Exhibit 2.1
AGREEMENT
AGREEMENT made and entered into this 11th day of September 2001 by and among:
VIVA Gaming & Resorts Inc., a Florida corporation ("VIVA"); and
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx and Xxxxxx Xxxx Xxxxx, all individuals of Mexican nationality
and shareholders of Viva Gaming & Resorts de Mexico, S.A. de C.V. (collectively
the "Shareholders").
WHEREAS, on May 4th, 2001, the Shareholders, and Messrs. Xxxxxx
Xxxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx Xxxxxxx,
Xxxx Xxxxxxx Xxxx Xxxxxxxxx and Xx. Xxxxxxxx Xxxxxx Xxxxxxxx (these individuals,
excluding the Shareholders, collectively the "Mexican Individuals"), on one hand
and, on the other hand, VIVA entered into an agreement (the "Original
Agreement") with respect to the Shareholders' aggregate ownership of 1,785,000
issued and outstanding shares of the capital stock of Viva Gaming & Resorts de
Mexico, S.A. de C.V., a variable capital corporation incorporated in the
Republic of Mexico ("Viva Mexico").
WHEREAS, as of this date, neither party in the Original Agreement
has exercised their rights or fulfilled their obligations thereunder, and
therefore it has not been executed;
WHEREAS, the parties hereto desire to terminate the Original
Agreement, and the Shareholders have secured the Mexican Individuals' consent
and release for such purposes in the document attached hereto as Schedule "1",
in order to proceed with the execution of this Agreement.
WHEREAS, VIVA desires to acquire the following shares of the
Shareholders in Viva Mexico (the "Mexican Shares"):
SHAREHOLDER MEXICAN SHARES
Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx 175,000
Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx 796,250
Xxxxx Xxxxxxxxx Xxxxxx 796,250
Xxxxxx Xxxx Xxxxx 17,499
The Mexican Shares comprise the 35.69% of the issued and outstanding shares of
Viva Mexico's capital stock, with a par value of $1.00 peso, United Mexican
States Currency.
WHEREAS, as consideration therefore, VIVA would issue 2,550,000 (two
million five hundred fifty thousand) shares of its common stock, XXx.000 Xxxxxx
Xxxxxx xx Xxxxxxx Currency par value to the Shareholders, upon the terms and
conditions hereinafter provided;
WHEREAS, the Shareholders are entering into the Shareholders
Agreement attached hereto as Schedule "2", simultaneously with the execution of
this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PURCHASE-SALE OF SHARES. On the terms and subject to the conditions contained
in this Agreement, the Shareholders agree to sell, and VIVA agrees to purchase,
the Mexican Shares. The consideration to be paid by VIVA for the Mexican Shares
is determined pursuant to the further provisions of Article 3 hereto.
2. TRANSFER OF MEXICAN SHARES. The Shareholders hereby transfer all of their
rights, title and interest in and to the Mexican Shares, to VIVA, free and clear
of any lien or limitation of possession or ownership and hereby provide VIVA
with the relevant share certificates duly endorsed in favor of VIVA.
3. ISSUANCE OF VIVA SHARES. In consideration for the Mexican Shares, VIVA has
issued and hereby delivers to the Shareholders 2,550,000 (two million five
hundred fifty thousand) restricted shares of the common stock of VIVA (the "Viva
Shares"), registered to the Shareholders in the following proportions and
amounts:
SHAREHOLDER VIVA SHARES
----------- -----------
Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx 250,000
Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx 1,137,500
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Xxxxx Xxxxxxxxx Xxxxxx 1,137,500
Xxxxxx Xxxx Xxxxx 25,000
The Viva Shares have not been registered under the Securities Act of 1993, as
amended, and the certificates evidencing the Viva Shares shall contain the
following or substantially similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT")
AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
ABSENT REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of the Shareholders
hereby represents and warrants to VIVA as follows:
(a) ORGANIZATION AND GOOD STANDING. Viva Mexico is a corporation
duly organized, validly existing and in good standing under the laws of the
United Mexican States ("Mexico"), and has all licenses, permits, approvals,
orders, certificates, and other authorizations as are necessary to own or lease
its properties and to carry on its business as and in the places where such
properties are now owned, leased or operated and such business is now conducted.
