STOCK PURCHASE AGREEMENT
Exhibit
10.1
STOCK PURCHASE AGREEMENT, dated as of
August 15, 2008 (this “Agreement”), by and among
Synthenol, Inc., a Florida corporation (the “Company”), Xxxxxxx Xxxxxxx, in
his capacity as the Seller Representative (as defined in Section 4), the
persons and entities listed on Exhibit A (the “Sellers”), and Viking
Investments Group LLC (the “Purchaser”). The
Company, Seller Representative, the Sellers and the Purchaser are individually
referred to herein as a “Party” and collectively, as
the “Parties.”
BACKGROUND
A. The
Sellers are the owners of an aggregate of 366,520 shares of common stock of the
Company (the “Shares”). The
Sellers desire to sell and the Purchaser desires to purchase the Shares which
represent approximately 50.1% of the issued and
outstanding capital stock of the Company as of the date hereof calculated on a
fully-diluted basis pursuant to the terms hereof.
B. The
Company has issued various promissory notes to Hockley Limited (“Hockley”) in the aggregate
principal amount of Two Hundred Five Thousand Dollars ($205,000.00) plus accrued
interest which promissory notes remain outstanding as of the date of this
Agreement (the “Hokley
Notes”).
C. The
Company currently owes Xxxx Xxxx (“Page”), its secretary,
Nineteen Thousand Two Hundred Fifty Dollars ($19,250.00) for services Page has
rendered to the Company in such capacity (the “Page Debt”).
D. The
Company currently owes Xxxxx Xxxxxx (“Xxxxxx”), its president,
Nineteen Thousand Two Hundred Fifty Dollars ($19,250.00) for services Xxxxxx has
rendered to the Company in such capacity (the “Xxxxxx Debt”).
E. Concurrently
herewith, Hokley, Page and Xxxxxx shall separately enter into assignment and
assumption agreements (the “Assignment Agreements”),
pursuant to which agreements Hokley, Page and Xxxxxx shall assign to the
Purchaser, and the Purchaser shall, respectively, assume the Hokley Notes, the
Page Debt and the Xxxxxx Debt which are collectively, the “Assigned Debt.” A
form of Assignment Agreement is annexed to hereto as Exhibit
D.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing and the mutual promises and covenants herein contained, the Company,
the Sellers and the Purchaser hereby agree as follows:
1. Purchase and
Sale.
(a) The
Sellers shall sell, transfer, convey and deliver unto the Purchaser the Shares
and the Purchaser shall acquire and purchase from the Sellers the
Shares.
2. Purchase
Price.
(a) General. The
purchase price (the “Purchase
Price”) for the Shares is Three Hundred and Fifty Thousand Dollars
($350,000.00) payable as specified in this Section 2 subject to
the other terms and conditions of this Agreement.
(b) Cash
Deposit. The Purchaser made a cash deposit into the trust
account of Xxxxxxx & Xxxxx (“Trust Agent”), in the
aggregate amount of Seventy-Five Thousand Dollars ($75,000.00) consisting of (a)
Fifty Thousand Dollars ($50,000.00) (the “Initial Cash Deposit”) deposited on
June 5, 2008 and (b) Twenty-Five Thousand Dollars ($25,000.00) deposited on July
25, 2008 (the “Second Cash
Deposit,” which together with the Initial Cash Deposit shall constitute
the “Cash Deposit”)
which shall be fully credited against the Purchase Price at the Closing (as
defined below). Purchaser has agreed to immediately authorize the
Trust Agent to release out of the Trust Account, the Initial Cash Deposit to the
Sellers with no restriction or recourse placed on the use of such funds with the
understanding that the Trust Agent shall use part of the proceeds from the
Initial Cash Deposit to discharge the Company debt to the creditor(s) set forth
on Exhibit B
prior to the Closing. In the event that this Agreement is fully
executed and the Sellers comply with all terms set forth herein then the Cash
Deposit shall be non-refundable. In the event that the Closing does
not occur due to the failure of the Purchaser to perform then the Cash Deposit
shall be released from the trust account of Trust Agent to the Seller
Representative.
(c) Cash
Disbursement. The Purchaser made a cash disbursement in the
amount of Thirty-Five Hundred Dollars ($3,500.00) (the “Cash Disbursement”) into a
CIBC (a Vancouver Branch) account under the name of “LegalPlay Entertainment,
Inc.” (Account No. 03-65513) for the benefit of the Company on July 23,
2008. The Cash Disbursement is to be applied as payment for fees
related to the preparation and review of the Company’s second quarter unaudited
financial statements to be filed with the U.S. Securities and Exchange
Commission (“SEC”). Pursuant to
Section 14(l),
the Cash Disbursement shall be deemed an advance to the Company by the Purchaser
and at the Closing, the Company will issue a promissory note to the Purchaser
equal to the Cash Disbursement; provided, that, the Cash
Disbursement shall not be deemed a Liability (defined below) of the Company
under this Agreement.
(d) Payment at
Closing. At the Closing, the Purchaser shall pay to the Trust
Agent by Federal fund wire transfer on behalf of the Sellers the Purchase Price
less the Cash Deposit.
(e) Disbursement of the Purchase
Price by Trust Agent:
A. First,
$69,511.32 to be paid to the Company’s creditors listed on and in accordance
with Exhibit
C;
B. Next,
pay any other Liability as of the Closing Date other than the Assigned Debt so
that the Company has no Liability other than the Assigned Debt;
C. Then,
the remaining balance of the Purchase Price to the Sellers after the payments
described under Sections 2(e)(A) and 2(e)(B) above have been made.
(f) Adjustment for Outstanding
Liabilities. As of the Closing, other than the Assigned Debt,
the Cash Disbursement and as set forth on Exhibit C, the
Company shall have no liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for taxes or any debt (“Liability(ies)”). Except
as expressly set forth herein, the Purchase Price shall be reduced on a dollar
for dollar basis by the amount of any Liability of the Company existing as of
the Closing and the amounts payable by Purchaser hereunder shall be reduced
accordingly.
3. The
Closing.
(a) General. The
closing of the transactions contemplated by this Agreement (the “Closing”) shall take place by
exchange of documents among the Parties by fax or courier, as appropriate,
following the satisfaction or waiver of all conditions to the obligations of the
Parties to consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) on August 15, 2008 or such other date as the Parties may
mutually determine (the “Closing Date”).
(b) Deliveries at the
Closing.
(i) the
Purchaser shall (A) deliver to the Trust Agent, the Purchase Price less the Cash
Deposit by Federal funds wire transfer and (B) deliver to the Sellers’
Representative, the various certificates, instruments, and documents referred to
in Section
11(b) below.
