STOCK PURCHASE AGREEMENT
EXHIBIT
10.11
THIS
STOCK PURCHASE AGREEMENT (this "Agreement")
is entered into and dated as of the 23st day
of July 2008, by and among Xtreme Oil & Gas, Inc., a Washington corporation
("Xtreme"),
and Knight Enterprises, Inc., a Nevada corporation, (the "Seller")
(each of Xtreme and the Seller is individually referred to herein as a
"Party"
and collectively both as the "Parties")
and is made in light of the following recitals which are a material part
hereof:
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a.
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The
Seller owns 100,000 shares of common stock (the "Seller Shares") in
Small Cap Strategies, Inc., a Nevada corporation ("SMCA") which SMCA is a
fully reporting company under the Securities Exchange Act of 1934 (the
"1934 Act") which
has elected to be governed as a business development company under the
Investment Company Act of 1940 (the "1940 Act") and whose
stock is listed on the OTC Bulletin Board listing service under the symbol
SMCA.ob.
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b.
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The
common stock of Xtreme is presently listed for sale as a non-reporting
"grey-sheet"
company under the symbol XXXX.xx.
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c.
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The
Parties now desire that the proposed transaction close in accordance with
this Agreement
and in accordance with the terms and conditions
hereof.
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NOW, THEREFORE, in
consideration of the premises and the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each of the Parties hereto, the Parties agree as
follows:
ARTICLE
1
PURCHASE
AND SALE OF THE SELLER SHARES
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1.1
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Purchase and Sale of
the Seller Shares. Subject to the terms and conditions contained,
and in further of the intent of the parties, Xtreme purchase from Seller,
and Seller shall sell, assign, transfer and deliver to Xtreme, herewith
unencumbered title to 100,000 shares, free and clear of all liens or
claims (in exchange for the "Purchase Price" defined
below. The Seller shall deliver the Seller Shares in the name of Xtreme or
in such other name, which together with its irrevocable letter of
direction and stock powers executed under "medallion" guarantee as will
allow immediate and irrevocable transfer to Xtreme or nominees of Xtreme,
and Xtreme shall deliver the Purchase Price together with such xxxx of
sale and receipt as the Seller deems
necessary.
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1.2
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Closing Date.
The closing date (the "Closing Date") shall be
July 24, 2008 on or before 5:00pm provided the conditions precedent have
been met but the Closing Date may be extended to the date next following
the date on which such conditions precedent have been met but in no event
later than July 25, 2008. The closing of this transaction (the "Closing") shall be held
at the offices of Xxxxx X. Xxxxxx & Associates, counsel for Xtreme,
located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx and
may be closed by electronic communications and confirmations between the
Parties.
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1
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1.3
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Purchase Price.
The Purchase Price for the sale and purchase of the Seller Shares
shall be the following: Xtreme shall deliver to the Seller 150,000 shares
of stock in Xtreme which will be issued to Seller without regard to price,
protection or rights or options.
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ARTICLE 2
REPRESENTATIONS
AND WARRANTIES OF XTREME
In order
to induce the Seller to enter into this Agreement and the transactions
contemplated hereby, Xtreme hereby represents and warrants that each of the
following statements is true and accurate in all respects.
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2.1
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Corporate Authority.
Xtreme has full corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. All
actions on the part of Xtreme necessary for the authorization, execution,
delivery and performance of all obligations of Xtreme under this Agreement
have been taken. The execution, delivery and performance by Xtreme of this
Agreement have been duly authorized by all requisite corporate action, and
this Agreement constitutes a valid and binding obligation of
Xtreme.
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2.2
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Due Execution.
This Agreement has been duly executed and delivered by Xtreme, and
this Agreement constitutes the valid and binding obligation of Xtreme,
enforceable in accordance with its
terms.
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2.3
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No Violation.
