Exhibit B
[Form of Stock Purchase Agreement]
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), is entered as of April
3, 2006, by and among Energy Venture, Inc., a Delaware corporation
("Purchaser"), ABC Funding, Inc., a Nevada corporation (the "Company"), Xxxxxx
Xxxxxx (the "Primary Seller") and the Sellers (as such term is defined below).
RECITALS
A. The Primary Seller owns nine million one hundred sixty thousand
(9,160,000) shares of common stock of the Company (the "Common Stock"); and
B. The Purchaser desires to purchase nine million six hundred forty-eight
thousand (9,648,000) shares of Common Stock from the Primary Seller and certain
other shareholders of the Company (the "Other Sellers," collectively with the
Primary Seller, the "Sellers"), on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. (a) As used in this Agreement, the following defined
terms shall have the meanings indicated below:
"Affiliate" means, as applied to any person, any other person directly or
indirectly controlling, controlled by, or under common control with, that
person. For purposes of this definition control (including with correlative
meanings, the terms "controlling", "controlled by", and "under common control
with") as applied to any person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
that person or entity, whether through the ownership of voting securities, by
contract, or otherwise.
"Assets and Properties" of any person means all assets and properties of
every kind, nature, character and description (whether real, personal or mixed,
whether tangible or intangible, whether absolute, accrued, contingent, fixed or
otherwise and wherever situated), including, without limitation, the goodwill
related to any of the foregoing, operated, owned or leased by or in the
possession of such person.
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"Books and Records" of any person means all files, documents, instruments,
papers, books and records relating to the business, operations, condition of
(financial or other), results of operations and assets and properties of such
person, including, without limitation, financial statements, Tax Returns and
related work papers and letters from accountants, budgets, pricing guidelines,
ledgers, journals, deeds, title policies, minute books, stock certificates and
books, stock transfer ledgers, Contracts, licenses, customer and subscription
lists, computer files and programs, retrieval programs, editorial files,
operating data and plans and environmental studies and plans
"Code" means the Internal Revenue Code of 1986, as amended.
"Contract" means any agreement, lease, evidence of indebtedness, mortgage,
indenture, security agreement or other contract (whether written or oral).
"Environmental Law" means any and all federal, state, local, provincial
and foreign, civil and criminal laws, statutes, ordinances, orders, common law,
codes, rules, regulations, Environmental Permits, policies, guidance documents,
judgments, decrees, injunctions, or agreements with any Governmental or
Regulatory Authority, relating to the protection of health and the Environment,
worker health and safety, and/or governing the handling, use, generation,
treatment, storage, transportation, disposal, manufacture, distribution,
formulation, packaging, labeling, or Release of Hazardous Materials, whether now
existing or subsequently amended or enacted, including but not limited to: the
Clean Air Act, 42 U.S.C. 7401 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. 1251 et seq.; the Hazardous Material
Transportation Act 49 U.S.C. 1801 et seq.; the Federal Insecticide, Fungicide
and Rodenticide Act 7 U.S.C. 136 et seq.; the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C.
2601 et seq.; the Occupational Safety & Health Act of 1970, 29 U.S.C. 651 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.; and the state
analogies thereto, all as amended or superseded from time to time; and any
common law doctrine, including but not limited to, negligence, nuisance,
trespass, personal injury, or property damage related to or arising out of the
presence, Release, or exposure to a Hazardous Material.
"Environmental Permit" means any federal, state, local, provincial, or
foreign permits, licenses, approvals, consents or authorizations required by any
Governmental or Regulatory Authority under or in connection with any
Environmental Law and includes any and all orders, consent orders or binding
agreements issued or entered into by a Governmental or Regulatory Authority
under any applicable Environmental Law.
"Executing Sellers" means the Primary Seller together with the other
Sellers who have executed this Agreement.
"GAAP" means generally accepted accounting principles as currently in
effect in the United States and applied in a consistent manner.
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"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Hazardous Material" means petroleum, petroleum hydrocarbons or petroleum
products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead-containing materials, polychlorinated biphenyls; and
any other chemicals, materials, substances or wastes in any amount or
concentration which are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous materials", "hazardous wastes",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic substances",
toxic pollutants", "pollutants", "regulated substances", "solid wastes", or
"contaminants" or words of similar import, under any Environmental Law.
"Indemnified Party" means any person claiming indemnification under any
provision of Article IX.
"Indemnifying Party" means any person against whom a claim for
indemnification is being asserted under any provisions of Article IX.
"Post-Closing Period" means any taxable period or portion thereof
beginning after the Closing Date or, as the context may require, all such
periods. If a taxable period begins on or before the Closing Date and ends after
the Closing Date, then the portion of the taxable period that begins on the day
following the Closing Date shall constitute a Post-Closing Period.
"Pre-Closing Period" means any taxable period or portion thereof ending on
or before the Closing Date or, as the context may require, all such periods. If
a taxable period begins on or before the Closing Date and ends after the Closing
Date, then the portion of the taxable period to the end of the Closing Date
shall constitute a Pre-Closing Period.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing of a
Hazardous Material into the Environment.
"Taxes" means all taxes, including without limitation all federal, state,
local, foreign and other income, franchise, sales, use, Transfer Taxes, payroll,
withholding, environmental, alternative or add-on minimum and other taxes,
assessments, charges, duties, fees, levies or other governmental charges of any
kind whatsoever, and all estimated taxes, deficiency assessments, additions to
tax, penalties, and interest, and any contractual or other obligation to
indemnify or reimburse any person with respect to any such assessment.
"Tax Return" means any report, statement, return, declaration of estimated
tax or other information required to be supplied by or on behalf any person to a
taxing authority in connection with Taxes, or with respect to grants of tax
exemption, including any consolidated, combined, unitary, joint or other return
filed by any person that properly includes the income, deductions or other tax
information concerning any person.
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(b) Unless the context of this Agreement otherwise requires: (i) words of
any gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the terms
hereof, herein, hereby, hereto and derivative or similar words refer to this
entire Agreement; and (iv) the terms Article or Section refer to the specified
Article or Section of this Agreement. All accounting terms used herein and not
expressly defined herein shall have the meanings given to them under GAAP.
