Attached files
| file | filename |
|---|---|
| 10-K - HNO International, Inc. | v211066_10k.htm |
| EX-14.01 - HNO International, Inc. | v211066_ex14-01.htm |
| EX-10.11 - HNO International, Inc. | v211066_ex10-11.htm |
| EX-31.01 - HNO International, Inc. | v211066_ex31-01.htm |
| EX-32.02 - HNO International, Inc. | v211066_ex32-02.htm |
| EX-32.01 - HNO International, Inc. | v211066_ex32-01.htm |
| EX-10.23 - HNO International, Inc. | v211066_ex10-23.htm |
| EX-10.17 - HNO International, Inc. | v211066_ex10-17.htm |
| EX-99.01 - HNO International, Inc. | v211066_ex99-01.htm |
| EX-10.16 - HNO International, Inc. | v211066_ex10-16.htm |
| EX-10.26 - HNO International, Inc. | v211066_ex10-26.htm |
| EX-10.04 - HNO International, Inc. | v211066_ex10-04.htm |
| EX-10.18 - HNO International, Inc. | v211066_ex10-18.htm |
| EX-10.25 - HNO International, Inc. | v211066_ex10-25.htm |
| EX-10.06 - HNO International, Inc. | v211066_ex10-06.htm |
| EX-31.02 - HNO International, Inc. | v211066_ex31-02.htm |
| EX-10.19 - HNO International, Inc. | v211066_ex10-19.htm |
ASSET
PURCHASE AGREEMENT
THIS
AGREEMENT dated for reference the 24th day of April, 2010.
AMONG:
ANKUR
SCIENTIFIC ENERGY TECHNOLOGIES PRIVATE LIMITED,
A company
incorporated under the Indian Companies Act, 1956 with it’s registered office at
`ANKUR’, Near Old Sama Jakat Naka, Sama Road, Baroda-390008, Gujarat,
India
(herein
called the “Vendor”)
AND:
CLENERGEN
CORPORATION, a corporation existing under the laws of the State of Nevada
with its executive office at 6165 NW 123rd Coral
Lane, Florida 33076.
(herein
called the “Purchaser”)
WHEREAS:
A. The
Vendor is in the business of providing and installing equipment for use in a
waste to energy facility suitable for accommodating Biomass.
B. The
Vendor has agreed to sell and install and the Purchaser has agreed to purchase
the assets set out in Schedule 1 (the “Purchased Assets”).
C. The
Purchase Price for the Purchased Assets will be payable as set out in Clause 3
of this Agreement.
NOW
THEREFORE in consideration of the premises and the respective covenants,
agreements representations, warranties and indemnities of the parties herein
contained and for other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged) the parties hereto covenant and
agree as follows:
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1.
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DEFINED
TERMS
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1.1
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For
the purposes of this Agreement, unless the context otherwise requires, the
following terms will have the respective meanings set out below and
grammatical variations of such terms will have corresponding
meanings:
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(a)
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“Affiliate”
has the meaning given to that term in the Securities Act of 1933, as
amended, and the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder;
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(b)
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“Associate”
has the meaning given to that term in the Securities Act of 1933, as
amended, and the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder;
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(c)
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“Purchased
Assets” means the assets as described in Recital B and Schedule 1 of this
Agreement;
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(d)
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“Business
Day” means any day which is not a Saturday, Sunday or statutory holiday in
Texas, United States of America;
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(e)
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“Closing”
means the completion of the transactions contemplated in this Asset
Purchase Agreement;
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(f)
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“Closing
Date” means such date as the Vendor and the Purchaser may
mutually determine;
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(g)
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“Contract”
means any agreement, indenture, contract, lease, deed of trust, license,
option, instrument or other commitment, whether written or
oral;
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(h)
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“Encumbrance”
means any encumbrance, lien, charge, hypothec, pledge, mortgage, title
retention agreement, security interest of any nature, adverse claim,
exception, reservation, easement, right of occupation, any matter capable
of registration against title, option, right of pre-emption, privilege or
any Contract to create any of the
foregoing;
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(i)
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”Licenses”
means all licenses, permits, approvals, consents, certificates,
registrations and authorizations (whether governmental, regulatory, or
otherwise) required for the conduct in the ordinary course of the uses to
which the Purchased Assets have been
put;
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(j)
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“Losses”
means, in respect of any matter, all claims, demands, proceedings, losses,
damages, liabilities, deficiencies, costs and expenses (including, without
limitation, all legal and other professional fees and disbursements,
interest, penalties and amounts paid in settlement) arising directly or
indirectly as a consequence of such matter and actually incurred by a
party entitled to be indemnified hereunder, net of (i) any tax
adjustments, benefits, savings or reductions to which such indemnified
party is entitled resulting from such matter, and (ii) any insurance
proceeds, in either case to which such indemnified party is entitled by
virtue of such claims, demands, proceedings, losses, damages, liabilities,
deficiencies, costs and expenses;
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(k)
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“Purchase
Price” means the purchase price as set out in Clause 3 issuable by the
Purchaser to the Vendor for the Purchased Assets and the installation of
the Purchased Assets; and
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(l)
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“Transaction”
means the sale and installation of the Purchased Assets from the Vendor to
the Purchaser in exchange for the Purchase
Price.
