STOCK PURCHASE AGREEMENT
Exhibit 1
THIS STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of the 6th day of June, 2012, is by and between Xxxxx Xxxx, as the seller (“Seller”), and Xxx X. Xxxxxx (“Xxxxxx”), as the purchaser.
WHEREAS, Seller desires to sell to Xxxxxx, and Xxxxxx desires to purchase from Seller, Two Million (2,000,000) shares (the “Shares”) of the common stock, $0.001 par value per share (the “Common Stock”), of Xxxxx Gold Corp., a Nevada corporation (the “Company”);
WHEREAS, the Shares constitute all of the shares of Common Stock owned by Seller;
WHEREAS, Seller and Xxxxxx have agreed to provide for the purchase and sale of the Shares in the manner set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements contained in this Agreement, Seller and Xxxxxx agree as follows:
1.
PURCHASE AND SALE OF SHARES.
1.1
Sale of Shares. Upon the terms and subject to the conditions set forth in this Agreement, Seller agrees to sell to Xxxxxx, and Xxxxxx agrees to purchase from Seller, all right, title and interest in and to the Shares, free and clear of all liens, claims and encumbrances.
1.2
Consideration. The aggregate purchase price for the Shares is $50,000, to be paid in US Dollars (the “Purchase Price”). In consideration of the sale of the Shares by Seller, Xxxxxx shall deliver the Purchase Price to Seller at the Closing in accordance with Section 2 below.
2.
CLOSING.
2.1
Date, Time and Place of Closing. The closing of the sale of the Shares (the "Closing") will take place at 10:00 a.m., Dallas, Texas time on ________, 2012, or at such other date, time or place as may be mutually agreed to by Xxxxxx and the Seller (the "Closing Date").
2.2
Delivery of Purchase Price.
Prior to the Closing, Xxxxxx will deliver the Purchase Price to Xxxxxxx & Xxxxxx, P.C. (the “Escrow Agent”) in accordance with the terms of the Escrow Agreement of even date herewith executed by Seller, Xxxxxx and the Escrow Agent (the “Escrow Agreement”).
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2.3
Closing Procedures.
(a)
At the Closing, Seller will deliver to the Escrow Agent, (i) Stock Certificate No. 24 representing the Shares, duly endorsed by Seller, (ii) an executed and notarized stock power, (iii) an executed Release Notice, a copy of which is attached to the Escrow Agreement, (iv) a written resignation from his position as an officer of the Company, in each and every capacity, effective at the Closing, (v) a written resignation from his position as a director of the Company, effective immediately after the Bylaws have been amended in accordance with Section 2.3(d); and (v) such other documents that may be necessary to transfer the Shares to Xxxxxx, free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions and charges of any kind or character (collectively, the "Transfer Documents").
(b)
After the Escrow Agent has received the Transfer Documents, Xxxxxx will promptly execute a Release Notice and deliver the executed Release Notice to the Escrow Agent.
(c)
Upon receipt of a Release Notice executed by Xxxxxx and Seller, the Escrow Agent will release the Purchase Price to Seller in accordance with the Escrow Agreement. The delivery of the Transfer Documents and the Purchase Price shall be deemed to take place simultaneously.
(d)
Immediately following the Closing, Xxxxxx and Seller agree to execute documents to amend the Bylaws of the Company to, among other things, provide that the Company may have only one (1) director. Immediately after the execution of the amendment to the Bylaws, Seller will submit his resignation as a director of the Company.
3.
REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Xxxxxx:
Due Authorization. Seller has full capacity, right and authority to enter into this Agreement and to carry out his obligations hereunder. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligations of Seller, enforceable against him in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws and subject to the limitations imposed by law or equitable principles affecting the availability of specific performance, injunctive relief and other equitable remedies.
