ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into this
27th day of October, 2006, by and among TRI GLOBAL HOLDINGS, LLC, a
Kentucky
limited liability company ("Seller" or "Tri Global"), and PLATINA
ENERGY
GROUP, INC., a Delaware corporation ("Purchaser").
EXPLANATORY STATEMENT
A. As part of
its business, Seller owns the assets as described in Section
1.1 below (the "Assets").
B.
Purchaser desires to purchase and Seller desires to sell and
transfer to Purchaser, all rights, title and interest in and to
all
the Assets.
NOW, THEREFORE, for and in consideration of the Explanatory
Statement
that shall be deemed a substantive part of this Agreement, and the
mutual
covenants, promises, agreements, representations and warranties
contained
herein, and other good and valuable consideration the receipt
and
sufficiency of which is hereby acknowledged by the parties, the
parties
hereto agree, represent and warrant as follows:
1. Purchase and Sale
of Assets.
1.1. Assets.
Purchaser agrees to
purchase from Seller, and Seller agrees to
sell, transfer and assign to Purchaser free and clear of any and
all
mortgages, liens, security interests, encumbrances, pledges,
leases,
equities, claims, charges, restrictions, conditions, conditional
sale
contracts and any other adverse interests of any kind whatsoever,
except
as set forth in Schedule 1.2 attached hereto, all of the Assets, as
set
forth in Schedule 1.1 (the "Assets").
1.2. Purchase Price for Assets. The purchase price for the Assets
is Twenty
Two Thousand Five Hundred (22,500) shares (the "Shares") of the
Purchaser's
Series B Preferred Stock (the "Purchase Price") to be issued and
delivered to
Seller at Closing as defined below.
1.3. Inspection.
Purchaser or its
designee shall have the right to enter
upon and inspect the Assets and all documents relating in any
manner to the
Assets at Purchaser's expense.
2. Liabilities of
Seller. Purchaser has
not and shall not assume any
debts, liabilities and obligations of Seller and the Seller shall
be and
remain solely liable and responsible for all debts, obligations,
duties, and
liabilities of the Seller and shall indemnify and hold Purchaser
harmless
therefrom.
3. Creditor Matters.
The transactions
reflected by this Agreement are
intended by the parties to be a contemporaneous exchange between
the Seller
and the Purchaser accomplished at Closing. The transactions reflected in
this
Agreement represent a regularly conducted, noncollusive sale, and
have been
negotiated by the parties in an arm's length manner with due regard
for the
respective obligations of the parties and value of the assets
transferred.
4. Brokerage
Commissions. Each
party hereto represents to the other parties
that it, he or she, as applicable, has not incurred any obligation
or
liability, contingent or otherwise, for brokerage fees, finder's
fees, agent's
commissions, or the like in connection with this Agreement or the
transactions
reflected hereby.
5. Representations and
Warranties.
5.1.
Representations and Warranties of Seller. The Seller represents and
warrants to the Purchaser as of the date hereof and as of the
Closing on the
Closing Date that:
5.1.1. Due Organization; Good Standing, Authority of Seller.
The Seller is a
limited liability company duly organized, validly existing and in
good
standing under the laws of the State of Kentucky. The Seller has
full
right, corporate power and authority to own, lease, operate and
sell, transfer
and convey any or all of its properties and assets, and to carry on
its
business. The Seller
is duly licensed, qualified and authorized to do
business in each jurisdiction in which the properties and assets
owned by
it or the nature of the business conducted by it make such
licensing,
qualification and authorization legally unnecessary. The Seller is not in
breach or violation
of, and the execution, delivery and performance of
this Agreement will not result in a breach or violation of, any of
the
provisions of the Seller's Articles of Organization amended to the
date of
this Agreement (the "Articles") or bylaws, as amended to the date
of this
Agreement (the "Bylaws") or any valid contracts or lawful
agreements to which
the Seller is a party.
No actions, proceedings or transactions have been
commenced or undertaken by the Seller which (i) give or would give
rights to
any person or entity, other than the Purchaser, in any of the
Assets or (ii)
interfere with the consummation of the transactions contemplated by
this
Agreement.
5.1.2. Authorization and Validity of Agreements. The Seller has the legal
capacity, right, power and authority to enter into this Agreement.
The
Seller has the full right, power and authority to execute,
acknowledge, seal
and deliver this Agreement and to perform the transactions
contemplated by
this Agreement. The
execution, acknowledgment, sealing and delivery of this
Agreement by the Seller and the performance by the Seller of the
transactions
contemplated hereby have been duly and validly authorized by all
necessary
corporate action. This
Agreement has been duly executed, acknowledged and
delivered by the Seller and is the legal, valid and binding
obligation of
Seller, enforceable against the Seller in accordance with its
terms.
