the periods then ended and, except as
indicated therein, reflect all claims against, debts and liabilities of the
Seller, fixed or contingent, and of whatever nature. (b) Since
September 30, 2008 (the “Balance Sheet Date”),
there has been no material adverse change in the assets or liabilities, or in
the business or condition, financial or otherwise, or in the results of
operations or prospects, of the Seller, whether as a result of any legislative
or regulatory change, revocation of any license or rights to do business, fire,
explosion, accident, casualty, labor trouble, flood, drought, riot, storm,
condemnation, act of God, public force or otherwise and no material adverse
change in the assets or liabilities, or in the business or condition, financial
or otherwise, or in the results of operation or prospects, of the Seller except
in the ordinary course of business. (c) Since the Balance Sheet
Date, the Seller has not suffered any damage, destruction or loss of physical
property (whether or not covered by insurance) affecting its condition
(financial or otherwise) or operations (present or prospective), nor has the
Seller issued, sold or otherwise disposed of, or agreed to issue, sell or
otherwise
dispose
of, any capital stock or any other security of the Seller and has not granted or
agreed to grant any option, warrant or other right to subscribe for or to
purchase any capital stock or any other security of the Seller or has incurred
or agreed to incur any indebtedness for borrowed money. (d) The
Financial Statements are contained in the Seller’s filings and reports made with
the Securities and Exchange Commission (“SEC”) since the Seller’s formation (the
“SEC Reports). The Seller is a “filer” under Section 12(g) of the
Securities Exchange Act of 1934.
2.11 No
Litigation. The Seller is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending or
threatened governmental investigation. The Seller is not subject to
or in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.
2.12 No Taxes. The
Seller is not, and will not become with respect to any periods ending on or
prior to the Closing Date, liable for any income, sales, withholding, franchise,
excise, license, real or personal property taxes (a “Tax”) to any foreign,
United States federal, state or local governmental agencies whatsoever. All
United States federal, state, county, municipality local or foreign income Tax
returns and all other material Tax returns (including
information returns) that are required, or have been required, to be
filed by or on behalf of the Seller have been or will be filed as of the Closing
Date and all Taxes due pursuant to such returns or pursuant to any assessment
received by the Seller have been or will be paid as of the Closing
Date. The charges, accruals and reserves on the books of the Seller
in respect of taxes or other governmental charges have been established in
accordance with the tax method of accounting. All returns that have been filed
relating to Tax are true and accurate in all material respects. No
audit, action, suit, proceeding or other examination regarding taxes for which
the Seller may have any liability is currently pending against or with respect
to the Seller and neither Seller nor the Seller has received any notice
(formally or informally) of any audit, suit, proceeding or other
examination. No material adjustment relating to any Tax returns, no
closing or similar agreement have been entered into or issued or have been
proposed (formally or informally) by any tax authority (insofar as such action
relate to activities or income of or could result in liability of the Seller for
any Tax) and no basis exists for any such actions. The Seller has not
changed any election, adopted or changed any accounting method or period, filed
any amended return for any Tax, settled any claim or assessment of any Tax, or
surrendered any right to claim any refund of any Tax, or consented to any
extension or waiver of the statute of limitations for any Tax. The
Seller has not had an “ownership change” as that term is defined in Section 382
of the Internal Revenue Code of 1986, as amended and in effect.
