EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (herein, together with the exhibits and
schedules attached hereto, referred to as this "Agreement"), dated as of
December 14, 2006, by and among Hybrid Fuels, Inc., a Nevada corporation (the
"Buyer"), on one hand, and Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxx and
Xxxxxx Xxxxxxx (each a "Seller" and collectively, the "Sellers") on the other
hand. Certain capitalized terms used in this Agreement shall have the meanings
assigned to them in Section 9.1 hereof.
R E C I T A L S
A. The Sellers own certain Assets (as such term is defined herein)
including, a hydroponic green grass growing system facility and related
technology and intellectual property rights.
B. The Sellers wish to sell to the Buyer the Assets, and the Buyer
wishes to buy from the Sellers the Assets, all upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. PURCHASE AND SALE OF ASSETS
1.1 Sale and Transfer of Assets. Subject to the terms and conditions of
this Agreement, on the Closing Date the Sellers, and each of them, shall sell,
convey, assign, transfer and deliver to the Buyer, and the Buyer shall purchase,
acquire and accept from the Sellers, all of the Sellers' right, title and
interest in the assets set forth below (the "Assets"):
(a) Valid Registered Lease (registered at the Kamloops (BC,
Canada) Land Title Office under No. LA140478) to the property located at 00000
Xxxxxxx Xxxx, Xxxxx, XX , Xxxxxx including approvals from Ministry of
Agriculture, Ministry of Environment, Municipal Buildings Permits and all
requisite Engineering studies to obtain same.
(b) 1 Engineered, insulated Steel building with 160 X 70" c/w
6" concrete base, full plumbing and approved electrical systems located at 00000
Xxxxxxx Xxxx, Xxxxx, XX , Xxxxxx,. Building includes 6 insulated folding doors,
6 cattle pens 20' X 40' with complete feed bunks and aisles. 6,000 cfm Air/air
heat exchange system for moisture, odour and methane gas control. Complete
hydroponics green grass growing system including ozone based mould control
system and CO2 growth aid system.
(c) 1 Engineered, insulated steel building 40 X 60" c/w 6"
concrete base, plumbing and approved lighting and electrical systems located at
00000 Xxxxxxx Xxxx, Xxxxx, XX , Xxxxxx. The building contains a complete ethanol
production system including soaking tank, 5 X 3,500 gallon stainless steel
tanks, motors, agitators pumping and transfer system, distillation apparatus
including 4 stainless steel separation columns. The apparatus is connected to an
outside gasifier/burner of our design for manure destruction and generation of
energy to operate the ethanol system.
(d) 1 grain handling system including storage bin, storage
building, roller mill and requisite electrical augers located at 00000 Xxxxxxx
Xxxx, Xxxxx, XX , Xxxxxx.
(e) 1 water well and building including delivery system
located at 00000 Xxxxxxx Xxxx, Xxxxx, XX , Xxxxxx.
(f) All Intellectual Property Rights developed during building
construction phase of the Assets listed above, includes, without limitation,
engineering and proprietary design of the entire green grass growing system.
Certain phases of the gasification system including turbine generated electrical
power development in a loop system upon which patent rights are being applied
for.
1.2 No Liabilities Assumed. Buyer shall not assume, and the Sellers
shall be solely and exclusively liable with respect to, and shall pay, perform
or discharge all liabilities of the Sellers.
1.3 The Buyer Shares. Subject to the terms and conditions of this
Agreement, in consideration of the aforesaid sale, conveyance, assignment,
transfer and delivery to the Buyer of the Assets, the Buyer shall on the Closing
Date issue to the Sellers an aggregate of 3,720,000 shares of Buyer common stock
(the "Buyer Shares") as follows:
Seller Number Buyer Shares
------ -------------------
Xxxxxx Xxxxx 1,193,333
Xxxxxxx Xxxxxx 1,193,333
Xxxxxx Xxxxxxx 666,667
Xxxxxx Xxxxxxx 666,667
Total 3,720,000
1.4 Transfer Taxes. Buyer shall pay any transfer and sales taxes and
other similar taxes and filing fees that may be payable in respect of the
aforesaid sale, conveyance, assignment, transfer and delivery of the Assets. The
parties to this Agreement shall use commercially reasonable efforts to minimize
the taxes and other fees arising out of the transactions provided for or
contemplated by this Agreement (the "Transactions").