ARTICLE II
PURCHASE AND SALE OF THE SHARES
2.1 Purchase and Sale of the Shares. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Primary Seller shall
sell, transfer, convey, assign and deliver to the Purchaser, and cause the Other
Sellers to, and the Other Sellers shall, sell, transfer, convey, assign and
deliver to the Purchaser, and the Purchaser will purchase from the Sellers, free
and clear of all liens, pledges, encumbrances, charges, restrictions on
transfer, agreements or claims, all of the Sellers' right, title and interest in
and to an aggregate of nine million four hundred sixty eight thousand shares of
the Common Stock of the Company (the "Subject Shares"). The Sellers will include
the shareholders of the Company set forth on Exhibit A and each Seller will
sell, transfer, convey, assign and deliver to the Purchaser the shares of Common
Stock set forth opposite such Seller's name on Exhibit A, including such shares
that have been registered for sale under the Securities Act of 1933, as amended
(the "Securities Act"), as indicated on Exhibit A.
2.2 Purchase Price. The aggregate purchase price (the "Purchase Price")
for the Subject Shares shall be Five hundred thousand dollars ($500,000), of
which $25,000 (the "Downpayment") shall be deposited by Purchaser into escrow
with Xxxxx & Xxx Xxxxxx (the "Escrow Agent") simultaneously with the execution
of this Agreement.
2.3 Closing. Subject to the provisions of this Agreement, the consummation
of the transactions contemplated by this Agreement (the "Closing") shall be held
at the offices of Xxxxx & Xxx Xxxxxx LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M. (New York, New York time), on April 5, 2006, or at such other date,
place or time as the parties shall otherwise mutually agree upon (the date of
the Closing being referred to herein as the "Closing Date") or in the absence of
such agreement on such date as Purchaser shall advise the Seller on no less than
three business days notice. All Closing transactions shall be deemed to take
place simultaneously, and no Closing transaction shall be deemed consummated
until all transactions to take place at the Closing have been consummated.
2.4 Closing Deliveries. At the Closing, the Purchaser will pay each Seller
the portion of the Purchase Price allocable to the Subject Shares being
transferred by such Seller by check, subject to collection, or by wire transfer
of immediately available funds to such bank and account therein as each Seller
may reasonably direct by written notice delivered to the Purchaser at least two
(2) Business Days before the Closing Date. Simultaneously, each of the Sellers
will deliver or cause to be delivered to the Purchaser stock certificates
evidencing the Subject Shares to be sold by such Seller, duly endorsed in blank
or accompanied by stock powers duly executed in blank, and the Company will
deliver or cause to be delivered to the Purchaser the minute books, stock
transfer books and corporate seal of the Company. At the Closing, there shall
also be delivered to Seller and Purchaser the certificates and other documents
and instruments required to be delivered under Article IX.
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2.5 Further Assurances; Post-Closing Cooperation. At any time or from time
to time after the Closing, at the Purchaser's request and without further
consideration other than reimbursement of reasonable expenses, the Sellers shall
execute and deliver to the Purchaser such other instruments of sale, transfer,
conveyance, assignment and confirmation, provide such materials and information
and take such other actions as the Purchaser may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to the
Purchaser, and to confirm the Purchaser's title to, all of the Shares, and, to
the fullest extent permitted by Law, to assist the Purchaser in exercising all
rights with respect to the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PRIMARY SELLER AND THE COMPANY
The Executing Sellers and, by delivery of the certificates representing
their Subject Shares, each of the Other Sellers, represent and warrant to the
Purchaser, severally as to the matters set forth in Sections 3.1 through 3.3,
that the statements contained in this Article are correct and complete as of the
date hereof and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date hereof
throughout this Article):
3.1 Ownership of Subject Shares. (a) Each of the Sellers owns of record
and beneficially all of the Subject Shares set forth opposite such Seller's name
on Exhibit A hereto, free and clear of all liens, pledges, encumbrances,
charges, restrictions on transfer, agreements or claims, subscriptions, options,
warrants, calls, proxies, rights, commitments, restrictions or agreements of any
kind and has full power and legal right to sell, assign, transfer and deliver
the same. Such Seller is not a party to any voting trust, proxy or other
agreement with respect to any of the Subject Shares. Assuming the Purchaser has
the requisite power and authority to be the lawful owner of the Subject Shares,
upon delivery to the Purchaser of certificates representing the Subject Shares
(duly endorsed for transfer or with properly executed stock powers attached
thereto), and upon each of the Sellers receipt of his allocable portion of the
Purchase Price, good and valid title to the Subject Shares will pass to the
Purchaser, free and clear of all liens, pledges, encumbrances, charges,
restrictions on transfer, agreements or claims, subscriptions, options,
warrants, calls, proxies, rights, commitments, restrictions or agreements of any
kind.
(b) All of the Subject Shares (i) are duly authorized, validly issued,
fully paid and non-assessable, (ii) were not issued in violation of any
preemptive or other rights, and (iii) were issued in compliance with all federal
and applicable state securities laws.
(c) There are no outstanding offers, options, warrants, rights, calls,
commitments, obligations (verbal or written), conversion rights, plans or other
agreements (conditional or unconditional) of any character providing for,
requiring or permitting the offer, sale, purchase or issuance of any of the
Subject Shares owned by any Seller.
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(d) None of the Sellers is party to any Contract, nor are the Subject
Shares subject to, or bound or affected by, any provision of the Company's
Articles of Incorporation, By-Laws or other corporate restriction, or any order,
judgment, decree, law, statute, ordinance, rule, regulation or other restriction
of any kind or character, which would, individually or in the aggregate,
adversely affect the Subject Shares.
3.2 Due Execution and Delivery. Each of the Sellers signatory hereto has
full power and authority to execute, deliver and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. When
executed and delivered in the manner contemplated herein or confirmed by a
Seller by the delivery of the certificate representing his Subject Shares, this
Agreement will be duly and validly executed and delivered, or confirmed, by each
of the Sellers. This Agreement constitutes a valid and binding obligation of
each of the Sellers signatory hereto enforceable against each of them in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditor's rights generally.