2.13 Conduct of the
Business. From and after September 30, 2008 until the Closing
Date:
(a) The
Seller has continued to be operated in the usual and ordinary manner in which
its business has been conducted in the past and during such period. The Seller
has not made any expenditures or entered into any commitments which, when
compared to past operations of its business, are unusual or extraordinary or
outside the scope of the normal course of routine operations;
(b) The
Seller has kept in a normal state of repair and operating efficiency all
tangible personal property used in the operation of its business;
(c) The
Seller has used its best efforts to maintain the good will associated with its
business, and the existing business relationships with its agents, customers,
lessors, key employees, suppliers and other persons having relations with
it;
(d) The
Seller has not entered into any contract, agreement or action, or relinquished
or released any rights or privileges under any contracts or agreements, the
performance, violation, relinquishment or release of which could, on the date on
which such contract or agreement was entered into, or such rights or privileges
were relinquished or released, be reasonably foreseen to have a material adverse
effect;
(e) The
Seller has not made, or agreed to make, any acquisition of stock or assets of,
or made loans to, any person not in the ordinary course of
business;
(f) The
Seller has not sold or disposed of any assets or created or permitted to exist
any encumbrance on its assets except (x) in the ordinary course of business and
which could not, on the date of such sale, disposition, creation or permission,
be reasonably foreseen to have a material adverse effect or (y) as otherwise
permitted by this Agreement;
(g) The
Seller has kept true, complete and correct books of records and accounts with
respect to its business, in which entries will be made of all transactions on a
basis consistent with past practices and in accordance with the tax method of
accounting consistently applied by the Seller;
(h) The
Seller has paid current liabilities as and when they became due and has paid or
incurred no fees and expenses not in the ordinary course of its
business;
(i) There
has been no declaration, setting aside or payment of any dividend or other
distribution in respect of any Shares or any other securities of the Seller
(whether in cash or in kind);
(j) The
Seller has not redeemed, repurchased, or otherwise acquired any of its
securities or entered into any agreement to do so;
(k) The
Seller has not made any loan to, or entered into any other transaction with, any
of its directors, officers, and employees;
(l) The
Seller has not made or pledged to make any charitable or other capital
contribution outside the ordinary course of business; and
(m) There
has not been any other occurrence, event, incident, action, failure to act or
transaction outside the ordinary course of business that would have a material
adverse effect.
2.14 Liabilities.
(a) Except
as set forth in the Financial Statements and the SEC Reports, the Seller has no
liabilities or obligations. It is a condition to Closing that the Seller will
have no liabilities upon transfer of the Shares to Purchaser.
(b) Except
as set forth in the Disclosure Schedule, since September 30, 2008, the Seller
has not:
(i) subjected
to encumbrance, or agreed to do so to any of its assets, tangible or intangible
other than purchase money liens
(ii)
in the ordinary course of business on equipment used in the conduct of business
and incurred to finance the purchase price of the equipment involved and which
do not cover any other asset of the Seller;
(iii) except
as otherwise contemplated hereby, engaged in any transactions affecting its
business or properties not in the ordinary course of business consistent with
past practice or suffered any extraordinary losses or waived any rights of
substantial value except in the ordinary course of business; or
(iv) other
than in the ordinary course of business consistent with past practice, granted
or agreed to grant, or paid or agreed to pay any increase in the rate of wages,
salaries, bonuses or other remuneration of any officer, director or consultant
of the Seller or any increase of 5% or more in the rate of wages, salaries,
bonuses or other remuneration of any non-officer/director or employee or become
a party to any employment contract or arrangement with any of its directors,
officers, consultants or employees or become a party to any contract or
arrangement with any director, officer, consultant or employee providing for
bonuses, profit sharing payments, severance pay or retirement benefits, other
than as set forth in any Exhibit or Schedule hereto.
2.15 ERISA
Compliance. The Seller maintains no “employee benefit
plan” within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974 (“ERISA”), under which
the Seller or any ERISA Affiliate has any current or future obligation or
liability or under which any employee of the Seller or any ERISA Affiliate has
any current or future right to benefits.
2.16
Insurance. The Disclosure Schedule includes a true and correct
list of all policies or binders of insurance of the Seller in force, specifying
the insurer, policy number (or covering note number with respect to binders) and
amount thereof and describing each pending claim thereunder. Such
policies are in full force and effect. The Seller is not in default
with respect to any provisions contained in any such policy or binder, nor has
it failed to give any notice or present any claim under any such policy or
binder in due and timely fashion. There are no outstanding unpaid
claims under any such policy or binder, or claims for worker’s
compensation. The Seller has not received notice of cancellation or
non-renewal of any such policy or binder. The Seller has never been,
and is not now, the subject of any claim relating to damage or injury in excess
of the Seller’s then-current product liability policy limits or which has been
disclaimed by the Seller’s insurer. Such insurance will lapse on the
Closing Date.
2.17 Compliance
with Law. To the best of its knowledge, the Seller has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies, including any
environmental laws and regulations. There are no pending or threatened
proceedings against the Seller by any federal, state or local government, or any
department, board, agency or other body thereof.
