Asset Purchase Agreement
Exhibit
1
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BETWEEN
Safari
Associates, Inc.
00000
Xxxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
(hereinafter
referred to as “Green Rock Ventures” or "Purchasor")
OF
THE
FIRST PART,
AND:
Power-Save
Energy Corp.
0000-0
Xxxxx Xxxxxx
Xxx
Xxxx
Xxxxxx, XX 00000
(hereinafter
referred to as “Power-Save ” or "Seller")
OF
THE
SECOND PART,
R E C I T A L S
WHEREAS
Seller
has developed a business, Power-Save Energy Corp., a company dedicated to
the
mass market sale of energy saving products for homeowners. Without limiting
the
generality of the foregoing the Business is as set out in Schedule
A.
WHEREAS
Purchaser desires to obtain an exclusive purchase agreement to establish
the
Business worldwide, in
all
markets,
utilizing Seller’s property, business model, assets and proprietary information
and acknowledges that use of such property, business model, assets and its
proprietary information are subject to controls and restrictions established
by
Seller for the purpose of maintaining a high level of uniform quality and
goodwill in the operation of the Business; and
WHEREAS
the
Seller desire to sell to Purchaser and Purchaser desires to acquire from
the
Seller the property, assets, model and proprietary information on the terms
and
subject to the conditions contained in this Agreement; and
WHEREAS
the
Parties are desirous of reducing the terms and conditions of their agreement
to
writing;
NOW,
THEREFORE, in
consideration of the premises, mutual promises, and obligations set forth
herein, Purchaser and Seller agree as follows:
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1).
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PROPERTY.
Subject
to the terms and conditions of this Agreement, Seller agrees to
sell and
convey to Purchaser and Purchaser agrees to purchase from Seller
the
Property as described in Schedule
A.
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2).
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PURCHASE
PRICE.
Subject to the terms and conditions of this Agreement, Seller agree
to
sell, convey and/or assign, as permitted, to Purchaser and Purchaser
agrees to purchase from Seller the Property, assets, model and
proprietary
information for 75,000,000 Shares of Common Stock of Safari Associates,
Inc.. The Purchase Price will be allocated between the Assets by
agreement
of the Parties no later than three (3) days prior to Closing and,
in the
absence of an agreement, in accordance with the Seller’ reasonable
allocation at Closing.
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3).
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LIABILITIES.
In
consideration of the Purchase Price, the Purchaser agrees to assume
all
contracts and liabilities relating to the operation of Seller incurred
in
the ordinary course of the Seller business and operation of the
Property
existing and that are in effect as of the Closing Date, but excluding
(a)
Seller’ state and federal income tax obligations as of the date of
Closing; and (b) Seller’ liabilities existing and in effect as of the
Closing Date. Except as expressly identified in Schedule
B,
after Closing, Purchaser shall hold Seller harmless from any and
all
liabilities and contracts of Seller existing and in effect as of
the date
of Closing.
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4).
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CLOSING.
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a)
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Closing
Date.
Closing on the Property shall occur on September 12,
2006.
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b)
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Time
and Location of Closing.
Unless otherwise agreed by Purchaser and Seller, the Closing shall
take
place at 10:00 a.m. on the Closing Date at the offices of the General
Counsel for Safari Associates, Inc.
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c)
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Possession.
Possession of the Property and Assets which are the subject of
Closing
shall be delivered to Purchaser on the Closing
Date.
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5).
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REPRESENTATIONS
AND WARRANTIES OF SELLER.
Seller hereby represents and warrants that the following are true
and
correct as of the date of this Agreement and shall be reaffirmed
by Seller
at Closing:
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a)
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Seller
has the power to own their properties and assets, and to carry
on their
business as now being conducted by it. Seller has the power to
assign and
transfer to Purchaser the Property and Assets to be transferred
to
Purchaser as specified in this
Agreement.
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b)
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The
execution and delivery of this Agreement does not, and the consummation
of
the transactions contemplated hereby will not, violate any provision
of
the documents controlling the operation of Seller, nor violate
any
provision of the Operating Agreements, Articles of Incorporation,
By-Laws,
mortgage, lien, agreement, instrument, order, judgment or decree
to which
Seller are a party, or whereby it is bound, and will not violate
any other
restriction of any other kind or character to which Seller are
subject.
