SAV Seven Angels Ventures, LLC
Seven Angels Ventures 000 Xxxxxxx Xxx.
Xxxxx X
Xxx Xxxxx, XX 00000
Ph. (000) 000-0000
Fax (000) 000-0000
PERCENTAGE INTEREST PURCHASE AND ACQUISITION AGREEMENT BY
AND BETWEEN EPIC FINANCIAL CORP. AND SEVEN ANGELS VENTURES, LLC
This Percentage Interest and Acquisition Agreement (the
"Agreement") is dated as of October 13, 2003, by and among Seven
Angels Ventures, LLC ("SAV") and Epic Financial Corp., a Nevada
corporation ("Epic Financial").
RECITALS
A. Sellers own all of SAV. SAV operates a holding company.
B. Epic Financial is a financial services holding company
focused on acquiring established and high-growth financial
services enterprises.
C. Epic Financial desires to acquire 10% (ten percent)
Interest in SAV, and Sellers desire to sell such percentage
interest to Epic Financial on the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE ONE
1. PURCHASE AND SALE.
1.1. Interest to be Purchased. Subject to the terms and
conditions in this Agreement, at the Closing Sellers will sell,
assign, transfer and deliver to Epic Financial 10% Interest in
SAV owned by Sellers, and Epic Financial will purchase the
Sellers' Interest from the Sellers. Upon the Closing, Epic
Financial will acquire 10% Interest in SAV.
1.2. Purchase Price of Interest. As consideration for the
sale of the Sellers' Interest, Epic Financial shall deliver to
Sellers, collectively, 500,000 (five hundred thousand) shares of
Epic Financial common stock (the "Purchaser's Shares). The
parties acknowledge and agree that the number of Purchaser's
Shares delivered as the Purchase Price ("Purchase Price") is a
fixed number of Purchaser's Shares and shall not be increased or
decreased, even if the market price of the Purchaser's Shares
fluctuates.
1.3. Payment of Purchase Price by Epic Financial. SAV's
receipt of the Purchase Price will be performance-based such that
after Epic Financial's initial payment of 133,000 shares of Epic
Financial common stock, Epic Financial will deliver to SAV a
number of shares proportionate (one-to-one basis) to contract
value for every contract that SAV closes, up to an additional
367,000 additional Epic Financial shares.
ARTICLE TWO
2. SELLER'S REPRESENTATIONS AND WARRANTIES. SAV hereby makes
the following representations and warranties to Epic Financial:
2.1. Organization. SAV is a limited liability company
duly organized, validly existing and in good standing under the
laws of the State of Delaware, duly authorized to carry on the
business presently conducted by it, with its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000.
2.2. Authority and Enforceability. SAV has taken all
necessary corporate action on its part as may be required to
authorize the execution, delivery and performance of this
Agreement on its behalf. Seller has the capacity to enter into,
execute, deliver and perform this Agreement. This Agreement
constitutes the valid and legally binding obligation of SAV,
enforceable in accordance with the terms hereof, subject as to
enforceability to bankruptcy, insolvency, reorganization and
other laws and judicial decisions of general applicability
relating to or affecting creditor's rights and subject to the
availability of equitability remedies and the application of
equitable principles.
2.3. No Breach or Violation. Neither the execution and
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby will violate or conflict with
(a) to SAV's knowledge, any law to which SAV is subject; or (b)
any agreement, whether oral or written, to which SAV is a party.
2.4. Title to Assets. SAV owns good and marketable
title to all of its assets and the assets are free and clear of
all Liens other than the Permitted Encumbrances.
2.5. Title to Percentage Interest. SAV is the owner,
beneficially and of record, of the Sellers' Interest, free and
clear of any Liens. The ownership percentage with respect to each
Seller is as follows: Xxxxxx Xxxxxx 50% ownership of SAV;
Arlington Holdings Ltd. 50%, which represents 100% ownership of
SAV (the "Ownership Interest").