2. THE CLOSING
2.1 The Closing. Upon the terms and subject to the conditions of this
Agreement, the consummation of the Transactions (the "Closing") will take place
as soon as practicable after satisfaction or waiver of the conditions set forth
in Section 6 hereof (other than the conditions with respect to actions the
parties will take at the Closing), at 10:00 a.m., PDT time, at the offices of
the Buyer, or at such other time or at such other place as shall be agreed upon
by the parties. The date on which the Closing occurs is hereinafter referred to
as the "Closing Date". The parties hereby agree that the Closing shall be deemed
effective as of 12:01 A.M. PDT time on the Closing Date.
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2.2 Deliveries by the Sellers. At the Closing, each of the Sellers shall
deliver or cause to be delivered to the Buyer, as indicated, the following:
(a) duly executed instruments of assignment, assumption and xxxx
of sale assigning all Assets and such other forms of assignment of the Assets as
are required under applicable law in order to record the transfer of the Assets
from the Sellers to the Buyer; and
(b) such other duly executed, good and sufficient instruments of
sale, conveyance, assignment or transfer, in form and substance reasonably
acceptable to Buyer's counsel, executed by one or more of the Sellers,
reasonably necessary so as to vest in Buyer good and valid title in and to the
Assets (including, with respect to any Assets located or to be located in any
jurisdiction, one or more bills of sale or similar conveyance documents as may
be required under the law of the applicable jurisdiction to validly convey,
assign and transfer such Assets).
2.3 Deliveries by the Buyer. At the Closing, the Buyer shall deliver or
cause to be delivered to the Seller (unless previously delivered), the
following:
(a) Certificates for the Buyer Shares; and
(b) Such other documents and certificates duly executed as may
be required to be delivered by the Buyer pursuant to the terms of this Agreement
and such other duly executed instruments of conveyance and transfer as may be
reasonably requested by the Sellers prior to the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER
Each of the Sellers hereby jointly and severally represents and warrants
to the Buyer as follows:
3.1 Authority; Binding Nature of Agreement. The Seller has all requisite
power and authority to execute and deliver this Agreement and to consummate the
Transactions. This Agreement has been duly and validly executed and delivered by
the Seller and constitutes a valid and binding agreement of the Seller,
enforceable against Seller in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and (ii) rules of law governing specific performance, injunctive relief and
other equitable remedies.
3.2 Consents and Approvals; No Violations. No filing with, and no
permit, authorization, consent or approval of, any Person or Governmental
Entity, domestic or foreign, is necessary for delivery of this Agreement or for
the consummation by the Seller of the Transactions, except for the Third Party
Consents. To the actual knowledge of the Seller without further investigation
(the "Knowledge of Seller"), neither the execution and delivery of this
Agreement by the Seller nor the consummation by the Seller of the Transactions
nor compliance by the Seller with any of the provisions hereof will (a) except
for obtaining the Third Party Consents set forth on Schedule I (the "Required
Third Party Consents"), result in a violation or breach of, or constitute (with
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or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, or require any
consent under, any of the terms, conditions or provisions of any agreement,
contract, understanding, arrangement, instrument, note, guaranty, indemnity,
representation, warranty, deed, assignment, power of attorney, purchase order,
sales order, work order, insurance policy, benefit plan, commitment, covenant,
assurance or undertaking of any nature to which the Seller is a party or by
which it or any of its respective properties or assets (including the Assets)
are bound; (b) violate any order, writ, injunction or decree, or any provision
of any federal, state, local or foreign law, statute, treaty, rule, regulation
or ordinance applicable to the Seller; or (c) result in the imposition or
creation of any liens, charges, security interests, options, claims, mortgages,
pledges, proxies, voting trusts or agreements, obligations, understandings or
arrangements or other restrictions on title or transfer of any nature whatsoever
("Encumbrances") upon or with respect to the Assets.
3.3 Good Title Conveyed. The instruments to be executed and delivered by
the Seller to the Buyer at the Closing will effectively vest in the Buyer all of
Seller's right, title and interest in and to the Assets free and clear of all
Encumbrances.
3.4 Litigation. There is no litigation pending or to the Knowledge of
Seller threatened, with respect to the Assets.
3.5 Brokers. Seller has not agreed or become obligated to pay, or has
taken any action that might result in any Person claiming to be entitled to
receive, any brokerage commission, finder's fee or similar commission or fee in
connection with any of the Transactions.