Seller has taken or will take action required by law, their Operating
Agreements, Articles of Incorporation and By-Laws, or otherwise,
to
authorize execution and delivery of this Agreement and the consummation
of
the transactions described herein.
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c)
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Seller
has or will have by the Closing Date, good and marketable title and
own
the Property and Assets to be sold
hereunder.
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d)
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Seller
have filed or caused to be filed, all returns for federal, state
and local
taxes which are due. To the best of Seller’ knowledge, there are no
assessments or additional taxes threatened against Seller, the
Property or
Assets. Seller are not delinquent in the payment of any tax assessment
or
governmental charge, do not have any tax deficiencies imposed or
assessed
against them and have not executed any waiver of the statute of
limitations on the assessment or collection of any tax, which actions
in
any manner would affect title to any of the Property and Assets
to be
transferred.
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e)
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From
the date of this Agreement until the final Closing Date provided
for
herein, Seller shall not: (a) commit or permit to be committed
any waste
on the Property, and (b) enter into any agreement or instrument
or take
any action that would encumber the Property after Closing, that
would bind
Purchaser or the Property after Closing, or that would be outside
the
normal scope of maintaining and operating the
Property.
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f)
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There
are no obligations of the Seller pertaining to the operation of
the
Property that would be a direct obligation of the Purchaser, other
than as
disclosed in this Agreement.
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g)
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Seller
makes no representations or warranties by delivering and making
available
to Purchaser any documents or reports relating to the Property
or the
Assets. Neither Seller nor any of their employees, agents, or
representatives shall be responsible or liable for any damage or
loss
resulting from Purchaser's reliance upon any documents or reports,
studies
or other information made available to Purchaser by Seller relating
to the
Property and Assets.
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The
representations and warranties of the Seller contained in this Agreement
and the
certificates and documents to be delivered pursuant hereto, shall be true,
complete, and correct when made, and as of the Closing Date, and will not
contain any untrue statement of a material fact required to make the statements
herein or therein not misleading. Seller shall have performed and satisfied
all
the covenants, agreements, and conditions required by this Agreement to be
performed and satisfied by it hereunder.
For
purposes of the foregoing, the term “best of Seller’ knowledge” shall mean the
actual and personal knowledge of Seller, Seller’ directors, officers,
shareholders, managers, members, and employees and (a) shall not obligate
such
individuals to carry out any investigation of the matters discussed above,
and
(b) does not imply that anyone else's knowledge is imputed to such individuals.
Purchaser's consummation of the purchase and sale transactions contemplated
by
this Agreement notwithstanding Purchaser’s actual knowledge at the time of the
Closing of any alleged breach of the foregoing representations and warranties
shall be deemed Purchaser’s waiver of the alleged breach.
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6).
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REPRESENTATIONS
AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants that the following are
true and
correct as of the date of this Agreement and shall be reaffirmed
by
Purchaser at Closing:
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a)
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The
execution and delivery of this Agreement does not, and the consummation
of
the transactions contemplated hereby will not, violate any provision
of
the documents controlling the operation of Purchaser, nor violate
any
provision of the Operating Agreements, mortgage, lien, agreement,
instrument, order, judgment or decree to which Purchaser is a party,
or
whereby it is bound, and will not violate any other restriction
of any
other kind or character to which Purchaser is subject. Purchaser
has taken
or will take action required by law, its Operating Agreements or
otherwise
to authorize execution and delivery of this Agreement and the consummation
of the transactions described
herein.
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b)
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Purchaser
expressly acknowledges to Seller that Purchaser has determined
in its sole
discretion the scope and extent of its due diligence and inspection
of the
Property and Assets and the Purchaser is purchasing the Property
and
Assets solely based on its due diligence and not any statement
or
representation of the Seller except as expressly set forth in this
Agreement.
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7).
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SURVIVAL.
All covenants and agreements of either Party which expressly survive
the
Closing under this Agreement, and all representations, warranties,
and
indemnities by either Party to the other under this Agreement shall
survive the Closing under this Agreement and shall be binding upon
and
inure to the benefit of the Parties hereto and their respective
successors
and permitted assigns.