No action or claim is pending or threatened to revoke, terminate or reduce
rights under any of such licenses, permits, approvals, orders, certificates or
authorizations or declare any of them invalid. The authorized capital stock of
Viva Mexico consists of 5,000,000 shares of common stock, of which 5,000,000
shares are presently issued and outstanding, and no shares of preferred stock.
(b) NO BREACH. The execution, delivery and performance of this
Agreement by each of the Shareholders and the consummation of the transactions
contemplated herein will not (with the passage of time or otherwise):
(i) violate any provision of the Articles of Incorporations or
By-Laws of Viva Mexico.
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give
any other contracting party the right to terminate, or constitute
(or with notice or lapse of time or both constitute) a default
under, any contract or other agreement to which Viva Mexico or
any Shareholder is a party or
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by or to which Viva Mexico or any Shareholder or any of their
respective assets or properties may be bound or subject; or
(iii) violate any law, rule or regulation to which Viva Mexico or
any Shareholders is a party.
(c) LITIGATION. Neither Viva Mexico nor any Shareholder is a party
to any legal proceeding, the outcome of which could (i) adversely affect
consummation of the transactions contemplated herein or (ii) result in any
representation or warranty of the Shareholders contained herein becoming
inaccurate.
Viva Mexico is not, or has not received notice that it is, in
violation of, or in default, of any federal, state and municipal law, including
without limitation any law or regulation pertaining to occupational safety or
health, environmental protection, tax, labor, economic competition, foreign
commerce, employees retirement income security or any other law, ordinance,
judicial decree, order or regulation.
(d) AUTHORITY. This Agreement has been authorized by all necessary
action on the party of each Shareholder and contains the binding obligations of
each of the Shareholders, enforceable against each Shareholder in accordance
with the terms hereof.
(e) OWNERSHIP. The Mexican Shares are owned by the Shareholders and
constitute thirty five point sixty nine percent (35.69%) of the authorized
issued, subscribed and paid in capital stock of Viva Mexico. Each Shareholder is
the sole record and beneficial owner of the Mexican Shares attributable to such
Shareholder, and owns such Mexican Shares free and clear of all charges,
options, third party rights, restrictions, liens and encumbrances whatsoever,
and the share certificates covering the Mexican Shares have been duly and
validly issued. None of the Mexican Shares have been sold, pledged, assigned or
otherwise transferred, except pursuant to this Agreement. There are no
outstanding subscriptions, rights, options, warrants or other agreements
obligation either Viva Mexico or the Shareholders to issue, sell or transfer any
stock or other securities of Viva Mexico.
The Shareholders represent and warrant that neither of them are
married under common property regime.
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(f) STATUS OF VIVA SHARES. Each of the Shareholders has been advised
that (i) the Viva Shares have not been registered under the Act in reliance on
an exemption for transactions by an issuer not involving a public offering, and
(ii) issuance of the Viva Shares has not been passed upon or the merits thereof
endorsed or approved by the United States Securities and Exchange Commission
(the "SEC") or any state authorities.
(g) AVAILABLE INFORMATION AND ACCESS TO INFORMATION. Each of the
Shareholders acknowledges and understands that:
(i) VIVA files periodic reports and other documents with the SEC,
a review of those reports and documents would provide the
Shareholders with information that is meaningful and significant
in evaluating the risks and merits of acquiring the Viva Shares,
those reports and documents are available for review and
downloading at the SEC's Web site at XXX.XXXXXXXXXX.XXX;
(ii) copies of the following reports have been furnished to each
of the Shareholders prior to the execution of this Agreement;
(A) Registration Statement on Form 10-SB filed April 10,
2000;
(B) Quarterly Report on Form 10-QSB for the quarter endedn
March 31, 2000, filed May 15, 2000;
(C) Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2000, filed August 14, 2000;
(D) Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2000, filed December 18, 2000; and
(E) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000, filed April 17, 2001.