(ii) the
Seller Representative shall by courier, after receiving notice from the Trust
Agent that the funds referred to in 3(b)(i) above have been received (A) deliver
to the Purchaser certificates evidencing all of the Shares, excluding the DTC
shares, together with duly executed, medallion-guaranteed or notarized stock
powers with respect thereto; (B) deliver to the Purchaser the various
certificates, instruments, and documents referred to in Section 11(a) below
and (C) cause any of the Sellers delivering their Shares through the DTC Share
Transfer System to confirm by written notice the delivery to Purchaser of such
Shares; provided, that, the Purchaser shall provide to the Seller Representative
prior to the Closing, the Purchaser’s DTC account number.
4. Appointment of Seller
Representative.
The
Sellers hereby irrevocably constitute and appoint, effective as of the date
hereof, Xxxxxxx Xxxxxxx, with the authority to act alone (together with his
permitted successors, the “Seller Representative”), as
their true and lawful agent and attorney-in-fact to enter into any agreement in
connection with the transactions contemplated by this Agreement, to perform
on
behalf of
the Sellers any obligations or undertakings thereunder, to exercise all or any
of the powers, authority and discretion conferred on the Seller Representative
under any such agreement, to waive any terms and conditions of any such
agreement, to give and receive notices on the Sellers’ behalf and to be the
Sellers’ exclusive representative with respect to any matter, suit, claim,
action or proceeding arising with respect to any transaction contemplated by any
such agreements and the Seller Representative agrees to act as, and to undertake
the duties and responsibilities of, such agent and
attorney-in-fact. This power of attorney is coupled with an interest
and irrevocable. The Seller Representative shall not be liable for
any action taken or not taken by the Seller Representative in connection with
the Seller Representative’s obligations under this Agreement as long as such
actions are taken or omitted in good faith and in the absence of willful
misconduct or gross negligence. If the Seller Representative shall be
unable or unwilling to serve in such capacity, the Seller Representative
successor shall be named by those persons holding more than fifty percent (50%)
in interest of the Seller Shares.
5. Representations and
Warranties of the Seller Representative.
The
Seller Representative hereby severally represents and warrants to the Purchaser,
on behalf of each Seller, that the statements contained in this Section 5 are correct
and complete as of the date of this Agreement 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 of this Agreement throughout this Section
5).
(a) The
Seller has the power and authority to execute, deliver and perform such Seller’s
obligations under this Agreement and to sell, assign, transfer and deliver to
the Purchaser the Seller’s Shares as contemplated hereby. No permit,
consent, approval or authorization of, or declaration, filing or registration
with any governmental or regulatory authority or consent of any third party is
required in connection with the execution and delivery by the Seller of this
Agreement and the consummation of the transactions contemplated
hereby.
(b) Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby or compliance with the terms and conditions
hereof by the Seller will violate or result in a breach of any term or provision
of any agreement to which the Seller is bound or is a party, or be in conflict
with or constitute a default under, or cause the acceleration of the maturity of
any obligation of the Seller under any existing agreement or, to the best of
Seller’s knowledge, violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Seller or any properties or assets of the
Seller.
(c) This
Agreement has been duly and validly executed by Seller Representative on behalf
of the Seller, and constitutes the valid and binding obligation of the Seller
and the Company, enforceable against the Seller and the Company in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency or other laws affecting creditors’ rights generally or by
limitations, on the availability of equitable remedies.
(d) The
number of Shares set forth next to the Seller’s name on Exhibit A are owned
beneficially and of record by such Seller and are validly issued and
outstanding, fully paid for and non-assessable with no personal liability
attaching to the ownership thereof. The Seller owns the Shares free
and clear of all liens, charges, security interests, encumbrances,
claims of
others, options, warrants, purchase rights, contracts, commitments, equities or
other claims or demands of any kind (collectively, “Liens”), and upon delivery of
the Shares to the Purchaser, the Purchaser will acquire good, valid and
marketable title thereto free and clear of all Liens. The Seller is
not a party to any option, warrant, purchase right, or other contract or
commitment that could require the Sellers to sell, transfer, or otherwise
dispose of any capital stock of the Company (other than pursuant to this
Agreement). The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of any capital stock
of the Company.
(e) The
date(s) of acquisition of the Shares are true and correct.
(f) All
the Shares will be delivered to Purchaser through either (A) certificates
evidencing all of the Shares together with duly executed, medallion-guaranteed
or notarized stock powers with respect thereto, (B) the DTC Share Transfer
System or (C) a combination of (A) or (B).
6. Representations and
Warranties of the Company.
(a) The
Company is a corporation in good standing duly incorporated in the State of
Florida. The Company is duly authorized to conduct business and is in
good standing under the laws of each jurisdiction where such qualification is
required. The Company has full corporate power and authority and all
licenses, permits, and authorizations necessary to carry on its
business. The Company has no subsidiaries and does not control any
other subsidiaries, directly or indirectly, or have any direct or indirect
equity participation in any other entity.
(b) Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby or compliance with the terms and conditions
hereof by the Company will violate or result in a breach of any term or
provision of any agreement to which the Company is bound or is a party, or the
Company’s Articles of Incorporation or By-Laws, or be in conflict with or
constitute a default under, or cause the acceleration of the maturity of any
obligation of the Company under any existing agreement or violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Company
or any of its properties or assets.
(c) This
Agreement has been duly and validly executed by the Company and constitutes the
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other laws affecting creditors’ rights generally or by
limitations, on the availability of equitable remedies.
(d) The
Company’s authorized capital stock, as of the date of this Agreement and as of
the Closing, consists of 100,000,000 shares of common stock, $0.01 par value per
share (the “Common
Stock”), of which 731,522 shares are issued and outstanding and 5,000,000
shares of preferred stock, $0.01 par value per share none of which is issued and
outstanding. The Company has not reserved any shares of its Common
Stock for issuance upon the exercise of options, warrants or any other
securities that are exercisable or exchangeable for, or convertible into, Common
Stock. All of the issued and outstanding shares of Common Stock are
validly issued, fully paid and non-assessable and have been issued in compliance
with applicable laws,
including,
without limitation, applicable federal and state securities laws or exemptions
thereto. There are no outstanding options, warrants or other rights
of any kind to acquire any additional shares of capital stock of the Company or
securities exercisable or exchangeable for, or convertible into, capital stock
of the Company, nor is the Company committed to issue any such option, warrant,
right or security. There are no agreements relating to the voting,
purchase or sale of capital stock (i) between or among the Company and any of
its stockholders, (ii) between or among the Sellers and any third party, or
(iii) to the best knowledge of the Sellers between or among any of the Company’s
stockholders. The Company is not a party to any agreement granting
any stockholder of the Company the right to cause the Company to register shares
of the capital stock of the Company held by such stockholder under the
Securities Act. The stockholder list provided to the Purchaser is a
current shareholder list generated by its transfer agent, and such list
accurately reflects all of the issued and outstanding shares of the Company’s
Common Stock.
