SECOND AMENDMENT TO THE ASSET PURCHASE AGREEMENT
Exhibit
10.12
SECOND
AMENDMENT TO THE ASSET PURCHASE AGREEMENT
THIS
SECOND AMENDMENT to the Asset Purchase Agreement by and among River Hawk
Aviation, Inc., a closely held Delaware corporation (“Seller” or the “Company”)
and Xxxxxx Xxxxxxxx, a resident of Texas (“Xxxxxxxx” or the “Shareholder”) on
the one hand, and River Hawk Aviation, Inc., f/k/a Viva International, Inc.,
a
Nevada corporation, on the other hand (“Buyer”) dated September 19, 2006, as
amended January 10, 2007 (the “Agreement”), entered into this 29th day of
August,
2007, amends the Agreement as follows (the “2nd
Amendment”):
RECITALS
A. Seller,
the Shareholder and Buyer (collectively, the “Parties”) entered into an Asset
Purchase Agreement on September 19, 2006, as amended January 10,
2007;
B. In
furtherance of the Buyers ability to fulfill its obligations in a manner
equitable to the Parties to the Agreement, the Parties wish to amend the
Agreement in order to restate the terms of consideration; and;
C. Unless
otherwise defined in this 2nd Amendment,
capitalized terms have the meaning as defined in the Agreement.
Accordingly,
the Parties hereby agree as follows:
1. Section
2.3 of the Agreement is hereby deleted in its entirety and replaced as
follows:
2.3
CONSIDERATION
Consideration.
On the Closing Date, Buyer shall purchase from Seller the Assets of Seller
in
exchange the following consideration (the “Purchase Price”):
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(a)
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Seller
shall receive three million, five hundred thousand (3,500,000) shares
of
Series A Preferred Stock (“Series A
Preferred”);
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(b)
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Seller
shall receive two million (2,000,000) shares of eight percent (8%)
Cumulative Series B Convertible Preferred Stock of Buyer (the
“Series B Preferred”), which shall have the following
designations:
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(i)
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an
annual, cumulative coupon rate of
8%;
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(ii)
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holders
of the Series B Preferred shall have the option to
either (a) elect to convert the Series B Preferred shares into common
stock of the Company at a ratio of 1:1, on an all or nothing basis
or (b)
upon 30 days notice put the Series B Preferred shares to the Company
or
the Company’s designee at a purchase price of One dollar ($1.00) per share
(the “Conversion Price”) according to the following schedule (which
schedule is not be part of the filed designations but is enforceable
under
this Agreement) on an all or nothing
basis:
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1.
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five
hundred ninety thousand (590,000) shares of Series B Preferred at
any time
following the Closing;
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2.
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four
hundred seventy thousand (470,000) shares of Series B Preferred at
any
time following twelve (12) months from the Effective
Date;
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3.
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four
hundred seventy thousand (470,000) shares of Series B Preferred at
any
time following twenty-four (24) months from the Effective Date;
and
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4.
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four
hundred seventy thousand (470,000) shares of Series B Preferred at
any
time following thirty-six (36) months from the Effective
Date.
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(iii)
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Buyer
shall have the option, upon five (5) days notice, to repurchase,
the
Series B Preferred shares from the Series B Preferred shareholders,
unless
the shareholder(s) elects at such time to convert the shares into
common
stock of the Company at the Conversion Price, in accordance with
the
schedule listed in Section 1.01(b)(ii), above;
and
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2. Section
2.6 of the Agreement is hereby deleted in its entirety and substituted therefore
as is the following:
Closing. This
Agreement shall be closed upon the mutual execution of this 2nd Amendment
to the
Agreement (the “Closing”).
3. Except
as otherwise provided herein, all other terms of the Agreement, and prior
amendments thereto, remain in full force and effect.
9. This
Amendment sets forth the entire understanding and agreement of the parties,
and supersedes any and all prior contemporaneous oral or
written agreements or understandings between the parties if in conflict with
the
subject matter of this Amendment. This Amendment shall be governed by
the laws of the State of Michigan.
10.
This
Amendment may be executed by facsimile and in two (2) or more counterparts,
each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN
WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed
as
of the date listed above.
RIVER
HAWK AVIATION, INC.
a
Nevada corporation (Buyer).
/s/
Xxxxxx Xxxxx
___________________________
By: Xxxxxx
Xxxxx
Its: Chief
Financial Officer and Director
RIVER
HAWK AVIATION, INC.
a
Delaware corporation (Seller).
/s/
Xxxxxx Xxxxxxxx
___________________________
By:
Xxxxxx Xxxxxxxx
Its:
President
