ASSET PURCHASE AGREEMENT
ASSET
PURCHASE AGREEMENT
THIS AGREEMENT (together with
the exhibits and schedules attached hereto, this “Agreement”) dated as of June
__, 2008.
BETWEEN:
DK GROUP N.A. N.V., a company
incorporated in Curaçao, Netherlands Antilles and having a registered address at
Xxxx X.X.X. (Xxxxx) Xxxxxxx 00,
Xxxxxxx, Xxxxxxxxxxx Antilles
(herein
called the “Seller”)
AND:
1ST
HOME BUY AND SELL
LTD., a company
incorporated under the laws of the State of Nevada and having a registered
address at 00000-00X
Xxxxxx, Xxxxxx, XX XXXXXX X0X 0X0
(herein
called the “Purchaser”)
WHEREAS,
the Purchaser desires to purchase and acquire from the Seller and the Seller
desires to sell and assign to the Purchaser all of the Seller’s rights, title
and interest in all assets and liabilities that belong to the Seller other than
those assets and liabilities specifically set forth in Schedule A attached
hereto (the “Assets and
Liabilities”); and
WHEREAS,
the parties desire to enter into this Agreement to set forth their mutual
agreements concerning the above matter;
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto, and of
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the parties hereto as
follows:
ARTICLE
1
SALE
AND TRANSFER OF ASSETS AND LIABILITIES; CLOSING
1.1 Sale of Assets and
Liabilities. Subject to the terms and conditions of this Agreement and in
reliance upon the representations, warranties, covenants and agreements
contained herein, at the closing of the transactions contemplated hereby, the
Seller will sell, convey, assign and transfer the Assets and Liabilities to the
Purchaser, and the Purchaser will purchase and acquire the Assets and
Liabilities from the Seller.
1.2 Forward Split. Upon
the satisfaction of the Conditions Precedent set forth in this Agreement and
prior to Closing (as defined herein), the Purchaser shall complete a forward
split of its authorized and issued share capital on a one old share for 3 new
shares basis.
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1.3 Consideration. In
consideration of the sale, transfer and assignment to the Purchaser of the
Assets and Liabilities, the Purchaser shall, at Closing, issue in the name of
the Seller or in such other name as the Seller may otherwise direct, an
aggregate of 40,222,095 shares of common stock of the Purchaser (the "Shares") equal to
approximately 81% of the shares of common stock of the Purchaser on a fully
diluted basis (hereinafter referred to as the “Purchase Price”); provided,
however, that if the Purchaser has not obtained financing in the aggregate
amount of at least $45 million within nine months of the Closing, the Escrow
Shares (as defined below) shall be decreased by a percentage equal 100%
multiplied by the quotient of (a) the difference between $45 million and the
aggregate financing commitments obtained by the Purchaser, divided by (b) $45
million.
1.4 The
Closing. The transfer and delivery of the documents
transferring the Assets and Liabilities to the Purchaser and the Shares to the
Seller and the exchange and delivery by the parties of the other documents and
instruments contemplated by this Agreement, (the “Closing”) will take place on
September 30, 2008 or such earlier date as may be mutually acceptable to the
Seller and the Purchaser, subject to the satisfaction or waiver (by the party
receiving the benefit thereof) of the conditions precedent set forth in Section
6 of this Agreement (the “Closing Date”).
1.5 Deliveries. At
the Closing on the Closing Date:
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(a)
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The
Purchaser shall deliver or cause to be delivered to the Seller a
certificate issued in the name of the Seller, or in such other name as the
Seller may otherwise direct, evidencing the
Shares.
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(b)
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The
Purchaser shall deliver or cause to be delivered 5,226,600 of its shares
of common stock due to DeBondo Capital Inc. (the “Escrow Shares”) to an
escrow agent agreed upon by the parties (the “Escrow Shares
Agent”). The Escrow Shares Agent shall release (i) 62%
of the Escrow Shares upon the closing of a financing for the Company equal
to at least $25 million; (ii) an additional 19% of the Escrow Shares upon
the closing of a financing for the Company equal to at least $45 million
in the aggregate; and (iii) an additional 19% of the Escrow Shares upon
the acceptance of the Purchaser’s common stock for listing on the American
Stock Exchange.
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(c)
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The
Seller shall deliver to the Purchaser executed and duly acknowledged
assignments in the forms set forth in Exhibit A hereto conveying all
right, title and interest of the Seller to the Assets and Liabilities to
the Purchaser.
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(d)
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The
Seller and the Purchaser shall each execute and deliver such other
instruments and take such other action as may be necessary to carry out
its obligations under this Agreement; including, without limitation,
working together to cause the title to any assets to be transferred into
the name of the Purchaser in the applicable governmental
records.
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1.6 Condition on Obligation of
the Seller to Close. Notwithstanding
anything herein contained to the contrary, the Seller shall have no obligation
to consummate the transactions contemplated by this Agreement unless the
Purchaser shall have completed, on or before the Closing Date, the first phase
of the Financing described in Section 6.5 hereof and the proceeds of such
Financing have been placed in escrow as described in Section 1.7
hereof.
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1.7 Escrow Agreement. The
proceeds from the Financing as described in Section 6.5 shall be subject to an
Escrow Agreement, which is attached as Exhibit B hereto.
1.8 Expenses of
Seller. Any liability or obligation of the Seller arising or
incurred in connection with the negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby and any fees and expenses of
counsel, accountants and other experts employed by Seller shall be paid by the
Purchaser following the Closing.
ARTICLE
2
TITLE
DUE DILIGENCE
2.1 Access to Assets and
Liabilities. The Seller shall grant the Purchaser such access
to the Assets and Liabilities, including all records relating to same, as is
necessary to permit the Purchaser to conduct a thorough due diligence
investigation of the title to the Assets and Liabilities. The
Purchaser shall have a maximum of fifteen (15) days from the date of this
Agreement to conduct its due diligence (this 15-day period, as it may be
extended in accordance with this Agreement or by other agreement of the parties,
will be referred to herein as the “Due Diligence
Period”).
