Exhibit 4.05
AGREEMENT FOR THE PURCHASE OF COMMON STOCK
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") made this 27TH day
of November, 2000, by and among XXXX PRODUCTS, INC., a Delaware corporation
("XXXX "), the undersigned Shareholders of XXXX (collectively, the
(Shareholders) and CANADIAN ROCKPORT HOMES, LTD. ("CANADIAN ROCKPORT HOMES") is
for the purpose of setting forth the terms and conditions upon which the
Shareholders will sell to CANADIAN ROCKPORT HOMES (acting on behalf of various
persons and entities) 7,081,492 shares of XXXX'x common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
WITNESSETH
WHEREAS, each Shareholder has appointed SOUTHWARD INVESTMENTS, L.L.C. a New
York corporation ("SOUTHWARD INVESTMENTS") to receive and hold all consideration
received from Xxx X. Xxxxxxxx Attorney Trust Account for the sale of the Shares
and to act on their behalf in all matters pertaining to this Agreement; and
WHEREAS, CANADIAN ROCKPORT HOMES, SOUTHWARD INVESTMENTS and Xxx X. Xxxxxxxx
Attorney Trust Account have entered into an ESCROW AGREEMENT dated November 3,
2000.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties herewith agree as follows:
ARTICLE I
SALE OF SECURITIES
1.01 Subject to the terms and conditions of this Agreement, the Shareholders
listed below agree to sell, and CANADIAN ROCKPORT HOMES, and or designees,
agrees to purchase, an aggregate of 7,081,492 shares of the common stock
("Shares") of XXXX for a total of $ 85,000 ("Purchase Price"). This is a
private transaction between each of the following named shareholders and
CANADIAN ROCKPORT HOMES, LTD.
Shareholders:
1. Xxxxxxxxxx Acquisition Corp. Xxxxxxxxxx Realty
2. Xxxxxx Xxxxxxx
3. Xxxxxxx Xxxxxxx
4. Tramdot Development Corp.
5. Southward Investments
6. Xxxx Xxxxxx
7. Xxxxxx Xxxxx
1.02 Each shareholder hereby appoints SOUTHWEST INVESTMENTS to receive and
hold all consideration received from CANADIAN ROCKPORT HOMES for the sales of
the Shares and to act on their behalf in all matters pertaining to this
transaction.
1.03 Deposit CANADIAN ROCKPORT HOMES has submitted a deposit ("DEPOSIT")
toward Purchase Price for the shares in the amount of $25,000, to the Trust
Account ("Trust Account") of Xxx X. Xxxxxxxx Attorney ("Paradiso"), to be held
in trust until the execution of this Agreement by CANADIAN ROCKPORT HOMES after
which the deposit will be forwarded to Southward Investments on behalf of the
Selling Shareholders to cover legal, accounting and other costs. CANADIAN
ROCKPORT HOMES, Southward Investments (representing the Selling Shareholders)
and Paradiso have entered into an ESCROW AGREEMENT dated November 3, 2000. Upon
the signing of this Agreement by CANADIAN ROCKPORT HOMES, the deposit will be
non-refundable unless the Shareholders of XXXX fail to fulfill all things to be
completed pursuant to the terms of this Agreement and outlined in Article V,
Paragraph 5.02 of this Agreement. If, at the closing, (as defined below in
Section 4.1) the shareholders of XXXX failed to do all things required to be
completed pursuant to the terms hereof, this Agreement can be terminated by
CANADIAN ROCKPORT HOMES and the entire deposit amount will be immediately
refunded to CANADIAN ROCKPORT HOMES. In the event that CANADIAN ROCKPORT HOMES
decides to exercise their option to cancel the transaction, without cause, prior
to signing the Selling Agreement, the charges and expenses incurred by Paradiso
for acting as the Escrow Holder, not to exceed $600, will be paid by CANADIAN
ROCKPORT HOMES and will be deducted from the Deposit. If additional legal or
other costs are incurred at he request of CANADIAN ROCKPORT HOMES, other than as
outlined in this Agreement, CANADIAN ROCKPORT HOMES will be informed of these
costs before they are incurred and those additional costs, if any, will also be
deducted from the Deposit, prior to refunding the Deposit to CANADIAN ROCKPORT
HOMES or paid by CANADIAN ROCKPORT HOMES upon closing. After the signing of
this Agreement or upon completion of the transaction, all escrow expenses will
be paid by the Shareholders.
