Attached files
EQUITY INTEREST PURCHASE AGREEMENT
BETWEEN
Hull Energy, Inc., Title King, LLC and the Unitholders of Title King, LLC.
THIS EQUITY INTEREST PURCHASE AGREEMENT (the AGREEMENT) is dated as of
the 4th day of December 2012, by and among Hull Energy, Inc., a Nevada
corporation located at 1111 Alderman Drive, Suite 210, Alpharetta, GA
30005 (Hull), Title King, LLC a Georgia Limited Liability Company
with its principal place of business located at 1111 Alderman Drive,
Suite 210, Alpharetta, GA 30005 (the Company) which together with
Jeffrey Canouse (Canouse), the Companys sole Unitholder , are
jointly and severally referred to as the Seller or Sellers as
the context may require.
WHEREAS, the Sellers own all of the issued and outstanding Units,
(the Company Units) of the Company; and
WHEREAS, the Sellers desires to sell to HULL and HULL desires to
purchase from the Seller all of said Units of the Company;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the Sellers and HULL agree as follows:
1. Sale of the Company Units. Upon the terms and conditions set forth
in this Agreement, the Sellers shall sell, assign, and transfer to HULL
at the closing of this Agreement (the Closing), free and clear of all
liens and encumbrances and HULL, upon the basis of the covenants,
warranties and representations of the Sellers set forth herein, shall
purchase from the Sellers at the Closing all of said Units of the Company
owned by the Sellers, which the Sellers represent as being all of the
outstanding Units of the Company.
2. Purchase Price/Notes. Subject to the terms of this Agreement and
in reliance on the representations and warranties of the Sellers, HULL
shall purchase the Company Units, and in full consideration therefor,
shall pay the Sellers consideration (the Purchase Price) consisting
of Forty Million (40,000,000) common shares of HULL to be delivered
within 15 days of the Closing Date to Jeffrey Canouse.
3. Representations and Warranties of the Sellers. Where a representation
contained in this Agreement is qualified by the phrase to the best
knowledge of the Sellers (or words of similar import), such expression
means that, after having conducted a due diligence review, the Sellers
believe the statement to be true, accurate, and complete in all material
respects. Knowledge shall not be imputed nor shall it include any matters
which such person should have known or should have been reasonably
expected to have known. The Sellers represent and warrant to HULL as
follows:
(a) Power and Authority. The Sellers have full power and authority to
execute, deliver, and perform this Agreement and all other agreements,
certificates or documents to be delivered in connection herewith,
including, without limitation, the other agreements, certificates and
documents contemplated hereby (collectively the Other Agreements).
(b) Binding Effect. Upon execution and delivery by the Sellers,
this Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Sellers, enforceable against the
Sellers in accordance with the terms hereof and thereof, except as the
enforceability hereof or thereof may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors rights generally, and (ii)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(c) Effect. Neither the execution and delivery of this Agreement or
the Other Agreements nor full performance by the Sellers of their
obligations hereunder or thereunder will violate or breach, or otherwise
constitute or give rise to a default under, the terms or provisions of
the Operating Agreement or any other regulatory document or agreement of
the Company or, subject to obtaining any and all necessary consents, of
any contract, commitment or other obligation of the Company or necessary
for the operation of the Companys business (the Business) following
the Closing or any other material contract, commitment, or other
obligation to which the Company is a party, or create or result in the
creation of any encumbrance on any of the property of the Company.
Except as otherwise disclosed to HULL before the date of this Agreement,
the Company is not in violation of its Operating Agreement, or of any
indebtedness, mortgage, contract, lease, or other agreement or commitment.
(d) No Consents. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but
not limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or
obtained on or prior to the Closing Date, need to be obtained or made
by the Sellers prior to the Closing Date to authorize the execution,
delivery and performance by the Sellers of this Agreement or the Other
Agreements.
(e) Capitalization. The Company is authorized by its Operating
Agreement to issue 100 Units. As of the date of this Agreement, there
are 100 Units of the Company duly and validly issued and outstanding,
fully paid, and non-assessable. There are no outstanding options,
contracts, commitments, warrants, preemptive rights, agreements or any
rights of any character affecting or relating in any manner to the
issuance of the Company Units or other securities or entitling anyone
to acquire the Company Units or other securities of the Company.
(f) Company Unit Ownership. The Sellers have good, absolute, and
marketable title to all of the Company Units as described herein.
The Sellers have the complete and unrestricted right, power and
authority to sell their Units pursuant to this Agreement. The delivery
of the Company Units as herein contemplated will vest in HULL good,
absolute and marketable title to the Units of the Company, as described
herein, free and clear of all liens, claims, encumbrances, and
restrictions of every kind.