2.2 The
Purchaser shall notify the Seller in writing (the “Defect Notice”) by the end of
the Due Diligence Period of any failures or defects in title (“Title Defects”) that the
Purchaser may have identified as pertaining to the Assets and
Liabilities. The Defect Notice shall identify the alleged defective
Asset and the nature of the defect. Any Assets and Liabilities not
identified in said written notice shall be deemed as the Purchaser’s acceptance
of title for said Assets and Liabilities. Upon receipt of Defect
Notice, the Seller shall have until the Closing to cure any such Title Defects
or, if not curable prior to the Closing, advise the Purchaser how such Title
Defects will be cured following the Closing and provide a satisfactory
commitment to the Purchaser with respect to curing of such Title Defects. If the
Seller is unable to cure any material Title Defects to the Purchaser’s
reasonable satisfaction or provide a plan and commitment to cure such Title
Defects prior to the Closing, then the Purchaser may (i) terminate this
Agreement; or (ii) proceed with the Closing with no reduction in the Purchase
Price. Title Defect, as used in this Agreement, shall mean any lien,
encumbrance, encroachment or other defect in the Seller’s title to an Asset that
would cause the Seller not to have defensible title to such Asset.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
To induce
the Purchaser to execute, deliver and perform this Agreement, and in
acknowledgement of the Purchaser’s reliance on the following representations and
warranties (in addition to the representations and warranties in Section 1.1),
the Seller represents and warrants to the Purchaser as follows as of the date
hereof and as of the Closing Date:
3.1 Organization. The
Seller is a corporation duly organized, validly existing and in good standing
under the applicable laws of the Netherlands Antilles, with the power and
authority to conduct its business as it is now being conducted and to own its
assets.
3.2 Power and
Authority. The Seller has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by them in connection with the transactions
contemplated hereby, and the Seller will have taken all necessary action to
authorize the execution and delivery of this Agreement and such other agreements
and instruments and the consummation of the transactions contemplated hereby,
including but not limited to the receipt of all necessary regulatory
approvals. The execution, delivery and performance by the Seller of
the Agreement has been duly authorized. This Agreement is, and the other
agreements and instruments to be executed and delivered by the Seller in
connection with the transactions contemplated hereby, when such other agreements
and instruments are executed and delivered, shall be, the valid and legally
binding obligations of the Seller enforceable against the Seller in accordance
with their respective terms.
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3.3 Directors and Officers of
Seller. The duly elected or appointed directors and the duly appointed
officers of Seller are as set out in Schedule 3.3.
3.4 Non-Contravention. To
the Seller’s knowledge, neither the execution, delivery and/or performance of
this Agreement, nor the consummation of the transactions contemplated hereby,
will:
(a) conflict
with, result in a violation of, cause a default under (with or without notice,
lapseof time or both) or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in or the loss of any
material benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties or assets of
Seller under any term, condition or provision of any loan or credit agreement,
note, debenture, bond, mortgage, indenture, lease or other agreement,
instrument, permit, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Seller, or any of its material property or
assets;
(b) violate
any provision of the articles or bylaws of Seller; or
(c) violate
any order, writ, injunction, decree, statute, rule, or regulation of any court
or governmental or regulatory authority in the Netherlands Antilles that would
result in a Seller Material Adverse Effect (defined below).
3.5 Actions and
Proceedings. To the knowledge of Seller, (i) there is no basis for and
there is no action, suit, judgment, claim, demand or proceeding outstanding or
pending, or threatened against or affecting Seller or which involves any of the
business, or the properties or assets of Seller that, if adversely resolved or
determined, would have a material adverse effect on the business, operations,
assets, properties, or conditions of Seller taken as a whole (a “Seller Material Adverse
Effect”), and
(ii) there is no reasonable basis for any claim or action that, based upon the
likelihood of its being asserted and its success if asserted, would have such a
Seller Material Adverse Effect.
3.6 Compliance.
(a) To
the knowledge of Seller, Seller is in compliance with, is not in default or
violation in any material respect under, and has not been charged with or
received any notice at any time of any material violation of any statute, law,
ordinance, regulation, rule, decree or other regulation in the Netherlands
Antilles that would constitute a Seller Material Adverse Effect;
(b) To
the knowledge of Seller, Seller is not subject to any judgment, order or decree
entered in any lawsuit or proceeding applicable to its business and operations
that would result in a Seller Material Adverse Effect; and
(c) To
the knowledge of Seller, Seller has duly filed all reports and a return required
to be filed by it with governmental authorities in the Netherlands Antilles and
has obtained all governmental permits and other governmental consents, except as
may be required after the execution of this Agreement. To the
knowledge of Seller, all of such permits and consents are in full force and
effect, and no proceedings for the suspension or cancellation of any of them,
and no investigation relating to any of them, is pending or to the knowledge of
Seller, threatened, and none of them will be adversely affected by the
consummation of this Agreement.
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3.7 Filings, Consents and
Approvals. To the knowledge of Seller, no filing or registration with, no
notice to and no permit, authorization, consent, or approval of any public or
governmental body or authority or other person or entity is necessary for the
consummation by Seller of the transactions contemplated by this
Agreement.
3.8 Tax
Matters. All Federal, state and other tax returns and reports
of the Seller required by law to be filed have been duly filed, and all federal,
state and other taxes, assessments, fees and other governmental charges upon the
Seller with respect to its properties, assets, incomes, franchises or business
which are due and payable have been paid or a reasonable reserve for such
payment established on the Seller’s balance sheet.
3.9 Certain Transactions.
Seller is not a guarantor or indemnitor of any indebtedness of any third party,
including any person, firm or corporation.