2.18 Consents. The
Disclosure Schedule lists all consents (“Consents”) of third
parties required to be obtained as a result of the change of control of the
Seller hereby.
2.19 Agreements. Except
as set forth in the Disclosure Schedule, the Seller is not a party to
any material agreement, loan, credit, lease, sublease, franchise, license,
contract, commitment or instrument or subject to any corporate
restriction. The Disclosure Schedule identifies every loan or credit
agreement, and every fully or partially executory agreement or purchase order
pursuant to which the Seller is obligated to deliver goods or perform services,
pay for goods, services or other property, or repay any loan, including, without
limitation, any agreement with present or former officers, directors,
consultants, agents, brokers, vendors, customers and/or dealers of any
nature. True, correct and complete copies of all such agreements have
been delivered to Purchaser. Neither the Seller nor any other party
is in default under any such agreement, loan, credit, lease, sublease,
franchise, license, contract, commitment, instrument or
restriction. No such instrument requires the consent of any other
party thereto in order to consummate the sales of the Shares
hereby.
2.20 Survival of
Representations. The representations and warranties herein by
the Seller will be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though said representations and
warranties had been made on and as of the Closing Date and will
survive
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Unless
specifically stated otherwise, Purchaser represents and warrants that the
following are true and correct as of the date hereof and will be true and
correct through the Closing Date as if made on that date:
3.1 Agreement’s Validity.
This Agreement has been duly executed and delivered by Purchaser, has been duly
authorized by Purchaser, and constitutes a legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally or the availability of equitable
remedies.
3.2 Investment Intent.
Purchaser is acquiring the Shares for his own account for investment and not
with a view to, or for sale or other disposition in connection with, any
distribution of all or any part thereof.
3.3 Restricted
Securities. Purchaser understands that the Shares have not
been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as “restricted
securities” under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption
therefrom.
3.4 Legend. It is agreed
and understood by Purchaser that the Certificates representing the Shares shall
each conspicuously set forth on the face or back thereof a legend in
substantially the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT
TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SELLER THAT SUCH REGISTRATION IS NOT REQUIRED.
3.5 Disclosure of
Information. Purchaser acknowledges that he has been furnished with
information regarding the Seller and its business, assets, results of
operations, and financial condition to allow Purchaser to make an informed
decision regarding an investment in the Shares. Purchaser represents
that he has had an opportunity to ask questions of and receive answers from the
Seller regarding the Seller and its business, assets, results of operation, and
financial condition.
3.6 Accredited
Investor Each of the Stockholders has represented that each is
either (i) an “accredited investor” as that term is defined under Section 4(6)
of the Securities Act and applicable state law; or (ii) a “non-U.S. person” as
that term is defined under Regulation S of the Securities Act.
ARTICLE
4
COVENANTS
OF THE PARTIES
4.1 General. In case at
any time after the Closing any further action is necessary or desirable to carry
out the purposes of this Agreement, each of the Parties will take such further
action (including the execution and delivery of such further instruments and
documents) as any other Party may request, all at the sole cost and expense of
the requesting Party (unless the requesting Party is entitled to indemnification
therefor under Article 6 below). The Purchaser has had the
opportunity to review and inspect all documents, books, records (including Tax
records), properties, agreements, field operations, environmental records and
compliance, and financial data of any sort relating to the Seller, and to
discuss the Seller with its employees, customers and vendors.
4.2 Notices and
Consents. The Seller will, and will cause the Seller to, give
any notices to third parties, and the Seller will use their best efforts, and
will cause the Seller to use its best efforts, to obtain any third-party
Consents that may be required. Each of the Parties will (and the
Seller will cause the Seller to) give any notices to, make any filings with, and
use its best efforts to obtain any required authorizations, Consents, and
approvals of governmental bodies.
4.3 Transition. Seller
will not take any action that is designed or intended to have the effect of
discouraging any lessor, licensor, customer, supplier, or other business
associate of the Seller from maintaining the same business relationships with
the Seller after the Closing as it maintained with the Seller prior to the
Closing. The Seller will refer all customer inquiries relating to the
business of the Seller to the Purchaser from and after the Closing.