(e) The
Company does not have any restrictions in place relative to its ability to
implement any reverse split of its common stock other than applicable
law.
(f) As
of the date hereof, other than the Assigned Debt and as set forth on Exhibits B
and C, the Company has total Liabilities of no more than $33,172.00 which Liabilities will
be paid off at or prior to the Closing and which Liabilities shall in no event
become Liabilities of the Purchaser or remain Liabilities of the Company
following the Closing and, as of the Closing Date, the Company will have no
assets.
(g) The
Sellers are the beneficial holders of the Shares.
(h) There
is no legal, administrative, investigatory, regulatory or similar action, suit,
claim or proceeding which is pending or, to the Sellers’ knowledge, threatened
against the Company.
(i) Since
January 1, 2002, the Company has filed or furnished (i) all reports,
schedules, forms, statements, prospectuses and other documents required to be
filed with, or furnished to, the SEC by the Company (all such documents, as
amended or supplemented, are referred to collectively as, the “Company SEC Documents”) and
(ii) all certifications and statements required by (x) Rule 13a-14 or
15d-14 under the Exchange Act, or (y) 18 U.S.C. §1350 (Section 906 of the
Xxxxxxxx-Xxxxx Act of 2002) with respect to any applicable Company SEC Document
(collectively, the “SOX
Certifications”). The Company has made available to the
Purchaser all SOX Certifications and comment letters received by the Company
from the staff of the SEC and all responses to such comment letters by or on
behalf of the Company. Through June 30, 2008, the Company complied in
all respects with its SEC filing obligations under the Exchange Act and the
Securities Act. Each of the audited financial statements and related
schedules and notes thereto and unaudited interim financial statements of the
Company (collectively, the “Company Financial Statements”)
contained in the Company SEC Documents (or incorporated therein by reference)
were prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis (“GAAP”) (except in the case of
interim unaudited financial statements) except as noted therein, and fairly
present in all respects the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations, cash flows
and
changes in stockholders’ equity for the periods then ended, subject (in the case
of interim unaudited financial statements) to normal year-end audit adjustments
(the effect of which will not, individually or in the aggregate, be adverse)
and, such financial statements complied as to form as of their respective dates
in all respects with applicable rules and regulations of the SEC. The
financial statements referred to herein reflect the consistent application of
such accounting principles throughout the periods involved, except as disclosed
in the notes to such financial statements. No financial statements of
any Person not already included in such financial statements are required by
GAAP to be included in the consolidated financial statements of the
Company. As of their respective dates, each of the Company SEC Documents
was prepared in accordance with and complied with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
thereunder, and the Company SEC Documents (including all financial statements
included therein and all exhibits and schedules thereto and all documents
incorporated by reference therein) did not, as of the date of effectiveness in
the case of a registration statement, the date of mailing in the case of a proxy
or information statement and the date of filing in the case of other the Company
SEC Documents, contain any untrue statement of a fact or omit to state a fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Neither the Company nor, to the Company’s knowledge, any
of its officers has received notice from the SEC or any other governmental
authority questioning or challenging the accuracy, completeness, content, form
or manner of filing or furnishing of the SOX Certifications.
(j) Except
as set forth on Schedule 6(j) annexed
hereto, the Company has properly and timely filed all federal, state and local
tax returns and has paid all taxes, assessments and penalties due and
payable. All such tax returns were complete and correct in all
respects as filed, and no claims have been assessed with respect to such
returns. There are no present, pending, or threatened audit,
investigations, assessments or disputes as to taxes of any nature payable by the
Company or its subsidiary, nor any tax liens whether existing or inchoate on any
of the assets of the Company or any of its subsidiaries, except for current year
taxes not presently due and payable. No IRS or foreign, state, county
or local tax audit is currently in progress. Neither the Company nor
its subsidiary has waived the expiration of the statute of limitations with
respect to any taxes. There are no outstanding requests by the
Company or its subsidiary for any extension of time within which to file any tax
return or to pay taxes shown to be due on any tax return.
(k) At
Closing, the Company will not have any ongoing operations and will not employ
any employees and will not maintain any employee benefit or stock option
plans.
(l) Except
as set forth in Schedule 6(l) annexed
hereto, since March 31, 2008, there has not been any event or condition of any
character which has adversely affected, or may be expected to adversely affect,
the Company’s business or prospects, including, but not limited to any adverse
change in the condition, assets, liabilities (existing or contingent) or
business of the Company from that shown in the financial statements of the
Company included in its quarterly report on Form 10-Q filed for the fiscal
quarter ended March 31, 2008 or to be filed for the fiscal quarter ended June
30, 2008 that would result in Company having any on-going operations or
obligations other than the Assigned Debt, the Cash Disbursement and fees related
to the filing of the Form 10-Q after disbursement of the Purchase Price by the
Trust Agent as provided under Section 2(e)
above.
(m) The
Company has complied in all material respects with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of all governmental authorities, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging any
failure so to comply. To the Company’s knowledge, neither the
Company, nor any officer, director, employee, consultant or agent of the Company
has made, directly or indirectly, any payment or promise to pay, or gift or
promise to give or authorized such a promise or gift, of any money or anything
of value, directly or indirectly, to any governmental official, customer or
supplier for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her or its
influence to affect any act or decision of a governmental authority or customer,
under circumstances which could subject the Company or any officers, directors,
employees or consultants of the Company to administrative or criminal penalties
or sanctions.
(n) No
representation or warranty by the Company in this Agreement, nor in any
certificate, schedule or exhibit delivered or to be delivered pursuant to this
Agreement contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made, not
misleading.
7. Representations and
Warranties of the Purchaser.
The
Purchaser represents and warrants to the Sellers that the statements contained
in this Section
7 are correct and complete as of the date of this Agreement 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 of this Agreement throughout this
Section
7):
(a) The
Purchaser has full power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby. This Agreement constitutes
a valid and binding obligation of the Purchaser enforceable in accordance with
its terms, except as (i) the enforceability hereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforceability of creditor’s rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(b) Purchaser
has the balance of the Purchase Price to effect the acquisition of the Shares at
Closing.
(c) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance by the Purchaser with any of
the provisions hereof will: violate, or conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in the
creation of any Lien upon any of the properties or assets of the Purchaser under
any of the terms, conditions or provisions of any material note, bond,
indenture, mortgage,
deed or
trust, license, lease, agreement or other instrument or obligation to which he
is a party or by which he or any of his properties or assets may be bound or
affected, except for such violations, conflicts, breaches or defaults as do not
have, in the aggregate, any material adverse effect; or violate any material
order, writ, injunction, decree, statute, rule or regulation applicable to the
Purchaser or to any of their properties or assets, except for such violations
which do not have, in the aggregate, any material adverse effect.