(g) Organization and Standing of the Company. The Company is a
duly organized and validly existing limited liability company in good
standing under the laws of the state of Georgia, with all requisite
corporate power and authority to carry on the Business as presently
conducted in each of the jurisdictions where it is currently doing
business.
(h) Company Subsidiaries. The Company has no subsidiaries.
(i) Employees. On the date of this Agreement, the Company has 1
employee, Jeffrey Canouse. To the best knowledge of Sellers, the
Company has been for the past four years, and currently is, in material
compliance with all federal, state and local regulations or orders
affecting employment and employment practices (including those
regulations promulgated by the Equal Employment Opportunity Commission),
including terms and conditions of employment and wages and hours.
At the Effective Date, the Company will have no obligation to make any
payment to any past or present employees, officers or directors or
independent contractors, other than compensation paid in the ordinary
course of business. The Company has no employment contract, written
or otherwise, with any employee or former employee.
(j) Financial Statement. The Sellers shall furnish HULL financial
statements of the Company and the related statement of income and
retained earnings for the period requested by HULL, ( the Financial
Statements). The Financial Statements (i) are in accordance with
the books and records of the Company; (ii) fairly present the financial
condition of the Company at such dates and the results of its operations
for the periods therein specified; (iii) were prepared in accordance
with generally accepted accounting principles applied upon a basis
consistent with prior accounting periods; and (iv) with respect to all
contracts and commitments of the Company, reflects adequate reserves for
all reasonably anticipated losses and costs in excess of anticipated
income. Specifically, but not by way of limitation, the Financial
Statements disclose all of the debts, liabilities, and obligations of
any nature (whether absolute, accrued, contingent, or otherwise and
whether due or to become due) of the Company on the dates therein
specified (except such debts, liabilities, and obligations as are not
required to be reflected therein in accordance with generally accepted
accounting principles).
(k) Present Status. Since the dates reflected on the Financial
Statements ( the Financial Statement Date), the Company has not
(i) incurred any material obligations or material liabilities, absolute,
accrued, contingent, or otherwise, except current trade payables; (ii)
discharged or satisfied any liens or encumbrances, or paid any
obligations or liabilities, except current Financial Statement
liabilities and current liabilities incurred since the dates reflected
on the Financial Statement, in each case, in the ordinary course of
business; (iii) declared or made any Unitholder payment or distribution
or purchased or redeemed any of its securities or agreed to do so; (iv)
mortgaged, pledged, or subjected to lien, encumbrance, or charge any of
its assets except as shall be removed prior to or at the Closing Date;
(v) canceled any debt or claim; (vi) sold or transferred any assets of
a material value except sales from inventory in the ordinary course of
business; (vii) suffered any damage, destruction, or loss (whether or
not covered by insurance) materially affecting its properties,
business, or prospects; (viii) waived any rights of a material value;
(ix) entered into any transaction other than in the ordinary course
of business. Further, since the dates reflected on the Financial
Statement, there has not been any change in or any event or condition
(financial or otherwise) affecting the property, assets, liabilities,
operations, or prospects of the Company, other than changes in the
ordinary course of its business, none of which has (either when taken
by itself or taken in conjunction with all other such changes) been
materially adverse.
(l) Tax Returns and Audits. As of the date of this Agreement, the
Company has duly filed all federal, state, and local tax returns as
required to be filed by it (including, but not limited to, all payroll
or other employment related tax returns), and has paid all federal,
state and local taxes, including, but not limited to all payroll and
employment taxes, required to be paid with respect to the periods
covered by such returns. The Company has not been delinquent in the
payment of any tax, assessment, or governmental charge, and has not
had any tax deficiencies proposed or assessed against it and has not
executed any waiver of the statute of limitations on the assessment or
collection of any tax.
(m) Litigation. The Company has disclosed all litigation,
arbitrations, claims, governmental or other proceedings (formal or
informal), or investigations pending, threatened, or in prospect (or
any basis therefor known to the Sellers) with respect to the Company,
or any of its Business, properties, or assets prior to the execution
of this Agreement. The Company is not affected by any present or
threatened strike or other labor disturbance or, to the knowledge
of the Sellers, is any union attempting to represent any employee
of the Company as collective bargaining agent. The Company is not
in violation of, or in default with respect to, any law, rule,
regulation, order, judgment, or decree; nor are the Sellers or the
Company required to take any action in order to avoid such a
violation or default.