3.10 Financial
Representations. Attached hereto as Schedule 3.10 are true, correct, and
complete copies of audited balance sheets for Seller dated as of December 31,
2007 and December 31, 2006, together with related statements of income, cash
flows, and changes in shareholder’s equity for the fiscal year then ended
(collectively, the “Seller
Financial Statements”). The Seller
Financial Statements and the Seller’s unaudited Financial Statements as of March
31, 2008 have been prepared in accordance with International Financial Reporting
Standards as issued by the International Accounting Standards
Board.
Seller
has not received any advice or notification from its independent certified
public accountants that Seller has used any improper accounting practice that
would have the effect of not reflecting or incorrectly reflecting in the Seller
Financial Statements or the books and records of Seller, any properties, assets,
liabilities, revenues, or expenses. Seller has not engaged in any transaction,
maintained any bank account, or used any funds of Seller, except for
transactions, bank accounts, and funds which have been and are reflected in the
normally maintained books and records of Seller.
3.11 Absence of Certain
Events. Since the Seller Accounting Date, except as and to the extent
disclosed herein, there has not been:
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(a)
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a Seller Material Adverse Effect; or |
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(b)
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any material change by Seller in its accounting methods, principles or practices. |
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3.12 Fees. Seller has not
incurred any obligation or liability to any party for any brokerage fees or
agent’s commissions in connection with this Agreement, other than the fees to
Pacific Wave Partners Limited (“Pacific Wave”) and the Escrow
Shares Agent.
3.13 Investor
Representations. The Seller acknowledges and agrees that the
Shares representing the Purchase Price will be offered and sold to the Seller
without such offers and sales being registered under the United States
Securities Act of 1933, as amended (the “Securities
Act”). As such, the Seller further acknowledges and agrees
that all Shares will, upon issuance, be “restricted securities” within the
meaning of the Securities Act.
3.14 Share
Certificates. The Seller acknowledges and agrees that legend
in substantially the following form will be placed on any certificate(s)
evidencing the Shares:
THE
SHARES OF COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'), OR UNDER ANY STATE
SECURITIES LAWS. THE SHARES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE
DISPOSED OF UNLESS A REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS WITH RESPECT TO SUCH DISPOSITION IS THEN IN EFFECT OR
UNLESS THE PERSON PROPOSING TO MAKE THE DISPOSITION SHALL FURNISH, WITH RESPECT
TO SUCH DISPOSITION, AN OPINION OF COUNSEL (BOTH COUNSEL AND OPINION TO BE
SATISFACTORY TO THE CORPORATION) TO THE EFFECT THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR OTHER DISPOSITION WILL NOT INVOLVE ANY VIOLATION OF THE
REGISTRATION PROVISIONS OF THE ACT (OR ANY SUPERSEDING STATUTE) OR ANY
APPLICABLE STATE SECURITIES LAWS.
3.15 Issuance of
Shares. The Seller represents and warrants to the Purchaser as
follows, and acknowledges that the Purchaser is relying upon such covenants,
representations and warranties in connection with the issuance of the Shares to
the Seller:
(a) the
Seller has such knowledge, sophistication and experience in business and
financial matters such that it is capable of evaluating the merits and risks of
the investment in the Shares. The Seller has evaluated the merits and risks of
an investment in the Shares. The Seller can bear the economic risk of
this investment, and is able to afford a complete loss of this
investment;
(b) the
Seller acknowledges that the Purchaser’s success is subject to a number of
significant risks, including the risk that the Purchaser will not be able to
finance its plan of operations. The Seller further acknowledges that
(i) the Purchaser has limited cash and working capital, (ii) the Purchaser will
have to raise additional capital in order to finance its plan of operations
which capital may be raised by the issuance of additional shares of its common
stock which will result in dilution to the Seller, and (iii) the Purchaser is
working on the Financing (defined below) but there is no assurance that the
Financing will be completed;
(c) the
Shares will be acquired by the Seller for investment for the Seller's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and, except for possible transfers of a
portion of the Shares to officers, directors, agents, shareholders and up to
five creditors of the Seller, that the Seller does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares;
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(e) the
Seller acknowledges that the Purchaser will rely on these representations in
completing the issuance of the Shares to the Seller;
(f) the
Seller acknowledges that the offering of the Shares by the Purchaser has not
been reviewed by the United States Securities and Exchange Commission or any
state securities regulatory authority; and
(g) this
Agreement has been duly authorized, validly executed and delivered by the
Seller.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
To induce
the Seller to execute, deliver and perform this Agreement, and in
acknowledgement of Seller’s reliance on the following representations and
warranties, the Purchaser hereby represents and warrants to the Seller as
follows as of the date hereof and as of the Closing Date:
4.1 Organization. The
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with the power and authority to
conduct its business as it is now being conducted and to own and lease its
properties and assets.
4.2 Share Capital. The
Purchaser has authorized capital consisting of 100,000,000 shares of Common
Stock and 10,000,000 shares of Preferred Stock of which 6,707,337 shares of
Common Stock and zero shares of Preferred Stock are issued and outstanding prior
to the completion of the Forward Split as described in Section 1.2. Upon the
completion of the transactions contemplated by this Agreement, the Purchaser
will have 49,670,706 shares of Common Stock and zero shares of Preferred Stock
issued and outstanding. There are no options, warrants, calls,
rights, commitments or agreements of any character, written or oral, to which
the Purchaser is a party or by which it is obligated to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Purchaser or obligating the
Purchaser to grant, extend, accelerate the vesting of, change the price of,
otherwise amend or enter into any such option, warrant, call, right, commitment
or agreement. The Purchaser has no outstanding or authorized stock
appreciation, phantom stock, profit participation, or other similar rights or
plans.
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4.3 Issuance of the
Shares. The Shares are duly authorized and, when issued and
paid for in accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens.