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1.2
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Currency. Unless
otherwise indicated, all dollar amounts in this Agreement are expressed in
United States funds.
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1.3
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Sections and
Headings. The division of this Agreement into Articles,
sections and subsections and the insertion of headings are for convenience
of reference only and will not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference in this
Agreement to an Article, section, subsection or Schedule refers to the
specified Article, section or subsection of or Schedule to this
Agreement.
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1.4
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Number, Gender and
Persons. In this Agreement, words importing the singular
number only will include the plural and vice versa, words importing gender
will include all genders and words importing persons will include
individuals, corporations, partnerships, associations, trusts,
unincorporated organizations, governmental bodies and other legal or
business entities of any kind
whatsoever.
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1.5
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Accounting
Principles. Except as otherwise stated, any reference in
this Agreement to generally accepted accounting principles refers to
generally accepted accounting principles that have been established in the
United States of America, including those approved from time to time by
the American Institute of Certified Public Accountants or any successor
body thereto.
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1.6
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Entire
Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether written or oral. There are no conditions,
covenants, agreements, representations, warranties or other provisions,
express or implied, collateral, statutory or otherwise, relating to the
subject matter hereof except as herein
provided.
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1.7
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Time of
Essence. Time will be of the essence of this
Agreement.
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1.8
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Applicable
Law. This Agreement will be construed, interpreted and
enforced in accordance with, and the respective rights and obligations of
the parties will be governed by, the laws of the State of Nevada and the
federal laws of the United States of America applicable therein, and each
party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of such state and all courts competent to hear
appeals there from and waives, so far as is legally possible, its right to
have any legal action relating to this Agreement tried by a
jury.
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1.9
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Amendments and
Waivers. No amendment or waiver of any provision of this
Agreement will be binding on either party unless consented to in writing
by such party. No waiver of any provision of this Agreement
will constitute a waiver of any other provision, nor will any waiver
constitute a continuing waiver unless otherwise
provided.
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1.10
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Schedules. The
following Schedules are attached to and form part of this Agreement: All
terms defined in the body of this Agreement will have the same meaning in
the Schedule attached hereto.
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Schedule
1
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Description
of Purchased Assets
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Schedule
2
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Permits
and Licenses
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Schedule
3
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Intellectual
Property
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Schedule
4
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Legal
and Regulatory Proceedings
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Schedule
5
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Consents
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Schedule
6
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Subscription
Agreement for Pledged
Shares
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2.
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PURCHASE AND
SALE
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2.1
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Subject
to the terms and conditions of this Agreement, effective as at the Closing
Date the Vendor will sell, transfer, and assign to the Purchaser and the
Purchaser agrees to purchase from the Vendor, free and clear of all
Encumbrances the Purchased Assets.
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2.2
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Subject
to the terms and conditions of this Agreement, effective as at the Closing
Date the Vendor will deliver and install the Purchased Assets at the
Purchaser’s specified location in
Phillipines.
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3.
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PURCHASE PRICE AND
ALLOCATION
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3.1
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The
Purchase Price payable by the Purchaser to the Vendor for the Purchase
Assets shall be an aggregate of INR 34,652,000 FOB Mumbai for onward
shipment to the designated location of the Purchaser in Phillipines. The
price shall be paid to the Vendor in USD at a rate of exchange as may be
determined mutually between the Purchaser and Vendor at the time of the
Purchase making payments to the
Vendor.
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(a)
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2%
of the value of the contract on or before May 30th,
2010;
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(b)
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3%
of the value of the contract on or before June 15,
2010;
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(c)
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5%
of the value of the contract on or before June 30,
2010;
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(d)
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90%
of the value of the contract by an Irrevocable Letter of Credit (L/C)
drawn in favour of the Vendor from a prime bank with such conditions as
may be agreed upon between the Purchaser and the Vendor . L/C to be opened
by the Purchaser in favour of the Vendor on or before May 31,
2010.
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(each,
a “Payment” and each date, a “Payment Date”)
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4.
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CLOSING, POSSESSION,
AND NO ADJUSTMENTS
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4.1
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The
Closing will take place on the Closing Date at the offices of the Vendor,
or at such other place, date, and time as may be mutually agreed upon by
the parties hereto.
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4.2
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The
Vendor will deliver possession of the Purchased Assets, free of any other
claim to possession and any tenancies, to the Purchaser on the Closing
Date.