5.1.3. Agreement Not
in Conflict with Other Instruments; Required Approvals
Obtained. The
execution, acknowledgment, sealing, delivery, and performance
of this Agreement by
the Seller, and the consummation of the transactions
reflected by this Agreement will not (a) violate or require any
consent,
approval, or filing under, (i) any common law, law, statute,
ordinance,
rule or regulation (collectively referred to throughout this
Agreement as
"Laws") of any federal, state or local government (collectively
referred
to throughout this Agreement as "Governments") or any agency,
bureau,
commission, instrumentality or judicial body of any Governments
(collectively
referred to throughout this Agreement as "Governmental Agencies"),
or (ii) any
judgment, injunction, order, writ or decree of any court,
arbitrator,
Government or Governmental Agency by which the Seller, any of the
Purchased
Assets or any of the Seller and Seller's Shareholders are bound;
(b) conflict
with, require any consent, approval, or filing under, result in the
breach or
termination of any provision of, constitute a default under, or
result in the
creation of any claim, security interest, lien, charge, or
encumbrance upon
any of the Assets pursuant to, (i) the Seller's Articles or Bylaws,
(ii) any
indenture, mortgage, deed of trust, license, permit, approval,
consent,
franchise, lease, contract or other instrument, document or
agreement to
which the Seller is a party or by which the Seller or any of the
Assets is
bound, or (iii) any judgment, injunction, order, writ or decree of
any court,
arbitrator, Government or Governmental Agency by which the Seller
or any of
the Assets is bound; and all permits, licenses and authorizations
of any
Government or Governmental Agency required to be obtained prior to
the Closing
have been obtained and were in full force and effect as of the
Closing Date.
5.1.4. Conduct of Business in Compliance with Regulatory and
Contractual
Requirements. The
Seller has conducted its business in compliance with
all applicable Laws of the Government and Governmental Agencies and
in
compliance with all restrictions, covenants, agreements,
contracts,
commitments, understandings and arrangements applicable with
respect thereto.
5.1.5. Legal
Proceedings. Except as
set forth in Schedule 6.1.5. there is
no action, suit, proceeding, claim or arbitration, or any
investigation by
any person or entity, including, but not limited to, any Government
or
Government Agency, (i) pending, to which the Seller is a party, or
(ii)
challenging the Seller's right to execute, acknowledge, deliver,
perform
under or consummate the transactions reflected by this Agreement,
or
(iii) asserting any right with respect to any of the Assets, and,
in each such
case, there is no known basis for any such action, suit,
proceeding, claim,
arbitration or investigation.
5.1.6. Tax Matters.
The Seller is not a
party to, and is not aware of, any
pending or threatened action, suit, proceeding, or assessment
against it for
the collection of taxes by any Government or Governmental Agency.
The Seller
has duly and timely filed with all appropriate Governments and
Governmental
Agencies, all tax returns, information returns, and reports
required to be
filed by the Seller.
The Seller has paid in full all taxes, interest,
penalties, assessments and deficiencies owed by the Seller to all
taxing
authorities. All taxes
and other assessments and levies which the Seller is
required by applicable Law to withhold or to collect have been duly
withheld
and collected and have been paid over to the proper Governments
and
Governmental Agencies or are properly held by the Seller for such
payment.
All claims by the IRS or any state taxing authorities for taxes due
and
payable by the Seller have been paid for the liabilities for unpaid
taxes
(whether or not disputed). The Seller is not a party to, and
is not aware
of, any pending or threatened action, suit, proceeding, or
assessment against
it for the collection of taxes by any Government or Governmental
Agency.
5.1.7. Title of
Assets. The Seller
currently and as of the Closing Date has
and will have, and Purchaser will acquire at Closing, sole and
exclusive,
good and marketable title to all of the Assets free and clear of
any and
all pledges, claims, threats, liens, restrictions, leases, security
interests,
charges and encumbrances, except as disclosed on Schedule 1.2
attached
hereto and made a part hereof.
5.1.8. Adverse
Conditions. The Seller
does not have any knowledge of any
past, present or future condition, state of facts or circumstances
which has
affected or which might affect adversely the Purchaser's full use
of the
Assets except as set forth in this Agreement.
5.1.9. Full
Disclosure. This
Agreement (including the Schedules and Exhibits
hereto) does not contain any untrue statement of a material fact or
omit to
state any material fact necessary to make the statements contained
herein not
misleading. There is
no fact known to the Seller which is not disclosed in
this Agreement which does or may materially adversely affect the
accuracy of
the representations and warranties contained in this Agreement.
5.1.10. Disclaimer of
Fraudulent Intent. The
transactions described in this
Agreement have been undertaken by Seller in good faith, considering
its
obligations to any person or entity to whom the Seller owes a right
to
payment, whether or not the right is reduced to judgment,
liquidated,
unliquidated, fixed, contingent, matured, unmatured, claims
(persons or
entities holding such claims are called "Creditors" under this
section), and
have undertaken these transactions without any intent to hinder,
delay or
defraud any such Creditors, and either have disclosed in the
ordinary course
of business or will undertake to disclose to all such Creditors the
existence
of this transaction, and has not and will not conceal this
transaction or the
proceeds of this transaction from any such Creditors. Seller further
represents and warrants that: (i) it will not retain possession or
control of
any of the property transferred as reflected in this Agreement;
(ii) the
Seller has not been sued or threatened with suit by any Creditor
prior to the
execution of this Agreement; (iii) the Seller has not removed or
concealed any
assets from any Creditors; (iv) the Seller has not incurred any
individual or
aggregate debt that is significantly greater than the normal and
customary
debts of the Seller in the ordinary course of business; and (v) the
Seller
believes in good faith that Seller will receive consideration
reasonably
equivalent to the value of the assets transferred under this
Agreement.
5.1.11.
Representations as to Solvency. Seller is solvent in that the
fair value of its assets exceeds its liabilities and it is able to
pay its
lawful debts and obligations as they mature.
5.1.12 Restricted
Securities. Seller
acknowledges that all of the
shares of Series B Preferred Stock to be issued by Purchaser as the
Purchase
Price in accordance with Section 1.2 above will be restricted
securities and
none of su