3.3 No Violation. The execution and delivery of this Agreement do not, and
the performance of this Agreement by each of the Sellers and the consummation by
each of the Sellers of the transactions contemplated hereby will not, with or
without the giving of notice and the lapse of time, or both, (a) violate any
provision of law, statute, rule, regulation or executive order to which any
Seller is subject; (b) violate any judgment, order, writ or decree of any court
applicable to any Seller; or (c) result in the breach of or conflict with any
term, covenant, condition or provision of, result in the modification or
termination of, constitute a default under, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any Seller
pursuant to any corporate charter, by-law, commitment, contract or other
agreement or instrument, including any Contracts, to which any of the Sellers is
a party or by which any Seller or any Seller's Assets and Properties is or may
be bound or affected.
The Executing Sellers, represent and warrant to the Purchaser, jointly and
severally as to the matters set forth in the remainder of this Article, that the
statements contained in the remainder of this Article are correct and complete
as of the date hereof and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted for the
date hereof throughout this Article):
3.4 Organization, Good Standing, Power, Etc. The Company is a corporation
duly organized, validly existing and in good standing under the laws of Nevada.
The Company has all requisite corporate power and authority to (i) execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby and (ii) to own or lease and operate its
properties and assets, and carry on the business as it is presently being
conducted.
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3.5 Capital Stock.
(a) The Company has authorized capital stock consisting of (i) twenty four
million (24,000,000) shares of common stock, par value $.001 per share (the
"Common Stock"), of which ten million (10,000,000) shares are issued and
outstanding, and (ii) one million (1,000,000) shares of preferred stock, par
value $.001 per share, none of which are issued or outstanding.
(b) All of the outstanding shares of Common Stock (i) are duly authorized,
validly issued, fully paid and non-assessable, (ii) were not issued in violation
of any preemptive or other rights, and (iii) were issued in compliance with all
federal and applicable state securities laws.
(c) There are no outstanding offers, options, warrants, rights, calls,
commitments, obligations (verbal or written), conversion rights, plans or other
agreements (conditional or unconditional) of any character providing for,
requiring or permitting the offer, sale, purchase or issuance by the Company of
any shares of capital stock of the Company or any other securities (as such term
is defined in the Securities Act). There are no equity securities of the Company
that are reserved for issuance or are outstanding.
(d) The Company is not a party to any voting trust, proxy or other
agreement with respect to any capital stock of the Company.
3.6. Subsidiaries, Divisions and Affiliates. The Company does not
presently own or control, directly or indirectly, any interest in any other
corporation, partnership, trust, joint venture, association or other entity.
3.7 Authorization of Agreement. The execution, delivery and performance of
this Agreement by the Company has been duly authorized, no other corporate or
other action being necessary, and this Agreement, when executed and delivered in
the manner contemplated herein, will be duly and validly executed and delivered
by the Company. This Agreement constitutes a valid and binding obligation of the
Company enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditor's rights generally.
3.8 No Violation. The execution and delivery of this Agreement do not, and
the performance of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby will not, with or without the
giving of notice and the lapse of time, or both, (a) violate any provision of
law, statute, rule, regulation or executive order to which the Company is
subject; (b) violate any judgment, order, writ or decree of any court applicable
to the Company; or (c) result in the breach of or conflict with any term,
covenant, condition or provision of, result in the modification or termination
of, constitute a default under, or result in the creation or imposition of any
lien, security interest, charge or encumbrance upon the Company's Assets and
Properties pursuant to any corporate charter, by-law, commitment, contract or
other agreement or instrument, including any Contracts, to which the Company is
a party or by which the Company or any of the Company's Assets and Properties is
or may be bound or affected or from which the Company derives benefit.
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3.9 Restrictions. The Company is not a party to any Contract, nor is the
Company, the outstanding shares of Common Stock or any of the Company's Assets
and Properties subject to, or bound or affected by, any provision of the
Company's Articles of Incorporation, By-Laws or other corporate restriction, or
any order, judgment, decree, law, statute, ordinance, rule, regulation or other
restriction of any kind or character, which would, individually or in the
aggregate, materially adversely affect the Company's Assets and Properties.
3.10 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, states or local governmental authority is required on the part of the
Company or any Seller in order to enable the Sellers or the Company to execute,
deliver and perform their respective obligations under this Agreement, except
for such qualifications or filings under applicable securities laws as may be
required in connection with the transactions contemplated by this Agreement. All
such qualifications and filings will, in the case of qualifications, be
effective on the Closing and will, in the case of filings, be made within the
time prescribed by Law.
3.11 Commission Filings and Financial Statements. (a) The Company has
filed all forms, reports and documents (the "SEC Documents") required to be
filed with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities At of 1933, as amended (the "Securities Act") or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, and
the rules and regulations of the Commission thereunder since December 7, 2004
through the date of this Agreement. As of their respective filing dates, the SEC
Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission thereunder applicable to such SEC Documents, and
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to stated therein or necessary in
order to make statements therein, in light of the circumstances under which they
were made, not misleading. As of their respective filing dates, the financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with the applicable accounting requirements and the rules
and regulations of the Commission thereunder and were prepared in accordance
with GAAP and fairly presented, in all material respects, the financial position
of the Company as at the dates thereof and the results of operations and cash
flows of the Company for the periods then ended (subject, in the case of
unaudited statements, to normal, recurring audit adjustments not material in
scope or amount).
(b) The shares included under the column "Number of Registered Shares to
be Sold" are the subject of the Company's registration statement with the SEC
No. 333-121070 (the "Registration Statement."). The Registration Statement has
been declared effective by the SEC and neither the SEC nor, to the best of the
Company's knowledge, any state regulatory authority has issued, or threatened to
issue, any order preventing or suspending the use of the Registration Statement
or the prospectus contained therein or has instituted or, to the best of the
Company's knowledge, threatened to institute any proceedings with respect to
such an order.
3.12 Absence of Changes. Since December 31, 2005, there has not been (i)
any material adverse change in the business, Assets and Properties or financial
condition of the Company, (ii) any transaction that is material to the Company,
except transactions entered into in the ordinary course of business, (iii) any
obligations, direct or contingent, that is material to the Company incurred by
the Company, except obligations incurred in the ordinary course of business,
(iv) any change in the capital stock or outstanding indebtedness of the Company
that is material to the Company, (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or (vi) any loss or
damage (whether or not insured) to the property of the Company which has been
sustained or will have been sustained which has a material adverse effect on the
business, Assets and Properties or financial condition of the Company.