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4.3
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Provided
that there has been no material misrepresentation on the part of the
parties to this agreement and all of their respective obligations under
this Agreement have been fulfilled, there will be no adjustment of the
Purchase Price for any reason
whatsoever.
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5.
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REPRESENTATIONS AND
WARRANTIES OF THE VENDOR
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5.1
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The
Vendor represents and warrants to the Purchaser, with the intent that the
Purchaser will rely thereon in entering into this Agreement and in
concluding the transactions contemplated hereby, as
follows:
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(a)
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the
execution and delivery of this Agreement and the completion of the
transaction contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of the Vendor, and this
Agreement constitutes a valid and binding obligation of the Vendor
enforceable against the Vendor in accordance with its terms; except as
enforcement may be limited by bankruptcy, insolvency and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction;
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(b)
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except
as will be remedied by the consents, approvals, releases, and discharges
described in Schedule 5 - Consents attached hereto, neither the execution
and delivery of this Agreement nor the performance of the Vendor’s
obligations hereunder will:
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(i)
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violate
or constitute default under any order, decree, judgment, statute, by-law,
rule, regulation, or restriction applicable to the Vendor, the Purchased
Assets, or any contract, agreement, instrument, covenant, mortgage, or
security, to which the Vendor is a party or which are binding upon the
Vendor,
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(ii)
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to
the knowledge of the Vendor, result in any fees, duties, taxes,
assessments, penalties or other amounts becoming due or payable by the
Purchaser under any sales tax legislation.
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(iii)
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give
rise to the creation or imposition of any Encumbrance on any of the
Purchased Assets,
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(iv)
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violate
or constitute default under any license, permit, approval, consent or
authorization held by the Vendor,
or
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(v)
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violate
or trigger any liability on behalf of the Purchaser pursuant to any
legislation or agreement governing the sale of the Purchased Assets by the
Vendor.
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(c)
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the
Vendor owns and possesses and has good and marketable title to the
Purchased Assets free and clear of all Encumbrances of every kind and
nature whatsoever;
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(d)
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to
the knowledge of the Vendor, the Purchased Assets are in good working
order and in a functional state of repair and to the best of the knowledge
of the Vendor there are no latent defects
thereto;
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(e)
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no
person other than the Purchaser has any written or oral agreement or
option or any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for the purchase
or acquisition from the Vendor of any of the Purchased
Assets;
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(f)
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except
as otherwise provided herein, this Agreement discloses all contracts,
engagements, and commitments, whether oral or written, relating to the
Purchased Assets including in particular contracts, engagements, and
commitments:
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(i)
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out
of the ordinary course of business,
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(ii)
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which
entail the payment of in excess of $10,000.00 during any one year
period,
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(iii)
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respecting
ownership of or title to any interest or claim in or to any real or
personal property making up the Purchased
Assets,
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(iv)
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respecting
any agreement of guarantee, support, indemnification, assumption or
endorsement of, or any similar commitment with respect to, the
obligations, liabilities (whether accrued, absolute, contingent or
otherwise) or indebtedness of any other person except for cheques endorsed
for collection in the ordinary course of the
business;
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(v)
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any
confidentiality, secrecy or non-disclosure contract, (whether the Vendor
is a beneficiary or obligant thereunder) relating to any proprietary or
confidential information or any non-competition or similar
contract;.
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(vi)
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there
has not been any default in any obligation or liability in respect of said
contracts, engagements, or commitments by the Vendor and the Vendor has
performed all of the material obligations required to be performed by it
and is entitled to all benefits under any
contracts;
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(vii)
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there
has not been any amendment, modification, variation, surrender, or release
of said contracts, engagements, and commitments;
and
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(viii)
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each
of said contracts, engagements, and commitments is in good standing and in
full force and effect and the Vendor has performed all of the material
obligations required to be performed by it and is entitled to all benefits
thereunder, and is not in default or alleged to be in default in respect
of any material contract or any other contracts, engagements or
commitments provided for in this Agreement, to which the Vendor is a party
or by which it is bound;
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(g)
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except
as disclosed in Schedule 4 - Legal and Regulatory Proceedings, there are
no actions, suits, proceedings, investigations, complaints, orders,
directives, or notices of defect or noncompliance by or before any court,
governmental or domestic commission, department, board, tribunal, or
authority, or administrative, licensing, or regulatory agency, body, or
officer issued, pending, or to the best of the Vendor’s knowledge