3.6 Solvency; Liabilities. The Seller is not (a) "insolvent" (as defined
in Section 101(32) of the Bankruptcy Code of 1978, as amended (the "Bankruptcy
Code")), (b) engaged in business with unreasonably small capital or assets (as
contemplated by the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, as
amended, the Uniform Fraudulent Transfer Act, as amended, or other similar laws)
or (c) unable to pay or provided for the payment of all of its remaining
liabilities and obligations as and when due.
3.7 No Registration. The Seller acknowledges and agrees that the Buyer
Shares will be offered and sold to the Seller without such offer and sale being
registered under the Securities Act, or under any state securities or "blue sky"
laws of any state of the United States ("U.S."), and will be issued to the
Seller in an offshore transaction outside of the U.S. in accordance with a safe
harbour from the registration requirements of the Securities Act provided by
Regulation S. As such, the Seller further acknowledges and agrees that the Buyer
Shares will, upon issuance, be "restricted securities" within the meaning of the
Securities Act. The Seller understands that the Buyer Shares may not be offered
or sold in the U.S. or, directly or indirectly, to U.S. Persons, as that term is
defined in Regulation S, except in accordance with the provisions of Regulation
S, pursuant to an effective registration statement under the Securities Act, or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in each case in accordance
with applicable state and federal securities laws.. Neither the Securities and
Exchange Commission (the "SEC") nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the Buyer Shares.
The statutory and regulatory basis for the exemption claimed for the offer of
the Buyer Shares, although in technical compliance with Regulation S, would not
be available if the offering is part of a plan or scheme to evade the
registration provisions of the Securities Act or any applicable state and
federal securities laws
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3.8 Seller Not a U.S. Person. The Seller is not a U.S. Person (as
defined in Regulation S under the Securities Act). The Seller is not acquiring
the Buyer Shares for the account or benefit of, directly or indirectly, any U.S.
Person.
3.9 Purchase Entirely for Own Account. The Seller understands that the
Buyer is making this Agreement with the Seller in reliance upon the Seller's
representation to the Buyer, which by the Seller's execution of this Agreement
the Seller hereby confirms, that the Seller is outside the U.S. when receiving
and executing this Agreement and is acquiring the Buyer Shares as principal for
the Seller's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Seller has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, the Seller further represents that the
Seller does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participations to such person or to any
third person, with respect to any of the Buyer Shares.
3.10 No Underwriter. The Seller is not an underwriter of, or dealer in,
the common shares of the Buyer, nor is the Seller participating, pursuant to a
contractual agreement or otherwise, in the distribution of the Buyer Shares.
3.11 Investment Experience. The Seller acknowledges that it is able to
fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Buyer Shares and has
the ability to bear the economic risks of its prospective investment and can
afford the complete loss of such investment.
3.12 No Directed Selling Efforts. The Seller acknowledges that the
Seller has not acquired the Buyer Shares as a result of, and will not itself
engage in, any "directed selling efforts" (as defined in Regulation S under the
Securities Act) in the U.S. in respect of the Buyer Shares which would include
any activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the U.S. for the
resale of the Buyer Shares; provided, however, that the Seller may sell or
otherwise dispose of the Buyer Shares pursuant to registration of the Buyer
Shares pursuant to the Securities Act and any applicable state and federal
securities laws or under an exemption from such registration requirements and as
otherwise provided herein.
3.13 No General Solicitation. The Seller is not aware of any
advertisement of any of the Buyer Shares and is not acquiring the Buyer Shares
as a result of any form of general solicitation or general advertising including
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general solicitation
or general advertising.
3.14 Disclosure of Information. The decision to execute this Agreement
and acquire the Buyer Shares hereunder has not been based upon any oral or
written representation as to fact or otherwise made by or on behalf of the
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Buyer, and such decision is based entirely upon a review of information (the
receipt of which is hereby acknowledged) which has been filed by the Buyer with
the SEC. The Seller and the Seller's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Buyer in connection
with the distribution of the Buyer Shares hereunder, and to obtain additional
information, to the extent possessed or obtainable without unreasonable effort
or expense, necessary to verify the accuracy of the information about the Buyer.