Xtreme is not subject to or bound by any provision of (i) its
organizational documents, (ii) any law, statute, rule, regulation or
judicial or administrative decision, (iii) any mortgage, deed of Seller,
lease, note, shareholders' agreement, bond, indenture, other instrument or
agreement, license, permit, Seller, custodianship, or other restriction,
or (iv) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator, which would
prevent or be violated by the execution, delivery or performance by Xtreme
of this Agreement or the consummation of the transactions contemplated
hereby, or under which there would be a default, as a result of the
execution, delivery or performance by Xtreme of this Agreement or the
consummation of the transactions contemplated hereby. No consent,
approval, authorization, declaration or filing is required for the valid
execution, delivery and performance by Xtreme of this Agreement and the
consummation of the transactions contemplated
hereby.
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2.4
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Litigation, etc.
To the knowledge of Xtreme, there are no civil, criminal or
administrative actions, claims, lawsuits, litigation, hearings, notices of
violation or proceedings pending or injunctions or decrees of any court or
governmental body issued or, to the knowledge of Xtreme, threatened ("Actions") which
involves the transactions contemplated by this Agreement, nor is there any
state of facts or occurrence of any event which might give rise to any
such Actions.
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2.5
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Acceptance of Seller
Shares. Xtreme will accept the Seller Shares subject to matters
pertaining
to the sale of securities generally including but not limited to the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, or any state statute, rule, or regulation relating
to the sale of securities (collectively, "Securities Laws") and therefore
subject to such legends as required by the various Securities Laws and
agrees that Xtreme will acquire the Seller Shares (i) as accredited
investor, able, knowledgeable about such investments and willing to assume
the risks of acquiring the Seller Shares; (ii) for investment and not with
a view to the sale or other distribution thereof; and (iii) will not at
any time sell, exchange, transfer, or otherwise dispose of the Seller
Shares under circumstances that would constitute a violation of the
Securities Laws.
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2
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2.6
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Status of Xtreme.
As of the Closing date, there will be no more 18,000,000 shares of
Xtreme
Stock outstanding.
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ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
In order
to induce Xtreme to enter into this Agreement and the transactions contemplated
hereby, the Seller hereby represents and warrants that the following statements
are true and accurate in all respects.
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3.1
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Corporate Authority.
The Seller has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. All
action on the part of the Seller necessary for the authorization,
execution, delivery and performance of all obligations of the Seller under
this Agreement has been taken. The execution, delivery and performance by
the Seller of this Agreement have been duly authorized by all requisite
corporate action.
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3.2
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Due Execution.
This Agreement has been duly executed and delivered by the Seller,
and this
Agreement constitutes the valid and binding obligation of the
Seller.
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3.3
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No Violation.
The Seller is not subject to or bound by any provision of (i) its
organizational documents, (ii) any law, statute, rule, regulation or
judicial or administrative decision, (iii) any mortgage, deed of Seller,
lease, note, shareholders' agreement, bond, indenture, other instrument or
agreement, license, permit, Seller, custodianship, or other restriction,
or (iv) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator, which would
prevent or be violated by the execution, delivery or performance by the
Seller of this Agreement or the consummation of the transactions
contemplated hereby, or under which there would be a &fault, as a
result of the execution, delivery or performance by the Seller of this
Agreement or the consummation of the transactions contemplated hereby. No
consent, approval, authorization, declaration or filing is required for
the valid execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated
hereby.
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3.4
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Litigation, etc.
To the knowledge of the Seller, there are no Actions (as defined
above) relating to the Seller which involves the transactions contemplated
by this Agreement, nor is there any state of facts or occurrence of any
event which might give rise to any such
Actions.
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3
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3.5
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Status of the Seller
Shares. As of the Closing date, the Seller Shares are authorized to
be issued and fully-paid and non-assessable and there will be no adverse
claims affecting the Seller Shares, there are no notations of any adverse
claims marked on the certificates for the Seller Shares, and, Xtreme will
acquire the Seller Shares free and clear of any security interests,
mortgage, adverse claims, liens, or encumbrances of any nature or
description whatsoever, subject only to the Securities
Laws.