(d) The
Purchaser is acquiring the Shares for its own account for investment and not for
the account of any other person and not with a view to or for distribution,
assignment or resale in connection with any distribution within the meaning of
the Securities Act. The Purchaser agrees not to sell or otherwise
transfer the Shares unless they are registered under the Securities Act and any
applicable state securities laws, or an exemption or exemptions from such
registration are available. The Purchaser has the requisite knowledge
and experience in financial and business matters such that they are capable of
evaluating the merits and risks of acquiring the Shares.
(e) No
permit, consent, approval or authorization of, or declaration, filing or
registration with any governmental or regulatory authority or the consent of any
third party is required in connection with the execution and delivery by the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby including, but not limited to, the acquisition of the Shares
by Purchaser.
(e) The
Purchaser is aware that some of the Sellers are an affiliate of the Company and
that the Shares sold by such Sellers are restricted in accordance with Rule 144
of the Securities Act.
8. Brokers and
Finders.
Except as
set forth in Schedule
8, there are no other finders and no Party shall be responsible for the
payment of any finders’ fees other than as specifically set forth herein and
neither the Sellers nor the Company nor Purchaser, nor any of their respective
directors, officers or agents on their behalf, have incurred any obligation or
liability, contingent or otherwise, for brokerage or finders’ fees or agents’
commissions or financial advisory services or other similar payment in
connection with this Agreement and hereby agree that if any such obligations
have been incurred by any Party, such Party shall indemnify and hold all other
Parties harmless from the payment of such obligations and any costs and
attorney’s fees incurred by such other Parties in defense against such
claims.
9. Pre-Closing
Covenants.
The
Parties agree as follows with respect to the period between the execution of
this Agreement and the Closing.
(a) General. Each of the
Parties will use their best efforts to take all action and to do all things
necessary, proper, or advisable in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in Section 11
below).
(b) Form 8-K Filing; Notices and
Consents. Concurrent with the Closing of this Agreement, the Company
through the Purchaser shall cause a Form 8-K to be filed with the SEC with
respect to its having entered into a “material
contract.” The Sellers will cause the Company to give any
notices to third parties, and will cause the Company to use its best efforts to
obtain any third party consents that the Purchaser may reasonably
request. Each of the Parties will (and the Sellers will cause the
Company to) give any notices to, make any filings with, and use its best efforts
to obtain any authorizations, consents, and approvals of governmental
authorities necessary in order to consummate the transactions contemplated
hereby. The parties acknowledge that SEC Rule 14f-1 under the
Exchange Act requires that an information statement containing certain specified
disclosures be filed with the SEC and mailed to the Company’s shareholders at
least 10 days before any person designated by the Purchaser can become a
director of the Company. The Purchaser and the Sellers agree to
cooperate fully with the Company in the preparation and filing of such
information statement and to provide all information therefor respectively
needed from them in a timely manner, so as not to cause undue delay in the
filing of the information statement or any amendment
thereto. Otherwise, neither the Company nor the Sellers are aware of
any third party consent nor other filing or notice to third parties that is
necessary in respect of this Agreement. The expenses of the above
described filings, if any, and notice to shareholders shall be borne by the
Purchaser and shall not be deducted from the Purchase Price.
(c) Payment of DMA
Debt. The payment to the Company’s creditors set forth on
Exhibit B shall have made by the Trust Agent.
(d) Review of Unaudited
Financial Statements. A copy of the draft unaudited Company
financial statements for the quarterly period ending June 30, 2008 as prepared
by the Company’s accountants in substantially the form to be filed with the
SEC shall be
provided to the Purchaser for review at least three (3) business days prior to
the filing of such quarterly report with the SEC which filing shall, in no
event, be made on or prior to the Closing Date.
(e) Prohibited
Activities. The Sellers will not cause or permit the Company to engage in
any practice, take any action, or enter into any transaction except for
ministerial matters necessary to maintain the Company in good standing and to
arrange for the filing of all necessary reports required to be filed by the
Company under the Exchange Act. Without limiting the generality of
the foregoing, the Sellers will not cause or permit the Company to (i) declare,
set aside, or pay any dividend or make any distribution with respect to its
capital stock or redeem, purchase, or otherwise acquire any of its capital stock
except as otherwise expressly specified herein, (ii) issue, sell, or otherwise
dispose of any of its capital stock, or grant any options, warrants, preemptive
or other rights to purchase or obtain (including upon conversion, exchange, or
exercise) any of its capital stock, (iii) make any capital expenditures, loans,
or incur any other obligations or liabilities, (iv) enter into any agreements
involving expenditures individually, or in the aggregate, of more than $50,000
(other than as permitted hereunder or agreements for professional services which
will be paid in full at or prior to the Closing), (v) enter into any agreement
or incur any other commitment or (vi) otherwise engage in any practice, take any
action, or enter into any transaction that is inconsistent with the transactions
contemplated hereby.
(f) Notice of
Developments. The Sellers shall give prompt written notice to the
Purchaser of any material adverse development causing a breach of any of the
representations and warranties in Section 6
above. No disclosure by any Party pursuant to this Section, however,
shall be deemed to amend or supplement the disclosures contained in the
Schedules hereto or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(g) Exclusivity. Prior
to the Closing Date, neither the Sellers nor the Company shall, directly or
indirectly, (i) solicit, initiate, or encourage the submission of any proposal
or offer from any person relating to the acquisition of the Shares or any
capital stock or other voting securities, or any assets (including any
acquisition structured as a merger, consolidation, or share exchange) of the
Company or (ii) participate in any discussions or negotiations regarding,
furnish any information with respect to, assist or participate in, or facilitate
in any other manner any effort or attempt by any person to do or seek any of the
foregoing. The Sellers will vote the Shares in favor of any such
acquisition structured as a merger, consolidation, or share
exchange. The Sellers shall notify the Purchaser immediately if any
person makes any proposal, offer, inquiry, or contact with respect to any of the
foregoing.
10. Post-Closing
Covenants.
The Parties agree as follows with respect to the period following the
Closing.
(a) General. In case at
any time after the Closing any further action is necessary or desirable to carry
out the purposes of this Agreement, each of the Parties will take such further
action (including the execution and delivery of such further instruments and
documents) as any other Party may reasonably request, all at the sole cost and
expense of the requesting Party (unless the requesting Party is entitled to
indemnification therefor under Section 12
below). The Sellers acknowledge and agree that from and after the
Closing the Purchaser will be entitled to possession of all documents, books,
records (including tax records), agreements, and financial data of any sort
relating to the Company.
(b) Change of Company
Name. Within 60 days after the Closing Date, the Purchaser
shall cause the change of name of the Company and assign the name “Synthenol,
Inc.” to Hokley.