The Seller acknowledges that it has had access to all the information it
considers necessary or appropriate for deciding whether to purchase the Buyer
Shares. Notwithstanding the Buyer's representations set forth in Section 2.2
above, the Seller acknowledges that the Buyer is (1) concurrently negotiating
with other prospective investors for the purchase and sale of additional shares
of Common Stock and (2) preparing an Employee Compensation Plan pursuant to
which the Buyer may issue additional shares of Common Stock.
3.15 U.S. Civil Remedies. The Seller is acquiring the Buyer Shares
pursuant to an exemption from the registration and prospectus requirements of
applicable securities legislation in all jurisdictions relevant to this
subscription, and, as a consequence, the Seller will not be entitled to use most
of the civil remedies available under applicable securities legislation and the
Seller will not receive information that would otherwise be required to be
provided to the Seller pursuant to applicable securities legislation.
3.16 No Other Representations. No person has made to the Seller any
written or oral representations:
(a) that any person will resell or repurchase any of the Buyer
Shares;
(b) that any person will refund the purchase price of any of
the Buyer Shares;
(c) as to the future price or value of any of the Buyer
Shares; or
(d) that any of the Buyer Shares will be listed and posted for
trading on any stock exchange or automated dealer quotation system or that
application has been made to list and post any of the Buyer Shares of the Buyer
on any stock exchange or automated dealer quotation system.
(e) No Registration Rights. Except as provided in this
Agreement, the Seller acknowledges that the Buyer has not undertaken, and will
have no obligation, to register any of the Buyer Shares under the Securities
Act.
3.17 Indemnification. Seller will indemnify and hold harmless the Buyer
and, where applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all fees, costs and
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any claim, lawsuit, administrative proceeding or investigation whether
commenced or threatened) arising out of or based upon any representation or
warranty of the Seller contained herein or in any document furnished by the
Seller to the Buyer in connection herewith being untrue in any material respect
or any breach or failure by the Seller to comply with any covenant or agreement
made by the Seller to the Buyer in connection therewith.
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3.18 OTC Bulletin Board. None of the Buyer Shares are listed on any
stock exchange or automated dealer quotation system and no representation has
been made to the Seller that any of the Buyer Shares will become listed on any
stock exchange or automated dealer quotation system, except that currently
market makers make a market for the Buyer's common shares on the NASD's OTC
Bulletin Board.
3.19 Seller's Advisors. The Seller has been advised to consult the
Seller's own legal, tax and other advisors with respect to the merits and risks
of an investment in the Units and with respect to applicable resale
restrictions, and it is solely responsible (and the Buyer is not in any way
responsible) for compliance with:
(a) any applicable laws of the jurisdiction in which the
Seller is resident in connection with the distribution of the Units hereunder,
and
(b) applicable resale restrictions; and
(c) this Agreement is not enforceable by the Seller unless it
has been accepted by the Buyer, and the Seller acknowledges and agrees that the
Buyer reserves the right to reject any subscription for any reason.
3.20 Legends. The Seller acknowledges and agrees that all certificates
representing the Buyer Shares will be endorsed with the following legend, or
such similar legend as deemed advisable by legal counsel for the Purchaser, to
ensure compliance with Regulation S and to reflect the status of the Buyer
Shares as restricted securities:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN
ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT PROVIDED BY REGULATION S PROMULGATED UNDER THE ACT. SUCH SECURITIES MAY NOT
BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF REGULATION S, PURSUANT TO AN EFFECTIVE REGISTRATION UNDER
THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT.
HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT."
(b) Any legend required by the laws of any State.
3.21 Prohibited Transactions. During the last thirty (30) days prior to
the date hereof, neither Seller nor any Affiliate of Seller which (x) had
knowledge of the transactions contemplated hereby, (y) has or shares discretion
relating to Seller's investments or trading or information concerning Seller's
investments, including in respect of the Buyer Shares, or (z) is subject to
Seller's review or input concerning such Affiliate's investments or trading
(collectively, "Trading Affiliates") has, directly or indirectly, effected or
agreed to effect any short sale, whether or not against the box, established any
"put equivalent position" (as defined in Rule 16a-1(h) under the Exchange Act)
with respect to the Common Stock, granted any other right (including, without
limitation, any put or call option) with respect to the Common Stock or with
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respect to any security that includes, relates to or derived any significant
part of its value from the Common Stock or otherwise sought to hedge its
position in the Buyer Shares or sold any Common Stock (each, a "Prohibited
Transaction"). At no time prior to the termination of this Agreement, shall
Seller or its Trading Affiliates engage, directly or indirectly, in a Prohibited
Transaction.