(n) Compliance with Laws and Regulations. The Company is in
material compliance, with all laws, ordinances, codes, restrictions,
regulations (environmental and otherwise) and other legal
requirements applicable to the conduct of the Business, the
noncompliance with which would be likely to have a material adverse
effect on the Business; and there are no lawsuits or proceedings
pending or, to their knowledge, threatened with respect to the
foregoing.
(o) No Defaults. The Company is not in default under any
provision, of any lease, contract, commitment, obligation, note,
bond, debenture, mortgage, indenture, security agreement, guaranty,
or other instrument of indebtedness, and no existing condition
exists which, with the giving of notice or the passage of time,
or both, would constitute such a default, in either case, which
default is or would be likely to have a material adverse effect
on the Business.
(p) Permits and Approvals. The Company has all permits and
approvals required for the conduct of the Business and is not
in material default under any permit, approval or qualification,
which default is likely to have a material adverse effect on the
Company or the Business, nor is there any existing condition
which, with the giving of notice or the passage of time, or
both, would constitute such a material default.
(q) Properties. The Company has good and marketable title
in fee simple absolute to all real properties and good title
to all other properties and assets used in its business or owned
by it (except real and other properties and assets as are held
pursuant to leases or licenses), free and clear of all liens,
mortgages, security interests, pledges, charges, and encumbrances,
other than as shown on the Financial Statement, including, but not
limited to a tax lien for unpaid real estate taxes. Moreover, No
real property owned, leased, licensed, or used by the Company lies
in an area which is, or to the knowledge of the Sellers will be,
subject to zoning, use, or building code restrictions which would
prohibit, and no state of facts relating to the actions or inaction
of another person or entity or their ownership, leasing, licensing,
or use of that real property in the Business in which the Company
is now engaged or the business in which it contemplates engaging.
The real and other properties and assets owned, leased, or licensed
by the Company constitute all such properties and assets which are
necessary to the business of the Company as presently conducted or
as it contemplates conducting.
(r) Patents and Trademarks. To the best of the knowledge of the
Sellers, the Company owns, possesses and has good title to all of
the copyrights, trademarks, trademark rights, patents, patent
rights, and licenses necessary in the conduct of the Business.
To the best of the knowledge of the Sellers, the Company is not
infringing upon or otherwise acting adversely to the rights of any
person, under, or in respect to, any copyrights, trademarks,
trademark rights, patents, patent rights, or licenses owned by any
person or entity, and there is no claim or pending or threatened
action with respect thereto. The Company has the unrestricted
right to use (free and clear of any rights or claims of others)
all trade secrets, customer lists, manufacturing and other
processes incident to the manufacture, use or sale of any and
all products presently sold by it.
(s) Compliance with the Environmental Laws. To the knowledge
of the Sellers, the Company has not violated and is not in
violation of the Federal Clean Air Act (42 U.S.C. 7401, et seq.),
Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.),
the Federal Resource Conservation and Recovery Act of 1976
(42 U.S.C. 6901, et seq.), the Federal Comprehensive the
Environmental Responsibility, Clean Up and Liability Act of
1980 (42 U.S.C. 9601, et seq.), the Federal Toxic Substance
Control Act of 1976 (15 U.S.C. 2601, et seq.) or any state or
local laws or ordinances regulating the subjects covered by the
federal statutes identified above, including rules and regulations
thereunder.
(t) Absence of Certain Changes or Events. Since the Financial
Statement Date, there has not been any change in or any event or
condition (financial or otherwise) affecting the property, assets
(including cash and all accounts receivable), liabilities,
operations, or prospects of the Company, other than changes in
the ordinary course of its business, none of which has (either
when taken by itself or taken in conjunction with all other such
changes) been materially adverse.
(u) Insurance Policies. Sellers currently have insurance
contracts or policies (the Policies) in full force and effect
which provide for coverage that are usual and customary as to
amount and scope in the business of the Company. All of the
Policies and Liability Policies remain in full force and effect.
The Sellers have not breached or otherwise failed to perform,
in any material respect, their obligations under any of the
Policies or the Liability Policies nor have Sellers received
any adverse notice or communication from any of the insurers
under the Policies or the Liability Policies with respect to
any such alleged breach or failure in connection with any of
the Policies or the Liability Policies. All Policies are
sufficient for compliance with all regulations, orders and
all contracts to which Sellers is subject; are valid,
outstanding, collectible and enforceable policies; and will
not in any way be affected by, or terminate or lapse by reason
of, the execution and delivery of this Agreement or the
consummation of the Merger.