1.04 Upon the signing of this Agreement, a copy will be forwarded to
Paradiso, the deposit will be paid by him to SOUTHWARD INVESTMENTS on behalf of
the Shareholders.
1.05 Prior to closing, CANADIAN ROCKPORT HOMES Xxxxxxxx X. Xxxxxx will wire
funds in the amount of $65,000 (the balance of the Purchase Price) to the
account of Xxx X. Xxxxxxxx Attorney Trust Account, which, along with the Deposit
of $25,000 shall constitute payment in full for the Shares. It is agreed that
Purchase Price Balance in the amount of $60,000 will be transferred to Xxx X.
Xxxxxxxx Attorney Trust Account on or before November 30, 2000 and that he
closing will take place on or before December 2, 2000 December 7, 2000 (subject
to the delay of any regulatory agency in providing any required documents or
information) under the terms described in Article IV of this Agreement.
ARTICLE II REPRESENTATIONS AND WARRANTIES
The Shareholders and XXXX jointly and severally, represent and warrant to
CANADIAN ROCKPORT HOMES the following:
2.01 Organization. XXXX is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Delaware. All actions taken
by the Incorporators, Directors and/or shareholders of XXXX have been valid and
in accordance with the laws of the State of Delaware.
2.02 Capital. The authorized capital stock of XXXX consists of 20,000,000
share of common stock, $.001 par value, of which 11,351,866 shares are issued
and outstanding. All outstanding shares are fully paid and non-assessable, free
of liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating XXXX to issue or to transfer from treasury
any additional shares of its capital stock. None of the outstanding shares of
XXXX are subject to any stock restriction agreements. There are approximately
1,886 bonafide shareholders of XXXX. All of such shareholders have valid title
to such shares and acquired their shares in a lawful transaction and in
accordance with Delaware corporate law and the securities laws of the United
States.
2.03 Financial Statements. Documents provided to CANADIAN ROCKPORT HOMES
will include the balance sheets of XXXX as of October 31, 2000, and the related
statements of income and retained earnings for the period then ended. The
financial statements have been prepared in accordance with generally accepted
accounting principles consistently followed by XXXX throughout the periods
indicated, and fairly present the financial position of XXXX as of the date of
the balance sheet included in the financial statements, and the results of its
operations for the periods indicated.
2.04 Absence of Changes. Since October 31, 2000, and the signing of this
Agreement, there will have been no change in the financial condition or
operations of XXXX, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
2.05 Liabilities. XXXX did not as of October 31, 2000, and at the signing
of this Agreement, and will not, as of closing, have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected in XXXX'X balance sheet
as of October 31, 2000. The Shareholders are not aware of any pending,
threatened or asserted claims, lawsuits or contingencies involving XXXX or its
common stock. There is no dispute of any kind between XXXX and any third party,
and no such dispute will exist at the closing of this Agreement. At closing,
XXXX will be free from any and all liabilities, liens, claims and/or
commitments.
2.06 Tax Returns. Within the times and in the manner prescribed by law,
XXXX has filed, or will have filed before closing, all federal, state, and local
tax returns required by law and has paid, or will pay by closing, all taxes,
assessments, and penalties due and payable. No federal income tax returns of
XXXX have been audited by the Internal Revenue Service. The provision for
taxes, if any, reflected in XXXX'X balance sheet as of October 31, 2000, is
adequate for any and all federal, state, county, and local taxes for the period
ending on the date of that balance sheet and for all prior periods, whether or
not disputed. There are no present disputes as to taxes of any nature payable
by XXXX. As of closing, there shall be no taxes of any kind due or owing.
2.07 Ability to Carry Out Obligations. The Shareholders have the right,
power, and authority to enter into, and perform their obligations under this
Agreement. The execution and delivery of this Agreement by the Shareholders and
the performance by the Shareholders of their obligations hereunder will not
cause, constitute, or conflict with or result in (a) any breach or violation or
any of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which XXXX or the Shareholders are a party, or by
which they may be bound, nor will any consents or authorizations of any party
other than those thereto be required, (b) an event that would cause XXXX to be
liable to any party, or (c) an event that would result in the creation or
imposition of any lien, charge, or encumbrance on any asset of XXXX or upon the
Shares of XXXX to be acquired by CANADIAN ROCKPORT HOMES.