(c) Litigation Support.
In the event and for so long as any Party actively is contesting or defending
against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (i) any transaction contemplated under this
Agreement or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act,
or transaction on or prior to the Closing Date involving the Company, the other
Party will cooperate with him or it and him or its counsel in the contest or
defense, make available their personnel, and provide such testimony and access
to their books and records as shall be necessary in connection with the contest
or defense, all at the sole cost and expense of the contesting or defending
Party (unless the contesting or defending Party is entitled to indemnification
therefor under Section
12 below).
11. Conditions to Obligation to
Close.
(a) Conditions to Obligation of
the Purchaser.
The
obligation of the Purchaser to consummate the transactions to be performed by
the Purchaser in connection with the Closing are subject to satisfaction of the
following conditions:
(i) the
representations and warranties set forth in Sections 5 and 6 above shall be true
and correct in all material respects at and as of the Closing Date;
(ii) the
Sellers shall have performed and complied with all of his covenants hereunder in
all material respects through the Closing;
(iii) the
Company shall have procured all of the third party consents required in order to
effect the Closing (as of the execution of this Agreement, the Company and the
Sellers are not aware of any required third party consents);
(iv) no
action, suit, or proceeding shall be pending or threatened before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent consummation of any
of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of the Purchaser to own the Shares
and to control the Company or (D) affect adversely the right of the
Company to own its assets and operate its business (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(v) the
Sellers Representative shall have delivered to the Purchaser a certificate to
the effect that (A) each of the conditions specified above in Section 11(a)(i)-(iv)
is satisfied in all respects, and (B) as of the Closing, the Company has no
Liabilities;
(vi) subject
to Section
11(a)(xv), the Purchaser shall have received the resignations, effective
as of the tenth (10th) day following the filing by the Company of a Schedule
14f-1 information statement with the SEC, of each director of the Company and
the Purchaser shall have received, the resignations, effective as of the
Closing, of each officer of the Company. The designee(s) specified by the
Purchaser shall have been appointed as officers of the Company and any
designee(s) of the Purchaser who may be lawfully appointed to the Board of
Directors of the Company shall have been appointed;
(vii) there
shall not have been any occurrence, event, incident, action, failure to act, or
transaction since January 1, 2008 which has had or is reasonably likely to cause
a material adverse effect on the business, assets, properties, financial
condition, results of operations or prospects of the Company;
(viii) the Purchaser shall have
received such pay-off letters and releases relating to Liabilities including but
not limited to those Liabilities set forth on Exhibits B and C (to be delivered
subject to Section
11(a)(v)(B) and Section 6(f)) as they
shall have requested and such pay-off letters shall substantially be in the form
and substance set forth on Exhibit
E;
(ix) the
Company shall have delivered its Articles of Incorporation and By-Laws, both as
amended to the Closing Date, certified by the Secretary of the Company,
resolutions adopted by the Board of Directors of the Company authorizing this
Agreement and the transactions contemplated hereby and the Company shall have
delivered to the Purchaser the Company’s original minute book and all other
original corporate documents and agreements;
(x) the
Company shall have delivered to the Purchaser a Certificate of Good Standing in
respect of the Company issued by the Secretary of State of the State of Florida
dated no earlier than 5 days prior to the Closing;
(xi) the
Company shall have maintained at and immediately after the Closing its status as
a company whose Common Stock is quoted on the OTC Bulletin Board;
(xii) all
actions to be taken by the Sellers in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby will
be in form and substance generally prepared in a transaction of this
nature;
(xiii) At the Closing,
there shall be no more than 731,522 shares Common Stock of the Company issued
and outstanding;
(xiv) Prior to the
Closing, the Company shall cause to be prepared the Company’s unaudited
financial statements, which financials shall be utilized by the Company in the
preparation of its Form 10-Q for the period ending June 30, 2008. The
cost of preparation, review and filing of said Form 10-Q shall be at the sole
expense of the Company and payable by the Company. If at the Closing,
the Form 10-Q has not been filed by the Company, the applicable officer(s) of
the Company shall remain as an officer of the Company following the Closing
until the Form 10-Q has been completed and filed with the SEC and such officer
shall agree to execute the Form 10-Q on behalf of the Company, together with all
SOX certifications required to be submitted therewith and any management
representation letters required in connection with the review thereof by the
Company’s auditors; and
(xv) At
or prior to the Closing, Hokley, Page and Xxxxxx shall have separately executed
an Assignment Agreement with the Purchaser for the Hokley Notes, the Page Debt
and the Xxxxxx Debt respectively.
The
Purchaser may waive any condition specified in this Section 11(a) at or
prior to the Closing in writing executed by the Purchaser.
(b) Conditions to Obligation of
the Sellers.
The
obligations of the Sellers to consummate the transactions to be performed by it
in connection with the Closing are subject to satisfaction of the following
conditions:
(i) the
representations and warranties set forth in Section 7 above shall
be true and correct in all material respects at and as of the Closing
Date;
(ii) the
Purchaser shall have performed and complied with all of its covenants hereunder
in all material respects through the Closing;
(iii) no
action, suit, or proceeding shall be pending or threatened before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent consummation of any
of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling, or charge
shall be in effect);
(iv) the
Purchaser shall have delivered to the Sellers a certificate to the effect that
each of the conditions specified above in Section
11(b)(i)-(iii) is satisfied in all respects; and
(v) all
actions to be taken by the Purchaser in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby will
be satisfactory in form and substance to the Sellers.
The
Sellers may waive any condition specified in this Section 11(b) at or
prior to the Closing in writing executed by the Sellers.
12. Remedies for Breaches of
This Agreement.
(a) Survival of Representations
and Warranties. All of the representations and warranties of
the Parties shall survive the Closing hereunder (even if a Party knew or had
reason to know of any misrepresentation or breach of warranty by another Party
at the time of Closing) and continue in full force and effect for a period of
twenty-four (24) months thereafter.
(b) Indemnification Provisions
for Benefit of the Purchaser.
(i) In
the event any of the Sellers breach (or in the event any third party alleges
facts that, if true, would mean the Sellers has breached) any of his/her/its
representations, warranties, and covenants contained herein, and, if there is an
applicable survival period pursuant to Section 12(a) above,
provided that the Purchaser makes a written claim for indemnification against
the Sellers within such survival period, then the Seller Representative shall
indemnify the Purchaser from and against the entirety of any Adverse
Consequences the Purchaser may suffer through and after the date of the claim
for indemnification (including any Adverse Consequences the Purchaser may suffer
after the end of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach (or the alleged breach)
up to the amount received by such Sellers for their Stock. For purposes of this
Agreement, “Adverse
Consequences” means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, taxes, Liens, losses, lost value,
expenses, and fees, including court costs and reasonable attorneys’ fees and
reasonable expenses.