threatened against or affecting the Vendor or in respect of the Purchased
Assets;
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(h)
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there
is no requirement applicable to the Vendor to make any filing with, give
any notice to or to obtain any license, permit, certificate, registration,
authorization, consent or approval of, any governmental or regulatory
authority as a condition to the lawful consummation of the transactions
contemplated by this Agreement, except for the filings, notifications,
licenses, permits, certificates, registrations, consents and approvals
described in Schedule 5 - Consents, or that relate solely to the identity
of the Purchaser or the nature of any business carried on by the
Purchaser except for the notifications, consents and approvals
described in Schedule 5 -
Consents;
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(i)
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with
respect to the Purchased Assets, the Vendor has filed or caused to be
filed all material tax returns of Vendor which have become due (taking
into account valid extensions of time to file) prior to the date hereof,
such returns are accurate and complete in all material respects and Vendor
has paid or caused to be paid all taxes due, in each case to the extent
Purchaser would incur liability for Vendor’s failure to file such returns
or pay such taxes. There are no outstanding tax liens that have
been filed by any tax authority against the Purchased
Assets. No claims are being asserted in writing with respect to
any taxes relating to the Vendor’s business for which Purchaser reasonably
could be held liable and Vendor knows of no basis for the assertion of any
such claim;
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(j)
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the
Vendor has never received any notice of or been prosecuted for
non-compliance with any Environmental Laws, nor has the Vendor settled any
allegation of non-compliance short of prosecution. There are no
orders or directions relating to environmental matters requiring any work,
repairs or construction or capital expenditures to be made with respect to
the Purchased Assets, nor has the Vendor received notice of any of the
same;
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(k)
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Schedule
3 - Intellectual Property, sets out all registered or pending Intellectual
Property (including particulars of registration or application for
registration, or continuances) and all licenses, registered user
agreements and other contracts that comprise or relate to Intellectual
Property. The Intellectual Property comprises all trade or
brand names, business names, trade marks, service marks, copyrights,
patents, trade secrets, know-how, inventions, designs and other industrial
or intellectual property necessary for use with the Assets. The
Vendor is the beneficial owner of the Intellectual Property, free and
clear of all Encumbrances, and is not a party to or bound by any contract
or any other obligation whatsoever that limits or impairs its ability to
sell, transfer, assign or convey, or that otherwise affects, the
Intellectual Property. No person has been granted any interest
in or right to use all or any portion of the Intellectual
Property. The use of the Assets does not infringe upon the
industrial or intellectual property rights, domestic or foreign, of any
other person. The Vendor is not aware of a claim of any
infringement or breach of any industrial or intellectual property rights
of any other person, nor has the Vendor received any notice that the use
of the Assets, including the use of the Intellectual Property, infringes
upon or breaches any industrial or intellectual property rights of any
other person, and the Vendor, after due inquiry, has no knowledge of any
infringement or violation of any of its rights in the Intellectual
Property. The Vendor is not aware of any state of facts that
casts doubt on the validity or enforceability of any of the Intellectual
Property. The Vendor has provided to the Purchaser a true and
complete copy of all contracts and amendments thereto that comprise or
relate to the Intellectual Property;
and
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(l)
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there
are no liabilities of the Vendor or its Associates or Affiliates, whether
or not accrued and whether or not determined or determinable, in respect
of which the Purchaser may become liable on or after the Closing
Date.
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6.
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REPRESENTATIONS OF THE
PURCHASER
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6.1
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The
Purchaser represents and warrants to the Vendor as follows, with the
intent that the Vendor will rely thereon in entering into this Agreement
and in concluding the purchase and sale contemplated hereby,
that:
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(a)
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the
Purchaser is a corporation duly incorporated, validly existing, and in
good standing under the laws of the State of Nevada and has the power,
authority, and capacity to enter into this Agreement and to carry out its
terms;
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(b)
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the
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby has been duly and validly authorized by
all necessary corporate action on the part of the Purchaser, and this
Agreement constitutes a valid and binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms; except as
enforcement may be limited by bankruptcy, insolvency and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction;
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(c)
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there
is no requirement for the Purchaser to make any filing with, give any
notice to or obtain any license, permit, certificate, registration,
authorization, consent or approval of, any government or regulatory
authority as a condition to the lawful consummation of the transactions
contemplated by this Agreement;
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(d)
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neither
the execution and delivery of this Agreement nor the performance of the
Purchaser’s obligations hereunder will violate or constitute a default
under the constating documents, by-laws, or articles of the Purchaser, any
order, decree, judgment, statute, by-law, rule, regulation, or restriction
applicable to the Purchaser, or any contract, agreement, instrument,
covenant, mortgage or security to which the Purchaser is a party or which
are binding upon the Purchaser; and
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(e)
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The
Pledged Shares to be issued to the Vendor under this Agreement will, when
so issued, be duly authorized, validly issued, fully paid, non-assessable,
free of any Encumbrances and not subject to any preemptive rights or
rights of first refusal created by statute or the charter documents or
Bylaws of Purchaser or any agreement to which Purchaser is a party or is
bound and will be issued in compliance with federal and state securities
laws.
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7.