(iii) an investment in the Viva Shares is speculative and
involves a high degree of risk;
(iv) it has been afforded the opportunity to ask questions of,
and receive answers from the officers and/or directors of VIVA
concerning the terms and conditions of this transaction and to
obtain additional information, to the extent that VIVA possesses
such information or can acquire it without unreasonable effort or
expense, necessary to verify the accuracy of the information
furnished; and has availed itself of such opportunity to the
extent it considers appropriate to evaluate the merits and risks
of an investment in VIVA.
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(h) TRANSACTIONS WITH SHAREHOLDERS AND THEIR RELATED PARTIES.
Neither any of the Shareholders nor any Shareholders' Related Party has:
(i) borrowed money from or loaned money to the Viva Mexico;
(ii) any contractual or other claims, express or implied, or of
any kind whatsoever against the Viva Mexico;
(iii) any interest in any property or assets used by the Viva
Mexico in its businesses;
(iv) any outstanding charge against the Viva Mexico nor the
Viva Mexico has created, incurred, or assumed any indebtedness
in favor of the Shareholders or a Shareholders' Related Party;
(v) engaged in any other transaction with the Viva Mexico; or
(vi) submitted any charge, invoice, claim or request for
reimbursement to or receive any payment or other consideration
from the Viva Mexico which is not in accordance with Mexican
general accounting and accepted principles (Mexican GAAP) and
proper business practices.
For purposes of the foregoing paragraphs, Shareholders' means
any entity in which either any of the Shareholders, or any
person related to Shareholders, has an ownership interest, or
any person related to the Shareholders.
5. REPRESENTATIONS AND WARRANTIES OF VIVA. VIVA hereby represents
and warrants to each of the Shareholders as follows:
(a) ORGANIZATION AND GOOD STANDING. VIVA is a corporation duly
organized validly existing and in good standing under laws of the State of
Florida, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital of VIVA
consists of 100,000,000 shares of common stock, of which 8,942,785 shares are
presently issued and outstanding, and 10,000,000 shares of preferred stock, none
of which shares are outstanding.
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(b) NO BREACH. The execution, delivery and performance of this
Agreement by VIVA and the consummation of the transactions contemplated herein
will not (with the passage of time or otherwise):
(i) violate any provisions of the Articles of Incorporation or
By-Laws of VIVA;
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise
give any other contracting party the right to terminate, or
constitute (or with notice or lapse of time or both
constitute) a default under, any contract or other
agreements to which VIVA is a party or by or to which VIVA
or any of its assets or properties may be bound or subject;
or
(iii) violate any law, rule or regulation to which VIVA is a
party.
(c) LITIGATION. VIVA is not a party to any legal proceeding, the
outcome of which could (I) adversely affect consummation of the transactions
contemplated herein or (ii) result in any representation or warranty of VIVA
contained herein becoming inaccurate.
(d) AUTHORITY. This Agreement has been authorized by all necessary
corporate action on the part of VIVA and contains the binding obligations of
VIVA, enforceable against it in accordance with the terms hereof.
(e) VALIDITY OF VIVA SHARES. The Viva Shares have been duly
authorized and issued, and are fully paid and non-assessable securities of VIVA.
6. FURTHER ASSURANCES. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
herein.
7. INDEMNITY.
The Shareholders, jointly and severally, irrevocably indemnify and
defend VIVA, each of their affiliates, successors and assigns and each of their
officers, directors, employees, and agents (collectively referred to as
"Indemnitees"), and hold them harmless from and against, and shall pay or
reimburse Indemnitees, in respect of any and all of the following:
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(a) Any and all losses, liabilities, claims, actions, suits,
proceedings, assessments, judgments, damages or expenses (including without
limitation reasonable legal, accounting, tax fees and related expenses and
costs) ("Losses") arising out of or in connection with any misrepresentation in,
breach of or failure to comply with any misrepresentation, warranty, covenant or
agreement by any of the Shareholders contained in this Agreement or any document
or instrument delivered in connection herewith or the transactions contemplated
hereby;
(b) Any and all Losses suffered by Indemnitees or reasonably
estimated by a third party, relating to any and all tax liabilities of the
Shareholders VIVA and/or Viva Mexico of any nature whatsoever, including but not
limited to employee profit sharing liabilities, and any and all income taxes,
withholdings, fees, governmental charges, social security or duties, and any
interest, penalties or fines with respect to the foregoing, which are (i)
attributable to any period or portion thereof ending on or before the date of
this Agreement, or (ii) incurred in connection with the transactions
contemplated hereby. Such indemnification shall be enforceable notwithstanding
the fact that such indemnification liabilities were not the result of a breach
of any warranty or representation or a breach of any covenant or other
obligation or the Shareholders under this Agreement.