(ii) The
Seller Representative shall indemnify the Purchaser from and against the
entirety of any Adverse Consequences the Purchaser or the Company may suffer
resulting from, arising out of, relating to, in the nature of, or caused by any
Liability of the
Company
(whether or not accrued or otherwise disclosed) (x) for any taxes of the Company
with respect to any tax year or portion thereof ending on or before the Closing
Date (or for any Tax year beginning before and ending after the Closing Date to
the extent allocable to the portion of such period beginning before and ending
on the Closing Date) and (y) for the unpaid taxes of any Person (other than the
Company) under Section 1.1502-6 of the Regulations adopted under the Code (or
any similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(iii) The
Seller Representative shall indemnify the Purchaser from and against the
entirety of any Liabilities arising out of the ownership of the Shares or
operation of the Company prior to the Closing.
(iv) The
Seller Representative shall indemnify the Purchaser from and against the
entirety of any Adverse Consequences the Purchaser or the Company may suffer
resulting from, arising out of, relating to, in the nature of, or caused by any
indebtedness or other Liabilities of the Company existing as of the Closing
Date.
(c) Indemnification Provisions
for Benefit of the Sellers and Seller Representative. In the event the
Purchaser breaches (or in the event any third party alleges facts that, if true,
would mean the Purchaser has breached) any of its representations, warranties,
and covenants contained herein, and, if there is an applicable survival period
pursuant to Section
12(a) above, provided that the Sellers, through the Seller
Representative, make a written claim for indemnification against the Purchaser
within such survival period, then the Purchaser shall indemnify the Sellers from
and against the entirety of any Adverse Consequences the Sellers may suffer
through and after the date of the claim for indemnification (including any
Adverse Consequences the Sellers may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the nature of,
or caused by the breach (or the alleged breach).
(d) Matters Involving Third
Parties.
(i) If
any third party shall notify any Party (the “Indemnified Party”) with
respect to any matter (a “Third
Party Claim”) which may give rise to a claim for indemnification against
any other Party (the “Indemnifying Party”) under
this Section
12, then the Indemnified Party shall promptly notify each Indemnifying
Party thereof in writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is prejudiced.
(ii) Any
Indemnifying Party will have the right to defend the Indemnified Party against
the Third Party Claim with counsel of its choice reasonably satisfactory to the
Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified
Party in writing within 10 days after the Indemnified Party has given notice of
the Third Party Claim that the Indemnifying Party will indemnify the Indemnified
Party from and against the entirety of any Adverse Consequences the Indemnified
Party may suffer resulting from, arising out of, relating to, in the nature of,
or caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified Party
that the Indemnifying Party will have the financial resources to defend
against
the Third
Party Claim and fulfill its indemnification obligations hereunder, (C) the Third
Party Claim involves only money damages and does not seek an injunction or other
equitable relief, (D) settlement of, or an adverse judgment with respect to, the
Third Party Claim is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying Party
conducts the defense of the Third Party Claim actively and
diligently.
(iii) So
long as the Indemnifying Party is conducting the defense of the Third Party
Claim in accordance with Section 12(d)(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its sole cost
and expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld unreasonably).
(iv) In
the event any of the conditions in Section 12(d)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any settlement
with respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, any Indemnifying Party in connection therewith), (B) the
Indemnifying Parties will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including
attorneys’ fees and expenses), and (C) the Indemnifying Parties will remain
responsible for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Section
12.
(v) Other Indemnification
Provisions. The Sellers and Seller Representative hereby indemnify the
Company against any and all claims that may be filed by a current or former
officer, director or employee of the Sellers by reason of the fact that such
person was a director, officer, employee, or agent of the Company or was serving
the Company at the request of the Sellers or the Company as a partner, trustee,
director, officer, employee, or agent of another entity, whether such claim is
for accrued salary, compensation, indemnification, judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such claim is pursuant to any statute, charter document,
bylaw, agreement, or otherwise) with respect to any action, suit, proceeding,
complaint, claim, or demand brought against the Company (whether such action,
suit, proceeding, complaint, claim, or demand is pursuant to an agreement,
applicable law, or otherwise). The Sellers and/or Seller
Representative shall have the right to defend any such claims referred to
above.
(d) Limitation on
Indemnification. Notwithstanding any other provision of this
Section 12, the aggregate indemnification to be paid by a Party hereunder with
respect to breaches of representations and warranties hereunder shall not exceed
the Purchase Price.
13. Termination.
(a) Termination of
Agreement. The Parties may terminate this Agreement as provided
below:
(i) the
Purchaser and the Sellers may terminate this Agreement by mutual written
agreement at any time prior to the Closing;
(ii) the
Purchaser may terminate this Agreement by giving written notice to the Sellers
at any time prior to the Closing Date (A) in the event the Sellers have breached
any material representation, warranty, or covenant contained in this Agreement
in any material respect and the Purchaser has notified the Sellers of the
breach, and the breach has continued without cure for a period of five (5)
business days after the notice of breach or (B) if the Closing shall not have
occurred in accordance with Section 3(a), by
reason of the failure of any condition precedent under Section 11(a) (unless
the failure results primarily from the Purchaser breaching any representation,
warranty, or covenant contained in this Agreement); and
(iii) the
Sellers may terminate this Agreement by giving written notice to the Purchaser
at any time prior to the Closing Date (A) in the event the Purchaser has
breached any material representation, warranty, or covenant contained in this
Agreement in any material respect, the Sellers have notified the Purchaser of
the breach, and the breach has continued without cure for a period of five (5)
business days after the notice of breach or (B) if the Closing shall not have
occurred in accordance with Section 3(a), by
reason of the failure of any condition precedent under Section 11(b) (unless
the failure results primarily from the Sellers breaching any representation,
warranty, or covenant contained in this Agreement).
(b) Effect of
Termination. The Sellers shall in no event be permitted to terminate this
Agreement unless prior to or accompanying any notice of termination delivered
hereunder, the Sellers (i) have delivered to the Purchaser the Cash Deposit and
any portion of the Purchase Price theretofore paid by the Purchaser; provided
that, if the Purchaser has breached this Agreement and such breach has remained
uncured after the cure period, the Sellers shall retain the Cash
Deposit. If the Purchaser terminates this Agreement pursuant to this
Section 13,
then the Sellers shall immediately pay to the Purchaser any portion of the
Purchase Price theretofore paid by the Purchaser. Except as
aforesaid, if this Agreement terminates pursuant to this Section 13, all
rights and obligations of the Parties hereunder shall terminate without any Liability of any Party to any other Party,
except for any Liability of a Party that is then in breach.