4.4 SEC
Filings. Within four business days of the execution hereof,
Seller shall file all required SEC reports required hereby, including, without
limitation, a Form 8-K disclosing this Agreement.
4.5 Brokers. Seller
shall be responsible for paying any obligation it has undertaken with any
brokers for this transaction.
ARTICLE
5
THE
CLOSING
5.1 Time of
Closing. The Closing of the transactions hereby shall occur
upon the satisfaction of all conditions to Closing, on or about December 29,
2008.
5.2 Deliveries. The
Closing shall occur as a single integrated transaction, as follows, and the
delivery or satisfaction of the following items shall be conditions precedent to
the parties’ obligations to close:
(a) Liabilities. Seller
shall produce a current listing of all accounts and notes payable and any other
liabilities of the Seller, accurate as of the day prior to Closing. Such
delivery shall be accompanied by a representation and warranty that the listing
is true and correct. All such obligations shall be repaid by the
Seller on the Closing Date and the total amount thereof shall be deducted from
the Purchase Price.
(b) Delivery by
Seller. Seller shall deliver to Purchaser:
(i) the
Share certificates in the names of the persons and in the amounts set forth on
Exhibit A of this Agreement;
(ii) copies
of resolutions by the Board of Directors of the Seller approving the terms of
this Agreement and the execution of the Agreement by the Seller;
(iii) copies
of all books, records and documents relating to the Seller, including the
corporate records and stock records of the Seller;
(iv) any
other such instruments, documents and certificates as are required to be
delivered by Seller or its representatives pursuant to the provisions of this
Agreement;
(v)
a good
standing certificate for the Seller and the Subsidiary;
(vi) copies
of the documents evidencing that the Subsidiary will have been “spun off” to a
third party, along with all of the Subsidiary’s business including, without
limitation, all of its assets, liabilities, and
incenses;
(vii) the
Consents; and
(viii) the
Disclosure Schedule.
(c) Delivery by
Purchaser. Purchaser shall deliver to the Seller:
(i) the
Purchase Price in U.S. currency by wire transfer to the Escrow Agent for
disbursement in accordance with the escrow agreement attached hereto as Exhibit
B: and
(ii) copies
of the powers of attorney from each of the Stockholders, authorizing the
Purchaser to act on each of their behalf, the form of which Power of Attorney is
attached as Exhibit C to this Agreement.
(d) Post-Closing
Actions
(i) Immediately
upon the Closing Date, the Board of Directors of the Seller shall resolve to
appoint XXXX XXXXX as a director of the Seller with immediate effect, and shall
appoint the following remaining directors subject only to a Form 14f
filing. All officers will resign as of the Closing Date and be replaced
immediately by Officers to be named by XXXX XXXXX.
(ii) Seller
shall spin off its subsidiary corporation, Green Energy Corp, as shown in
Exhibit C hereto.
(i) Following
the satisfaction of the Form 14f filing requirement, all incumbent directors
shall resign from the Board of Directors and as officers.
(ii) All
parties shall file all required SEC reports to disclose the closing of the
transaction hereof.
ARTICLE
6
INDEMNIFICATION
6.1 Purchaser
Claims. a) Seller shall indemnify and hold harmless
Purchaser, his successors and assigns, against, and in respect of:
(i) Any
and all damages, losses, liabilities, costs, and expenses incurred or suffered
by Purchaser that result from, relate to, or arise out of:
(a) Any
failure by Seller to carry out any covenant or agreement contained in this
Agreement;
(b) Any
material misrepresentation or breach of warranty by Seller contained in this
Agreement, the Disclosure Schedule, or any certificate, furnished to Purchaser
by Seller pursuant hereto; or
(c) Any
claim by any Person for any brokerage or finder’s fee or commission in respect
of the transactions contemplated hereby as a result of Seller’s dealings,
agreement, or arrangement with such Person.
(ii) Any
and all actions, suits, claims, proceedings, investigations, demands,
assessments, audits, fines, judgments, costs, and other expenses (including,
without limitation, reasonable legal fees and expenses) incident to any of the
foregoing including all such expenses reasonably incurred in mitigating any
damages resulting to Purchaser from any matter set forth in subsection (i)
above.