4.4 Listing. The
Purchaser is a reporting company under the United States Securities and Exchange
Act of 1934, as amended, and its shares of Common Stock are registered for sale
and are quoted for trading on the OTC Bulletin Board under the symbol
FHBY.
4.5 SEC Reports; Financial
Statements. The Purchaser has filed all reports required to be
filed by it under the Securities Act and the Securities Exchange Act of 1934, as
amended, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Purchaser was required
by law to file such material) (the foregoing materials, including the exhibits
thereto, being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed any
such SEC Reports prior to the expiration of any such extension. As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the
Purchaser included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by
GAAP, and fairly present in all material respects the financial position of the
Purchaser and its consolidated subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal, immaterial, year-end audit
adjustments.
4.6 Power and
Authority. The Purchaser has the power and authority to
execute, deliver, and perform this Agreement and the other agreements and
instruments to be executed and delivered by it in connection with the
transactions contemplated hereby, and the execution, delivery and performance of
the Agreement by the Purchaser has been duly authorized. This
Agreement is, and, when such other agreements and instruments are executed and
delivered, the other agreements and instruments to be executed and delivered by
the Purchaser in connection with the transactions contemplated hereby shall be,
the valid and legally binding obligations of the Purchaser, enforceable in
accordance with their respective terms.
4.7 Broker’s or Finder’s
Fees. The Purchaser has not authorized any person to act as
broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement and other than the fee to Pacific
Wave and the Escrow Shares Agent, the Seller shall have no liability for payment
of any such fee arising through the Purchaser.
4.8 No
Conflict. Neither the execution and delivery by the Purchaser
of this Agreement and of the other agreements and instruments to be executed and
delivered by the Purchaser in connection with the transactions contemplated
hereby or thereby, nor the consummation by the Purchaser of the transactions
contemplated hereby, will or do violate or conflict with: (a) any foreign or
local law, regulation, ordinance, governmental restriction, order, judgment or
decree applicable to the Purchaser; (b) any provision of any charter, bylaw, or
(c) under any material agreement to which the Purchaser is a party.
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4.9 Required
Consents. No permit or approval, authorization, consent,
permission, or waiver to or from any person, or notice, filing, or recording to
or with, any person is necessary for the execution and delivery of this
Agreement and the other agreements and instruments to be executed and delivered
by the Purchaser in connection with the transactions contemplated hereby, or the
consummation by the Purchaser of the transactions contemplated
hereby.
4.10 Litigation. There
are no proceedings pending or, to the knowledge of the Purchaser, threatened
against the Purchaser which (i) seek to restrain or enjoin the consummation of
the Agreement or the transactions contemplated hereby or (ii) could reasonably
be expected to have a material adverse effect on the Purchaser or its abilities
to perform its obligations under the Agreement and the other agreements and
instruments to be executed and delivered by the Purchaser in connection with the
transactions contemplated hereby.
4.11 Tax
Matters. All
Federal, state and other tax returns and reports of the Purchaser required by
law to be filed have been duly filed, and all federal, state and other taxes,
assessments, fees and other governmental charges upon the Purchaser with respect
to its properties, assets, incomes, franchises or business which are due and
payable have been paid or a reasonable reserve for such payment established on
the Purchaser’s balance sheet.
ARTICLE
5
COVENANTS
OF THE SELLER PRIOR TO CLOSING
5.1 Required
Approvals. As promptly as practicable after the date of this
Agreement, the Seller shall make all filings required by foreign or local law to
be made by them in order to consummate the transactions contemplated
hereby. The Seller shall cooperate with the Purchaser with respect to
all filings that the Purchaser elects to make or is required by law to make in
connection with the transactions contemplated hereby.
5.2 Prohibited
Actions. Except as provided herein below, in no event, without
the prior written consent of the Purchaser, shall the Seller:
(a) permit
any of the Assets and Liabilities to be subjected to any claim or encumbrance,
except claims or encumbrances that the Seller believes, in its sole judgment,
are necessary to continue development of the Assets and Liabilities in the
ordinary course of business and consistent with past practice;
(b) waive any
claims or rights of substantial value respecting the Assets and Liabilities, or
sell, transfer, or otherwise dispose of any of the Assets and Liabilities,
except in the ordinary course of business and consistent with past practice;
or
(c) dispose
of any interest in any of the Assets and Liabilities, or permit any rights in
any of the Assets and Liabilities to lapse into default or in non-compliance
with all and any regulatory or governmental requirement.
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5.3 Access. From
the date of this Agreement to the Closing Date, the Seller shall provide the
Purchaser with such information and access as the Purchaser may from time to
time reasonably request regarding the Assets and Liabilities.
ARTICLE
6
CONDITIONS
TO THE SELLER’S OBLIGATIONS
Each of
the obligations of the Seller to be performed hereunder shall be subject to the
satisfaction (or waiver by the Seller) at or prior to the Closing Date of each
of the following conditions:
6.1 Representations and
Warranties; Performance. The Purchaser shall have performed
and complied in all respects with the covenants and agreements contained in this
Agreement required to be performed and complied with by it at or prior to the
Closing Date, the representations and warranties of the Purchaser set forth in
this Agreement shall be true and correct in all respects as of the date hereof
and as of the Closing Date as though made at and as of the Closing Date (except
as otherwise expressly contemplated by this Agreement), and the execution and
delivery of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby shall have been duly and validly authorized by
the Purchaser’s Board of Directors, and the Seller shall have received a
certificate to that effect signed by the secretary of the
Purchaser.
6.2 Consents. All
required approvals, consents and authorizations shall have been
obtained.
6.3 Litigation. No
Litigation shall be threatened or pending against the Purchaser or the Seller
that, in the reasonable opinion of counsel for the Seller, could result in the
restraint or prohibition of any such party, or the obtaining of damages or other
relief from such party, in connection with this Agreement or the consummation of
the transactions contemplated hereby.