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3.13 Title to Assets and Properties. The Assets and Properties the Company
owns are owned by the Company free and clear of all mortgages, deeds of trust,
liens, encumbrances and security interests except for statutory liens for the
payment of current taxes that are not yet delinquent and liens, encumbrances and
security interests which arise in the ordinary course of business and which do
not affect material Assets and Properties of the Company. With respect to Assets
and Properties the Company leases, the Company is in material compliance with
such leases.
3.14 Insurance. All insurance policies owned or maintained by the Company
which provide coverage for the Assets and Properties of the Company are listed
on Schedule 3.14. All of the Assets and Properties of the Company which are
insurable are insured under valid and enforceable policies, and the Company is
not in default of any obligation under any such policy.
3.15 Contracts. Except as set forth on Schedule 3.15 hereto, the Company
is not a party to, nor are any of its Assets and Properties bound by, any
Contracts.
3.16 Compliance with Laws. The Company is not in violation or default of
any provisions of its Articles of Incorporation or Bylaws, both as amended, and
to the knowledge of the Primary Seller or the Company, except for any violations
that individually or in the aggregate would have no material adverse impact on
the Company or its Assets and Properties, the Company is in compliance with all
applicable statutes, laws, regulations and executive orders of the United States
and all states or other governmental bodies and agencies having jurisdiction
over the Company's business or Assets and Properties. The Company has not
received any notice of any violation of any such statute, law, regulation, or
order which has not been remedied prior to the date hereof. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such violation or breach
or, with or without the passage of time or the giving of notice or both, the
Company's Articles of Incorporation or Bylaws, any judgment, order or decree of
any court or arbitrator to which the Company is a party or is subject, any
Contract of the Company that is material to the Company's business, or, to the
knowledge of the Primary Seller or the Company, a violation of any statute, law,
regulation or order or any event which results in the creation of any lien,
charge or encumbrance upon the Assets and Properties of the Company, except for
defaults and violations that individually or in the aggregate would have no
material adverse impact on the Company.
3.17 Litigation. There is no action, suit, proceeding, claim, arbitration
or investigation ("Litigation") pending, or to the knowledge of the Primary
Seller or the Company, currently threatened, against the Company, its
activities, Assets and Properties or, to the knowledge of the Primary Seller or
the Company, against any officer, director or employee of the Company in
connection with such officer's, director's or employee's relationship with, or
actions taken on behalf of, the Company, except for any such Litigation that
individually or in the aggregate would have not material adverse impact on the
Company.
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3.18 Books and Records. The Books and Records of the Company are in all
material respects complete, correct and up to date, with all necessary
signatures, and are in all material respects accurately reflected in the
Financial Statements.
3.19 Employee Benefit Plans. Schedule 3.19 sets forth a correct and
complete list of each and every benefit plan, including but not limited to each
pension, profit sharing, welfare, stock bonus, stock option, stock appreciation,
bonus, deferred compensation, severance, change in control, stock purchase,
pay-to-stay or similar agreement or plan, individual employment agreement,
multiemployer plan, phantom stock, leave of absence, layoff, vacation, day or
dependent care, legal services, cafeteria, life, health, accident, disability,
workmen's compensation or other arrangement or policy, including but not limited
to any "employee benefit plan" within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), covering,
or which covered, current or former employees or consultants of the Company (the
"Employee Benefit Plans"), and except as described in Schedule 5.24 hereto, the
Company has no Employee Benefit Plans. No Employee Benefit Plan is a
multiemployer plan within the meaning of Section 3(37) of ERISA, nor a "defined
benefit plan" within the meaning of section 414(j) of the Code. No benefit under
any Employee Benefit Plan, including, without limitation, any severance or
parachute payment plan or agreement, will be established or become accelerated,
vested or payable by reason of any transaction contemplated under this
Agreement.
3.20 Employees; Labor Relations. (a) Schedule 3.20 contains a list of the
names of all employees and consultants who are employed by or perform services
for the Company. All such individuals may be terminated as of the Closing date
with no further obligation to the Company.
(b) Except as disclosed in Schedule 3.20, (i) no employee of the Company
is presently a member of a collective bargaining unit and, during the last five
years, the Company has not been involved in, and, to the knowledge of Primary
Seller and the Company, there are no threatened or contemplated attempts to
organize for collective bargaining purposes by any of the employees of the
Company and (ii) no unfair labor practice complaint or sex or age discrimination
claim has been brought during the last five years against the Company before the
National Labor Relations Board or any other Governmental or Regulatory
Authority. There has been no work stoppage, strike or other concerted action by
employees of the Company. The Company has complied in all material respects with
all applicable Laws relating to the employment of labor, including, without
limitation, those relating to wages, hours and collective bargaining.
3.21 Environmental Matters. (a) The Company is in compliance with all
material terms, limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any applicable
Environmental Law or Environmental Permit.
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(b) No Hazardous Material has been used, handled, treated, generated,
stored, recycled, transported, disposed of or Released at, on, under or from any
property now owned or leased or formerly owned or leased by the Company, any
predecessor of the Company, or any entity previously owned by the Company.
(c) No written notice, notification, demand, request for information,
citation, complaint, summons or order has been received by the Company, no
penalty has been assessed against the Company, and, to the knowledge of the
Primary Seller or the Company, no investigation or review is pending or,
threatened by any Governmental or Regulatory Authority with respect to: (i) any
alleged failure by the Company to have any Environmental Permit required in
connection with the conduct of its business; (ii) any use, handling, treatment,
generation, storage, recycling, transportation, disposal or Release of any
Hazardous Material by the Company; (iii) any Release of any Hazardous Material
generated by the Company; or (iv) any Release of any Hazardous Material at, on,
under or from any property now owned or leased or formerly owned or leased by
the Company.
3.21 Taxes. (a) All Tax Returns required to have been filed on or before
the Closing Date by or with respect to the Company have been duly and timely
filed. Such Tax Returns, including amendments thereto, have been prepared in
good faith without negligence or willful misrepresentation and are true,
complete and accurate in all material respects. All Taxes owed by the Company
(whether or not shown on any Tax Return) have been paid, except those, if any,
currently being contested by the Company in good faith.