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COVENANTS OF THE
VENDOR
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7.1
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Between
the date of this Agreement and the Closing Date, the Vendor covenants and
agrees that the Vendor:
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(a)
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will
not sell or dispose of any of the Purchased Assets, except only the sale
of services in the ordinary course of business and will preserve the
Purchased Assets intact without any further
Encumbrances;
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(b)
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will
keep the Purchased Assets in their present
state;
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(c)
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will
maintain insurance coverage of the scope and in the amounts now held in
full force and effect and will give all notices and present all claims
under all policies of insurance in a due and timely
fashion;
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(d)
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will
afford the Purchaser and its authorized representatives full access during
normal business hours to the Purchased Assets and without limitation, all
title documents, abstracts of title, deeds, leases, contracts, financial
statements, policies, reports, licenses, books, records, and other such
material relating to the Purchased Assets, and furnish such
copies thereof and other information, as the Purchaser may reasonably
request;
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(e)
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will
use its best efforts to procure and obtain at or prior to the Closing Date
all such consents, approvals, releases, and discharges as may be required
to effect the transactions contemplated hereby from all federal, state,
municipal or other governmental or regulatory bodies and from all other
third parties as necessary;
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(f)
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at
the request of the Purchaser, the Vendor will execute such consents,
authorizations and directions as may be necessary to permit any inspection
of the Purchased Assets or to enable the Purchaser or its authorized
representatives to obtain full access to all files and records relating to
the Purchased Assets maintained by governmental or other public
authorities;
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(g)
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will
use its best efforts to take or cause to be taken all necessary corporate
action, steps and proceedings to approve and authorize validly and
effectively the transfer of the Purchased Assets to the Purchaser and the
execution and delivery of this Agreement and any other Agreements or
documents contemplated hereby and to cause all necessary meetings of
members or managers of the Vendor to be held for such purpose;
and
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(h)
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will
not, without the prior written consent of the Purchaser, enter into any
transaction or refrain from doing any action that, if effected before the
date of this Agreement, would constitute a breach of any representation,
warranty, covenant or other obligation of the Vendor contained herein, and
the Vendor will not enter into any material supply agreements relating to
the Purchased Assets or make any material decisions or enter into any
material contracts with respect to the Purchased Assets without the
consent of the Purchaser, which consent will not be unreasonably
withheld.
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8.
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COVENANTS OF THE
PURCHASER
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8.1
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Between
the date of this Agreement and the Closing Date, the Purchaser will make
all reasonable efforts to obtain and procure in co-operation with the
Vendor all consents, approvals, releases, and discharges required to
effect the transactions contemplated
hereby.
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9.
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NON-COMPETITION
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9.1
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As
a condition to, and in consideration of, the Purchaser entering into this
Agreement, the Vendor and other employees similarly situated to the
Vendor, covenant and agree with the Purchaser that for a period of 3 years
from the Closing Date, it will not, either directly or indirectly, as
principal, agent, owner, employee, partner, shareholder, advisor or
otherwise howsoever own, operate or engage in the operation of or have any
financial interest in or provide, directly or indirectly, financial
assistance to any business operation, whether a proprietorship,
partnership, joint venture, private company or otherwise howsoever,
carrying on or engaged in any business identical with or similar to the
business carried on by the Purchaser worldwide applicable to the countries
of Guyana, Ghana, Zambia, Ethiopia and Libya. For the countries of
Phillipines and South Africa, Vendor shall grant the Purchaser a preferred
purchaser status which means that the Purchaser shall have the first right
of receiving deliveries of assets contracted and shall also have the
option to lock in agreed purchase consideration with the Vendor for future
purchases upto mutually agreed upon time
limits;
|
|
9.2
|
The
Vendor acknowledges and agrees that the obligations of this Agreement are
directly related to the asset purchase and are necessary to protect the
Purchaser’s legitimate business interests; and that the Purchaser’s need
for the covenants set forth in this Agreement is based on the
following: (i) the substantial time, money and effort expended
and to be expended by the Purchaser in developing marketing
plans and similar confidential information; and (ii) the highly
competitive nature of the Purchaser’s industry, including the premium that
competitors of the Purchaser place on acquiring proprietary and
competitive information.
|
|
10.
|
CONFIDENTIALITY
|
|
10.1
|
Except
as and to the extent required by law, for a period of two (2) years after
the Closing Date, Purchaser and Vendor will not disclose or use, and will
direct their representatives not to disclose or use, to the detriment of
the other party any Confidential Information (as defined below) with
respect to either party furnished, or to be furnished, by either party or
their respective representatives at any time or in any manner other than
in connection with its evaluation of the Transaction. For the purposes of
this paragraph, "Confidential Information" means any information about
either party stamped "confidential" or identified in writing as such to
one party by the other party promptly following its disclosure, unless (i)
such information is already known to the receiving party or its
representatives or to others not bound by a duty of confidentiality or
such information becomes publicly available through no fault of the
receiving party or its representatives, (b) the use of such information is
necessary or appropriate in making any filing or obtaining any consent or
approval required for the consummation of the Transaction or (c) the
furnishing or use of such information is required by or necessary or
appropriate in connection with legal proceedings. Upon the written request
of the disclosing party the receiving party will promptly return or
destroy any Confidential Information in its possession and certify in
writing to the disclosing party that it has done
so.