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ARTICLE
4
CONDITIONS
AND COVENANTS
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4.1
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Conditions Precedent
to Xtreme's Obligations. Xtreme's obligation to purchase the Seller
Shares and Xtreme' obligation to take the other actions required to be
taken by Xtreme at the Closing are subject to the satisfaction, at or
prior to the Closing, of each of the following
conditions:
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(a) Representations and
Warranties. The representations and warranties contained in Article 3
shall be true and correct in all material respects on the Closing Date as though
made on the Closing Date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case as of such earlier
date);
(b) Delivery of Seller Shares.
The Seller shall have endorsed over or otherwise arranged for delivery of
the Seller Shares in the manner provided and physically delivered the Seller
Shares to Xtreme or its counsel for delivery to the transfer agent for further
delivery to Xtreme following closing;
(c) Resolutions of Seller.
The Seller shall have delivered to Xtreme an irrevocable ordinary
resolution of the Seller approving the transactions contemplated in this
Agreement; and
(d) No Injunction, etc.
There shall have been no Action that restrains or prohibits the
consummation of any of the transactions contemplated by this
Agreement.
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4.2
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Conditions Precedent
to Seller' Obligations. Seller' obligation to deliver the Seller
Shares and to take the other actions required to be taken by Seller at the
Closing are subject to the satisfaction, at or prior to the Closing, of
each of the following conditions:
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(a) Representations and
Warranties. The representations and warranties contained in Article 2
shall be true and correct in all material respects on the Closing Date as though
made on the Closing Date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case as of such earlier
date);
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(b) Resolutions of Xtreme.
Xtreme shall have delivered to Seller an irrevocable ordinary resolution
of the Board of Directors of Xtreme approving the transactions contemplated in
this Agreement; and
(c) No Injunction, etc.
There shall have been no Action that restrains or prohibits the
consummation of any of the transactions contemplated by this
Agreement.
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4.3
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Post-Closing Covenants
of Xtreme and the Seller. Each of Xtreme and the Seller shall use
all reasonable efforts to take, or cause to be taken, all appropriate
action to do, or cause to be done, all things necessary, proper or
advisable under applicable law or otherwise to consummate and make
effective the transactions contemplated by this Agreement as promptly as
practicable
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ARTICLE
5
SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION
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5.1
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Survival of
Representations, Warranties and Covenants. The representations,
warranties and covenants contained in this Agreement shall survive the
Closing Date until the expiration of the applicable statute of
limitations.
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5.2
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Indemnification by
Xtreme. Xtreme hereby agree to defend, indemnify and hold harmless
the Seller from and against any and all losses, liabilities, damages,
assessments, claims, judgments, costs and expenses, including reasonable
attorneys' fees ("Losses"), which may be incurred by the Seller as a
result of any breach by Xtreme of any agreement, covenant, representation
or warranty set forth in this
Agreement.
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5.3
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Indemnification by the
Seller. The Seller hereby agrees to defend, indemnify and hold
harmless Xtreme from and against any and all Losses as defined above which
may be incurred by Xtreme as a result of any breach by the Seller of any
agreement, covenant, representation or warranty set forth in this
Agreement.
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ARTICLE
6
MISCELLANEOUS
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6.1
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Expenses. Each
of the Parties shall bear its own expenses in connection with
this Agreement
and the consummation of the transactions contemplated
hereby.
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6.2
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Interpretation.
All references herein to dollars shall be to U.S.
dollars.
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6.3
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Confidentiality;
Public Announcements. None of the Parties, nor any of their
respective affiliates, shareholders, directors, officers, employees,
agents, attorneys or other representatives of any kind, shall make any
public disclosure of or about the existence of this Agreement or the
transactions contemplated hereby except upon the prior written approval of
the other Party. All of such information shall be treated as strictly
confidential. Public announcement of the consummation of the transactions
contemplated hereby shall be made, if at all, only with the prior written
consent of the other Parties, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, the Parties may release any
information necessary to comply with applicable Securities Laws, stock
exchange rules, regulations or court
orders.