2.08 Full Disclosure. None of representations and warranties made by XXXX
or the Shareholders, or in any certificate or memorandum furnished or to be
furnished by XXXX or the Shareholders, or on their behalf, contains or will
contain any untrue statement of a material fact, or omit any material fact the
omission of which would be misleading.
2.09 Contracts and Leases and Assets. XXXX does not and has never carried
on any business and is not a party to any contract, agreement or lease. No
person holds a power of attorney from XXXX. XXXX, at closing, will not own any
tangible assets.
2.10 Compliance with Laws. XXXX has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to XXXX. XXXX has complied with all federal and state securities
laws in connection with the offer, sale and distribution of its securities. At
the time XXXX filed its Form D with the Securities and Exchange Commission, XXXX
was entitled to use the exemption provided by Section 504 of the Securities Act
of 1933 relative to the distribution of its shares. The shares being sold
herein are being sold in a private transaction between the shareholder and
buyer, and it is understood that the shares are subject to trading restrictions
of Regulation D of the Securities Act of 1933, as amended.
2.11 Litigation. XXXX is not (and has not been) a party to any suit,
action, arbitration, or legal administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the Shareholders, there is
no basis for any such action or proceeding and no such action or proceeding is
threatened against XXXX. XXXX is not subject to or in default with respect to
any order, writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
2.12 Conduct of Business. Prior to the closing, XXXX shall conduct its
business in the normal course, and shall not (without the prior written approval
of CANADIAN ROCKPORT HOMES) (i) sell, pledge, or assign any assets (ii) amend
its Articles of Incorporation or Bylaws, (iii) declare dividends, redeem or sell
stock or other securities, (iv) incur any liabilities, (v) acquire or dispose of
any assets, enter into any contract, guarantee obligations of any third party,
or (vi) enter into any other transaction.
2.13 Corporate Documents. Each of the following documents, which are
true, complete and correct in all material respects, will be submitted at
closing:
(i) Articles of Incorporation;
(ii) Bylaws;
(iii)Minutes of Shareholders Meetings;
(iv) Minutes of Board of Directors Meetings;
(v) An Opinion Letter from XXXX'X attorney attesting to the validity of the
shares and condition of the Corporation;
(vi) List of Officers and Directors;
(vii)List of XXXX'X Shareholders as of the date hereof;
(viii)Copy of Form D filed with Securities and Exchange Commission;
(ix) Balance Sheet as of October 31, 2000, together with other financial
statements, if any, described in Section 2.03;
(x) Secretary of State Filing Receipt;
(xi) Copies of all federal and statement income tax returns of XXXX;
(xii) Stock register and stock certificate records of XXXX;
2.14 Closing Documents. All minutes, consents or other documents
pertaining to XXXX to be delivered at closing shall be valid and in accordance
with the laws of Delaware.
2.15 Title. The Shareholders have good and marketable title to all of the
Shares being sold to CANADIAN ROCKPORT HOMES pursuant to this Agreement. The
Shares will be, at closing, free and clear of all liens, security interests,
pledges, charges, claims, encumbrances and restrictions of any kind. None of
the shares are or will be subject to any voting trust or agreement. No person
holds or has the right to receive any proxy or similar instrument with respect
to such shares. Except as provided in this Agreement, the Shareholders are not
parties to any agreement which offers or grants to any person the right to
purchase or acquire any of the Shares. There is no applicable local, state or
federal law, rule, regulation, or decree which would, as a result of the
purchase of the Shares by CANADIAN ROCKPORT HOMES, impair, restrict or delay
voting rights with respect to the Shares.
2.16 Organization of the Shareholders. In the case of any Shareholder
that is not a natural person, such Shareholder is duly organized or formed and
validly existing under the laws of the jurisdiction of its incorporation or
formation and has the corporate or other organizational power and authority
under such laws to enter into this Agreement to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
2.17 Representations. All representations shall be true as of closing
and all such representations shall survive the closing.