|
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|
11.
|
INDEMNIFICATION,
REMEDIES, SURVIVAL
|
|
11.1
|
Certain
Definitions
|
For the
purposes of this Clause 12 the terms
“Loss” and “Losses” mean any and all
demands, claims, actions or causes of action, assessments, losses, damages,
liabilities, costs, and expenses, including without limitation, interest,
penalties, fines and reasonable attorneys, accountants and other professional
fees and expenses, but excluding any indirect, consequential or punitive damages
suffered by the Vendor or the Purchaser including damages for lost profits or
lost business opportunities.
|
11.2
|
Agreement
of Vendor to Indemnify
|
Vendor
will indemnify, defend, and hold harmless, to the full extent of the law, for a
period of three years from the Closing Date, the Purchaser from, against, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by the Purchaser by reason of, resulting from, based upon or arising
out of:
|
|
(a)
|
the
breach by Vendor of any representation or warranty of Vendor contained in
or made pursuant to this Agreement, any Vendor document or any certificate
or other instrument delivered pursuant to this Agreement;
or
|
|
|
(b)
|
the
breach or partial breach by Vendor of any covenant or agreement of Vendor
made in or pursuant to this Agreement, any Vendor document or any
certificate or other instrument delivered pursuant to this
Agreement.
|
|
11.3
|
Agreement
of Purchaser to Indemnify
|
Purchaser
will indemnify, defend, and hold harmless, to the full extent of the law, for a
period of three years from the Closing Date, Vendor from, against, for, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Vendor by reason of, resulting from, based upon or arising out
of:
|
|
(a)
|
the
breach by Purchaser of any representation or warranty of Purchaser
contained in or made pursuant to this Agreement, any Purchaser document or
any certificate or other instrument delivered pursuant to this Agreement;
or
|
|
|
(b)
|
the
breach or partial breach by Purchaser of any covenant or agreement of
Purchaser made in or pursuant to this Agreement, any Purchaser document or
any certificate or other instrument delivered pursuant to this
Agreement.
|
|
12.
|
SURVIVAL OF
REPRESENTATIONS AND
WARRATNIES
|
|
12.1
|
The
representations, warranties, covenants, and agreements of the Vendor
contained herein and those contained in the documents and instruments
delivered pursuant hereto or in connection herewith will survive the
Closing Date for a period of eighteen months, and notwithstanding the
completion of the transactions contemplated hereby, the waiver of any
condition contained herein (unless such waiver expressly releases the
Vendor of such representation, warranty, covenant, or agreement), or any
investigation by the Purchaser, same will remain in full force and
effect.
|
|
12.2
|
The
representations, warranties, covenants, and agreements of the Purchaser
contained herein and those contained in the documents and instruments
delivered pursuant hereto or in connection herewith will survive the
Closing Date for a period of eighteen months, and notwithstanding the
completion of the transactions contemplated hereby, the waiver of any
condition contained herein (unless such waiver expressly releases the
Purchaser of such representation, warranty, covenant, or agreement), or
any investigation by the Vendor, same will remain in full force and
effect.
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13.
|
CONDITIONS
PRECEDENT
|
|
13.1
|
The
obligation of the Purchaser to consummate the transactions herein
contemplated is subject to the fulfillment of each of the following
conditions precedent at the times
stipulated:
|
|
|
(a)
|
that
the representations and warranties of the Vendor contained herein are true
and correct on and as at the Closing Date with the same force and effect
as if such representations and warranties were made as at the Closing
Date, except as may be in writing disclosed to and approved by the
Purchaser;
|
|
|
(b)
|
that
all the terms, covenants, conditions, agreements, and obligations
hereunder on the part of the Vendor to be performed or complied with at or
prior to the Closing Date, including in particular the Vendor’s obligation
to deliver the documents and instruments herein provided for in Clause 15,
have been performed and complied with as at the Closing
Date;
|
|
|
(c)
|
that
between the date hereof and the Closing Date no change, event, or
circumstance has occurred which materially adversely affects the Purchased
Assets or which, significantly reduces the value of the Purchased Assets
to the Purchaser;
|
|
|
(d)
|
that
between the date hereof and the Closing Date there has not been any
substantial loss, damage, or destruction, whether or not covered by
insurance, to any of the Purchased
Assets;
|
|
|
(e)
|
no
legal or regulatory action or proceeding will be pending or threatened by
any person to enjoin, restrict or prohibit the purchase and sale of the
Purchased Assets contemplated
hereby;
|
|
|
(f)
|
that
at the Closing Date, there will have been obtained from all appropriate
federal, state, municipal or other governmental or administrative bodies
such licenses, permits, consents, approvals, certificates, registrations
and authorizations as are required to be obtained by the Vendor to permit
the change of ownership of the Purchased Assets contemplated hereby, and
all notices, consents and approvals with respect to the transfer or
assignment of any contracts;
|
|
|
(g)
|
that
at the Closing Date, the Vendor will have given or obtained the notices,
consents and approvals described in Schedule 5 - Consents, in each case in
form and substance satisfactory to the Purchaser, acting
reasonably;
|
|
13.2
|
The
foregoing conditions of Clause 14.1 are for the exclusive benefit of the
Purchaser and may be waived in whole or in part by the Purchaser at any
time. If any of the conditions contained in Clause 14.1 will
not be performed or fulfilled at or prior to the Closing Date to the
satisfaction of the Purchaser, acting reasonably, the Purchaser, may, by
notice to the Vendor, terminate this Agreement and the obligations of the
Vendor and the Purchaser under this agreement, provided that the Purchaser
may also bring an action pursuant to Clause 12.2 against the Vendor for
damages suffered by the Purchaser where the non-performance or
non-fulfillment of the relevant condition is as a result of a breach of
covenant, representation or warranty by the
Vendor.
