Stock Purchase Agreement

Exhibit 10.1


STOCK PURCHASE AGREEMENT


This STOCK PURCHASE AGREEMENT (this "Agreement"), is entered as of April 3, 2006, by and among Energy Venture, Inc., a Delaware corporation ("Purchaser"), ABC Funding, Inc., a Nevada corporation (the "Company"), Harold Barson (the "Primary Seller") and the Sellers (as such term is defined below).


RECITALS


A. The Primary Seller owns nine million one hundred sixty thousand (9,160,000) shares of common stock of the Company (the "Common Stock"); and


B. The Purchaser desires to purchase nine million four hundred sixty-eight thousand (9,468,000) shares of Common Stock from the Primary Seller and certain other shareholders of the Company (the "Other Sellers," collectively with the Primary Seller, the "Sellers"), on the terms and conditions set forth herein.


NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I


DEFINITIONS


1.1 Definitions. (a) As used in this Agreement, the following defined terms shall have the meanings indicated below:


"Affiliate" means, as applied to any person, any other person directly or indirectly controlling, controlled by, or under common control with, that person. For purposes of this definition control (including with correlative meanings, the terms "controlling", "controlled by", and "under common control with") as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that person or entity, whether through the ownership of voting securities, by contract, or otherwise.


"Assets and Properties" of any person means all assets and properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, whether absolute, accrued, contingent, fixed or otherwise and wherever situated), including, without limitation, the goodwill related to any of the foregoing, operated, owned or leased by or in the possession of such person.


"Books and Records" of any person means all files, documents, instruments, papers, books and records relating to the business, operations, condition of (financial or other), results of operations and assets and properties of such person, including, without limitation, financial statements, Tax Returns and related work papers and letters from accountants, budgets, pricing guidelines,


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Exhibit 10.1


ledgers, journals, deeds, title policies, minute books, stock certificates and books, stock transfer ledgers, Contracts, licenses, customer and subscription lists, computer files and programs, retrieval programs, editorial files, operating data and plans and environmental studies and plans


"Code" means the Internal Revenue Code of 1986, as amended.


"Contract" means any agreement, lease, evidence of indebtedness, mortgage, indenture, security agreement or other contract (whether written or oral).


"Environmental Law" means any and all federal, state, local, provincial and foreign, civil and criminal laws, statutes, ordinances, orders, common law, codes, rules, regulations, Environmental Permits, policies, guidance documents, judgments, decrees, injunctions, or agreements with any Governmental or Regulatory Authority, relating to the protection of health and the Environment, worker health and safety, and/or governing the handling, use, generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging, labeling, or Release of Hazardous Materials, whether now existing or subsequently amended or enacted, including but not limited to: the Clean Air Act, 42 U.S.C. 7401 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.; the Hazardous Material Transportation Act 49 U.S.C. 1801 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act 7 U.S.C. 136 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; the Occupational Safety & Health Act of 1970, 29 U.S.C. 651 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.; and the state analogies thereto, all as amended or superseded from time to time; and any common law doctrine, including but not limited to, negligence, nuisance, trespass, personal injury, or property damage related to or arising out of the presence, Release, or exposure to a Hazardous Material.


"Environmental Permit" means any federal, state, local, provincial, or foreign permits, licenses, approvals, consents or authorizations required by any Governmental or Regulatory Authority under or in connection with any Environmental Law and includes any and all orders, consent orders or binding agreements issued or entered into by a Governmental or Regulatory Authority under any applicable Environmental Law.


"Executing Sellers" means the Primary Seller together with the other Sellers who have executed this Agreement.


"GAAP" means generally accepted accounting principles as currently in effect in the United States and applied in a consistent manner.


"Governmental or Regulatory Authority" means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision.


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Exhibit 10.1


"Hazardous Material" means petroleum, petroleum hydrocarbons or petroleum products, petroleum by-products, radioactive materials, asbestos or asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea formaldehyde, lead or lead-containing materials, polychlorinated biphenyls; and any other chemicals, materials, substances or wastes in any amount or concentration which are now or hereafter become defined as or included in the definition of "hazardous substances", "hazardous materials", "hazardous wastes", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", toxic pollutants", "pollutants", "regulated substances", "solid wastes", or "contaminants" or words of similar import, under any Environmental Law.


"Indemnified Party" means any person claiming indemnification under any provision of Article IX.


"Indemnifying Party" means any person against whom a claim for indemnification is being asserted under any provisions of Article IX.


"Post-Closing Period" means any taxable period or portion thereof beginning after the Closing Date or, as the context may require, all such periods. If a taxable period begins on or before the Closing Date and ends after the Closing Date, then the portion of the taxable period that begins on the day following the Closing Date shall constitute a Post-Closing Period.