ARTICLE III
INVESTMENT INTENT
3.01 Transfer Restrictions. CANADIAN ROCKPORT HOMES agrees that the
securities being acquired pursuant to this Agreement may be sold, pledged,
assigned, hypothecated or otherwise transferred, with or without consideration
("Transfer") only pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act") or pursuant to an exemption from
registration under the Act, the availability of which is to be established to
the satisfaction of XXXX. CANADIAN ROCKPORT HOMES agrees, prior to any
Transfer, to give written notice to XXXX expressing its desire to effect the
Transfer and describing the proposed Transfer. XXXX will not unduly delay or
refuse to render a legal opinion to permit shareholders of XXXX to transfer
their securities, once a public market for shares develops.
3.02 Reverse Stock Split Restrictions. CANADIAN ROCKPORT HOMES agrees
that XXXX or a successor corporation of XXXX will not exceed a greater than 9 to
1 reverse stock split for a period of two years from the Closing of this
Agreement.
ARTICLE IV
CLOSING
4.01 Closing. The Closing of this transaction will occur when all of
the documents and consideration described below have been delivered (the
"Closing"). Unless the Closing of this transaction takes place on or before
December 1, 2000, (however closing may be subject to a delay by any regulatory
agency in supplying any document or information required by either party for
closing, in which case closing may be extended by either party) then either
party may terminate this Agreement. If this Agreement is terminated due to the
failure of the Shareholders to provide the documents specified in Article 2.13,
or the documents listed below in Section 4.2, then all consideration paid by
CANADIAN ROCKPORT HOMES shall be returned to CANADIAN ROCKPORT HOMES. If this
Agreement is terminated by the Shareholders due to the failure of CANADIAN
ROCKPORT HOMES to provide the consideration specified below, then the Deposit
previously paid by CANADIAN ROCKPORT HOMES will be forfeited to the shareholders
and CANADIAN ROCKPORT HOMES will have no further liability to the Shareholders.
As part of the closing, those documents listed in 2.13 of This Agreement as well
as the following documents, in form reasonably acceptable to counsel to the
parties, shall be delivered:
4.02 Documents to be Delivered at Closing. As part of the Closing,
those documents listed in 2.13 of this Agreement, as well as the following
documents, in form reasonably acceptable to counsel to the parties, shall be
delivered:
(a) By the Shareholders:
(i) certificate or certificates for representing 7,081,492 shares of
XXXX'x common stock, registered in the name of CANADIAN ROCKPORT HOMES or
as designated by CANADIAN ROCKPORT HOMES.
(ii) the resignation of all officers of XXXX.
(iii) the resignation of all of the directors of XXXX.
(iv) a Board of Directors resolution appointing new Directors of XXXX
as designated by CANADIAN ROCKPORT HOMES.
(v) certified audited Financial Statements of XXXX, which shall
include a balance sheet dated as of October 31, 2000 and statements of
operations,m stockholders' equity and cash flows for the twelve month
period then ended.
(vi) true and correct copies of all of the business and corporate
records of XXXX, including but not limited to correspondence files, bank
statements, checkbooks, savings account books, minutes of shareholder and
directors meetings, financial statements, shareholder listings, stock
transfer records, agreements and contracts.
(vii) such other documents of XXXX'x shareholders or directors as may
be reasonably required by CANADIAN ROCKPORT HOMES.
The financial statements of XXXX shall be covered by a report of a
certified public accountant who is not a shareholder of XXXX. The accountant's
report shall state that the accountant conducted his audit in accordance with
generally accepted auditing standards, that his audit provided a reasonable
basis for his opinion, and that in his opinion, the financial statements covered
by the report present fairly, in all material respects, the financial position
of XXXX as of October 31, 2000, and the results of its conformity with generally
accepted accounting principles. Such report will not be qualified or limited in
any respect.
The accountant reporting on such financial statements will submit, if
requested, proof to CANADIAN ROCKPORT HOMES, on or before closing, that the
accountant has a standard professional liability policy (which provides coverage
for the audit report on XXXX'X financial statements) with policy limits of at
least $1,000,000 for each occurrence or claim.
(b) CANADIAN ROCKPORT HOMES, LTD.
(i) wire transfer to Xxx X. Xxxxxxxx Attorney Trust Account the amount
of $60,000 representing the balance of the Purchase Price Balance for the
Shares.