3.2
No Conflicts or Consents. The execution and delivery by Seller of this Agreement, and the performance of his obligations hereunder, including, without limitation, the transfer and sale of the Shares from Seller to Xxxxxx, do not and will not (a) conflict with, violate or cause a default under any agreement, judgment, license, order or permit applicable to or binding upon Seller, including without limitation any shareholders agreement, voting agreement, right of first refusal agreement, or similar agreement concerning the Shares, (b) result in the acceleration of any indebtedness owed by Seller, or (c) result in or require the creation of any lien upon the Shares, or any assets or properties of Seller. No consent, approval, authorization or order of, and no notice to or filing with, any tribunal or third party is required in connection with the execution, delivery or performance by Seller of this Agreement, the transfer and sale of the Shares from Seller to Xxxxxx or the consummation by Seller of the transactions contemplated hereby.
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3.3
Title to Shares. Seller has sole legal, nominal and beneficial ownership and title to the Shares, free and clear of all adverse interests, liens, claims and encumbrances, and has the sole right to vote or direct the voting of the Shares. The delivery of the certificate or certificates representing the Shares owned by the Seller, as issued by the transfer agent in the name of Xxxxxx or duly endorsed or accompanied by duly executed stock xxxxxx, xxxx transfer to Xxxxxx good and indefeasible title to the Shares, free and clear of all liens, proxies, encumbrances and claims of every kind. There are no pending or threatened notices, suits, claims or judgments against or relating to the Shares, or relating to violations of laws or any other matters, which may result in an obligation or liability on Xxxxxx after the closing of this transaction or which have created or might in the future create a lien or adverse claim against the Shares, that have not been corrected or disclosed in writing to Xxxxxx, nor are there any threats thereof known to Seller.
3.4
Other Agreements. Other than this Agreement, Seller is not a party to any contract or agreement of any kind or nature whatsoever which will be enforceable against Xxxxxx after the close of this transaction.
3.5
Organization and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, and has all necessary corporate power and authority to own or lease its assets and to carry on its business as now being conducted and presently proposed to be conducted. There has been no amendment of the Company's Certificate of Incorporation or Bylaws that is not reflected in the Company's filings with the Securities and Exchange Commission ("SEC"). The Company has no subsidiaries and no equity interests in any corporation, partnership, joint venture or other entity.
3.6
DTC; Listing.
The shares of Common Stock of the Company are eligible to be settled through the Depository Trust Company (“DTC-eligible”).
3.7
SEC Documents. The Company has filed with the SEC all reports, statements, schedules and other documents (collectively, the "SEC Documents") required to be filed by it pursuant to the Securities Act of 1933, as amended from time to time (the “Securities Act”), and the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”). All SEC Documents required to be filed were timely filed. As of their respective 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 SEC promulgated thereunder, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements included in the SEC Documents (the "Financial Statements") complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Except (i) as may be indicated in the notes to the Financial Statements or (ii) in the case of the unaudited interim statements, as permitted by Form 10-Q under the Exchange Act, the Financial Statements have been prepared in accordance with generally accepted accounting principles consistently applied and fairly present in all material respects the consolidated and consolidating financial position of the Company and its subsidiaries as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal recurring year-end adjustments and footnotes).
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Except as set forth in the Financial Statements filed with the SEC prior to the date hereof, the Company has no liabilities, whether absolute, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the date of such Financial Statements, (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such Financial Statements, which liabilities and obligations referred to in clauses (i) and (ii), individually or in the aggregate, are not material to the financial condition or operating results of the Company and (iii) liabilities and obligations incurred in connection with the closing of the transactions contemplated thereby.
3.8
Capitalization. The capitalization of the Company (on a fully diluted basis) is as disclosed in the SEC Documents. All outstanding shares of capital stock have been duly authorized and validly issued, are fully paid and non-assessable, and were issued in compliance in all material respects with applicable federal and state laws governing the issuance of securities. Except as disclosed in the SEC Documents, the Company has (i) no outstanding securities convertible into or exchangeable for any shares of capital stock of the Company, (ii) no rights, options, warrants, calls or other agreements or commitments of any nature whatsoever relating to the purchase or other acquisition of any shares of its capital stock or securities convertible into or exchangeable for any shares of its capital stock, (iii) no shares of its capital stock reserved for issuance, and (iv) no agreements or other commitments of any nature whatsoever relating to preferential rights or voting rights of any shares of its capital stock or securities convertible into or exchangeable for any shares of its capital stock.