"Pre-Closing Period" means any taxable period or portion thereof ending on or before the Closing Date or, as the context may require, all such periods. If a taxable period begins on or before the Closing Date and ends after the Closing Date, then the portion of the taxable period to the end of the Closing Date shall constitute a Pre-Closing Period.


"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of a Hazardous Material into the Environment.


"Taxes" means all taxes, including without limitation all federal, state, local, foreign and other income, franchise, sales, use, Transfer Taxes, payroll, withholding, environmental, alternative or add-on minimum and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever, and all estimated taxes, deficiency assessments, additions to tax, penalties, and interest, and any contractual or other obligation to indemnify or reimburse any person with respect to any such assessment.


"Tax Return" means any report, statement, return, declaration of estimated tax or other information required to be supplied by or on behalf any person to a taxing authority in connection with Taxes, or with respect to grants of tax exemption, including any consolidated, combined, unitary, joint or other return filed by any person that properly includes the income, deductions or other tax information concerning any person.


(b) Unless the context of this Agreement otherwise requires: (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms hereof, herein, hereby, hereto and derivative or similar words refer to this


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Exhibit 10.1


entire Agreement; and (iv) the terms Article or Section refer to the specified Article or Section of this Agreement. All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.


ARTICLE II


PURCHASE AND SALE OF THE SHARES


2.1 Purchase and Sale of the Shares. On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Primary Seller shall sell, transfer, convey, assign and deliver to the Purchaser, and cause the Other Sellers to, and the Other Sellers shall, sell, transfer, convey, assign and deliver to the Purchaser, and the Purchaser will purchase from the Sellers, free and clear of all liens, pledges, encumbrances, charges, restrictions on transfer, agreements or claims, all of the Sellers' right, title and interest in and to an aggregate of nine million four hundred sixty eight thousand shares of the Common Stock of the Company (the "Subject Shares"). The Sellers will include the shareholders of the Company set forth on Exhibit A and each Seller will sell, transfer, convey, assign and deliver to the Purchaser the shares of Common Stock set forth opposite such Seller's name on Exhibit A, including such shares that have been registered for sale under the Securities Act of 1933, as amended (the "Securities Act"), as indicated on Exhibit A.


2.2 Purchase Price. The aggregate purchase price (the "Purchase Price") for the Subject Shares shall be Five hundred thousand dollars ($500,000), of which $25,000 (the "Downpayment") shall be deposited by Purchaser into escrow with Eaton & Van Winkle (the "Escrow Agent") simultaneously with the execution of this Agreement.


2.3 Closing. Subject to the provisions of this Agreement, the consummation of the transactions contemplated by this Agreement (the "Closing") shall be held at the offices of Eaton & Van Winkle LLP, 3 Park Avenue, New York, New York at 10:00 A.M. (New York, New York time), on April 5, 2006, or at such other date, place or time as the parties shall otherwise mutually agree upon (the date of the Closing being referred to herein as the "Closing Date") or in the absence of such agreement on such date as Purchaser shall advise the Seller on no less than three business days notice. All Closing transactions shall be deemed to take place simultaneously, and no Closing transaction shall be deemed consummated until all transactions to take place at the Closing have been consummated.


2.4 Closing Deliveries. At the Closing, the Purchaser will pay each Seller the portion of the Purchase Price allocable to the Subject Shares being transferred by such Seller by check, subject to collection, or by wire transfer of immediately available funds to such bank and account therein as each Seller may reasonably direct by written notice delivered to the Purchaser at least two (2) Business Days before the Closing Date. Simultaneously, each of the Sellers will deliver or cause to be delivered to the Purchaser stock certificates evidencing the Subject Shares to be sold by such Seller, duly endorsed in blank


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Exhibit 10.1


or accompanied by stock powers duly executed in blank, and the Company will deliver or cause to be delivered to the Purchaser the minute books, stock transfer books and corporate seal of the Company. At the Closing, there shall also be delivered to Seller and Purchaser the certificates and other documents and instruments required to be delivered under Article IX.


2.5 Further Assurances; Post-Closing Cooperation. At any time or from time to time after the Closing, at the Purchaser's request and without further consideration other than reimbursement of reasonable expenses, the Sellers shall execute and deliver to the Purchaser such other instruments of sale, transfer, conveyance, assignment and confirmation, provide such materials and information and take such other actions as the Purchaser may reasonably deem necessary or desirable in order more effectively to transfer, convey and assign to the Purchaser, and to confirm the Purchaser's title to, all of the Shares, and, to the fullest extent permitted by Law, to assist the Purchaser in exercising all rights with respect to the Shares.