(b) There are no agreements, waivers or other arrangements providing for
an extension of time with respect to the assessment of any Taxes or deficiency
against the Company or with respect to any Tax Return filed or to be filed by
the Company;
(c) The Company has withheld and paid over all Taxes required to have been
withheld and paid over under applicable Law, and complied with all information
reporting and record-keeping requirements under applicable Law with respect to
any amounts paid or owing to any employee, creditor, independent contractor or
other third party.
3.22 No Brokers or Finders. None of the Sellers or the Company nor any of
its officers, directors, employees, shareholders or affiliates has employed or
made any Contract with any person which obligates the Company or the Sellers or
any of their respective affiliates to pay any finder's fee, brokerage fees or
commission or similar payment in connection with the transactions contemplated
hereby
3.22 Closing Date Net Worth. As of the Closing Date, immediately prior to
the consummation of the transaction contemplated hereby, the net worth of the
Company shall be no less than $-0- and there shall be no liability to the
Company arising as a result of the transaction contemplated hereby.
-11-
3.23 Other Information. None of the information which has been or may be
furnished by Seller or the Company or any of their representatives to Purchaser
or any of its representatives in connection with the transactions contemplated
hereby, which is contained in this Agreement (including the Exhibits and
Schedules hereto) or any certificate or instrument delivered or to be delivered
by or on behalf of Seller and the Company in connection with the transactions
contemplated hereby or thereby, does or will contain any untrue statement of a
material fact or omit a material fact necessary to make the information
contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to each of the Sellers and
the Company as follows, each of which representations and warranties shall be
true as of the Closing Date:
4.1 Organization. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
4.2 Authorization of Agreement. The execution, delivery and performance of
this Agreement by the Purchaser, and the consummation of the transactions
contemplated hereby, have been duly and effectively authorized by the Board of
Directors of the Purchaser. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Purchaser. This Agreement constitutes a
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except that such enforcement may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors, rights generally.
4.3 No Violation. The execution, delivery and performance of this
Agreement by the Purchaser, and the consummation of the transactions
contemplated hereby, will not, with or without the giving or notice and the
lapse of time, or both, (a) violate any provision of law, statute, rule,
regulation or executive order to which the Purchaser is subject; (b) violate any
judgment, order, writ or decree of any court applicable to the Purchaser; or (c)
result in the breach of or conflict with any term, covenant, condition or
provision of the organizational documents of the Purchaser or any commitment,
contract or other agreement or instrument to which the Purchaser is a party.
4.4 Litigation. To the knowledge of the Purchaser, there are no actions,
suits, proceedings or governmental investigations or inquiries pending or
threatened against it which, in its reasonable judgment, would prevent the
consummation of the transactions contemplated hereby.
4.5 No Activities. To date the Company has conducted no business
activities other than those related to its organization and initial capital
raise.
-12-
4.6 Compliance with Securities Laws. All offers and sales of securities of
the Purchaser made by the Purchaser have been made in compliance with the
Securities Act and all applicable state securities or "Blue Sky" laws, and,
where applicable, the laws or regulations of foreign jurisdictions.
4.7 No Brokers or Finders. Neither the Purchaser nor any of its officers,
directors, employees, shareholders or affiliates has employed or made any
Contract with any person which obligates the Company or the Sellers or any of
their respective affiliates to pay any finder's fee, brokerage fees or
commission or similar payment in connection with the transactions contemplated
hereby.
ARTICLE V
COVENANTS OF SELLERS AND THE COMPANY
Each of the Primary Seller and the Company hereby covenants and agrees
with the Purchaser that each of them shall do, or cause to be done, the
following:
5.1 Conduct of Business Until Closing Date. From the date hereof until the
Closing, the Primary Seller shall:
(a) operate, or cause to be operated, the business of the Company only in
the usual, regular and ordinary manner, and use his best efforts to preserve the
present business organization of the Company intact;
(b) maintain, or cause the Company to maintain, the Books and Records and
accounts of the Company in the usual, regular and ordinary manner, on the basis
consistent with prior periods;
(c) duly comply, and cause the Company to duly comply, with all laws,
rules and regulations applicable to the Company and to the conduct of its
business;
(d) perform, or cause to be performed, all of the obligations of the
Company without default, unless such default is of no significance to the
Company and could have no adverse impact on the Company, its Assets and
Properties or the Business;
(e) neither (i) amend the Company's Articles of Incorporation or By-Laws
or (ii) merge with or into, consolidate, amalgamate or otherwise combine with,
any other entity, or cause the Company to do any of the foregoing;
(f) not, with respect to the Company, nor permit the Company in its own
right to, encumber, mortgage or voluntarily subject to lien any of the Company's
existing Assets and Properties or the Subject Shares; and
-13-
(g) not, with respect to the Company, nor permit the Company in its own
right to, (i) make any distributions or dividends of Assets and Properties or
securities, or any changes to the capital structure of the Company; or (ii)
agree to make or make any sales of the Company's securities including the
issuance of any additional capital stock or rights or options or contracts to
acquire, or instruments convertible into, Common Stock.
5.2 Approvals, Consents and Further Assurances. Each of the Primary Seller
and the Company shall use its best efforts to obtain in writing as promptly as
possible all approvals, consents and waivers required in order to effectuate the
transactions contemplated hereby, and shall deliver to the Purchaser copies,
reasonably satisfactory in form and substance to counsel to the Purchaser, of
such approvals and consents.
5.3 Access to Properties, Records, Suppliers, Agents, Etc. The Primary
Seller and the Company shall give to the Purchaser and to the Purchaser's
counsel, financiers, accountants and other representatives access to and copies
of such of the Company's Books and Records, Tax Returns, Contracts, commitments
and records as such relate to the Assets and Properties; and shall furnish to
the Purchaser and such representatives all such additional instruments,
contracts, documents or other written obligations (certified by officers of the
Company, if so requested) and financial and other information concerning such
business, Assets and Properties as the Purchaser or its representatives may from
time to time reasonably request.
5.4 Advice of Changes. If any Executing Seller or the Company becomes
aware of any fact or facts which, if known at the date hereof, would have been
required to be set forth or disclosed in or pursuant to this Agreement or which,
individually or in the aggregate, could materially adversely affect the
Business, Assets and Properties or Common Stock of the Company, such person
shall promptly advise Purchaser in writing thereof.