ARTICLE V
REMEDIES
5.01 Arbitration. Any controversy of claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Rochester, New York in accordance with the Rules of
the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
5.02 Termination. In addition to any other remedies, CANADIAN ROCKPORT
HOMES may on or before the closing date terminate this Agreement, if at the
Closing, XXXX and/or the Shareholders have failed to comply totally with all
terms of this Agreement, have failed to supply any documents required by this
Agreement or have failed to disclose any material facts which could have a
substantial effect on any part of this transaction.
5.03 Indemnification. The Shareholders, jointly and severally agree to
indemnify CANADIAN ROCKPORT HOMES against all actual losses, damages and
expenses caused by (i) any material breach of this Agreement or any material
misrepresentation of the Shareholders contained herein or (ii) any misstatement
of a material fact or omission to state a material fact required to be stated
herein or necessary to make the statements herein not misleading.
5.04 Indemnification Non-Exclusive The forgoing indemnification
provision is in addition to, and not derogation of any statutory, equitable or
common law remedy any party may have for breach of representation, warranty,
covenant or agreement.
ARTICLE VI
MISCELLANEOUS
6.01 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
6.02 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged, orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
6.03 Non Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
6.04 Time of Essence . Time is of the essence of this Agreement and of
each and every provision hereof.
6.05 Entire Agreement. This Agreement, including any and all attachments
hereto, if any, contains the entire Agreement and understanding between the
parties hereto, and supersedes all prior agreements and understandings.
6.06 Significant Changes The Shareholders understand that significant
changes may be made in the capitalization and/or stock ownership of the
Corporation, which changes could involve a reverse stock split and/or the
issuance of additional shares of common stock, thus possibly having a dramatic
negative effect on the percentage of ownership and/or number of shares owned by
present shareholders of the Corporation.
6.07 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed any original, but all of
which together shall constitute on and the same instrument. Facsimile
signatures will be acceptable to all parties.
6.08 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, or on the second day if faxed, and properly addressed or faxed as
follows;
If to the Shareholders:
c/o Xx. Xxxxxx Diamond, President
Southward Investments, L.L.C.
0000 Xxxxxx Xxx. Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Fax-716-244-0053
If to CANADIAN ROCKPORT HOMES:
% Xx. Xxxxxxxx X. Xxxxxx
11150 Xxxx Xxxxxxx Xxxxxxxxx Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax-310-479-1022
6.09 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successors and assigns of
each of the parties to this Agreement.
6.10 Effect of Closing. All representations, warranties, covenants,
and agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the closing and shall survive the closing of this Agreement.
6.11 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
6.12 Stock Certificates CANADIAN ROCKPORT HOMES hereby acknowledges
that with the exception of those certificates to be issued to CANADIAN ROCKPORT
HOMES (or its nominee) hereunder and those to be retained by Sellers, no stock
certificates have been issued to the other shareholders (a list of those
entitled to same having been kept in book entry form) unless indicated otherwise
by XXXX. CANADIAN ROCKPORT HOMES further acknowledges its obligation to prepare
and issue certificates to the shareholders in the names and amounts appearing on
the shareholders list to be given to CANADIAN ROCKPORT HOMES at the Closing.
In witness whereof, THIS Agreement has been duly executed by the parties
hereto as of the date first above written.
XXXX PRODUCTS, INC. CANADIAN ROCKPORT
HOMES LTD.
/s/ Xxxxxx Xxxxxxx By: /s/ Canadian Rockport
Xxxxxx Xxxxxxx - President by Xxxxxxxx X. Xxxxxx attorney for
Canadian Rockport - Xx. Xxxxxxx X. Xxxxxx,
President
SELLING SHAREHOLDERS
/s/ Xxxxxx Xxxxxxx
Xxxxxxxxxx Acquisition Corp. By: Xxxxxx Xxxxxxx-President
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Southward Investments - By: Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
Trenidot Development Corp. By Xxxxxx Xxxxxxx XXXXXXX XXXXXXX
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
/s/ Marton Osbar
Marton Osbar
ESCROW AGREEMENT
This Escrow Agreement hereinafter ("Escrow Agreement") is made and entered into
this 3th day of November, 2000 by and among SOUTHWARD INVESTMENTS, L.L.C.