6.4 Documents Satisfactory in
Form and Substance. All agreements, certificates, and other
documents delivered by the Purchaser to the Seller hereunder shall be in form
and substance satisfactory to counsel for the Seller, in the exercise of such
counsel’s reasonable judgment.
6.5 Completion of
Financing. The Purchaser shall have irrevocable commitments to
complete a financing by way of private placement of debt or equity or a
combination of both of at least $45 Million in two phases, with not less than
$25 Million in commitments in the first phase (the “Financing”). The
first phase of the financing shall be closed simultaneously with the Closing of
the transactions described herein, resulting in net proceeds to the Company of
at least $22,450,000. Except for the foregoing, the Purchaser shall
not commence any other financing arrangements prior to the Closing without the
written consent of the Seller.
6.6 Resignation of Officers and
Directors; Termination of Employment Agreements. The officers
and directors of the Purchaser immediately prior to the Closing shall have
resigned as officers and directors of the Purchaser effective as of the
Closing. Any and all outstanding employment agreements between the
Purchaser and any of its officers, directors and employees immediately prior to
the Closing shall have been terminated effective as of the
Closing. Upon termination of any such employment agreements, no
amounts shall be due for severance, bonus or any other reason. The
Company shall have delivered to the Seller evidence of such resignations and
terminations in form and substance satisfactory to the Seller.
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6.7 Due
Diligence. The Seller shall have completed its due diligence
review of the Purchaser (including its assets and liabilities) and shall have
been satisfied with the findings thereof.
ARTICLE
7
CONDITIONS
TO THE PURCHASER’S OBLIGATIONS
Each of
the obligations of the Purchaser to be performed hereunder shall be subject to
the satisfaction (or the waiver by the Purchaser) at or prior to the Closing
Date of each of the following conditions:
7.1 Representations and
Warranties; Performance. The Seller shall have performed and
complied in all respects with the covenants and agreements contained in this
Agreement required to be performed and complied with by them at or prior to the
Closing Date, the representations and warranties of the Seller set forth in this
Agreement shall be true and correct in all respects as of the date hereof and as
of the Closing Date as though made at and as of the Closing Date (except as
otherwise expressly contemplated by this Agreement), and the execution and
delivery of this Agreement by the Seller and the consummation of the
transactions contemplated hereby shall have been duly and validly authorized by
the Seller’s Board of Directors, and the Purchaser shall have received a
certificate to that effect signed by the secretary of the Seller.
7.2 Consents. All
required approvals, consents and authorizations shall have been
obtained.
7.3 No
Litigation. No Litigation shall be threatened or pending
against the Purchaser or the Seller that, in the reasonable opinion of counsel
for the Purchaser, could result in the restraint or prohibition of any such
party, or the obtaining of damages or other relief from such party, in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
7.4 Due
Diligence. The Purchaser shall have completed its due
diligence review of the Assets and Liabilities and shall have been satisfied
with the findings thereof.
7.5 Proof of Ownership of the
Assets. The Seller shall have delivered to the Purchaser
copies of instruments evidencing its ownership of the Assets.
ARTICLE
8
COVENANTS
OF THE SELLER AND THE PURCHASER FOLLOWING CLOSING
8.1 Allocation of Purchase
Price; Transfer Taxes.
(a) Consistent
with applicable tax rules, the Purchaser shall allocate the Purchase Price to
the Assets. The Purchaser shall prepare and file, in a timely
fashion, forms in a manner consistent with such allocation with the relevant tax
authority. All tax returns and reports filed or prepared by the
Purchaser and/or the Seller with respect to the transactions contemplated by
this Agreement shall be consistent with the allocation made by the Purchaser
under this Section 8.1(a).
11
8.2 Further
Assurances. Subject to the terms and conditions of this
Agreement, each party agrees to use all of its reasonable efforts to take, or
cause to be taken, all actions and to do or cause to be done, all things
necessary and proper or advisable to consummate and make effective the
transactions contemplated by this Agreement (including the execution and
delivery of such further instruments and documents) as the other party may
reasonably request.
8.3 Nondisclosure of Proprietary
Data. The Parties shall hold in a fiduciary capacity for the
benefit of each other all secret or confidential information, knowledge or data
relating to each other or any of their affiliated companies, and their
respective businesses, which shall not be or become public
knowledge. Neither Party, without the prior written consent of the
other, or as may otherwise be required by law or legal process, shall
communicate or divulge either before or after the Closing Date any such
information, knowledge or data to anyone other than the other Party and those
designated by the other Party in writing, or except as required by applicable
law.
ARTICLE
9
SURVIVAL
AND INDEMNITY
9.1 Survival of Representations,
Warranties, etc. Each of the representations, warranties,
agreements, covenants and obligations herein is material and shall be deemed to
have been relied upon by the other party or parties and shall survive for a
period of twelve (12) months after the Closing and shall not merge in the
performance of any obligation by any party hereto. All rights to
indemnification contained in this Agreement shall survive the Closing
indefinitely.
9.2 Indemnification by the
Seller and Purchaser. The parties shall indemnify, defend, and
hold harmless each other, and the each others representatives, stockholders,
controlling persons and affiliates, at, and at any time after, the Closing, from
and against any and all demands, claim, actions, or causes of action,
assessments, losses, damages (including incidental and consequential damages),
liabilities, costs, and expenses, including reasonable fees and expenses of
counsel, other expenses of investigation, handling, and litigation , and
settlement amounts, together with interest and penalties (collectively, a “Loss” or “Losses”), asserted against,
resulting to, imposed upon, or incurred by the either party, directly or
indirectly, by reason of, resulting from, or arising in connection with: (i) any
breach of any representation, warranty, or agreement of either party contained
in or made pursuant to this Agreement, including the agreements and other
instruments contemplated hereby; (ii) any breach of any representation,
warranty, or agreement of either party contained in or made pursuant to this
Agreement, including the agreements and other instruments contemplated hereby,
as if such representation or warranty were made on and as of the Closing Date;
(iii) any claim by any person for brokerage or finder’s fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by any such person with either party in connection this Agreement or any of
the transactions contemplated hereby; and (iv) to the extent not covered by the
foregoing, any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses, including
reasonable fees and expenses of counsel, other expenses of investigation,
handling, and litigation and settlement amounts, together with interest and
penalties, incident to the foregoing.