5.5 Conduct. Except as permitted or required hereby, neither any of the
Executing Sellers nor the Company shall enter into any transaction or take any
action which would result in any of the representations and warranties of Seller
or the Company contained in this Agreement or in any Operative Agreement not to
be true and correct as of the time immediately after such transaction has been
entered into or such event has occurred and on the Closing Date.
5.6 Securities Compliance. Primary Seller and the Company shall file such
reports and other documents as may be required under the Securities Act and the
Securities Exchange Act of 1934 (the "Exchange Act") including such
Post-effective Amendments as may be necessary to maintain the effectiveness of
the Company's registration statement on Form SB-2 which includes a portion of
the Subject Shares.
5.7 Satisfaction of Conditions by the Sellers. The Primary Seller hereby
covenants and agrees with the Purchaser that, between the date of this Agreement
and the Closing Date or date of termination of this Agreement, as the case may
be, the Primary Seller shall use its best efforts to assure that the conditions
set forth in Article IX hereof are satisfied by the Closing Date.
-14-
5.8 Exclusivity. The Primary Seller and the Company will not (and will not
cause or permit any of their employees, directors and officers to) solicit,
initiate, or encourage the submission of any proposal or offer from any person
relating to the acquisition of all or substantially all of the equity interests
or assets of any of the Company (including any acquisition structured as a
merger, consolidation, or share exchange); provided, however, that the Sellers
and their directors and officers will remain free to participate in any
discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner any effort or
attempt by any Person to do or seek any of the foregoing to the extent that such
actions are consistent with their fiduciary duties.
Each of the Primary Seller and the Company hereby covenants and agrees
with the Purchaser that each of them shall do, or cause to be done, the items
set forth below and that the covenants contained in the remainder of this
Article shall survive the Closing:
5.9 Securities Filings. Subsequent to the Closing the Primary Seller shall
cooperate in the Company's efforts to file its Report on Form 8-k.
ARTICLE VI
COVENANTS OF THE PURCHASER
6.1 Satisfaction of Conditions by the Purchaser. The Purchaser hereby
covenants and agrees with each of the Sellers that, between the date of this
Agreement and the Closing Date or the date of termination of this Agreement, as
the case may be, the Purchaser shall use its best efforts to cause the
conditions set forth in Article X hereof to be satisfied by the Closing Date.
6.2 Exit from Business. No later than ninety days after the Closing Date
the Purchaser shall cause the Company to cease to operate as a mortgage broker.
Further, the Purchaser shall cooperate and cause the Company to cooperate (at
the expense of Xxxxxx Xxxxxx) in the transfer to Xxxxxx Xxxxxx of such licenses,
telephone numbers and other assets of the Company, other than cash and cash
equivalents, used in the operation of the Company's mortgage brokerage business.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
The obligations of the Purchaser pursuant to this Agreement are subject to
the satisfaction at the Closing of each of the following conditions, any or all
of which conditions may be waived by the Purchaser in its sole discretion:
7.1 Accuracy of Representations and Warranties. All representations and
warranties made by the Primary Seller or the Company (contained in this
Agreement, any Exhibit or Schedule hereto, or any certificate or instrument
delivered to the Purchaser or its representatives by the Primary Seller or the
Company or any of their representatives) shall be true on and as of the Closing
Date with the same force and effect as though made on and as of the Closing
Date.
-15-
7.2 Performance of Agreements. The Primary Seller and the Company shall
have performed and complied with all covenants, obligations and agreements to be
performed or complied with by them on or before the Closing Date pursuant to
this Agreement.
7.3 Approvals and Consents. The Primary Seller and the Company shall have
obtained, and the Purchaser shall have received copies of, all of the approvals
and consents referred to in Section 5.2, each of which approvals and consents
shall be in full force and effect and reasonably satisfactory in form and
substance to the Purchaser and its counsel.
7.4 Officer's Certificate. The Purchaser shall have received an accurate
certificate of the Primary Seller, as Chief Executive Officer and majority
shareholder of the Company, dated the Closing Date, satisfactory in form and
substance to the Purchaser and its counsel, certifying (a) as to the fulfillment
of the matters specified in Sections 7.1 through 7.2, (b) any changes that the
Purchaser is required to be notified of pursuant to Section 5.4, or that
previously had not been disclosed to the Purchaser, and (c) stating, among other
things, that he is not aware of any material omissions or facts that would
materially alter any of the financial statements, nor is he aware of any facts
or factors that are reasonably likely to occur, or if known to other parties,
that could have a material adverse effect on the condition (financial and
otherwise), business, operations, Assets and Properties, liabilities, management
or prospects of the Company.
7.5 Releases. The Company shall have received from each of the individuals
set forth on Exhibit 7.5 a release in form and substance satisfactory to the
Purchaser.
7.6 Board of Directors. The Company shall have received from Xxxxxxx Xxxxx
his resignation from the Board of Directors of the Company effective no later
than the Closing and the Company shall have adopted all resolutions necessary
such that effective the Closing the Company shall have a Board of Directors
consisting only of Xxxxxx Xxxxxx, Xxxx Xxxxxx and Xxxxx Xxxxxxxxxxx and such
officers as the new directors shall appoint. Unless otherwise requested, Xx.
Xxxxxx will resign from the Board at such time as the Company ceases to engage
in the mortgage brokerage business.
7.7 Contracts. The Company shall be party to no contract and shall have no
liabilities other than those specifically approved by Purchaser.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
The obligations of the Sellers under this Agreement are subject to the
satisfaction at the Closing of each of the following conditions:
-16-
8.1 Accuracy of Representations and Warranties. All representations and
warranties by the Purchaser in this Agreement shall be true as of the Closing
Date with the same force and effect as though made on and as of the Closing
Date.
8.2 Performance of Agreements. The Purchaser shall have performed and
complied in all material respects with all covenants, obligations and agreements
to be performed or complied with by it on or before the Closing Date pursuant to
this Agreement.
8.3 No Injunction. No third party injunction, stay or restraining order
shall be in effect prohibiting the consummation of the transactions contemplated
hereby.