(c) The Shareholders hereby bind themselves to hold Viva Mexico and
VIVA harmless from any liability arising from the non-compliance by any of the
Shareholders with any type of tax obligations and filings derived from any
transaction involving the Mexican Shares prior to the date of execution of this
Agreement.
(d) In the event of the initiation of any third party claim, demand
or assessment or the commencement of any suit, action or proceeding in respect
of which indemnity may be sought pursuant to this Section, VIVA and/or Viva
Mexico shall have the absolute right to assume, at Shareholders' expense, the
defense, conduct or settlement of such claim. The Shareholders hereto agree to
cooperate fully in connection with the defense, conduct or settlement of any
such claim, demand or assessment.
8. MISCELLANEOUS.
(a) AMENDMENT. This Agreement may be amended or modified only by an
instrument in writing, signed by each of the parties or their duly authorized
representatives.
(b) ASSIGNMENT. No party may assign its rights or delegate its
responsibilities under this Agreement, without the written consent of the other
parties.
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(c) NOTICES. Any notice required or permitted under this Agreement
to be sent shall be sent by registered or certified mail, return receipt
requested, courier service, charges pre-paid, or by facsimile transmission with
the send retaining electronic evidence of successful transmission, to the
address or facsimile number specified in writing, or to such other address or
facsimile number set forth herein or as the party may specify in a notice duly
given to the send as provided herein:
If to VIVA:
0000 X. Xxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000-0000
United States of America
Attention: Xxxxx XxXxxxxx
If to the Shareholders:
Paseo de las Alamedas 118,
Col. Paseo de las Alamedas
Mexico, D.F.
Attention: Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx
and/or to Xxxx xx Xxxxxx # 00
Col. Jardines en xx Xxxxxxx
00000 Xxxxxx, D.F.
Each of the Shareholders hereby irrevocably appoints Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx as true and lawful attorney-in-fact and agent to act for and on
behalf of each of the Shareholders with full power and authority to receive all
notices, perform all other obligations and to exercise all right and to take all
other actions in the name and on behalf of the Shareholders pursuant to this
Agreement. The Shareholders agree that if for any reason Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx is not able to carry out the foregoing representation, the
Shareholders shall execute a power of attorney as provided herein in favor of
the individual they may deem convenient. The Shareholders shall notify this
situation as well as the change of representative for any other reason.
(d) GOVERNING LAW AND JURISDICTION. This Agreement shall be
construed, and the legal relations between the parties be determined, in
accordance with the laws of Mexico City and shall be subject to the Courts of
Mexico City, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
(e) ENTIRE AGREEMENT AND LANGUAGE. This Agreement contains the
entire agreement among the parties with respect to the transactions described
herein, and supersedes all prior agreements, written or oral, with respect
thereto.
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The parties herein agree that this Agreement shall, as necessary for
government filings and similar purposes, be translated into Spanish by VIVA, but
that as between the parties hereto, the English version of this Agreement shall
for all intents and purposes be controlling. In the event a Spanish version is
required for any purpose the Shareholders agree the translation into Spanish
provided by VIVA shall be used.
(f) EXECUTION AND COUNTERPARTS. This agreement may be executed,
including by facsimile signatures, in any number of counterparts, each of which
so executed, shall constitute an original copy, but all of which together shall
constitute but one and the same documents effective as of September 11, 2001
independently of the date they are signed.
IN WITNESS WHEREOF, the parties execute this Agreement as follows:
VIVA GAMING & RESORTS INC.
By:__________________________
Xxxxx XxXxxxxx
Date:
SHAREHOLDERS
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Xxxxx Xxxxxxxxx Xxxxxx
Date:
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Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx
Date:
-10-
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Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx
Date:
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Xxxxxx Xxxx Xxxxx
Date:
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