(v) Schedule of Assets. If requested by HULL, Sellers
shall prepare and provide a schedule of assets owned by the
Company containing (i) a true and complete listing of all
property owned by the Company; (ii) a true and complete legal
description of all real properties in which the Company has a
leasehold interest, together with a description of each
indenture, lease, sublease, or other instrument under which
the Company claims or holds such leasehold interest, each of
which is a good and valid leasehold interest, and all of which
are in effect and enforceable according to their respective
terms; (iii) a true and complete list of all patents, patent
applications, patent licenses, trademarks, trademark
registrations, and applications therefor, trade names,
copyrights, and copyright registrations and applications
therefor owned by the Company; and (iv) as of the Financial
Statement Date, a true and complete list of all accounts
receivable of the Company, together with information as to
the aging of each such account receivable. Notwithstanding
anything herein contained to the contrary, the invention by
the Sellers with respect to helicopters, golf clubs and tie
layer is excluded from this Agreement.
(w) Compliance with Law and Other Instruments. The
business and operations of the Company have been and are being
conducted in accordance with all applicable laws, rules and
regulations of all authorities, except those which do not
(either individually or in the aggregate) materially and
adversely affect the Company.
(x) Contracts. The Company is not a party to, or otherwise
bound by any (i) written or oral contract; (ii) employment or
consultant contract not terminable at will without cost or
other liability; (iii) labor union contracts; (iv) bonus,
pension, profit sharing, retirement, Unit purchase, stock
option, hospitalization, group insurance, or similar employee
benefit plan; (v) any real or personal property lease, as
lessor or lessee; (vi) advertising or public relations
contract; (vii) purchase, supply or service contract, which
cannot be terminated without cost or expense to the Company
if such termination occurs with less than 30 days notice;
(viii) deed of trust, mortgage, conditional sales contract,
security agreement, pledge agreement, trust receipt, or any
other agreement or arrangement whereby any of the assets or
property of the Company is subject to a lien, encumbrance,
charge or other restriction except such as shall be satisfied
prior to the Closing Date; (ix) license agreement, whether as
licensee or licensor; (x) contract or agreement involving any
expenditure by the Company of more than $1000.00 in the
aggregate; (xi) contract or agreement which the Company cannot
terminate by giving less than 30 days notice; and (xii)
contract to be performed in whole or in part more than 90 days
from the date thereof and which cannot be terminated without
cost or liability to the Company. To the best knowledge of the
Sellers, the Company has in all respects performed all
obligations required to be performed to date, and is not in
material default in any respect under any of the contracts,
agreements, leases, documents, or other commitments to which
it is a party or otherwise bound or affected. All parties
having material contracts with the Company are in material
compliance therewith, and are not in material default
thereunder.
(y) Records. The books of account and minute books of the
Company are complete and correct, and reflect all those
transactions involving its business which properly should
have been set forth in such books.
4. Representations and Warranties of HULL. Where a
representation contained in this Agreement is qualified by
the phrase to the best knowledge of HULL (or words of
similar import), such expression means that, after having
conducted a due diligence review, HULL believes the
statement to be true, accurate, and complete in all material
respects. Knowledge shall not be imputed nor shall it include
any matters which such person should have known or should have
been reasonably expected to have known. HULL hereby
represents and warrants to the Sellers as follows:
(a) Power and Authority. HULL has full power and authority
to execute, deliver and perform this Agreement and the Other
Agreements.
(b) Binding Effect. Upon execution and delivery by HULL,
this Agreement and the Other Agreements shall be and constitute
the valid, binding and legal obligations of HULL enforceable
against it in accordance with the terms hereof or thereof,
except as the enforceability hereof and thereof may be subject
to the effect of (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting creditors rights generally, and (ii) general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(c) No Consents. No consent, approval or authorization of,
or registration, declaration or filing with any third party,
including, but not limited to, any governmental department,
agency, commission or other instrumentality, will, except such
consents, if any, delivered or obtained on or prior to the
Closing Date, be obtained or made by HULL prior to the Closing
Date to authorize the execution, delivery and performance by
HULL of this Agreement or the Other Agreements
5. Actions of the Company Pending the Closing Date. The
Sellers agree that from the date hereof until the Closing Date:
(a) Operations. The Sellers will use their best efforts to
cause the Company to (i) be operated in keeping with its
customary practices and in compliance with all applicable laws,
rules and regulations; and (ii) not engage in any transaction
or make any commitment or expenditure.
(b) No Change in Corporate Charter. No change will be made
in the Articles of Incorporation or Bylaws of the Company
except as may be first approved in writing by HULL.