|
|
13.3
|
The
obligation of the Vendor to consummate the transactions herein
contemplated is subject to the fulfillment of each of the following
conditions precedent at the times
stipulated:
|
|
|
(a)
|
that
the representations and warranties of the Purchaser contained herein are
true and correct on and as of the Closing Date with the same force and
effect as if such representations and warranties were made as at the
Closing Date, except as may be in writing disclosed to and approved by the
Vendor; and
|
- 10
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|
|
(b)
|
that
all terms, covenants, conditions, agreements, and obligations hereunder on
the part of the Purchaser to be performed or complied with at or prior to
the Closing, including in particular the Purchaser’s obligation to deliver
the documents and instruments herein provided for in Clause 16, have been
performed and complied with as at the
Closing.
|
|
13.4
|
The
foregoing conditions of Clause 14.3 are for the exclusive benefit of the
Vendor and may be waived in whole or in part by the Vendor at any
time. If any of the conditions contained in Clause 14.3 will
not be performed or fulfilled at or prior to the Closing Date to the
satisfaction of the Vendor acting reasonably, the Vendor may, by notice to
the Purchaser, terminate this Agreement and the obligations of the Vendor
and the Purchaser under this Agreement, provided that the Vendor may also
bring an action pursuant to Clause 12.3 against the Purchaser for damages
suffered by it where the non-performance or non-fulfillment of the
relevant condition is as a result of a breach of covenant, representation
or a warranty by the Purchaser.
|
|
14.
|
TRANSACTIONS OF THE
VENDOR AT THE CLOSING
|
|
14.1
|
At
the Closing Date, the Vendor will execute and deliver or cause to be
executed and delivered all deeds, conveyances, bills of sale, transfers,
assignments, agreements, certificates, documents, and instruments as may
be necessary to effectively vest good and marketable title to the
Purchased Assets in the Purchaser free and clear of any Encumbrances and
without limiting the foregoing, will execute and deliver or cause to be
executed and delivered:
|
|
|
(a)
|
a
bill of sale (Absolute) for the Purchased
Assets;
|
|
|
(b)
|
all
consents, approvals, releases, and discharges as may be required to effect
the transactions contemplated hereby, including in particular those
described in Schedule 5 - Consents;
|
|
|
(c)
|
a
certificate of the Vendor dated the Closing Date, acceptable in form and
content to the legal advisors for the Purchaser, certifying that the
conditions set out in Clause 14.1 have been
satisfied;
|
|
|
(d)
|
executed releases
by any third parties which have any Encumbrances against the Purchased
Assets;
|
|
|
(e)
|
a
subscription agreement for the Pledged Shares in the form as set out in
Schedule 6; and
|
|
|
(f)
|
all
such other documents and instruments as the Purchaser’s legal advisors may
reasonably require.
|
|
15.
|
TRANSACTIONS OF THE
PURCHASER AT THE CLOSING
|
|
15.1
|
At
the Closing the Purchaser will deliver or cause to be delivered to the
Vendor:
|
|
|
(a)
|
Irrevocable
instructions to the transfer agent of the Purchaser as to the issuance of
the Pledged Shares, in form and substance satisfactory to the
Vendor;
|
|
|
(b)
|
a
certified copy of a resolution of the Directors of the Purchaser duly
passed authorizing the execution and delivery of this Agreement and the
completion of the transactions contemplated
hereby;
|
|
|
(c)
|
a
certificate of an officer of the Purchaser dated as of the Closing Date,
acceptable in form and content to the legal advisors for the Vendor,
certifying that the conditions precedent set out in Clause 14.3 have been
satisfied; and
|
|
|
(d)
|
all
such other documents and instruments as the Vendor or its legal advisors
may reasonably require.