3.22 No Pre-Emptive Rights. The Seller acknowledges and agrees that the
Buyer Shares will not be subject to any anti-dilution rights, pre-emptive
rights, rights of first refusal, co-sale, tag-along or similar rights.
3.23 No Other Representations or Warranties. Except as expressly
provided in this Article III, the Assets are assigned to the Buyer on an "AS IS"
basis without any representations or warranties of any kind.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represent and warrant to the Sellers as follows:
4.1 Organization. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the Nevada.
4.2 Authority; Binding Nature of Agreement. The Buyer has all requisite
power and authority to execute and deliver this Agreement and to consummate the
Transactions. The execution and delivery of this Agreement and the consummation
of the Transactions have been duly and validly authorized by all requisite
action on the part of the Buyer and its Board of Directors. This Agreement has
been duly and validly executed and delivered by the Buyer and constitutes a
valid and binding agreement of the Buyer, enforceable against Buyer in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
4.3 Consents and Approvals; No Violations. No filing with, and no
permit, authorization, consent or approval of, any Person or Governmental
Entity, domestic or foreign, is necessary for the consummation by the Buyer and
Buyer's Affiliate of the Transactions.
4.4 Brokers. Neither Buyer nor Buyer's Affiliate has agreed or become
obligated to pay, or has taken any action that might result in any Person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the Transactions.
4.5 Private Sale. Subject in part to the truth and accuracy of each of
the Seller's representations and warranties set forth in Section 3 above, the
offer and sale of the Buyer Shares are exempt from the registration requirements
of Section 5 of the Securities Act, and neither the Buyer nor any authorized
agent acting on its behalf will take any action hereinafter that would cause the
loss of such exemption.
4.6 Delivery of SEC Filings. The Buyer has made available to the Sellers
through the XXXXX system, true and complete copies of the Buyer's most recent
Annual Report on Form 10-KSB for the fiscal year ended December 31, 2005 (the
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"10-KSB") and all other reports filed by the Buyer pursuant to the Securities
Exchange Act of 1934, as amended, since the filing of the 10-KSB and prior to
the date hereof.
5. COVENANTS
5.1 Commercially Reasonable Efforts. Subject to the terms and provisions
herein provided, each of the parties hereto agrees to use commercially
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable to fulfill the
parties' obligations hereunder and to consummate and make effective the
Transactions.
5.2 Access to Information. Subject to Section 5.5, each Seller will make
available such technical, financial, business and other information concerning
the Assets and liabilities of Seller as Buyer may reasonably request.
5.3 Third-Party Consents. To the extent that any Asset is not capable of
being sold, conveyed, assigned, assumed or transferred without the consent,
release or waiver of any third party, including a Governmental Entity, the Buyer
and Sellers shall use commercially reasonable efforts to obtain such consent,
release or waiver (a "Third-Party Consent"), and both parties shall use
commercially reasonable efforts to assist the other in obtaining such
Third-Party Consent.
5.4 Confidentiality.
(a) Each of the Sellers agrees to refrain from divulging,
disclosing or otherwise using Trade Secrets included in the Assets. The Sellers
shall use reasonable, good faith efforts to protect and keep secret and not
permit any confidential or propriety information related to the Assets to fall
into the public domain.
(b) The existence and terms and conditions of this Agreement and
all information regarding the Sellers and the Assets provided to the Buyer or
its representatives prior to, on or after the date of this Agreement shall
constitute "Confidential Information" and shall in no way be communicated to any
third-party or used for any purpose other than evaluating the Transactions;
provided that, (i) either party may disclose this Agreement to their respective
shareholders, agents and advisors on a need to know basis only if such parties
are notified of the confidential nature of such information, and (ii) the Buyer
may disclose the terms of this Agreement to potential investors in the Buyer if
and only if such third parties agree in writing to be bound by confidentiality
provisions at least as restrictive as those set forth in this section. The
parties hereto shall make reasonable efforts to protect the confidentiality of
the Confidential Information.
5.5 Further Documentation. From and after the Closing, for a period of
120 days from the date of this Agreement, upon the written request of Buyer, the
Sellers will promptly and duly execute and deliver such further instruments and
documents and take such further action as Buyer may reasonably request for the
purpose of further confirming and assigning title to the Assets.