The remedies provided in this Section
9.2 will not be exclusive of or limit any other remedies that may be available
to the either party to this Agreement.
12
ARTICLE
10
TERMINATION
10.1 Termination. This
Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual
written consent of the Seller and the Purchaser;
(b) by either
the Seller or the Purchaser if (i) there shall have been a material breach of
any representation, warranty, covenant or agreement set forth in this Agreement,
on the part of the Purchaser, in the case of a termination by the Seller, or on
the part of the Seller, in the case of a termination by the Purchaser, which
breach shall not have been cured, in the case of a representation or warranty,
prior to Closing or, in the case of a covenant or agreement, within ten (10)
business days following receipt by the breaching party of notice of such breach,
or (ii) any permanent injunction or other order of a court or other competent
authority preventing the consummation of the transactions contemplated hereby
shall have become final and non-appealable;
(c) by either
the Seller or the Purchaser if the transactions contemplated hereby shall not
have been consummated on or before the Closing Date; provided, however, that the
right to terminate this Agreement pursuant to this Section 10.1(c) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the consummation
of the transactions contemplated hereby to have occurred on or before the
aforesaid date; or
(d) by the
Seller in the event of the failure of the Purchaser to secure and close
commitments for the financing described in Section 6.5 of this Agreement by the
Closing Date.
(e) By the
Purchaser in the event of an uncured Title Defect as provided in Section 2.2 of
this Agreement.
10.2 Effect of
Termination. Each party’s right of termination under Section
10.1 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of
remedies. If this Agreement is terminated pursuant to
Section 10.1, unless otherwise specified in this Agreement, all further
obligations of the parties under this Agreement will terminate; provided, however, that if this
Agreement is terminated by a party because of the breach of this Agreement by
the other party or because one or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the
other party’s failure to comply with its obligations under this Agreement, the
terminating party’s rights to pursue all legal remedies will survive such
termination unimpaired.
13
ARTICLE
11
MISCELLANEOUS
11.1 Entire
Agreement. This Agreement, and the other certificates,
agreements, and other instruments to be executed and delivered by the parties in
connection with the transactions contemplated hereby, constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements with respect to the subject
matter hereof.
11.2 Parties Bound by Agreement;
Successors and Assigns. The terms, conditions, and obligations
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
11.3 Amendments and
Waivers. No modification, termination, extension, renewal or
waiver of any provision of this Agreement shall be binding upon a party unless
made in writing and signed by such party. A waiver on one occasion
shall not be construed as a waiver of any right on any future
occasion. No delay or omission by a party in exercising any of its
rights hereunder shall operate as a waiver of such rights.
11.4 Severability. If
for any reason any term or provision of this Agreement is held to be invalid or
unenforceable, all other valid terms and provisions hereof shall remain in full
force and effect, and all of the terms and provisions of this Agreement shall be
deemed to be severable in nature. If for any reason any term or
provision containing a restriction set forth herein is held to cover an area or
to be for a length of time which is unreasonable, or in any other way is
construed to be too broad or to any extent invalid, such term or provision shall
not be determined to be null, void and of no effect, but to the extent the same
is or would be valid or enforceable under applicable law, any court of competent
jurisdiction shall construe and interpret or reform this Agreement to provide
for a restriction having the maximum enforceable area, time period and other
provisions (not greater than those contained herein) as shall be valid and
enforceable under applicable law.
11.5 Attorneys’
Fees. Should any party hereto retain counsel for the purpose
of enforcing, or preventing the breach of, any provision hereof including, but
not limited to, the institution of any action or proceeding, whether by
arbitration, judicial or quasi-judicial action or otherwise, to enforce any
provision hereof or for damages for any alleged breach of any provision hereof,
or for a declaration of such party’s rights or obligations hereunder, then,
whether such matter is settled by negotiation, or by arbitration or judicial
determination, the prevailing party shall be entitled to be reimbursed by the
losing party for all costs and expenses incurred thereby, including, but not
limited to, reasonable attorneys’ fees for the services rendered to such
prevailing party.
11.6 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall constitute the
same instrument.
11.7 Headings. The
headings of the sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
11.8 Expenses. Except
as specifically provided herein, the Seller and the Purchaser shall each pay all
costs and expenses incurred by it or on its behalf in connection with this
Agreement and the transactions contemplated hereby, including fees and expenses
of its own financial consultants, accountants, and counsel.
14
11.9 Notices. All
notices, requests, demands, claims, and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given five business days after such notice, request, demand,
claim or other communication is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid; and, in any case, all such
communications must be addressed to the intended recipient at the address set
forth on the first page of this Agreement. 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, 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 party notice in the manner herein set forth.
11.10 Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Nevada without giving effect to the
principles of choice of law thereof.
11.11 Arbitration. Any
dispute arising under or in connection with any matter related to this Agreement
or any related agreement shall be resolved exclusively by arbitration in the
City of Las Vegas, Nevada. The arbitration shall be in conformity
with and subject to the applicable rules and procedures of the American
Arbitration Association. All parties agree to be (1) subject to the
jurisdiction and venue of the arbitration in the State of Nevada, (2) bound by
the decision of the arbitrator as the final decision with respect to the
dispute, and (3) subject to the jurisdiction of the Superior Court of the State
of Nevada for the purpose of confirmation and enforcement of any award made by
the arbitrator or for any actions seeking injunctive relief.
11.12 References,
etc.
(a) Whenever
reference is made in this Agreement to any Article, Section, or paragraph, such
reference shall be deemed to apply to the specified Article, Section or
paragraph of this Agreement.