2.6. ERISA. SAV has no program or plan subject to the
Employee Retirement Income Security Act of 1974, as amended.
2.7. Absence of Specified changes. Since October 5,
2003, there has not been any:
(a) transaction by SAV, except in the ordinary course of
business;
(b) capital expenditure by SAV exceeding $10,000;
(c) material adverse change in the financial condition,
liabilities, assets, or business of SAV;
(d) change in accounting methods or practices (including,
without limitation, any change in depreciation or amortization
policies or rates) of SAV;
(e) increase in the salary or other compensation payable or to
become payable by SAV to any of SAV's Employees or commitment or
obligation of any kind for the payment, by SAV of a bonus or
other additional salary or compensation to any such person,
except in the ordinary course of SAV's Business and consistent
with its past practices;
(f) sale or transfer of any asset of SAV, except in the ordinary
course of business;
(g) amendment or termination of any Permit, contract, agreement
or license to which SAV is a party, except in the ordinary course
of business;
(h) loan by SAV to any Person, or guaranty by SAV of any loan;
(i) mortgage, pledge, or other encumbrance of any asset of SAV;
(j) waiver or release of any right or claim of SAV, except in
the ordinary course of business;
(k) commencement, service of process, or notice of or threat of
commencement of any action, whether formal or informal, including
litigation of any kind or any governmental proceeding against or
investigation of SAV;
(l) labor dispute or claim of wrongful discharge or other
unlawful labor practice or action;
(m) any other change in condition that has had or might have a
material and adverse effect on SAV's financial condition,
business, assets or liabilities.
2.8. Tax Returns and Audits. SAV's federal and state
income tax returns have not been audited. There are no present
disputes as to taxes of any nature payable by or to SAV.
2.9. Inventory. SAV has no physical inventory.
2.10. Compliance with Laws. SAV has complied with all
federal, state and local laws and regulations to which it is
subject, and has not received notice of any violation of any
applicable federal, state or local statute, law or regulation
affecting SAV's properties or operations. Sellers and SAV are not
the subject of any subpoena, notice of violation, or
investigation of any kind.
2.11. Litigation. There is not pending, or, to the best
of Seller's knowledge, threatened, any suit, arbitration, legal,
administrative, or other proceeding, or governmental
investigation against or affecting the Sellers' Interest in SAV
or of SAV's Business, assets, or financial condition. SAV is not
presently engaged in any legal action to recover monies due to
SAV or damages sustained by SAV.
2.12. Full Disclosure. None of the representations or
warranties made in this Article Two contains or will contain any
untrue statement of a material fact, or omits a statement of
material fact necessary to make the statements made not
misleading.
ARTICLE THREE
3. EPIC FINANCIAL'S REPRESENTATIONS AND WARRANTIES. Epic
Financial hereby makes the following representations and
warranties to Seller:
3.1. Organization. Epic Financial is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada, duly authorized to carry on the business
presently conducted by it. Epic Financial is qualified to do
business as a foreign corporation in California.
3.2. Authority and Enforceability. Epic Financial has
taken all necessary corporate action on its part as may be
required under the laws of the State of Nevada and under its
Articles of Incorporation and Bylaws to authorize the execution,
delivery and performance of this Agreement on its behalf. This
Agreement constitutes the valid and legally binding obligation of
Epic Financial, enforceable against Epic Financial in accordance
with its terms, subject to bankruptcy, reorganization and other
laws and judicial decisions of general applicability relating to
or affecting creditors' rights and subject to the availability of
equitable remedies and the application of equitable principles,
including the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability is
considered at law or in equity.
3.3. No Breach or Violation. Neither the execution and
delivery by Epic Financial of this Agreement nor the consummation
of the transactions contemplated hereby will violate or conflict
with any provision of the Articles of Incorporation or Bylaws of
Epic Financial.
3.4. Inapplicability of Xxxx-Xxxxx-Xxxxxx Act. Epic
Financial has determined in good faith that the Purchase Price is
less than Fifteen Million Dollars ($15,000,000).