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8).
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GENERAL
PROVISIONS.
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a)
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Time
of the Essence.
Time is of the essence under this
Agreement.
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b)
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Governing
Law.
This Agreement shall be construed under and governed by the laws
of the
State of Nevada.
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c)
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Severability.
In
case any one or more of the provisions contained in this Agreement
shall
for any reason be held to be invalid, illegal, or unenforceable
in any
respect, such invalidity, illegality or unenforceability shall
not affect
any other provision and this Agreement shall be construed as if
such
invalid, illegal, or unenforceable provisions had never been contained
within the Agreement.
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d)
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Entire
Agreement.
This Agreement, together with all conveyance documents, contain
the entire
agreement between Purchaser and Seller and supersede all prior
representations, warranties, understandings, and agreements. This
Agreement may not be modified except by an instrument in writing
signed by
the parties.
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e)
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Exhibits.
All schedules, exhibits, and addenda attached to this Agreement
and
referred to herein shall for all purposes be deemed to be incorporated
in
this Agreement by this reference.
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f)
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Further
Acts.
Each of the parties covenants and agrees with the other, upon reasonable
request from the other, from time to time, to execute and deliver
such
additional documents and instruments and to take such other actions
as may
be reasonably necessary to give effect to the provisions of this
Agreement.
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g)
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Attorneys’
Fees.
Anything to the contrary herein notwithstanding, in the event of
any
litigation or agreed upon arbitration or mediation proceedings
between the
parties concerning the subject matter of this Agreement, the prevailing
party in the litigation or other proceedings shall be entitled
to receive
from the defaulting party, in addition to the amount of any judgment
or
other award entered, all reasonable costs and expenses, including
reasonable attorneys’ fees, incurred by the prevailing party in the
litigation or other proceedings.
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h)
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Compliance.
The performance by the parties of their respective obligations
provided
for in this Agreement shall be in strict compliance with all applicable
laws and the rules and regulations of all governmental agencies,
municipal, county, state and federal, having jurisdiction in the
premises.
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i)
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Authority.
Each of the parties represents to the other that each such party
has full
power and authority to execute, deliver, and perform this Agreement,
that
the individuals executing this Agreement on behalf of said party
are fully
empowered and authorized to do so, that this Agreement constitutes
a valid
and legally binding obligation of such party enforceable against
such
party in accordance with its terms, that such execution, delivery,
and
performance will not contravene any legal or contractual restriction
binding upon such party or any of its assets and that there is
no legal
action, proceeding, or investigation of any kind now pending or
to the
knowledge of such parties threatened against or affecting such
party or
the execution, delivery, or performance of this Agreement. If either
party
so requests, the other party shall deliver to the requesting party
a
certified copy of the resolution or other evidence of the other
party’s
authority under its organizational documents to enter into and
consummate
this Agreement and the transactions contemplated
hereby.
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j)
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Notices.
Any and all notices or demands provided for herein shall be in
writing and
shall be deemed effectively given or made: (i) on the date served
upon the
party to be notified personally; (ii) three days after being deposited
in
the United States mail registered or certified mail, return receipt
requested, postage prepaid; (iii) one business day after deposit
or
delivery to a reputable overnight courier, prepaid, receipt acknowledged,
to the address of such party set forth below; or (iv) on
the date of a facsimile, if (a) the transmittal form showing a
successful
transmittal is retained by the sender, and (b) the facsimile communication
is followed by mailing a copy thereof to the addressee of the facsimile
in
accordance with this paragraph,
or
to such other address as such party may last have designated by
notice
hereunder.
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i)
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If
intended for the Seller:
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0000-0
Xxxxx Xxxxxx
Xxx
Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxx, President
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
ii) If
intended for the Purchaser:
Safari
Associates, Inc.
00000
Xxxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Attention:
Zirk Xxxxxxxxxxx, President
Phone:
(000) 000-0000
Facsimile:
(000)000-0000
Rejection
or refusal to accept delivery or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of notice
as
of the date such notice was deposited in the mail or delivered to the overnight
courier.
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k)
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Place
of Business.