8.4 Lock-up. The Purchaser and the other parties that acquire any of the
Subject Shares shall enter into lock-up agreements in favor of the Company in
the form of Exhibit C.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
9.1 Survival. The representations and warranties set forth in this
Agreement, in any Exhibit or Schedule hereto and in any certificate or
instrument delivered in connection herewith shall survive for a period of two
(2) years after the Closing Date and shall thereupon terminate and expire and
shall be of no force or effect thereafter, except (i) with respect to any claim,
written notice of which shall have been delivered to the Purchaser, on the one
hand, or the Sellers, on the other hand, as the case may be, such claim shall
survive the termination of such period and shall survive for as long as such
claim is unsettled, and (ii) with respect to any litigation which shall have
been commenced to resolve such claim on or prior to such date. Notwithstanding
the foregoing, with respect to Taxes, Employee Benefit Plans and any
environmental matters, the period shall be the applicable statute of limitations
plus sixty (60) days.
9.2. Indemnity. (a) The Primary Seller shall indemnify the Purchaser and
its shareholders, directors, officers, employees, successors and assigns
(individually, a "Purchaser Indemnified Party") and hold them harmless from,
against and in respect of any and all costs, losses, claims, liabilities, fines,
penalties, damages and expenses (including interest, court costs and reasonable
fees and disbursements of counsel; collectively "Damages") incurred by any of
them resulting from any misrepresentation, breach of warranty or non-fulfillment
of any covenant, agreement or obligation of the Sellers or the Company contained
in this Agreement (including without limitation any Exhibit or Schedule hereto
and any certificate or instrument delivered in connection herewith).
Notwithstanding the foregoing, each Seller shall indemnify the Purchaser for a
breach of any of the representations contained in Sections 3.1 through 3.3
insofar as such representations pertain to it and for the failure of such Seller
to deliver the shares ascribed to such Seller on Exhibit A. The indemnity
provided in the immediately preceding sentence, in the case of the failure of
any Seller to deliver his Subject Shares, shall be in addition to the indemnity
of the Primary Seller for the breach of his agreement to cause such Subject
Shares to be delivered in accordance with the terms hereof.
-17-
(b) The Purchaser shall indemnify each of the Sellers (individually, a
"Seller Indemnified Party") and hold them harmless from, against and in respect
of any and all Damages incurred by any of them resulting from any
misrepresentation, breach of warranty or non-fulfillment of any covenant,
agreement or obligation of the Purchaser contained in this Agreement.
9.3. Right to Contest Third Party Claims. If a claim under this Article is
based upon an asserted liability or obligation to a person not a party to this
Agreement (nor a permitted successor or assign of same) then the Indemnified
Party will give prompt written notice of any such claim to the Indemnifying
Party (the "Notice of Third Party Claim"). The Indemnifying Party receiving such
Notice of Third Party Claim may defend or settle such claims or actions at their
expense with counsel chosen and paid by them by giving written notice (the
"Election to Defend") to the Indemnified Party within thirty (30) days after the
date the Notice of Third Party Claim is deemed received; provided, however, that
the Indemnifying Party receiving the Notice of Third Party Claim may not settle
such claims or actions without the consent of the Indemnified Party, which
consent will not be unreasonably withheld; and, provided further, if the
defendants in any action include both the Indemnifying Party and the Indemnified
Party, and the Indemnified Party shall have reasonably concluded that counsel
selected by the Indemnifying Party has a conflict of interest because of the
availability of different defenses to the parties, the Indemnified Party shall
cooperate in the defense of such claim, but the Indemnified Party shall have the
right to its own counsel and to control its defense and shall be entitled to be
reimbursed for all costs and expenses incurred in such defense. In no event will
the provisions of this Article reduce or lessen the obligations of the parties
under this Article, if prior to the expiration of the foregoing thirty (30) day
notice period, the Indemnified Party furnishing the Notice of Third Party Claim
responds to a third party claim if such action is reasonably required to
minimize damages or avoid a forfeiture or penalty or because of any requirements
imposed by law. If the Indemnifying Party receiving the Notice of Third Party
Claim does not duly give the Election to Defend as provided above, then it will
be deemed to have irrevocably waived its right to defend or settle such claims,
but it will have the right, at its expense, to attend, but not otherwise
participate in, proceedings with such third parties; and if Indemnifying Party
does duly give the Election to Defend, then the Indemnified Party giving the
Notice of Third Party Claim will have the right at its expense, to attend, but
not otherwise participate in, such proceedings. The parties to this Agreement
will not be entitled to dispute the amount of any Damages (including reasonable
attorney's fees and expenses) related to such third party claim resolved as
provided above. The Indemnifying Party will be subrogated to all rights of the
Indemnified Party.
9.4 Subrogation. If any Indemnified Party receives payment or other
indemnification from any Indemnifying Party hereunder, the Indemnifying Party
shall be subrogated to the extent of such payment or indemnification to all
rights in respect of the subject matter of such claim to which the Indemnified
Party may be entitled, to institute appropriate action for the recovery thereof,
and the Indemnified Party agrees reasonably to assist and cooperate with the
Indemnifying Party at no expense to the Indemnified Party in enforcing such
rights; provided, however, that the rights provided hereby shall not be so
construed as to permit the Sellers (as Indemnifying Party) to claim over against
the Company in respect of any loss of the Purchaser (as Indemnified Party) that
is or may be the subject of a claim for indemnification hereunder.
-18-
ARTICLE X
TAX MATTERS
10.1 Allocation of Certain Taxes.
(a) If the Company is permitted but not required under applicable state,
local or federal income tax laws to treat the Closing Date as the last day of a
taxable period, then the parties shall cause the Company to treat that day as
the last day of a taxable period.
(b) In the case of Taxes arising in a taxable period of the Company that
includes but does not end on the Closing Date, the allocation of such Taxes
between the Pre-Closing Period and the Post-Closing Period shall be made on the
basis of an interim closing of the books as of the end of the Closing Date. For
the avoidance of doubt, for purposes of this Section 12.1, any Tax resulting
from the transactions contemplated by this Agreement is attributable to the
Pre-Closing Period.
(c) In the case of any Taxes attributable to any taxable period that
includes but does not end on the Closing Date, the portion of such Taxes
attributable to the Pre-Closing Period shall be the amount of such Taxes for the
entire taxable period, multiplied by a fraction the numerator of which is the
number of calendar days in such taxable period ending on and including the
Closing Date and the denominator of which is the entire number of calendar days
in such taxable period.