(SOUTHWARD INVESTMENTS) representing certain Shareholders ("Shareholders") of
XXXX PRODUCTS, INC. ("XXXX") and CANADIAN ROCKPORT HOMES, LTD. or ASSIGNS
("CANADIAN ROCKPORT HOMES") and XXX X. XXXXXXXX ATTORNEY TRUST ACCOUNT,
("ESCROW HOLDER") as Escrow Holder. This Escrow Agreement shall serve as
instructions to Xxx X. Xxxxxxxx for the disbursement of funds held in the trust
account.
WHEREAS:
1. SOUTHWARD INVESTMENTS is representing certain individual shareholders
(Shareholders) of XXXX who are selling 7,081,492 shares of common stock to
CANADIAN ROCKPORT HOMES for a total of $90,000 $85,000 ("Purchase Price",)
and
2. CANADIAN ROCKPORT HOMES is representing, with full authority, CANADIAN
ROCKPORT HOMES, LTD., certain persons and entities, and
3. the Shareholders, and CANADIAN ROCKPORT HOMES intend to enter into an
AGREEMENT FOR THE PURCHASE OF COMMON STOCK (Selling Agreement) a draft of
which is attached hereto, and made a part of this Agreement.
4. it is necessary to establish an escrow for the amount to be paid by HI
QUALITY for the Shares - a total of $90,000 - $85,000 and for the Shares,
and all books, records and documents as described in Article II, Paragraph
of the Selling Agreement, and
5. The Shareholders, Southward Investments and HI QUALITY desire that Xxx X
Xxxxxxxx Attorney at Law ("Paradiso"), serve as the Escrow Holder in connection
with the Selling Agreement.
1. DEPOSIT:
(a) CANADIAN ROCKPORT HOMES will forward an amount of $25,000 by wire transfer
as a Deposit toward the purchase of the shares, along with this Escrow
Agreement, to Xxx X. Xxxxxxxx which Deposit will be deposited in the Xxx X.
Xxxxxxxx Attorney Trust Account and will be held therein until the signing
by all parties of the Selling Agreement.
(b) Upon the signing of the Selling Agreement a copy will be forwarded to Xxx
X. Xxxxxxxx by fax or mail. Upon his receipt of the signed Selling
Agreement, the deposit of $25,000 will be immediately released from the
Trust Account and forwarded to Southward Investments on behalf of the
Shareholders, for the payment of all legal, accounting and other expenses
pertaining to the fulfillment of this transaction. Upon the signing of the
Selling Agreement, the deposit will be non-refundable.
2. SIGNING OF SELLING AGREEMENT: It is agreed that the signing of the
AGREEMENT FOR THE PURCHASE OF COMMON STOCK ("Selling Agreement") by all parties
will take place on or before November 10, 2000. If the signing of the Selling
Agreement does not take place on or before November 10, 2000, the Shareholders
shall have the right to refund the deposit and cancel the proposed sale.
3. BALANCE OF PAYMENT: Prior to closing, which closing date will be set
in the Selling Agreement, CANADIAN ROCKPORT HOMES will wire transfer to Xxx X.
Xxxxxxxx Attorney Trust Account, the balance of the of the Purchase Price, being
$65,000 60,000.
4. CORPORATE DOCUMENTS, STOCK CERTIFICATES, ETC. Upon receipt of said
balance by Xxx X. Xxxxxxxx Attorney Trust Account, the officers of XXXX will
immediately forward to Xxx X. Xxxxxxxx Attorney Trust Account all documents
listed in Article II, Paragraph 2:13 of the Selling Agreement, including stock
certificates, (along with stock powers, if any) from the Shareholders
representing 7,081,492 shares of Common Stock. All documents will be held in
trust by Paradiso until the closing.
5. COPIES OF DOCUMENTS TO BUYER: The officers of XXXX will make copies
of all documents listed in 2.13 of the Agreement For The Purchase of Common
Stock available to CANADIAN ROCKPORT HOMES for its review prior to the signing
of the Selling Agreement, except for any documents that will not be available at
this time, including but not limited to, audited financial statements, minutes
reflecting new directors, and Attorney Opinion Letter.