(c) No Change in Compensation. No increase will be made
in the compensation payable to or to become payable by the
Company to any officer, employee, or agent, nor will any bonus
payment or arrangement be made by the Company to or with any
officer, employee, or agent thereof, except as may be first
approved in writing by HULL.
(d) No Default. The Company shall timely pay and/or not
suffer any default with respect to any of its contracts,
commitments or obligations. The Company shall also continue
to pay as they become due all accounts payable of the Company.
(e) No Contracts. No contract or commitment will be entered
into by or on behalf of the Company, except as may be first
approved in writing by HULL.
(f) Banking Relations. No change will be made affecting
the banking and safe deposit arrangements of the Company,
except as may be first approved in writing by HULL.
(g) Insurance. The Company shall keep all of its property
and assets covered hereby insured in accordance with the
present practice, and maintain, preserve and keep all
improvements on its properties, all equipment, machinery and
other personal property covered hereby in reasonably good
condition and state of repair, reasonable wear excepted.
(h) No Liabilities. The Company shall not issue nor sell
any of its Units, bonds, notes, or other corporate securities,
nor incur any obligation or liability except current
liabilities incurred in the ordinary course of business, nor
mortgage, pledge, grant security interests covering, or
additionally subject to lien or encumbrance any of its
properties except as may be first approved in writing by HULL.
(i) Access to Records. The Sellers shall cause the Company
to afford HULL and their attorneys, accountants, investment
bankers and other representatives access, during normal
business, to all of its business operations, properties,
books, files, and records, and will cooperate in their
examination thereof. No such examination, however, shall
constitute a waiver or relinquishment by HULL of their right
to rely upon covenants, representations, and warranties of
the Sellers made herein or pursuant hereto. Until the Closing
Date or the termination of this Agreement, whichever shall
occur first, and after the termination of this Agreement in
the event this Agreement does not close, HULL will hold in
confidence all information so obtained by HULL as a result of
such examination.
(j) Compliance. The Sellers shall cause the Company and
its officers and employees to comply with all applicable
provisions of this Agreement.
6. Conditions Precedent to Obligations of HULL. All
obligations of HULL under this Agreement are subject to the
fulfillment, prior to or at the Closing Date, of the
following conditions which must be satisfied as herein
specified. In connection with any item to be furnished by
the Sellers prior to the Closing Date to HULL under this
Paragraph, each such item shall be furnished within five days
from the date hereof, and HULL, as well as the counsel of
HULL, must be reasonably satisfied with any such item within
10 days after receipt of any such item. If HULL, or the
counsel of HULL, is not reasonably satisfied within 10 days
after receipt of any such item to be furnished under this
Paragraph, then HULL may, at its sole option, declare that
this Agreement is null and void, whereupon no party shall
have any liability to the other hereunder or in connection
with any other instrument executed in connection with the
transactions contemplated herein. As used herein, the term
reasonably satisfied shall mean that if any item furnished
under this Paragraph is not at material variance with
information previously furnished to HULL or if such item is
as specified in this Paragraph, then the conditions of this
Paragraph shall be deemed to have been satisfied. Such
conditions are as follows:
(a) Representations and Warranties True at the Closing
Date. The representations and warranties of the Sellers
herein shall be deemed to have been made again as of the
Closing Date, and then be true and correct, subject to any
changes contemplated by this Agreement. The Sellers shall
have performed all of the obligations to be performed by
them hereunder on or prior to the Closing Date.
(b) Proof of Authority. HULLs counsel shall have
received evidence reasonably sufficient to such counsel
that the Sellers have all requisite authorizations necessary
for consummation by the Sellers of the transactions
contemplated hereby, and there has not been issued, and there
is not in effect, any injunction or similar legal order
prohibiting or restraining consummation of any of the
transactions herein contemplated, and no legal or
governmental action, proceeding or investigation which might
reasonably be expected to result in any such injunction or
order is pending.
(c) Deliveries at the Closing Date. The Sellers shall
have delivered to HULL at the Closing Date all of the
documents required to be delivered hereunder.
(d) Inventory. The Sellers shall take a physical inventory
for each item on the perpetual inventory system of the Company
in order to determine the value of each item in the books and
records of the Company and that each item so priced has a
realizable value equal to the amount so recorded for each
such item. The manner of pricing each item of the inventory
shall be by using the current cost, if available, and if not,
then by using the current manufacturer's regular cost sheets
made available to distributors. Provided, however, any
broken, damaged, incomplete or obsolete items and items not
then listed in the cost or the current manufacturer's regular
cost sheets shall not be included for the purposes of
determining the value of the inventory. HULL, or any of its
representatives, shall have the right to observe the taking
of such inventory and to test the results thereof. Upon
completion of such inventory, a schedule of inventory
results will be prepared by the Chief Financial Officer
of the Company and delivered to HULL. If such inventory is
not satisfactory to HULL, then HULL shall have the option
to terminate this Agreement pursuant to the terms of this
Paragraph 6.