ARTICLE III


REPRESENTATIONS AND WARRANTIES OF PRIMARY SELLER AND THE COMPANY


The Executing Sellers and, by delivery of the certificates representing their Subject Shares, each of the Other Sellers, represent and warrant to the Purchaser, severally as to the matters set forth in Sections 3.1 through 3.3, that the statements contained in this Article are correct and complete as of the date hereof and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date hereof throughout this Article):


3.1 Ownership of Subject Shares. (a) Each of the Sellers owns of record and beneficially all of the Subject Shares set forth opposite such Seller's name on Exhibit A hereto, free and clear of all liens, pledges, encumbrances, charges, restrictions on transfer, agreements or claims, subscriptions, options, warrants, calls, proxies, rights, commitments, restrictions or agreements of any kind and has full power and legal right to sell, assign, transfer and deliver the same. Such Seller is not a party to any voting trust, proxy or other agreement with respect to any of the Subject Shares. Assuming the Purchaser has the requisite power and authority to be the lawful owner of the Subject Shares, upon delivery to the Purchaser of certificates representing the Subject Shares (duly endorsed for transfer or with properly executed stock powers attached thereto), and upon each of the Sellers receipt of his allocable portion of the Purchase Price, good and valid title to the Subject Shares will pass to the Purchaser, free and clear of all liens, pledges, encumbrances, charges, restrictions on transfer, agreements or claims, subscriptions, options, warrants, calls, proxies, rights, commitments, restrictions or agreements of any kind.


(b) All of the Subject Shares (i) are duly authorized, validly issued, fully paid and non-assessable, (ii) were not issued in violation of any preemptive or other rights, and (iii) were issued in compliance with all federal and applicable state securities laws.


(c) There are no outstanding offers, options, warrants, rights, calls, commitments, obligations (verbal or written), conversion rights, plans or other agreements (conditional or unconditional) of any character providing for, requiring or permitting the offer, sale, purchase or issuance of any of the Subject Shares owned by any Seller.


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Exhibit 10.1


(d) None of the Sellers is party to any Contract, nor are the Subject Shares subject to, or bound or affected by, any provision of the Company's Articles of Incorporation, By-Laws or other corporate restriction, or any order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any kind or character, which would, individually or in the aggregate, adversely affect the Subject Shares.


3.2 Due Execution and Delivery. Each of the Sellers signatory hereto has full power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. When executed and delivered in the manner contemplated herein or confirmed by a Seller by the delivery of the certificate representing his Subject Shares, this Agreement will be duly and validly executed and delivered, or confirmed, by each of the Sellers. This Agreement constitutes a valid and binding obligation of each of the Sellers signatory hereto enforceable against each of them in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditor's rights generally.


3.3 No Violation. The execution and delivery of this Agreement do not, and the performance of this Agreement by each of the Sellers and the consummation by each of the Sellers of the transactions contemplated hereby will not, with or without the giving of notice and the lapse of time, or both, (a) violate any provision of law, statute, rule, regulation or executive order to which any Seller is subject; (b) violate any judgment, order, writ or decree of any court applicable to any Seller; or (c) result in the breach of or conflict with any term, covenant, condition or provision of, result in the modification or termination of, constitute a default under, or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any Seller pursuant to any corporate charter, by-law, commitment, contract or other agreement or instrument, including any Contracts, to which any of the Sellers is a party or by which any Seller or any Seller's Assets and Properties is or may be bound or affected.


The Executing Sellers, represent and warrant to the Purchaser, jointly and severally as to the matters set forth in the remainder of this Article, that the statements contained in the remainder of this Article are correct and complete as of the date hereof and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date hereof throughout this Article):


3.4 Organization, Good Standing, Power, Etc. The Company is a corporation duly organized, validly existing and in good standing under the laws of Nevada. The Company has all requisite corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and (ii) to own or lease and operate its properties and assets, and carry on the business as it is presently being conducted.


3.5 Capital Stock.


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Exhibit 10.1


(a) The Company has authorized capital stock consisting of (i) twenty four million (24,000,000) shares of common stock, par value $.001 per share (the "Common Stock"), of which ten million (10,000,000) shares are issued and outstanding, and (ii) one million (1,000,000) shares of preferred stock, par value $.001 per share, none of which are issued or outstanding.


(b) All of the outstanding shares of Common Stock (i) are duly authorized, validly issued, fully paid and non-assessable, (ii) were not issued in violation of any preemptive or other rights, and (iii) were issued in compliance with all federal and applicable state securities laws.


(c) There are no outstanding offers, options, warrants, rights, calls, commitments, obligations (verbal or written), conversion rights, plans or other agreements (conditional or unconditional) of any character providing for, requiring or permitting the offer, sale, purchase or issuance by the Company of any shares of capital stock of the Company or any other securities (as such term is defined in the Securities Act). There are no equity securities of the Company that are reserved for issuance or are outstanding.