3.5. No Warranty As to Restrictions on Purchaser's
Shares. Epic Financial makes no warranty, and offer no counsel or
opinion with respect to the suitability of the Purchaser's Shares
for immediate sale. The Purchaser's Shares shall be restricted
shares, and shall bear a legend to that effect.
3.6. 144 Filing on Restricted Shares. Epic Financial
agrees to fully cooperate with SAV in a timely manner with its
144 filing in allowing the Epic Financial shares (Purchase Price)
to become freely tradable at the discretion of SAV, subject to
applicable Securities Laws.
ARTICLE FOUR
4. SELLERS' COVENANTS. Sellers, collectively and
individually covenant to Epic Financial that from the date of
this Agreement until the Closing Date:
4.1. Conduct of Business. Sellers will cause SAV to
carry on SAV's Business and activities diligently and in
substantially the same manner as previously carried on, and shall
not make or institute any unusual or novel methods of
manufacture, purchase, sell, lease, management, accounting or
operation that vary materially from those methods of SAV as of
the date of this Agreement.
4.2. Employees and Compensation. SAV will not make any
change in compensation payable to or to become a payable to any
officer, employee, sales agent or representative, or change any
benefits payable to any such person or modify any relevant
agreement, except in the ordinary course of business and
consistent with SAV's past practices.
ARTICLE FIVE
5. CONDITIONS TO CLOSING. The following conditions shall
apply:
5.1. Epic Financial's Conditions to Closing. Epic
Financial's obligation to purchase the Sellers' Shares is subject
to the satisfaction, or waiver of all the conditions set forth
below at or before the Closing:
(a) Accuracy of Representations and Warranties.
All representations and warranties by Sellers and SAV shall be
true in all material respects on and as of the Closing Date as if
they are made at that time.
(b) Performance. Sellers and SAV shall have
performed, satisfied, and complied in all material respects with
all covenants, agreements, and conditions required to be
performed under this Agreement on or before the Closing Date.
(c) No Material Adverse Change. During the period
from October 5, 2003 to and including the Closing Date, there
will not have been any material adverse change in the financial
condition or the results of operations of SAV, and SAV shall not
have sustained any material loss or damage to its assets that
materially affects SAV's Business.
(d) Litigation. No action, suit or proceeding
before any court or governmental body or authority, pertaining to
the transactions contemplated by this Agreement, shall have been
instituted or threatened on or before the Closing Date.
(e) Consents. Sellers and SAV shall have obtained
all consents and approvals of third parties whose consent is
required to this Agreement.
(f) Assignments. Sellers shall have transferred
and assigned to SAV, and caused such Persons as may be necessary
to transfer and assign to SAV, any and all assets listed on any
Schedule described in this Agreement.
5.2. Seller's Conditions to Closing. Seller's
obligation to sell and transfer to Epic Financial the Sellers'
Shares is subject to the satisfaction, or waiver of the following
conditions at or before the Closing:
(a) Representations. All representations and
warranties by Epic Financial shall be true in all material
respects on and as of the Closing Date as if they were made on
and as of such date.
(b) Performance. Epic Financial shall have
performed and complied with all covenants and agreements and
satisfied all conditions required by this Agreement to be
performed or satisfied on or before the Closing.
ARTICLE SIX
6. CLOSING.
6.1. Time and Place. The transfer of the Seller's
Interest by Sellers to Epic Financial, the transfer of the
Purchaser's Shares, as well as the deliveries at Closing outlined
in Paragraph 6.2 (the "Closing") shall take place at the offices
of SAV, 000 Xxxxxxx Xxx., Xxx Xxxxx, XX, at 1pm on October 17,
2003 or soon thereafter at such other time and place as the
parties may agree in writing (the "Closing Date"). The parties to
this Agreement need not be physically present at the Closing, but
must be available by telephone during the Closing.
6.2. Deliveries at Closing. The following items shall
be delivered at the Closing ("Closing Deliveries"):
6.2.1. Sellers. Sellers shall deliver to Epic Financial,
or cause to be delivered, an executed counterpart of this Agreement.