(e) Additional Financial Statement. The Sellers shall
deliver to HULL an unaudited balance sheet of the Company
and the related statement of income and retained earnings
for the periods requested by HULL (the Additional Financial
Statement). The Additional Financial Statement shall (i)
be in accordance with the books and records of the Company;
(ii) fairly present the financial condition of the Company
at such dates and the results of its operations for the
periods therein specified; (iii) be prepared in accordance
with generally accepted accounting principles applied upon
a basis consistent with prior accounting periods; and (iv)
with respect to all contracts and commitments of the Company,
shall reflect adequate reserves for all reasonably anticipated
losses and costs in excess of anticipated income.
Specifically, but not by way of limitation, the Additional
Financial Statement shall disclose all of the debts,
liabilities, and obligations of any nature (whether absolute,
accrued, contingent, or otherwise and whether due or to become
due) of the Company on the dates therein specified (except
such debts, liabilities, and obligations as are not required
to be reflected therein in accordance with generally accepted
accounting principles) and shall include appropriate reserves
for all taxes and other liabilities accrued or due at such
dates but not yet payable. Along with the Additional
Financial Statement, the Company shall furnish to HULL a
list of all accounts receivable of the Company dated within
five days before the date of this Agreement together with
an aging analysis. If the Additional Financial Statement
is not satisfactory to HULL, then HULL shall have the option
to terminate this Agreement pursuant to the terms of this
Paragraph 6.
(f) Compensation Paid by the Company. The Sellers shall
have delivered to HULL a true and complete list as of the
date of this Agreement, certified by the Treasurer of the
Company, showing (i) the names of all employees of the
Company regardless of the amount of their compensation
together with a statement of the full amount payable to any
such person for services rendered or to be rendered to the
Company prior to the Closing Date, and the basis therefor;
(ii) the name of each bank in which the Company has an
account, or safe deposit box, and the names of all persons
authorized to draw thereon, or have access thereto.
(g) Environmental Matters. Before the Closing Date,
HULL shall have access to the properties of the Company and
the Business to perform the environmental studies that it
deems reasonably necessary. In the event that HULL shall
not be reasonably satisfied with any such environmental
studies, the Sellers shall have the right, but not the
obligation, to remedy any condition noted by HULL within
a reasonable time after written notice from HULL. If such
noted condition has not been corrected by the Closing Date,
HULL shall have the option to terminate this Agreement,
whereupon no party shall have any liability to any other
party hereunder or in connection with any other instrument
executed in relation to the transactions contemplated
herein.
(h) Certificates of Good Standing. The Sellers shall
have delivered to HULL certificates or telegrams issued
y appropriate governmental authorities evidencing the good
standing of the Company as of a date not more than 10 days
prior to the Closing Date, in the jurisdiction of its
incorporation.
(i) Resolutions. HULLs counsel shall have received
certified resolutions of a meeting of the Board of Directors
of the Company pursuant to which this Agreement and the
transactions contemplated hereby were duly and validly
approved, adopted and ratified by the Sellers, as the sole
Unitholders of the Company, all in form and content
satisfactory to such counsel, authorizing (i) the execution,
delivery and performance of this Agreement, (ii) such other
documents and instruments as shall be necessary to
consummate the transactions contemplated hereby and thereby,
and (iii) all actions to be taken by the Sellers hereunder.
(j) Status of Litigation. With respect to any matters
affecting the Company and in litigation, HULL shall have
the right to make an independent review of such matters.
If HULL is not satisfied with such review, then HULL shall
have the option to terminate this Agreement pursuant to
the terms of this Paragraph.
(k) Tax Returns. The Sellers shall have delivered to
HULL copies of all federal and state tax returns for the
Company for the past three years including but not limited
to all income, payroll, sales, excise, use and franchise
tax returns for the Company, together with any audit
reports issued in connection with any such returns.
(l) Corporate Records, etc. The Sellers shall have
delivered to HULL copies of the Articles of Incorporation,
Bylaws, minute books, and other corporate governance
materials used since the inception of the Company.
(m) Certification. The Sellers shall have delivered to
HULL at the Closing Date a certificate dated as of the
Closing Date, executed by the Sellers, certifying that
the conditions specified in this Agreement have been
fulfilled.