(d) The Company is not a party to any voting trust, proxy or other agreement with respect to any capital stock of the Company.


3.6. Subsidiaries, Divisions and Affiliates. The Company does not presently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, association or other entity.


3.7 Authorization of Agreement. The execution, delivery and performance of this Agreement by the Company has been duly authorized, no other corporate or other action being necessary, and this Agreement, when executed and delivered in the manner contemplated herein, will be duly and validly executed and delivered by the Company. This Agreement constitutes a valid and binding obligation of the Company enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditor's rights generally.


3.8 No Violation. The execution and delivery of this Agreement do not, and the performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby will not, with or without the giving of notice and the lapse of time, or both, (a) violate any provision of law, statute, rule, regulation or executive order to which the Company is subject; (b) violate any judgment, order, writ or decree of any court applicable to the Company; or (c) result in the breach of or conflict with any term, covenant, condition or provision of, result in the modification or termination of, constitute a default under, or result in the creation or imposition of any lien, security interest, charge or encumbrance upon the Company's Assets and Properties pursuant to any corporate charter, by-law, commitment, contract or other agreement or instrument, including any Contracts, to which the Company is a party or by which the Company or any of the Company's Assets and Properties is or may be bound or affected or from which the Company derives benefit.


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Exhibit 10.1


3.9 Restrictions. The Company is not a party to any Contract, nor is the Company, the outstanding shares of Common Stock or any of the Company's Assets and Properties subject to, or bound or affected by, any provision of the Company's Articles of Incorporation, By-Laws or other corporate restriction, or any order, judgment, decree, law, statute, ordinance, rule, regulation or other restriction of any kind or character, which would, individually or in the aggregate, materially adversely affect the Company's Assets and Properties.


3.10 Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, states or local governmental authority is required on the part of the Company or any Seller in order to enable the Sellers or the Company to execute, deliver and perform their respective obligations under this Agreement, except for such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Agreement. All such qualifications and filings will, in the case of qualifications, be effective on the Closing and will, in the case of filings, be made within the time prescribed by Law.


3.11 Commission Filings and Financial Statements. (a) The Company has filed all forms, reports and documents (the "SEC Documents") required to be filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities At of 1933, as amended (the "Securities Act") or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, and the rules and regulations of the Commission thereunder since December 7, 2004 through the date of this Agreement. As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the Commission thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to stated therein or necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with the applicable accounting requirements and the rules and regulations of the Commission thereunder and were prepared in accordance with GAAP and fairly presented, in all material respects, the financial position of the Company as at the dates thereof and the results of operations and cash flows of the Company for the periods then ended (subject, in the case of unaudited statements, to normal, recurring audit adjustments not material in scope or amount).


(b) The shares included under the column "Number of Registered Shares to be Sold" are the subject of the Company's registration statement with the SEC No. 333-121070 (the "Registration Statement."). The Registration Statement has been declared effective by the SEC and neither the SEC nor, to the best of the Company's knowledge, any state regulatory authority has issued, or threatened to issue, any order preventing or suspending the use of the Registration Statement or the prospectus contained therein or has instituted or, to the best of the Company's knowledge, threatened to institute any proceedings with respect to such an order.


3.12 Absence of Changes. Since December 31, 2005, there has not been (i) any material adverse change in the business, Assets and Properties or financial condition of the Company, (ii) any transaction that is material to the Company,


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Exhibit 10.1


except transactions entered into in the ordinary course of business, (iii) any obligations, direct or contingent, that is material to the Company incurred by the Company, except obligations incurred in the ordinary course of business, (iv) any change in the capital stock or outstanding indebtedness of the Company that is material to the Company, (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company, or (vi) any loss or damage (whether or not insured) to the property of the Company which has been sustained or will have been sustained which has a material adverse effect on the business, Assets and Properties or financial condition of the Company.


3.13 Title to Assets and Properties. The Assets and Properties the Company owns are owned by the Company free and clear of all mortgages, deeds of trust, liens, encumbrances and security interests except for statutory liens for the payment of current taxes that are not yet delinquent and liens, encumbrances and security interests which arise in the ordinary course of business and which do not affect material Assets and Properties of the Company. With respect to Assets and Properties the Company leases, the Company is in material compliance with such leases.


3.14 Insurance. All insurance policies owned or maintained by the Company which provide coverage for the Assets and Properties of the Company are listed on Schedule 3.14. All of the Assets and Properties of the Company which are insurable are insured under valid and enforceable policies, and the Company is not in default of any obligation under any such policy.


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