6.2.2. Epic Financial. Epic Financial shall deliver or
cause to be delivered to Sellers (a) an executed counterpart of
this Agreement and (b) one stock certificate of 133,000 shares of Epic
Financial's common stock in the name of Seven Angels Ventures, LLC.
ARTICLE SEVEN
7. GENERAL PROVISIONS
7.1. Publicity. All notices to third parties and all
other publicity concerning the transactions contemplated by this
Agreement shall be jointly planned and coordinated by and among
the parties. None of the parties shall cause or authorize any
such notice or publicity without the prior written approval of
both Epic Financial and SAV.
7.2. Brokers. The parties represent and warrant that
there are no brokers or finders known to them to be involved with
this transaction.
7.3. Expenses. Sellers and Epic Financial shall
independently bear their respective costs and expenses incurred
in the negotiation, evaluation and preparation of this Agreement
and in closing and carrying out the transactions contemplated by
this Agreement. Such expenses are not limited to professional
fees, but shall include all expenses of any kind.
7.4. Headings. The subject headings of the sections,
paragraphs and subparagraphs of this Agreement are included for
purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
7.5. Modification and Waiver. This Agreement
constitutes the entire agreement between the parties pertaining
to its subject matter and supersedes all prior and
contemporaneous agreements, representations, and understandings
of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all the
parties. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
7.6. Counterparts. This Agreement may be executed
simultaneously 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.
7.7. Variations of Pronouns. Whenever required by the
context hereof, the singular number shall include the plural, and
vice versa; the masculine gender shall include the feminine and
neuter genders; and the neuter gender shall include the masculine
and feminine genders.
7.8. Rights of Parties. Nothing in this Agreement,
whether expressed or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons
other than the parties to it and their respective successors and
permitted assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision
give any third persons any right of subrogation or action against
any party to this Agreement.
7.9. Binding Effect; Assignment. This Agreement shall
be binding upon and shall inure to the benefit of the parties to
this Agreement and their respective successors and assigns.
7.10. Survival. The representations and warranties of
the parties contained in this Agreement and other writings
provided for herein shall survive consummation of the
transactions contemplated hereby. Those covenants that
contemplate or may involve actions to be taken or obligations in
effect after the date hereof shall survive in accordance with
their terms.
7.11. Severability. In the event that any provision of
this Agreement, or the application of such provision to any
person or set of circumstances, shall be determined to be
invalid, unlawful or unenforceable to any extent, the remainder
of this Agreement, and the application of such provision to
persons or circumstances other than those as to which it is
determined to be invalid, unlawful or unenforceable, shall not be
affected and shall continue to be enforceable to the fullest
extent permitted by law.
7.12. Governing Law. This Agreement shall be construed
in accordance with, and governed by the laws of the State of
California, without regard to its conflict of laws doctrine.
7.13. Interpretation of Agreement. Any applicable rules
of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in connection
with the construction or interpretation hereof or thereof.
7.14. Specific Performance. Each party's non-monetary
obligations under this Agreement are unique. If any party should
default in any such obligation under this Agreement, the parties
each acknowledge that it would be extremely impracticable to
measure the resulting damages; accordingly, the nondefaulting
parties, in addition to any other available rights or remedies,
may xxx in equity for specific performance, and the parties each
expressly waive the defense that a remedy in damages will be
adequate.
7.15. Costs. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
7.16. Exclusivity. The right of each party hereto to
demand and receive indemnification payments pursuant to Article
Eight hereof and to specific performance shall be the exclusive
rights and remedies available to such party with respect to any
breach by any other party of any representation, warranty or
covenant set forth in the Agreement or in any document or
instrument delivered in connection herewith.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on this 15th day of October, 2003.
Sellers of SAV: Epic Financial Corp:
By:/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------ ------------------------
Xxxxxx Xxxxxx, President Xxxxxxx Xxxxxx, President