(n) Resignations of Directors and Officers. The Sellers
shall have delivered to HULL at the Closing the written
resignations of all of the directors and officers of the
Company.
(o) Other Matters. All corporate and other proceedings
and actions taken in connection with the transactions
contemplated hereby and all certificates, opinions,
agreements, instruments and documents mentioned herein or
incident to any such transaction shall be satisfactory in
form and substance to HULL and its counsel, whose approval
shall not be unreasonably withheld.
7. Conditions Precedent to Obligations of the Sellers.
All obligations of the Sellers under this Agreement are
subject to the fulfillment, prior to or at the Closing
Date, of the following conditions:
(a) Representations and Warranties True at Closing Date.
The representations and warranties of HULL herein shall be
deemed to have been made again at the Closing Date, and
then be true and correct, subject to any changes
contemplated by this Agreement. HULL shall have performed
all of the obligations to be performed by HULL hereunder
on or prior to the Closing Date.
(b) Proof of Authority. Counsel for the Sellers shall
have received evidence reasonably sufficient to such
counsel that HULL has all requisite authorizations
necessary for consummation by HULL of the transactions
contemplated hereby, and there has not been issued, and
there is not in effect, any injunction or similar legal
order prohibiting or restraining consummation of any of
the transactions herein contemplated, and no legal or
governmental action, proceeding or investigation that
might reasonably be expected to result in any such
injunction or order is pending.
(c) No Orders. There has not been issued, and there
is not in effect, any injunction or similar legal order
prohibiting or restraining consummation of any of the
transactions herein contemplated, and no legal or
governmental action, proceeding or investigation which
might reasonably be expected to result in any such
injunction or order is pending.
(d) Other Matters. All corporate and other proceedings
and actions taken in connection with the transactions
contemplated hereby and all certificates, opinions,
agreements, instruments and documents mentioned herein or
incident to any such transaction shall be satisfactory in
form and substance to the Sellers and their counsel, whose
approval shall not be unreasonably withheld.
8. The Nature and Survival of Representations, Covenants
and Warranties. All statements and facts contained in any
memorandum, certificate, instrument, or other document
delivered by or on behalf of the parties hereto for
information or reliance pursuant to this Agreement, shall
be deemed representations, covenants and warranties by the
parties hereto under this Agreement. All representations,
covenants and warranties of the parties shall survive the
Closing Date and all inspections, examinations, or audits
on behalf of the parties, shall expire 18 months following
the Closing Date.
9. Indemnification by the Sellers. The Sellers agree to
indemnify and hold harmless HULL and/or the Company against
and in respect to all damages (as hereinafter defined).
Damages, as used herein shall include any claim, salary,
wage, action, tax, demand, loss, cost, expense, liability
(joint or several), penalty, and other damage, including,
without limitation, counsel fees and other costs and
expenses reasonably incurred in investigating or
attempting to avoid same or in opposition to the
imposition thereof, or in enforcing this indemnity,
resulting to HULL and/or the Company from any inaccurate
representation made by or on behalf of the Sellers in or
pursuant to this Agreement, breach of any of the
warranties made by or on behalf of the Sellers in or
pursuant to this Agreement, or breach or default in the
performance by the Sellers of any of the obligations to
be performed by him hereunder.
10. Records of the Company. For a period of five years
following the Closing Date, the books of account and
records of the Company pertaining to all periods prior to
the Closing Date shall be available for inspection by the
Sellers for use in connection with tax audits.
11. Termination. In the event of the termination of this
Agreement prior to the Closing Date, except with respect
to the obligation of confidentiality described below, no
party shall have any obligation to any other in connection
herewith or in connection with any other documents which
may have been executed by any party with respect to the
transactions contemplated by this Agreement whether or
not such documents are described herein. Provided,
however, in the event of termination of this Agreement,
the Sellers and HULL shall, and shall cause its principals,
officers and other personnel and authorized representatives
to, hold in confidence, and not disclose to any other party
without the other partys prior consent, all information
received by any of such party hereto from any other party
hereto in connection with the transactions contemplated
hereby except as may be required by applicable law or as
otherwise contemplated herein.
12. Cooperation. The parties hereto will each cooperate
with the other, at the others request and expense, in
furnishing information, testimony, and other assistance in
connection with any actions, proceedings, arrangements,
disputes with other persons or governmental inquiries or
investigations involving the parties hereto or the
transactions contemplated hereby.