(b) Wherever
reference is made in this Agreement to a Schedule, such reference shall be
deemed to apply to the specified Schedule attached hereto, which are
incorporated into this Agreement and form a part hereof. All terms
defined in this Agreement shall have the same meaning in the Schedules attached
hereto.
(c) Any form
of the word “include” when used herein is not intended to be exclusive (e.g.,
“including” means “including, without limitation”).
11.13 No Strict
Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
person.
11.14 No Third Party Beneficiary
Rights. No provision in this Agreement is intended or shall
create any rights with respect to the subject matter of this Agreement in any
third party.
11.15 Such Other Acts. The
parties hereto shall do all things, take such acts and execute such documents as
are necessary to give effect to the intention herein contemplated.
11.16 Electronic
Means. Delivery of an executed copy of this Agreement by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy will be deemed to be execution and delivery
of this Agreement as of the date first indicated above.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first indicated above.
| DK GROUP N.A. N.V. | |||
|
|
By:
|
||
| Name: Xxxxxxxxx Xxxx Xxxxxx | |||
| Title: Chairman of the Board of Managing Directors | |||
|
|
By:
|
||
| Name: Xxxxxxx Xxxxxxx | |||
| Title: Managing Director | |||
| 1ST HOME BUY AND SELL LTD. | |||
|
|
By:
|
||
| Name: Xxxxxx Xxxxxx | |||
| Title: Director, CEO and President | |||
| For purposes of Section 1.5(b) only: | |||
| DEBONDO CAPITAL INC. | |||
|
|
By:
|
||
| Name | |||
| Title | |||
16
FORM
OF ASSIGNMENT
CONVEYANCE,
ASSIGNMENT AND XXXX OF SALE
THIS
CONVEYANCE, ASSIGNMENT AND XXXX OF SALE (“Assignment”),
effective as of _______________ (the “Effective Date”), is made by
DK Group N.A. N.V. a Curaçao, Netherlands Antilles corporation with an address
of Xxxx X.X.X. (Xxxxx) Xxxxxxx 00, Xxxxxxx, Xxxxxxxxxxx Antilles (“Assignor”) to and in favor of
1st
Home Buy and Sell Ltd., a Nevada corporation, with an address of 000 Xxxx Xxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxx 00000 (“Assignee”).
NOW,
THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficient of which is hereby
acknowledged, Assignor does hereby bargain, sell, transfer, set over, grant,
assign, convey and deliver unto Assignee all of Assignor’s right, title, and
interest in, to, under or derived from the following (collectively, the “Assets”):
_______________________________________
TO HAVE
AND TO HOLD the Assets herein conveyed to Assignee forever.
17
This
Assignment is executed on the date set forth in the acknowledgment below, but is
effective for all purposes as of the Effective Date.
| ASSIGNOR | ||
| By: | ||
| STATE OF ________________________ | ) |
| ) ss. | |
| CITY & COUNTY OF ________________ | ) |
The foregoing instrument was
acknowledged before me this ___ day of, 2008 by__________________, as President
of _________________________a _______________ corporation.
Witness
my hand and official seal.
My
commission
expires: ________________________________________.
____________________________________
Notary
Public
18
EXHIBIT
B
THIS
ESCROW AGREEMENT (the “Escrow Agreement”) is made as of __________, 2008 by and
between 1st Home Buy and Sell Ltd. (the
“Company”) and SteadyLaw Group,
LLP (the “Escrow Holder”).
WHEREAS,
concurrently herewith, the Company and one or more investors (collectively, the
“Investor”) have entered into a Subscription Agreement (the “SA”) whereby
Investor shall invest an aggregate amount of at least Forty Five Million Dollars
($45,000,000) (the “Aggregate Offering Amount”) in the Company (the “Financing”)
in two phases, with not less than Twenty Five Million Dollars ($25,000,000) in
commitments in the first phase (the “Initial Minimum Offering
Amount”).
WHEREAS,
pursuant to the terms of the SA, the Company will be receiving certain funds
from the Investor in exchange for common shares of the Company at a per share
price as set forth in the SA (the “Shares”).
WHEREAS,
as expressly set forth in the SA and agreed by the Investor by affixing his/her
signature to the SA, the Company desires to place and deposit with the Escrow
Holder the funds (the “Escrow Deposit”) to be received, released and delivered
by the Escrow Holder in accordance herewith.
WHEREAS,
the Escrow Holder is willing to receive the Escrow Deposit and otherwise perform
its obligations hereunder pursuant to the terms and conditions of this Escrow
Agreement.
WHEREAS,
all capitalized terms used herein and not defined shall have the same meaning as
set forth in the SA.
AGREEMENT
NOW,
THEREFORE, in consideration of the covenants and mutual promises contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties agree as follows:
1. Deposits with the Escrow
Holder.
1.1 The
Company shall cause the Investor to deliver to Escrow Holder the Escrow Deposit
via bank wire transfer.
1.2 Upon
receipt by the Escrow Holder of the Escrow Deposit, the Escrow Deposit shall be
the sole property of the Company and shall be held and disbursed subject to the
terms of this Agreement.
2. Investment of Escrow
Deposit. Escrow Holder shall have no duty to invest the Escrow
Deposit and the Company shall not be entitled to receive interest or other
income related to any Escrow Deposit.
19
3. Administration of Funds Held
in Escrow.
3.1 Except
as otherwise set forth in Section 3.4 below, Escrow Holder shall disburse,
release and deliver the Escrow Deposit as set forth in Sections 3.2 and 3.3,
below.
3.2 a.
If on the Closing Date (as defined in the Asset Purchase Agreement between the
Company and DK Group N.A. N.V.), the Escrow Holder determines that the amount of
the Escrow Deposit is less than the Initial Minimum Offering Amount, then the
Escrow Holder shall promptly notify the Company and an officer of DK Group, N.A.