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6.4
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Further Assurances.
From time to time after the Closing Date, each of the Parties shall
upon the request of any other Party execute and deliver such other
documents and instruments, and take such other actions, as may be
reasonably required to carry out or evidence the transactions contemplated
hereby.
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6.5
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Waiver. Any
failure of Xtreme to comply with any of its obligations or agreements
herein contained may be waived only in a writing executed by the Seller.
Any failure of the Seller to comply with its obligations or agreements
herein contained may be waived only in a writing executed by
Xtreme.
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6.6
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Notices. All
notices and other communications provided for hereunder shall be in
writing, shall specifically refer to this Agreement, shall be addressed to
the receiving Party's address set forth below or to such other address as
a Party may designate by notice hereunder, and shall be deemed to have
been sufficiently given for all purposes if (i) mailed by first class
certified or registered mail, postage prepaid, (ii) sent by nationally
recognized overnight courier for next business day delivery, (iii)
personally delivered, or (iv) made by facsimile transmission with
confirmed receipt.
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If to
Xtreme:
Xtreme
Oil & Gas, Inc.
00000
Xxxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000
Attn:
Xxxxxxx X. XxXxxxxx III
If to
Seller
Kinght
Enterprises Inc.
Xxxxx
Xxxxxx
0000
Xxxxxxx Xxxx, Xxxxx X #000 Xxx Xxxxx XX 00000
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6.7
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Governing Law;
Submission to Jurisdiction.
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(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas without reference to the conflict of law principles
thereof.
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(b) Any
suit, action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal or state court located in the
County and State of Texas, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 7.5
shall be deemed effective service of process on such party.
(c) EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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6.8
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Specific Performance.
The Parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity. Time is of
the essence as to performance of each of the terms
hereof.
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6.9
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Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed and
delivered by telecopy or facsimile and any execution in such manner shall
be deemed an original. Delivery of a copy of this Agreement by electronic
image with an indication of a signature and intent clearly indicated
affirming such signature as binding shall constitute delivery of an
executed document.
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6.10
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Captions and Headings.
The captions and section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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6.11
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Entire Agreement.
This Agreement embodies the entire agreement and understanding of
the Parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements and understandings between the Parties
with respect to such subject
matter.
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6.12
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Severability.
If any provision of this Agreement shall be invalid or
unenforceable, the other provisions of this Agreement shall continue in
full force, and the validity and enforceability of such other provisions
shall not be adversely
affected.
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6.13
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Amendment and
Modification. This Agreement may be amended and modified only by
written agreement of all of the Parties
hereto.
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6.14
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Assignment.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or
in part, by operation of law or otherwise by any Party hereto without the
prior written consent of the other Parties hereto, and any such assignment
without such prior written consent shall be null and void. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Parties hereto and their respective
successors and permitted
assigns.
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6.15
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No Third Party
Beneficiaries. This Agreement is not intended, and shall not be
deemed, to confer any rights or remedies upon any person other than the
Parties and their respective successors and permitted assigns or to
otherwise create any third-party beneficiary hereto. No Party may assign
its rights hereunder or delegate its obligations hereunder to any other
person or entity without the express prior written consent of the other
Parties. All covenants and agreements contained in this Agreement by or on
behalf of any of the Parties hereto shall bind and inure to the benefit of
said Party and its respective heirs, personal representatives, successors,
and assigns, whether so expressed or
not.
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IN WITNESS WHEREOF, the
Parties hereto have duly executed this Agreement as of the date first written
above.
| XTREME OIL & GAS, INC. | |
| By: | /s/ Xxxxxxx X. XxXxxxxx, III |
| Name: | Xxxxxxx X. XxXxxxxx, III |
| Chief Executive Officer | |
| KNIGHT ENTERPRISES, INC. | |
| By: | /s/ Xxxxx Xxxxxx |
| Name: | Xxxxx Xxxxxx, President |
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