3.9
No Material Adverse Change. Since the date of the most recent SEC Documents, the business of the Company has been operated in the ordinary course and substantially consistent with past practice, and there has not been any material and adverse change in the business, assets, financial condition, results of operations, affairs or prospects of the Company.
3.10
No Misrepresentation. No representation or warranty by Seller in this Agreement (including any Exhibit or Schedule hereto) and no statements of the Company contained in any document, certificate, schedule or other information furnished or to be furnished by or on behalf of the Company pursuant to this Agreement or any other closing document or in connection with the transactions contemplated hereby or thereby contains or shall contain any untrue statement of material fact or omits or shall omit to state a material fact required to be stated therein or necessary in order to make such statements, in light of the circumstances under which they were made, not misleading. Except for the proposed sale of the Shares to Xxxxxx, no event or circumstance has occurred or exists with respect to the Company or its business affairs, assets, properties, prospects, operations or financial condition which has not been publicly disclosed, but which, under applicable law, rule or regulation, would be required to be disclosed by the Company in a registration statement filed on the date hereof by the Company under the Securities Act with respect to the primary issuance of the Company's securities. The Company has delivered true and complete copies of all documents requested by Xxxxxx.
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3.11
Update to Representations. Prior to the Closing, Seller shall give Xxxxxx immediate notice of the occurrence of any event or the receipt by Seller of any notice or knowledge, the effect of which would be to make a representation or warranty of Seller herein untrue or misleading if made on or immediately following the occurrence of such event or the receipt of such notice or knowledge. Seller hereby agrees to protect, indemnify, and defend Xxxxxx, and Xxxxxx’ nominees, against and to hold Xxxxxx, and Xxxxxx' nominees, harmless from any and all costs, claims, losses, attorneys' fees, liabilities, and other expenses that Xxxxxx, or Xxxxxx' nominees, may incur or to which Xxxxxx, or Xxxxxx' nominees, may be exposed as a result of Seller's breach of or the falsity of any of Seller's representations or warranties in this Agreement or as a result of Seller's breach of or failure to perform or observe any of Seller's covenants in this Agreement.
3.12
Exemption from Registration. The sale and purchase of the Shares is exempt from registration under applicable U.S. Securities Laws.
4.
REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx represents and warrants to Seller as follows:
4.1
Due Authorization. Xxxxxx has full capacity to enter into this Agreement and to carry out his respective obligations hereunder. This Agreement has been duly executed and delivered by Xxxxxx and constitutes the legal, valid, and binding obligations of Xxxxxx, enforceable against Xxxxxx in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws and subject to the limitations imposed by law or equitable principles affecting the availability of specific performance, injunctive relief and other equitable remedies.
4.2
Investment Representations. Xxxxxx has been provided with or permitted access to all information which he deems material to formulating his decision with respect to the purchase and sale of the Shares and such information has been sufficient to make an informed decision.
5.
NO ASSUMPTION. By entering into this Agreement, Xxxxxx is not assuming or agreeing to assume or discharge any liability or obligation of the Seller whatsoever, whether now existing or hereinafter incurred, including without limitation, any liability or obligation relating to the Shares or the sale thereof.
6.
FORGIVENESS OF DEBT.
By executing this Agreement, Seller cancels and forgives all debt owed by the Company to Seller, including but not limited to the debt in the amount of the amount of $40,062.76 (including principal of $34,353.00 and interest of $5,709.76), plus any additional accrued but unpaid interest on the principal. The Company acknowledges the cancellation of the debt.
7.
CONDITIONS TO CLOSING OF XXXXXX.
The obligation of Xxxxxx to close is subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions:
7.1
Representations and Warranties. The representations and warranties made by Seller in this Agreement or in any document delivered by Seller pursuant to this Agreement shall be true, correct and complete on and as of the Closing Date, including, without limitation, compliance with all applicable federal and state securities laws.