|
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|
16.
|
TAXES
|
|
16.1
|
All
sales, use and other transfer taxes payable in respect of the transactions
arising out of the purchase of the Assets as contemplated hereby will be
paid by the Vendor upto the seaport of
Mumbai.
|
|
17.
|
FURTHER
ASSURANCES
|
|
17.1
|
From
time to time subsequent to the Closing Date, the parties covenant and
agree, at the expense of the requesting party, to promptly execute and
deliver all such further documents and instruments and do all such further
acts and things as may be required to carry out the full intent and
meaning of this Agreement and to effect the transactions contemplated
hereby.
|
|
18.
|
ASSIGNMENT
|
|
18.1
|
This
Agreement may not be assigned by any party hereto without the prior
written consent of the other parties
hereto.
|
|
19.
|
SUCCESSORS AND
ASSIGNS
|
|
19.1
|
This
Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted
assigns.
|
|
20.
|
COUNTERPARTS
|
|
20.1
|
This
Agreement may be executed in several counterparts, each of which will be
deemed to be an original and all of which will together constitute one and
the same instrument.
|
|
21.
|
NOTICES
|
|
21.1
|
Any
notice required or permitted to be given under this Agreement will be in
writing and may be given by personal service or by prepaid registered
mail, and addressed to the proper party or transmitted by electronic
facsimile generating proof of receipt of transmission at the address or
facsimile number stated below:
|
|
|
(a)
|
if
to the Vendor:
|
Ankur
Scientific Energy Technologies Private Limited,
ANKUR’, Near
Old Sama Jakat Naka, Sama Road,
Baroda-390008,
Gujarat, India
Facsimile
No.:+91-265-2794042.
to
the Purchaser:
Clenergen
Corporation
6165 NW
123rd
Coral
Lane, Florida 33076
Facsimile
No.: +44 (0) 207 7690028
- 12
-
with a
copy to:
Morit
Hock Hamroff & Horowitz LLP,
400,
Garden City Plaza,
Garden
City, NJ 11530, USA
Attn:
Dennis O’Rourke Esq., Of Counsel
Facsimile:+1 (516)
873-2010
or to
such other address or facsimile number as any party may specify by
notice. Any notice sent by registered mail as aforesaid will be
deemed conclusively to have been effectively given on the fifth business day
after posting; but if at the time of posting or between the time of posting and
the third business day thereafter there is a strike, lockout or other labour
disturbance affecting postal service, then such notice will not be effectively
given until actually received. Any notice transmitted by electronic
facsimile will be deem conclusively to have been effectively given if evidence
of receipt is obtained before 5:00 p.m. (recipient’s time) on a Business Day,
and otherwise on the Business Day next following the date evidence of receipt of
transmission is obtained by the sender.
|
22.
|
TENDER AND
EXTENSIONS
|
|
22.1
|
Tender
may be made upon the Vendor or Purchaser or upon the legal advisors for
the Vendor or Purchaser and such legal advisors are expressly authorized
by their respective clients to confirm extensions of the Closing
Date.
|
|
23.
|
REFERENCE
DATE
|
|
23.1
|
This
Agreement is dated for reference as of the date first above written, but
will become binding as of the date of execution and delivery by all
parties hereto and subject to compliance with the terms and conditions
hereof, the transfer and possession of the Purchased Assets will be deemed
to take effect as at the close of business on the Closing
Date. References herein to the date of the Agreement or to the
date hereof shall be deemed to mean the date set forth in the preamble to
this Agreement.
|
|
24.
|
REFERENCES TO
AGREEMENT
|
|
24.1
|
The
terms “this Agreement”, “hereof’, “herein”, “hereby”, “hereto”, and
similar terms refer to this Agreement and not to any particular clause,
paragraph or other part of this Agreement. References to
particular clauses are to clauses of this Agreement unless another
document is specified.
|
IN
WITNESS WHEREOF the parties have executed and delivered these presents on the
dates indicated below.
Ankur
Scientific Energy Technologies Private Limited
|
Per:
|
/s/ Ankur Jain
|
|
|
Ankur
Jain, Managing Director
|
||
|
Dated:
|
April 24, 2010
|
- 13
-
CLENERGEN
CORPORATION
|
Per:
|
/s/ Mark Quinn
|
|
|
Mark
Quinn, Chief Executive Officer
|
||
|
Dated:
|
April 24, 2010
|
LIST OF
SCHEDULES
|
Schedule
|
Description
|
|
|
1
|
|
Purchased
Assets
|
SCHEDULE
1
DESCRIPTION
OF PURCHASED ASSETS
As
per attached quotation certified by the Vendor for installation at any location
specified by the Purchaser in Phillipines
Limited
Notice To Proceed Agreement