This Agreement arises out of the transaction of business in the
San Diego,
California.
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l)
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Execution
in Counterparts and By Facsimile Signature.
This Agreement may be executed in counterparts, each of which,
when so
executed and delivered, shall constitute an original; but all such
counterparts shall together constitute but one and the same Agreement.
A
signed facsimile signature page shall be considered as an original
signature page for the execution of this
Agreement.
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m)
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Paragraph
Headings, Interpretation.
The paragraph headings are inserted only for convenient reference
and do
not define, limit, or prescribe the scope of this Agreement. Purchaser
and
Seller acknowledge that each is sophisticated in real estate matters
and
that each has had an opportunity to review, comment upon and negotiate
the
provisions of this Agreement, and thus the provisions of this Agreement
shall not be construed more favorably or strictly for or against
either
party. Purchaser and Seller each acknowledge having been advised,
and
having had the opportunity, to consult legal counsel in connection
with
this Agreement and the transactions contemplated by this
Agreement.
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n)
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Number
and Gender.
When necessary for proper construction hereof, the singular of
any word
used herein shall include the plural, the plural shall include
the
singular and the use of any gender shall be applicable to all
genders.
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o)
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Waiver.
Any one or more waivers of any covenant or condition by a party
shall not
be construed as a waiver of a subsequent breach of the same covenant
or
condition nor a consent to or approval of any act requiring consent
to or
approval of any subsequent similar
act.
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p)
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Binding
Effect.
Subject to the restrictions on assignment contained within this
Agreement,
the Agreement shall be binding upon and inure to the benefit of
the
parties and their respective successors and permitted
assigns.
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q)
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No
Beneficiaries.
No
third parties are intended to benefit by the covenants, agreements,
representations, warranties or any other terms or conditions of
this
Agreement.
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r)
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Relationship
of Parties.
Purchaser and Seller acknowledge and agree that the relationship
established between the parties pursuant to this Agreement is only
that of
a seller and a purchaser of real estate. Neither Purchaser nor
Seller are,
nor shall either hold itself out to be, the agent, employee, joint
venturer, or partner of the other
party.
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s)
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Exchange
Transactions.
Seller may dispose of or Purchaser may acquire the Property through
means
of a like-kind exchange of real property, whether a simultaneous
or
deferred “Starker”-type exchange (an “Exchange”), pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended (the “Code”) and the
regulations (the “Regulations”) promulgated under it. If either party
gives notice to the other party that the notifying party intends
to effect
an Exchange in conjunction with the conveyance of the Property,
the other
party shall cooperate with the notifying party for purposes of
effecting
and structuring such Exchange; provided that, if the notifying
party
elects to effect a deferred exchange: (a) a qualified intermediary
shall
be utilized to effect the Exchange, and (b) the transfer requirements
of
the Code and the Regulations shall be satisfied by the so-called
“assignment of rights” method provided for in the Regulations, whereby the
notifying party will assign some or all of its rights under this
Agreement
to the qualified intermediary and retain its obligations under
this
Agreement. The other party agrees to execute such documents or
instruments
as are reasonably necessary to implement the Exchange, provided
that the
other party shall not be required to undertake any obligation or
liability
to any third party as part of the Exchange and Purchaser shall
not be
required to take title to property other than the Property. The
notifying
party shall be solely responsible for assuring that the structure,
implementation and completion of the Exchange are effective for
the
notifying party’s federal, state, local or other tax
purposes.
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t)
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Dates.
If
any date set forth in this Agreement for the delivery of any document
or
the occurrence of any event (for example, the expiration of the
Feasibility Review Period or the Closing Date) falls on a weekend
or
holiday, then that date shall be automatically extended to the
next
succeeding business day. For the purposes of this Agreement, the
phrase
“business day” shall mean a weekday that is neither a holiday nor a
weekend day.
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IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed on the date first
above
written.
PURCHASER:
SAFARI
ASSOCIATES, INC.
A
Nevada
Corporation
By: _/s/
Zirk Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
Its:
President
SELLER:
POWER-SAVE
ENERGY CORP.
A
Nevada
Corporation
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By:
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_/s/
Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
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Its:
President
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