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6. CONDITIONS
6.1 Conditions to Each Party's Obligation to Effect the Closing. The
respective obligation of each party to effect the Closing shall be subject to
the following:
(a) there not being at or prior to the Closing Date any statute,
rule or regulation enacted or promulgated by any Governmental Entity which
prohibits the consummation of the Closing; and there shall be no order or
injunction of a Government Entity in effect precluding consummation of the
Closing; and
(b) the receipt of the Required Third Party Consents.
6.2 Conditions to Obligations of the Buyer. The obligation of the Buyer
to effect the Closing shall be further subject to the satisfaction at or prior
to the Closing Date of each of the following conditions:
(a) the representations and warranties of the Sellers in this
Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date with the same effect as though such
representations and warranties had been made at and as of such time;
(b) the Sellers shall have performed in all material respects
all obligations required to be performed by them under this Agreement at or
prior to the Closing;
(c) the Sellers shall have delivered or caused to be delivered
to the Buyer each of the documents specified in Section 2.2 hereof; and
(d) there shall not have occurred any material adverse change in
the Assets taken as a whole.
6.3 Conditions to Obligations of the Sellers. The obligation of the
Sellers to effect the Closing shall be further subject to the satisfaction at or
prior to the Closing of each of the following conditions:
(a) the representations and warranties of the Buyer in this
Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date with the same effect as though such
representations and warranties had been made at and as of such time;
(b) the Buyer shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing; and
(c) the Buyer shall have delivered or caused to be delivered to
the Sellers each of the documents specified in Section 2.3 hereof.
7. TERMINATION
7.1 Termination. The Transactions may be terminated or abandoned at any
time prior to the Closing Date:
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(a) By the mutual written consent of the Buyer and the Sellers;
(b) By either all the Sellers, on one hand, or the Buyer, on the
other hand, if the Closing shall not have occurred on or before four (4) weeks
after the execution of this Agreement, which may be extended by Buyer up to an
additional three (3) weeks, unless the failure to consummate the Closing by such
date shall be due to the failure of the party seeking to terminate this
Agreement to have fulfilled any of its obligations under this Agreement;
(c) By either the Sellers or the Buyer if a condition to its
obligation to perform becomes incapable of fulfillment; provided, that the
Sellers or the Buyer, as the case may be, may not seek termination pursuant to
this Section 7.1(c) if such condition is incapable of fulfillment due to the
failure of the other party, as the case may be, to perform the agreements set
forth herein required to be performed by such party, at or before the Closing;
(d) By the Buyer or the Sellers, as the case may be, if the
other party hereto shall have breached in any material respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement, and only then after a two-week period starting from the time a notice
is delivered to the party in breach setting forth the nature of the breach,
during which period the party in breach shall have the opportunity to cure such
breach.
7.2 Effect of Termination. In the event of the termination or
abandonment of the Transactions by any party hereto pursuant to the terms of
this Agreement, written notice thereof shall forthwith be given to the other
party or parties specifying the provision hereof pursuant to which such
termination or abandonment of the Transactions is made. There shall be no
liability or obligation thereafter on the part of the Buyer or the Seller, other
than for willful breach.
8. SURVIVAL The representations and warranties of the parties contained in this
Agreement will not survive the Closing. Upon delivery of the Assets and issuance
of the Buyer Shares at the Closing, no party to this Agreement shall have any
ongoing obligations or liabilities to the other parties hereto; provided, that
the provisions of Sections 1.2, 1.5, 5.6, 7.2, 8, 9 and 10 and Exhibit A shall
survive the Closing or earlier termination of this Agreement. Section 5.5(a)
shall survive the Closing but not the earlier termination of this Agreement.
Section 5.5(b) shall not survive the Closing but shall survive the earlier
termination of this Agreement.
9. DEFINITIONS AND INTERPRETATION
9.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context clearly requires otherwise:
"Copyrights" shall mean U.S. and foreign registered and
unregistered copyrights, semi-conductor chip mask works, and all registrations
and applications to register the same.
"Governmental Entity" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency.
11
"Intellectual Property Rights" shall mean all (a) statutory
and/or common law intellectual property rights throughout the world, including
any Trademarks, Copyrights, Patents, Trade Secrets, invention, design,
blueprint, technology, and proprietary right or intangible asset; and (b) right
to use or exploit any of the foregoing.