(b) The
amount of any liability of Seller under this Section 6.1 shall be computed
net of any tax benefit to Purchaser from the matter giving rise to the claim for
indemnification hereunder and net of any insurance proceeds received by
Purchaser with respect to the matter out of which such liability
arose.
(c) The
representations and warranties of Seller contained in this Agreement, the
Disclosure Schedule, or any certificate delivered by or on behalf of Seller
pursuant to this Agreement or in connection with the transactions contemplated
herein shall survive the consummation of the transactions contemplated herein
and shall continue in full force and effect for a period until the expiration of
any applicable statutes of limitation provided by law (“Survival Period”).
Anything to the contrary notwithstanding, the Survival period shall be extended
automatically to include any time period necessary to resolve a written claim
for indemnification which was made in reasonable detail before expiration of the
Survival Period but not resolved prior to its expiration, and any such extension
shall apply only as to the claims so asserted and not so resolved within the
Survival Period. Liability for any such item shall continue until
such claim shall have been finally settled, decided, or
adjudicated.
(d) Purchaser
shall provide written notice to Seller of any claim for indemnification under
this Article as soon as practicable; provided, however, that failure to provide
such notice on a timely basis shall not bar Purchaser’s ability to assert any
such claim except to the extent that Seller are actually prejudiced thereby,
provided that such notice is received by Seller during the applicable Survival
Period. Purchaser shall make commercially reasonable efforts to
mitigate any damages, expenses, etc. resulting from any matter giving rise to
liability of Seller under this Article.
6.2 Defense of Third-Party
Claims. With respect to any claim by Purchaser under
Section 6.1, relating to a third party claim or demand, Purchaser shall
provide Seller with prompt written notice thereof and Seller may defend, in good
faith and at its expense, by legal counsel chosen by it and reasonably
acceptable to Purchaser any such claim or demand, and Purchaser, at its expense,
shall have the right to participate in the defense of any such third party
claim. So long as Seller is defending in good faith any such third
party claim, Purchaser shall not settle or compromise such third party
claim. In any event Purchaser shall cooperate in the settlement or
compromise of, or defense against, any such asserted claim.
6.3 Seller
Claims. Purchaser shall indemnify and hold harmless Seller
against, and in respect of, any and all damages, claims, losses, liabilities,
and expenses, including without limitation, legal, accounting and other
expenses, which may arise out of: (a) any material breach or
violation by Purchaser of any covenant set forth herein or any failure to
fulfill any obligation set forth herein; (b) any material breach of any of
the representations or warranties made in this Agreement by Purchaser; or
(c) any claim by any Person for any brokerage or finder’s fee or commission
in respect of the transactions contemplated hereby as a result of Purchaser’s
dealings, agreement, or arrangement with such Person.
ARTICLE
7
MISCELLANEOUS
7.1 Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set
forth.
7.2 Notices. Any
notice or communications hereunder must be in writing and given by depositing
same in the United States mail addressed to the party to be notified, postage
prepaid and registered or certified mail with return receipt requested or by
delivering same in person. Such notices shall be deemed to have been received on
the date on which it is hand delivered or on the third business day following
the date on which it is to be mailed. For purpose of giving notice, the
addresses of the parties shall be:
|
|
If to
Seller:
|
0000
Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Fax (000)000-0000
|
|
If to Purchaser
to:
|
XXXX
XXXXX
Manhattan
Investments
0000 X.
000Xx X.
Xxx
Xxxxxx
Xxxxx, XX 00000
Fax (000)
000-0000
|
|
With
a copy to:
|
|
|
Xxxxx
Xxxxxxx, Esq.
|
|
|
Xxxxx
and Xxxxxxx, X.X.
|
|
|
0000
X.X. Xxxx Xxxxx Xxxx, Xxxxx 0
|
|
|
Xxxx
Xxxxx, XX 00000
|
|
|
(Fax)
(000) 000-0000
|
ic
7.3 Governing
Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Colorado (without regard to principles of conflicts of
law).