(c) Termination for
Cause. In the event that the transaction would have closed but
for the failure of the Sellers to close, then the Sellers shall reimburse the
Purchaser for their documented legal fees and related out-of-pocket expenses the
Purchaser has incurred in connection with the transaction in an amount not to
exceed a maximum of $50,000. The Purchaser agrees that any damages
payable on account of any breach of this Agreement shall be expressly limited to
such amount. In the event that the transaction would have closed but
for the failure of the Purchaser to close, then the Sellers shall receive the
Cash Deposit regardless of the Sellers’ actual damages.
14. Miscellaneous.
(a) Facsimile Execution and
Delivery. Facsimile execution and delivery of this Agreement is legal,
valid and binding execution and delivery for all purposes.
(b) Confidentiality; Press
Releases and Public Announcements. Except as and to the extent
required by law, no Party will disclose or use and will direct its
representatives not to disclose or use any information with respect to the
transaction which is the subject to this Agreement, without the consent of the
other Parties. Neither the Sellers nor the Company shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the Purchaser; provided,
however, that the Company may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities(in which case the Sellers and the
Company will use their best efforts to advise the other Parties prior to making
the disclosure).
(c) No Third-Party
Beneficiaries. This Agreement shall not confer any rights or remedies
upon any person other than the Parties and their respective successors and
permitted assigns.
(d) Entire Agreement.
This Agreement (including the documents referred to herein) constitutes the
entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
(e) Succession and
Assignment. This Agreement shall be binding upon and inure to the benefit
of the Parties named herein and their respective successors and permitted
assigns. No Party may assign either this Agreement or any of their
rights, interests, or obligations hereunder without the prior written approval
of the Purchaser and the Sellers, as applicable; provided, however, that the
Purchaser may (i) assign any or all of its rights and interests hereunder to one
or more of its Affiliates, and (ii) designate one or more of its Affiliates to
perform its obligations hereunder, but no such assignment shall operate to
release the Purchaser or a successor from any obligation hereunder unless and
only to the extent that the Sellers agree in writing.
(f) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together will constitute the same
instrument.
(g) Headings. The
Section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(h) Notices. All
notices, requests, demands, claims, and other communications hereunder will be
in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If
to the Sellers (or the Company prior to the Closing):
C/o Seller Representative
Xxxxxxx Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx
000
Xxxxxxxxx XX, X0X 0X0
Xxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
If to the
Purchaser:
Xxx Xxxxx
Managing Partner
Viking Investments Group
LLC
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Tel: (000)
000-0000
Fax: (000) 000-0000
Any Party
may send any notice, request, demand, claim, or other communication hereunder to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(i) Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Washington without giving effect to any choice or
conflict of law provision or rule (whether of the State of Washington or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Washington.
(j) Amendments and
Waivers. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by the Purchaser and the
Sellers or their respective representatives. No waiver by any Party
of any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction.
(l) Expenses. Except
as may be expressly stated to the contrary in this Agreement, each of the
Parties and the Company will bear their own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby. The Sellers agree that the Company
has not borne or will not bear any of the Sellers’ costs and expenses (including
any of his/her/its legal fees and expenses) in connection with this Agreement or
any of the transactions contemplated hereby. At its option, after the
Closing, the Purchaser may treat its costs and expenses incurred in connection
with this transaction as advances to the Company, with such costs and expenses
being paid by the Company, for which the Company will issue a promissory note to
the Purchaser in the amount of such advances at the Closing. Such
advances shall not be deemed a Liability of the Company, as defined in this
Agreement and shall not be deductible from the Purchase Price.
(m) Construction. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state or local statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word “including” shall mean
including without limitation. The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation, warranty,
or covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in breach
of the first representation, warranty, or covenant. Nothing in the
disclosure Schedules attached hereto shall be deemed adequate to disclose an
exception to a representation or warranty made herein, unless the disclosure
Schedules identifies the exception with particularity and describes the relevant
facts in detail. Without limiting the generality of the foregoing,
the mere listing (or inclusion of a copy) of a document or other item in the
disclosure Schedules or supplied in connection with the Purchaser due diligence
review, shall not be deemed adequate to disclose an exception to a
representation or warranty made herein (unless the representation or warranty
has to do with the existence of the document or other item itself).
(n) Incorporation of Exhibits
and Schedules. The Exhibits and Schedules identified in this
Agreement are incorporated herein by reference and made a part
hereof.
(o) Specific
Performance. Each of the Parties acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter (subject to the provisions set
forth in Section
14(p) below), in addition to any other remedy to which they may be
entitled, at law or in equity.
(p) Submission to
Jurisdiction. Each of the Parties submits to the jurisdiction
of any state or federal court sitting in King County, Washington, in any action
or proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each of the Parties waives any defense of inconvenient
forum to the maintenance of any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other Party with
respect thereto. Any Party may make service on any other Party by
sending or delivering a copy of the process to the Party to be served at the
address and in the manner provided for the giving of notices in Section 14(h)
above. Nothing in this Section 14(p),
however, shall affect the right of any Party to bring any action or proceeding
arising out of or relating to this Agreement in any other court or to serve
legal process in any other manner permitted by law or at equity. Each
Party agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or at equity.
[signature
pages follow]
.
The
Seller Representative Signature Page
IN
WITNESS WHEREOF, the undersigned, on behalf of the Sellers has duly executed
this Agreement the date first above written.
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SELLER
REPRESENTATIVE
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/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
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Purchaser
Signature Page
IN
WITNESS WHEREOF, the undersigned Purchaser has duly executed
this Agreement the date first above written.
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VIKING
INVESTMENTS GROUP LLC:
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By:
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/s/ Xxx Xxxxx
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Name: Xxx
Xxxxx
Title: Managing
Partner
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Company
Signature Page
IN WITNESS WHEREOF, the Company has duly executed this
Agreement the date first above written.
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SYNTHENOL,
INC.
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By:
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/s/ Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
Title:
President
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Signature
Page for Trust Agent
IN WITNESS WHEREOF, the undersigned
being the duly authorized representative of the Trust Agent has duly executed
this Agreement but only as to Sections 2(b) and
2(e) thereof as
of the date first above written.
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XXXXXXX
& XXXXX as Trust Agent
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By:
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/s/ Xxx Xxxxx
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Partner
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EXHIBIT
A
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Name of
Seller
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Number of
Shares
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Pokersoft
Corporation
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60,000
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Xxxxx
Xxxxxxx
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642
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Xxxxxx
Xxxxxxx
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450
|
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LCR
Management
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33,000
|
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Xxxxxxx
Xxxxxxx
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18,210
|
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Xxxxx
Xxxxxx
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13,000
|
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Xxxx
Xxxx
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5,000
|
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Xxxxxxx
Xxxxxxxx
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2,000
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Eurocapital
Holdings
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75,218
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Iris
International
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90,000
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Xxxxxxxx
Capital
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50,000
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Credit
Agricole
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9,240
|
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Xxxxxxx
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9,760
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Total
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366,520
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EXHIBIT
B
DMA DEBT
Invoice
#RIP08-06206 $3675
EXHIBIT
C
OUTSTANDING
DEBT
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August
15,
2008
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DMCL
CA
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4,000.00
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Edgarfilings
Ltd.