"Patents" shall mean any patent, patent application, and any
extensions thereto.
"Person" shall mean a natural person, partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental Entity or other
entity or organization.
"Trade Secrets" shall mean all information falling within
any category of trade secrets as defined in the Uniform Trade Secrets Act,
including but not limited to confidential business information and computer
software.
"Trademarks" shall mean the U.S. and foreign registered and
unregistered trademarks, trade dress, service marks, logos, trade names,
corporate names and all registrations and applications to register any of the
foregoing.
10. MISCELLANEOUS
10.1 Fees and Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the Transactions shall be paid by
the party incurring such expenses, except as otherwise specifically provided in
this Agreement.
10.2 Entire Agreement. This Agreement, including the exhibits and
schedules attached hereto and the documents and agreements expressly referenced
herein, constitutes the entire agreement between the parties with respect to the
subject matter hereof and supercedes any letters of intent, term sheet or other
writings or discussions, and may be amended, modified and supplemented in any
and all respects, but only by a written instrument signed by all of the parties
hereto expressly stating that such instrument is intended to amend, modify or
supplement this Agreement.
10.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if mailed, delivered personally, telecopied
(which is confirmed) or sent by an overnight courier service, such as Federal
Express, to the parties at the addresses specified on the signature pages hereof
(or at such other address for a party as shall be specified by like notice). Any
notice directed to Buyer shall be to the attention of the Chief Executive
Officer.
10.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts has been signed by each
party hereto and delivered to the other party hereto.
10.5 Binding Nature; No Third Party Beneficiaries. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except as provided in the
immediately preceding sentence, nothing in this Agreement, express or implied,
12
is intended to or shall confer upon any other person or persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
10.6 Severability. Any term or provision of this Agreement that is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
10.7 Arbitration. Any controversy or claim arising out of or relating to
this Agreement shall be determined by arbitration in accordance with the
Commercial Rules of the American Arbitration Association. The number of
arbitrators shall be one. The place of arbitration shall be San Francisco,
California, unless otherwise agreed to by the parties to this Agreement. The
foregoing shall not preclude preliminary injunctive relief.
10.8 Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the state of California without giving effect to the
principles of conflicts of law thereof. For purposes of enforcement of any
arbitration award, the parties submit to non-exclusive venue in the state or
federal courts located in the City and County of San Francisco, California. For
purposes of enforcement of any claim for injunctive or equitable relief
expressly allowed herein, the parties submit to the state and federal courts
located in San Francisco, California.
10.9 Time is of the Essence. Each of the parties hereto hereby agrees
that, with regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence. 10.10 Waiver. The parties shall not be deemed
to waive any of their rights or remedies under this Agreement unless such waiver
is in writing and signed by the party to be bound. No delay or omission on the
part of either party in exercising any right or remedy shall operate as a waiver
of such right or remedy or any other right or remedy.
10.11 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
content of the other party. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
10.12 Incorporation of Exhibits and Schedules. The exhibits and
schedules referred to in this Agreement are incorporated herein and made part
hereof.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
BUYER:
HYBRID FUELS, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Title: President, CEO Hybrid Fuels Inc.
-------------------------------------
Address: 0000 Xxxxxxx Xxxxx Xx.
-----------------------------------
Xxxxxx, XX, Xxxxxx
-------------------------------------------
X0X 0X0
-------------------------------------------
SELLERS:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Address: 0000 Xxxxxxx Xxxxx Xx.
-----------------------------------
Xxxxxx, XX, Xxxxxx
-------------------------------------------
X0X 0X0
-------------------------------------------
/s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Address: 00000 Xxxxxxxxx Xx.
-----------------------------------
Xxxxxxxx, XX, Xxxxxx
-------------------------------------------
V4V 2G9
-------------------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------------------
Address: 000 Xxxxxxx Xx.
-----------------------------------
RR1 Site 32 Comp 00
-------------------------------------------
Xxxxxxxx Xxxxx, XX, Xxxxxx
-------------------------------------------
X0X 0X0
-------------------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------------------
Address: 0-0000 Xxxxx Xx.
-----------------------------------
Xxxxxxxxx, XX, Xxxxxx
-------------------------------------------
X0X 0X0
----------------------------------
14
Schedule I
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Required Third Party Consents
None