6. ESCROW HOLDER HOLDS FUNDS UNTIL CLOSING: The Escrow Holder is hereby
instructed to receive and hold the $65,000 balance of the Purchase Price, along
with the certificates and documents described above, in Escrow until closing.
The closing will take place at the office of the Escrow Holder, on or before the
date as described in the Selling Agreement, and any communication between the
parties can be by telephone, fax, or e-mail and the signing of any documents can
be done by fax. It will not be necessary for any party to be present at the
closing so long as all parties have agreed in writing to all transactions
involved. The Shares and documents shall not be released or dealt with in any
manner whatsoever inconsistent with this Escrow Agreement until the closing, at
which time all documents will be delivered to CANADIAN ROCKPORT HOMES, by
registered mail, at which time the balance of the Purchase Price will
immediately be disbursed to SOUTHWARD INVESTMENTS for disbursement to the
Shareholders.
7. DUTIES OF ESCROW HOLDER LIMITED: The Escrow Holder shall have no
duties or obligations other than those specifically set forth herein. The
acceptance by the Escrow Holder of its duties under this Escrow Agreement is
subject to the terms and conditions hereof, which shall govern and control with
respect to its rights, duties, liabilities and immunities.
8. ESCROW HOLDER NOT A PRINCIPAL: The Shareholders, Southward
Investments and CANADIAN ROCKPORT HOMES understand and agree that Escrow Holder
is not a principal, participant, or beneficiary of the underlying transactions
that necessitate this Escrow Agreement. The Escrow Holder shall be obligated
only for the performance of such duties as are specifically set forth herein and
may rely and shall be protected in acting or refraining from acting on any
instrument believed by it to be genuine and to have been signed or presented by
the proper party or parties, their officers, representatives or agents. So long
as the Escrow Holder has acted in good faith or on the advice of counsel or has
not been guilty of willful misconduct or gross negligence, the Escrow Holder
shall have no liability under, or duty to inquire beyond the terms and
provisions, of this Escrow Agreement, and it is agreed that its duties are
purely ministerial in nature. Escrow Holder shall in no event be liable for any
exemplary or consequential damages.
9. ESCROW HOLDER NOT RESPONSIBLE TO REVIEW DOCUMENTS: The Escrow Holder
does not have any responsibility to review any documents which be held in the
Escrow Account for accuracy or completeness. The Officers of XXXX, and the
Selling Shareholders shall have full responsibility to assure that all documents
required by the SELLING AGREEMENT are delivered to Paradiso, and CANADIAN
ROCKPORT HOMES shall have the full responsibility to review all documents for
completeness and accuracy.
10. The Escrow holder shall not be obligated to take any legal actions
hereunder which might, in the Escrow Holder's judgment, involve any expense or
liability, unless the Escrow Holder shall have been furnished with reasonable
indemnity.
11. The Escrow Holder is not bound in any way by any other contract or
Agreement between the parties hereto, except the Selling Agreement, whether or
not the Escrow Holder has knowledge thereof of its terms and conditions and the
Escrow Holder's only duty, liability and responsibility shall be to hold and
deal with the Escrowed Documents and Funds as herein directed.
12. The Escrow Holder shall not be bound by any modification, amendment,
termination, cancellation, recession or supersession of this Escrow Agreement
unless the same shall be in writing and signed by all of the other parties
hereto and, if its duties as Escrow Holder hereunder are affected thereby,
unless it shall have given prior written consent thereto.
13. The parties hereto each jointly and severally agree to indemnify the
Escrow Holder against and hold the Escrow Holder harmless from anything which
the Escrow Holder may do or refrain from doing in connection with his
performance or non-performance as Escrow Holder under this Agreement and any and
all losses, costs, damages, expenses, claims and attorneys' fees suffered or
incurred by the Escrow Holder as a result of, in connection with or arising from
or out of the acts of omissions of the Escrow Holder in performance of or
pursuant to this Agreement, except such acts or omissions as may result from the
Escrow Holder's willful misconduct or gross negligence.