13. Further Conveyances and Assurances. After the Closing
Date, the Sellers, the Company, and HULL will, without
further cost or expense to, or consideration of any nature
from the other, execute and deliver, or cause to be
executed and delivered, to the other, such additional
documentation and instruments of transfer and conveyance,
and will take such other and further actions, as the other
may reasonably request as more completely to consummate
the transactions contemplated hereby.
14. Closing Date. The Closing of the purchase and sale
of the Company Units contemplated hereunder (the Closing)
shall be on December 4, 2012, subject to acceleration or
postponement from time to time as the parties hereto may
mutually agree (the Closing Date). The Closing shall
take place at a location determined by the Parties.
15. Deliveries on the Closing Date by the Sellers. At
the Closing, the Sellers shall deliver the following:
a) Certificates representing all Units of the Company,
duly endorsed by the Sellers, free and clear of all
liens, claims, encumbrances, and restrictions of every
kind except for the restrictive legend required by Rule
144 promulgated under the Securities Act, if applicable;
and b) the certificate(s), resolutions, agreements and
schedules as described herein and Sellers shall deliver
ny other document which may be necessary to carry out the
intent of this Agreement in reasonably satisfactory in
form and substance to HULL and its counsel.
16. Deliveries on the Closing Date by HULL. At the
Closing, HULL shall deliver the following: a) The
consideration described herein; and b) the certificate(s),
resolutions, agreements and schedules as described herein
and Sellers shall deliver any other document which may be
necessary to carry out the intent of this Agreement in
17. No Assignment. This Agreement shall not be assignable
by any party without the prior written consent of the other
parties, which consent shall be subject to such partys
sole, absolute and unfettered discretion.
18. Brokerage. The parties hereto agree to indemnify and
hold harmless each other against, and in respect of, any
claim for brokerage or other commissions relative to this
Agreement, or the transactions contemplated hereby, based
in any way on agreements, arrangements, understandings or
contracts made by either party with a third party or
parties whatsoever.
19. Benefit. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto, and their
respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
20. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and delivered
personally or sent by registered or certified United States
mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to the Sellers, addressed to
Jeffrey Canouse, 1111 Alderman Drive, Suite 210, Alpharetta,
GA 30005; and if to HULL, addressed to 1111 Alderman Drive,
Suite 210, Alpharetta, GA 30005, Any party hereto may
change its address upon 10 days written notice to any other
party hereto.
21. Waiver. No course of dealing on the part of any party
hereto or its agents, or any failure or delay by any such
party with respect to exercising any right, power or
privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such
right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power
or privilege hereunder or thereunder.
22. Cumulative Rights. The rights and remedies of any
party under this Agreement and the instruments executed or
to be executed in connection herewith, or any of them,
shall be cumulative and the exercise or partial exercise
of any such right or remedy shall not preclude the
exercise of any other right or remedy.
23. Invalidity. In the event any one or more of the
provisions contained in this Agreement or in any instrument
referred to herein or executed in connection herewith shall,
for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect the other provisions
of this Agreement or any such other instrument.
24. Incorporation by Reference. The Exhibits and
Schedules to this Agreement referred to or included herein
constitute integral parts to this Agreement and are
incorporated into this Agreement by this reference.
25. Multiple Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one
and the same instrument. A facsimile transmission or PDF
copy of this signed Agreement shall be legal and binding
on all parties hereto.
26. Controlling Agreement. In the event of any conflict
between the terms of this Agreement or any of the Other
Agreements or exhibits referred to herein, the terms of
this Agreement shall control.
27. Press Releases and Public Announcements. No party
shall issue any press release or make any public
announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written
approval of the other parties; provided, however, that any
party may make any public disclosure it believes in good
faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities
(in which case the disclosing party will use its efforts to
advise the other parties prior to making the disclosure).
28. Entire Agreement. This instrument and the attachments
hereto contain the entire understanding of the parties and
may not be changed orally, but only by an instrument in
writing signed by the party against whom enforcement of any
waiver, change, modification, extension, or discharge is
sought.
29. Construction; Venue. This Agreement shall be construed
in accordance with the laws of the State of Georgia, United
States of America. Notwithstanding either partys place of
business, the venue for any lawsuit arising as a result of
this Agreement shall be Atlanta, Georgia.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first written above.
Unitholders of Title King, LLC Hull Energy, Inc.
List: Jeffrey Canouse By: /s/Jeffrey Canouse
Print: Jeffrey Canouse
Its: President
Date: December 4, 2012
Title King, LLC
By: /s/Jeffrey Canouse
Print: Jeffrey Canouse
Its: Owner and Sole Unitholder
Date: December 4, 2012
11
Terra HULL 1
KIMR24