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7.2
Performance. Seller shall have performed and complied with all covenants, obligations and agreements required by this Agreement to be so performed or complied with by Seller on or prior to the Closing Date.
7.3
No Debt.
The Company shall not owe any money to any person or entity, including but not limited to the debt to Grivo GmbH in the approximate amount of $22,555.31 (including principal of $21,435.00 and interest of $1,120.31).
8.
CONDITIONS TO CLOSING OF SELLER.
The obligation of Seller to close is subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions:
8.1
Representations and Warranties. The representations and warranties made by Xxxxxx in this Agreement or in any document delivered by Xxxxxx pursuant to this Agreement shall be true, correct and complete on and as of the Closing Date, including, without limitation, compliance with all applicable federal and state securities laws.
8.2
Performance. Xxxxxx shall have performed and complied with, in all material respects, all covenants, obligations and agreements required by this Agreement to be so performed or complied with by Xxxxxx on or prior to the Closing Date.
9.
TERMINATION.
If the Closing has not occurred before June 15, 2012, then this Agreement shall automatically terminate for all purposes, unless extended in writing signed by Seller and Xxxxxx. Upon termination, this Agreement will be void and of no further force and effect, and Xxxxxx will not have any further obligation to purchase the Shares or otherwise perform under this Agreement.
10.
MISCELLANEOUS PROVISIONS
10.1
Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and assigns.
10.2
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10.3
Entire Agreement. This Agreement and the documents referred to herein contain the entire understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes any prior agreements and understandings between the parties with respect to the subject matter of this Agreement.
10.4
Notices. Any notice or communication under this Agreement must be in writing and given by (a) deposit in the mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, or (b) delivery in person or by courier service providing evidence of delivery. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given on the date of its actual receipt by the appropriate party. Any notice or communication under this Agreement must be addressed as set forth on the signature pages to this Agreement. Any party may change its address for notice by written notice to the other parties hereto.
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10.5
Expenses. The parties shall pay their own respective expenses and the fees and expenses of their respective counsel and accountants and other experts.
10.6
Survival of Representations and Warranties. Each party hereto covenants and agrees that each of the representations, warranties, covenants, agreements and indemnities in connection therewith contained in this Agreement and in any ancillary document shall survive the closing of this transaction.
10.7
Waivers. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action, or compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. The waiver by any party hereto at or before the closing of this transaction of any condition to its obligations hereunder which is not fulfilled shall preclude such party from seeking redress from the other party hereto for breach of any representation, warranty, covenant or agreement contained in this Agreement.
10.8
Governing Law. This Agreement shall be construed as to both validity and performance and enforced in accordance with and governed by the laws of the state of Nevada, without giving effect to the choice of law principles thereof.
10.9
Prevailing Party. In the event of any dispute among the parties hereto with respect to any of the terms or provisions of this Agreement, the non-prevailing party shall pay or reimburse the prevailing party for all fees and expenses incurred with respect thereto, including without limitation any legal and attorneys fees and expenses incurred by the prevailing party in connection therewith.
10.10
Amendments. This Agreement may not be modified or changed except by an instrument or instruments in writing signed by all of the parties.
10.11
Further Actions. Seller shall at any time after the Closing, execute and deliver all such other documents, and do all such acts and things which Xxxxxx reasonably request in order to more effectively transfer to Xxxxxx the right, title, interest and possession of the Shares.
10.12
No Strict Construction.
Seller and Xxxxxx have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provisions of this Agreement.
[Signatures page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
SELLER:
/s/ Xxxxx Xxxx
Xxxxx Xxxx
Address for Notice:
XXXXXX:
/s/ Xxx Xxxxxx
Xxx Xxxxxx
Address for Notice:
For the purposes of Section 6:
XXXXX GOLD CORP.
By: /s/ Xxxxx Xxxx
Xxxxx Xxxx
Title:___________
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