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1,500.00
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XxxXxxxxx.Xxx
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30.00
|
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Xxxxxxx
& Xxxxx
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2,235.00
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QWEST
|
108.12
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Note
Payable - Xxxxxxx Xxxx
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38,799.73
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46,672.85
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August
15,
2008
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CCN
Xxxxxxxx
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5,807.99
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Impulse
Advertising Ltd.
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3,937.50
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Pelican
Financial Corp
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13,125.00
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22,870.49
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Exchange
rate
|
0.9986
|
|
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Canadian
A/P in US $ as at Aug 15, 2008
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22,838.47
|
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Total
US$
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69,511.32
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EXHIBIT
D
ASSIGNMENT
AGREEMENT
GENERAL ASSIGNMENT AND
ASSUMPTION OF DEBT
THIS
GENERAL ASSIGNMENT AND ASSUMPTION OF DEBT (this “Assignment”) is entered into
as of this __ day of August, 2008 by and between XXXXX XXXXXX, an individual
having an address at [________________________________] (“Assignor”), and VIKING INVESTMENTS GROUP LLC.,
a [New York] limited liability company, having an address at 00 Xxxxxxxx, Xxxxx
000, Xxx Xxxx, Xxx Xxxx 00000 (“Assignee”).
RECITALS
Assignor
is due certain amounts (the “Debt”) in the aggregate
principal amount of [$19,250.00] from Synthenol, Inc. (“Borrower”), for services
rendered to Borrower in Assignor’s capacity as the Borrower’s secretary until
the date hereof.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is hereby agreed as follows:
Assignor
hereby transfers, assigns, delivers, sets-over and conveys to Assignee, without
representation, warranty or recourse, express or implied, of any type, kind,
character or nature, all of Assignor’s right, title and interest, in, to and
under the Debt and all documents evidencing, governing, securing and pertaining
to the Debt (the “Debt
Documents”), including, without limitation, the documents listed on Exhibit A attached
hereto and made a part hereof.
Assignee
hereby accepts the foregoing assignment and assumes all of the rights and
obligations of Assignor arising out of the Debt and other interests so assigned,
subject to the terms and conditions of the Agreement.
TO HAVE
AND TO HOLD the same unto Assignee and to the successors, legal representatives
and assigns of Assignee forever.
It is
expressly understood that this Assignment is made by Assignor and assumed and
accepted by Assignee without any guarantee, representation or warranty of any
kind on the part of Assignor and without recourse to Assignor in any event or
for any cause, and Assignee hereby releases Assignor from any and all claims,
demands, causes of action, losses, damages, liabilities, costs and expenses
(including, without limitation, attorneys’ fees and disbursements) suffered or
incurred by Assignor arising from or in connection with the Debt and/or, if
applicable, the Loan Documents.
This
Assignment shall be governed by and construed in accordance with the laws of the
State of New York (without giving effect to New York’s principles of conflicts
of laws).
This
Assignment may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
document.
IN
WITNESS WHEREOF, Assignor has caused this instrument to be signed this __ day of
August, 2008.
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XXXXX
XXXXXX
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By:
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Xxxxx
Xxxxxx:
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PROVINCE
OF [_______]
)
) :ss.
COUNTY OF
[________]
)
On the
_____ day of ____________, in the year 2008, before me, the undersigned,
personally appeared _____________________________________, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity, and that by his/her signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary
Public
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(NOTARIAL
SEAL)
My
Commission Expires:
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ASSUMED
AND ACCEPTED AS OF
THE
DATE SET FORTH ABOVE:
VIKING
INVESTMENTS GROUP LLC
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By:
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Name:
Xxx Xxxxx
Title: Managing
Partner
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EXHIBIT
E
FORM OF PAYOFF
LETTER
SETTLEMENT
LETTER
This
settlement letter is made as of August _______ 2008 by and
between ____________________
_______________________,
located at _____________________________________ ("Creditor ") and Synthenol,
Inc., (previously known as LegalPlay Entertainment Inc. and Xxxxx.xxx Inc., the
“Debtor”) located at 000 Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0. (Each
a “Party,” collectively, the “Parties.”)
Pursuant
to this settlement letter, Creditor hereby accepts this offer of settlement in
the amount of Cnd$______________ (“Settlement Amount”) from Debtor in
full settlement of an outstanding debt in the amount of
Cnd$_______________ (“Debt”) owed to Creditor by the
Debtor.
This
settlement letter shall become effective automatically and binding on the
Parties on the day that the Settlement Amount is either received by Creditor or,
if sent by wire, the date sent (with appropriate proof from Seattle
Solicitors, Xxxxxxx & Xxxxx of sending the wire) by the Debtor to the extent
that the payment of the Settlement Amount is made on or before August 20th,
2008
(
“Effective Date”). This settlement letter shall automatically
terminate and be null and void on August 26, 2008, if (on that day or thereafter
but no later than August 31st, 2008) Creditor provides written notice to the
Debtor that Creditor has not received the Settlement Amount; provided that, to
the extent applicable, failure by Creditor to provide written notice to the
Debtor will be deemed a waiver of the condition by Creditor and the Debt shall
be deemed paid off.
On
payment of the Settlement Amount:
(a) All
outstanding obligations of the Debtor to Creditor shall be deemed paid in full
and Creditor will release Debtor from all further debt and/or liability related
to the Debt;
(b) Creditor
has not assigned or otherwise transferred the Debt or any of its rights or
obligations under the Debt to any other person or entity.
(c) Creditor
will, if required at the request of the Debtor, promptly deliver to the Debtor,
at the Debtor's expense, (i) executed uniform commercial code (UCC) termination
statements , releases and other documents reasonably requested by the Debtor to
evidence the termination of any and all debt and (ii) any additional documents
reasonably requested by the Debtor to confirm the terminations referred to above
or to otherwise carry out the intent of this letter.
(d) In
addition, Creditor acknowledges and agrees that the Debtor and/or any of its
affiliates including its controlling stockholders, officers and directors may
rely on this settlement letter to the extent conditions specified in this
settlement letter for the payment of the Settlement Amount has been
satisfied.
(g) This
letter agreement may be legally delivered by Fax or by signing, scanning and
emailing
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SYNTHENOL,
INC.
|
|||
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By:
|
|||
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Name
Title
|
|||
|
|
|||
|
___________________________________
Creditor
|
|||
|
By:
|
|||
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Name
Title
|
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DISCLOSURE
SCHEDULES
None