7.4 Consent
to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the appropriate state or federal court in the State of
Colorado for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby or
thereby. Each party agrees to commence any such action, suit or
proceeding in Denver, Colorado. The parties agree that any service of
process to be made hereunder may be made by certified mail, return receipt
requested, addressed to the party at the address appearing in
Section 7.2. Such service shall be deemed to be completed when
mailed and sent and received by Telecopier. Seller and Purchaser each
waives any objection based on forum non-conveniens.
Nothing in this paragraph shall affect the right of Seller or Purchaser to serve
legal process in any other manner permitted by law
7.5 Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7.6 Waivers and
Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled,
renewed, or extended, and the terms hereof may be waived, only by a written
instrument signed by authorized representatives of the parties or, in the case
of a waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless it
expressly recites that it is intended to amend, supersede, cancel, renew or
extend this Agreement or to waive compliance with one or more of the terms
hereof, as the case may be. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege, or any single or partial exercise of any such right, power of
privilege, preclude any further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or in equity. The rights and remedies of
any party based upon, arising out of or otherwise in respect of any inaccuracy
in or breach of any representation, warranty, covenant or agreement contained in
this Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or
breach.
7.7 Binding Effect; No
Assignment, No Third-Party Rights. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement is not assignable
without the prior written consent of each of the parties hereto or by operation
of law. This Agreement is for the sole benefit of the parties hereto
and their permitted assigns, and nothing herein, expressed or implied, shall
give or be construed to give to any person, including any union or any employee
or former employee of Seller, any legal or equitable rights, benefits or
remedies of any nature whatsoever, including any rights of employment for any
specified period, under or by reason of this Agreement.
7.8 Further
Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing Date promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions and intents of
this Agreement and of the instruments delivered pursuant to this
Agreement.
7.9 Severability of
Provisions. If any provision or any portion of any provision
of this Agreement or the application of any such provision or any portion
thereof to any person or circumstance, shall be held invalid or unenforceable,
the remaining portion of such provision and the remaining provisions of the
Agreement, or the application of such provision or portion of such provision is
held invalid or unenforceable to person or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
such provision or portion of any provision as shall have been held invalid or
unenforceable shall be deemed limited or modified to the extent necessary to
make it valid and enforceable, in no event shall this Agreement be rendered void
or unenforceable.
7.10 Exhibits and
Schedules. All exhibits annexed hereto, and all schedules
referred to herein, are hereby incorporated in and made a part of this Agreement
as if set forth herein. Any matter disclosed on any schedule referred to herein
shall be deemed also to have been disclosed on any other applicable schedule
referred to herein.
7.11 Captions. All
section titles or captions contained in this Agreement or in any schedule or
exhibit annexed hereto or referred to herein, and the table of contents to this
Agreement, are for convenience only, shall not be deemed a part of this
Agreement and shall not affect the meaning or interpretation of this Agreement.
All references herein to sections shall be deemed references to such parts of
this Agreement, unless the context shall otherwise require.
7.12 Expenses. Except
as otherwise expressly provided in this Agreement, whether or not the Closing
Date occurs, each party hereto shall pay its own expenses incidental to the
preparation of this Agreement, the carrying out of the provisions hereof and the
consummation of the transactions contemplated.
7.13 Public
Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement or completing
any public filing with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any national securities exchange or quotation system,
will not issue any such press release or make any such public statement prior to
consultation.
7.14 Non-confidentiality. Notwithstanding
an other provision in this Agreement, the Seller and Purchaser, and each
employee, representative or other agent of the same (collectively the “Covered Parties”),
may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to a Covered Party
relating to such tax treatment and tax structure.
THE
REMAINDER OF THE PAGE HAS INTENTIONALLY BEEN LEFT BLANK
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the date
first written herein above.
THE
PURCHASER, AS REPRESENTATIVE
FOR
THE STOCKHOLDERS LISTED ON
SCHEDULE
A TO THIS AGREEMENT:
MANHATTAN
INVESTMENTS, INC.
BY: ______________________________________
XXXX
XXXXX, PRESIDENT
GREEN
ENERGY HOLDING CORPORATION
By: _______________________________________
Name:
_____________________________________
Title:
______________________________________
EXHIBIT
A
List
of Stockholders
EXHIBIT
B
Form
of Escrow Agreement
EXHIBIT
C
Limited Power of
Attorney
DISCLOSURE
SCHEDULE