14. In the event of any disagreement between the Shareholders of XXXX and
CANADIAN ROCKPORT HOMES, or either of them concerning this Escrow Agreement or
between them or any of them and any other person, resulting in adverse claims or
demands being made in connection with the Deposit Funds, which disagreement
shall be presented to the Escrow Holder in writing, or in the event that the
Escrow Holder is in doubt as to what action the Escrow Holder should take
hereunder, the Escrow Holder may, at its option, refuse to comply with any
claims or demands on it, or refuse to take any other action hereunder, so long
as such disagreement continues or such doubt exists, and in any such event, the
Escrow Holder shall not be or become liable in any way or to any person for its
failure or refusal to act, the Escrow Holder shall be entitled to continue so to
refrain from acting until:
(a) the rights of the Shareholders, XXXX and CANADIAN ROCKPORT HOMES, shall
have been fully and finally adjudicated through arbitration as provided
herein, or by a court of competent jurisdiction or arbitration.
(b) all differences shall have been adjusted and all doubt resolved by
agreement between the parties, and the Escrow Holder shall have been
notified thereof in writing signed by all parties.
15. Should Escrow Holder become involved in litigation or arbitration in any
manner whatsoever on account of this agreement or the Deposit Funds and/or the
stock certificates, the parties hereto (other than Escrow Holder), hereby bind
and obligate themselves, their heirs, personal representatives, successors,
assigns to pay Escrow Holder, in addition to any charge made hereunder for
acting as Escrow Holder, reasonable attorneys' fees incurred by Escrow Holder,
and any other disbursements, expenses, losses, costs and damages in connection
with or resulting from such actions.
16. The terms of these instructions are irrevocable by the undersigned
unless such revocation is consented to in writing by each of SOUTHWARD
INVESTMENTS, representing the selling shareholders, and CANADIAN ROCKPORT HOMES.
17. In the event that CANADIAN ROCKPORT HOMES exercise their option to
cancel the transaction prior to signing the Selling Agreement, the charges and
expenses incurred by Paradiso for acting as the Escrow Holder, not to exceed
$600 will be paid by CANADIAN ROCKPORT HOMES and will be deducted from the
Deposit. Upon completion of the transaction, all escrow expenses will be paid
by the Shareholders.
18. Paradiso may resign as Escrow Holder by giving written notice to
SOUTHWARD INVESTMENTS and CANADIAN ROCKPORT HOMES. The resignation of the
Escrow Holder shall be effective, and the Escrow Holder shall cease to be bound
by this Escrow Agreement, thirty (30) days following the date that notice of
resignation was given.
19. Any notices or other communications required or permitted hereunder
shall be sufficiently given if personally delivered to or sent by registered
mail or certified mail, postage prepaid, or by prepaid telegram, with a copy to
Escrow Agent, addressed as follows:
If to Selling Shareholders
c/o Xx. Xxxxxx Diamond, President
Southward Investments, L.L.C.
0000 Xxxxxx Xxx. Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Phone-716-244-1840
Fax-716-244-0053
If to CANADIAN ROCKPORT HOMES, LTD.
% Xx. Xxxxxxxx X. Xxxxxx
11150 Xxxx Xxxxxxx Xxxxxxxxx Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone-310-479-2660
Fax-310-479-1022
If to Escrow Agent:
% Xx. Xxx x. Xxxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Phone-561-967-7300
Fax-561-7633
or such other address or fax number as shall be furnished in writing by any
party in the manner for giving notices hereunder, and any such delivered notice
or communication shall be deemed to have been given on the date of delivery.
Any notice which is sent by fax shall be deemed to be given on the first weekday
following the date upon which the faxed message is transmitted. Any notice that
is sent by prepaid mail shall be deemed to have been given on the 5th weekday
after the date upon which the notice is mailed from a Post Office in Canada or
the U.S.A.
20. This Escrow Agreement shall be construed according to the laws of the
State of New York and the parties submit themselves to the exclusive
jurisdiction of the Courts of the City of Rochester, State of New York in the
event of any dispute.
21. The Escrow Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
be deemed to constitute one and the same. Facsimile copies may act as originals
until replaced by original signatures.
This Escrow Agreement is executed as of November 3, 2000.
SOUTHWARD INVESTMENTS, L.L.C.
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, President
CANADIAN ROCKPORT HOMES, LTD.
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X Xxxxxx, Attorney and Agent
Xxx X. Xxxxxxxx Attorney Trust Account
By:___________________________________
Xxx Xxxxxxxx - Xxx X. Xxxxxxxx Attorney Trust Account