10.2 Preparation and Filing of Tax Returns. The Purchaser shall file or
cause to be filed all Tax Returns of the Company that are required to be filed
after the Closing Date, including the Tax Returns for the taxable period ending
on the Closing Date. The Company shall pay all Taxes shown to be due thereon,
and the Primary Seller shall reimburse the Company for all Taxes attributable to
the Pre-Closing Period required to be paid with Tax Returns filed by the
Purchaser.
10.3 Tax Sharing Agreements. All Tax sharing agreements or similar
agreements, if any, with respect to or involving the Company shall be terminated
as of the Closing Date and, after the Closing Date, the Company shall not be
bound thereby or have any liability thereunder.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses. Except as and to the extent otherwise provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, each of the Sellers, on the one hand, and the Purchaser, on the
other hand, shall each pay their own respective expenses and the fees and
expenses of their respective counsel and other experts.
-19-
11.2 Termination; Remedies. (a) This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned at any time before the
Closing, by mutual written consent of Purchaser and the Primary Seller.
(b) Should Purchaser breach this Agreement or refuse or fail to
purchase the Subject Shares as provided herein, Sellers' sole remedy shall be to
receive the benefit of the Downpayment which shall be paid by the Escrow Agent
to the Company.
Should the Company or any of the Sellers breach this Agreement or refuse or fail
to sell the Subject Shares as provided herein, Purchaser shall have the right to
receive the return of the Downpayment and to seek such other remedies as may be
available at law or in equity.
11.3 Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein or in any other documents. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach. Any party
hereto may, at or before the Closing, waive any conditions to its obligations
hereunder which are not fulfilled.
11.4 Binding Effect; Benefits. This Agreement shall inure to the benefit
of the parties hereto and shall be binding upon the parties hereto and their
respective successors and assigns. Except as otherwise set forth herein, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
11.5 Assignment. No party to this Agreement may assign its rights or
obligations hereunder without the prior written consent of all of the other
parties; provided, however, that Purchaser may assign the right to purchase all
or any portion of the Subject Shares to one or more individuals and entities,
provided that any such assignment shall not relieve Purchaser of any obligation
hereunder.
11.6 Notices. All notices, requests, demands and other communications
which are required to be or may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person,
upon receipt when transmitted by facsimile or telex (confirmed via one of the
other methods of serving a notice), one business day after deposit with a
nationally recognized overnight courier, and three business days after deposit
in a facility of the United States mails, if sent by certified or registered
first class mail, postage prepaid, return receipt requested, in each case to the
party to whom the same is to be given or made at the following address:
-20-
If to the Purchaser, to:
Energy Venture, Inc.
c/o Eaton & Xxx Xxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. XxXxxx, Esq.
If to the Company or any Seller, to:
ABC Funding, Inc.
0000 Xxxxx 000 Xxxx
Xxxxx, Xxxx 00000
Attn: Xx. Xxxxxx Xxxxxx, Chief Executive Officer
11.7 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) constitutes the entire agreement and supersedes all prior
agreements and understandings, oral and written, among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements,
representations, warranties, statements, promises and understandings, whether
written or oral, with respect to the subject matter hereof. No party hereto
shall be bound by or charged with any written or oral arguments,
representations, warranties, statements, promises or understandings no
specifically set forth in this Agreement or in any Exhibit or Schedule hereto,
or in certificates and instruments to be delivered pursuant hereto on or before
the Closing.
11.8 Headings; Certain Terms. The section and other headings contained in
this Agreement are for reference purposes only and shall not be deemed to be a
part of this Agreement or to affect the meaning or interpretation of this
Agreement. As used in this Agreement, the term "including" means "including, but
not limited to" unless otherwise specified; the word "or" means "and/or", and
the word "person" means and refers to any individual, corporation, trust,
partnership, joint venture, government or governmental authority, or any other
entity; and the plural and singular forms are used interchangeably.
11.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed, shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
11.10 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York, without giving effect to the choice of law
principles thereof.
11.11 Severability. If any term or provision of this Agreement shall to
any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of the agreement shall be
valid and enforced to the fullest extent permitted by law.
-21-
11.12 Amendments. This Agreement may not be modified or changed except by
an instrument or instruments in writing signed by the party or parties against
whom enforcement of any such modification or amendment is sought.
11.14 Section References. All references contained in this Agreement to
any section number are references to sections of this Agreement unless otherwise
specifically stated.
11.15 Press Releases. None of the Sellers shall issue any press release or
make any public announcement with respect to the subject matter of this
Agreement. Neither the Company nor the Purchaser shall issue any press release
or make any public announcement relating to the subject matter of this Agreement
without the prior written approval of the other; provided, however, that the
Purchaser and the Company may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing party
will use its reasonable best efforts to advise the other party prior to making
such disclosure).
[The remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement, or have
caused this Agreement to be signed in their respective names by an officer
thereunder duly authorized, on the date first above written.
ENERGY VENTURE, INC.
By:
--------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
ABC FUNDING, INC.
By:
--------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
SELLERS:
------------------------------
Xxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxx
------------------------------
K. Xxxx Xxxxxxx
------------------------------
Xxxx X. Xxxxx
------------------------------
R. Xxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
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EXHIBIT A
SHARES TO BE TRANSFERRED
--------------------------------------------------------------------------------
Name of Seller Number of Unregistered Number of Registered
Shares to be Sold Shares to be Sold
--------------------------------------------------------------------------------
Xxxxxx Xxxxxx 8,312,000 876,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx 32,000
--------------------------------------------------------------------------------
Xxxxxxxxxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Van Os 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
K. Xxxx Xxxxxxx 38,000
--------------------------------------------------------------------------------
Xxxxx Bottega 25,000
--------------------------------------------------------------------------------
R. Xxxx Xxxxxxx 38,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxx 39,000
--------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxxx 4,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 4,000
--------------------------------------------------------------------------------
B. Xxxx Xxxxxxxx 4,000
--------------------------------------------------------------------------------
Xxxx Xxxxxx Schoomer 4,000
--------------------------------------------------------------------------------
Total: 8,312,000 1,156,000
--------------------------------------------------------------------------------
-24-
[Schedules Omitted]
-25-