N.V. of such occurrence and shall not release the Escrow Deposit pursuant to
Section 3.2(b) until it has received the consent of an officer of DK Group, N.A.
N.V. (“DK Group”). In the event DK Group does not consent to the distribution of
the Escrow Deposit, then the Escrow Holder shall promptly refund the Escrow
Deposit to the Investor, without interest thereon or deduction
therefrom.
b. If on the Closing Date, the Escrow
Holder has received notice from the law firm of Ellenoff Xxxxxxxx & Schole
LLP or from DK Group that all conditions for release of funds and the issuance
of the Shares have been met for closing (and the Escrow Holder determines that
the Escrow Deposit is equal to or exceeds the Initial Minimum Offering Amount),
the Escrow Holder shall promptly disburse the Escrow Deposit to the Company less
the following deductions which shall be paid directly to such parties via bank
check or via bank wire transfer, as instructed by the Company:
(i) Ten
percent (10%) of the Escrow Deposit to Pacific Wave Partners Inc. as a finder’s
fee; and
(ii)
Fifty Thousand Dollars ($50,000) to the Escrow Holder for payment of legal,
escrow, and other related fees as described in Section 4 below.
c. If on
the date of closing for the second phase of financing, the Escrow Holder
determines that the sum of the (i) Escrow Deposit and (ii) the funds previously
distributed pursuant to Section 3.2(b), is less than the Aggregate Offering
Amount, then the Escrow Holder shall promptly notify the Company of such
occurrence and shall not release the Escrow Deposit pursuant to Section 3.2(d)
until it has received the consent of an officer of the Company. In
the event an officer of the Company does not consent to the distribution of the
Escrow Deposit, then the Escrow Holder shall promptly refund the Escrow Deposit
to the Investor, without interest thereon or deduction therefrom.
d. If on the
date of closing for the second phase of financing, the Escrow Holder has
received notice from the law firm of Ellenoff Xxxxxxxx & Schole LLP or from
an officer of the Company that all conditions for release of funds and the
issuance of the Shares have been met for closing (and the Escrow Holder
determines that the sum of (i) the Escrow Deposit and (ii) the funds previously
distributed pursuant to Section 3.2(b), is equal to or exceeds the Aggregate
Offering Amount), the Escrow Holder shall promptly disburse the Escrow Deposit
to the Company less ten percent (10%) of the Escrow Deposit to Pacific Wave
Partners Inc. as a finder’s fee, which shall be paid directly to such party via
bank check or via bank wire transfer, as instructed by the Company.
3.3 Escrow
Holder shall release and disburse the balance of funds in the Escrow Deposit to
the Company via bank wire transfer to the bank account of the Company to be
provided at a later date by the Company in writing.
20
3.4 Upon
disbursement of the Escrow Deposit, the Escrow Holder’s duties hereunder with
respect to the Escrow Deposit shall terminate (each such date shall be known as
the “Escrow Agreement Termination Date”). Effective upon the Escrow Agreement
Termination Date, the Company and its respective successors, assigns, affiliates
and representatives, hereby forever releases and discharges Escrow Holder from
any and all liabilities, claims, liens, charges and other rights and obligations
(each, a “Claim”) with respect to the Escrow Deposit and the release thereof and
for any other Claim that may arise hereunder. The parties hereto hereby mutually
agree that the release of the Escrow Deposit to the Company, in accordance with
the provisions hereof, satisfies all rights and obligations of the Escrow Holder
with respect to this Escrow Deposit under this Agreement.
4. Obligations of the Escrow
Holder. Escrow Holder (i) shall not be under any duty to give the
Escrow Deposit any greater degree of care than it gives its own similar property
and (ii) does not have and will not have any interest in the Escrow Deposit
but is a mere holder thereof, and will show the amount deposited thereon as
property subject to this Agreement, with the sole exception that Escrow Holder’s
fees related to the Escrow Deposit as described in Section 3.2(b) which shall be
deducted from the Escrow Deposit prior to release to the Company.
5. Liability of Escrow
Holder. In performing any duties under this Agreement, Escrow
Holder shall not be liable to any party for consequential damages (including,
without limitation lost profits), losses, or expenses, except for gross
negligence or willful misconduct on the part of the Escrow
Holder. Escrow Holder shall not incur any such liability for (i) any
act or failure to act made or omitted in good faith, or (ii) any action taken or
omitted in reliance upon any instrument, including any written statement or
affidavit provided for in this Agreement that Escrow Holder shall in good faith
believe to be genuine, nor will Escrow Holder be liable or responsible for
forgeries, fraud, impersonations, or determining the scope of any representative
authority. In addition, Escrow Holder may consult with legal counsel
in connection with Escrow Holder's duties under this Agreement and shall be
fully protected in any act taken, suffered, or permitted by him/her in good
faith in accordance with the advice of counsel. Escrow Holder is not
responsible for determining and verifying the authority of any person acting or
purporting to act on behalf of the Company.
6. Controversies. If
any controversy arises between the Company and any Investor concerning the
subject matter of this Agreement, its terms or conditions, Escrow Holder will
not be required to determine the controversy or to take any action regarding
it. Escrow Holder may hold all documents and funds and may wait for
settlement of any such controversy by final appropriate legal proceedings or
other means as, in Escrow Holder's discretion, Escrow Holder may require,
despite what may be set forth elsewhere in this Agreement. In such
event, Escrow Holder will not be liable for damages. Furthermore,
Escrow Holder may at its option, file an action of interpleader requiring the
parties to answer and litigate any claims and rights among
themselves. Escrow Holder is authorized to deposit with the clerk of
the court all documents and funds held in escrow, except all reasonable costs
and expenses incurred by Escrow Holder due to the interpleader action and which
the parties agree to pay. Upon initiating such action, Escrow Holder
shall be fully released and discharged of and from all obligations and liability
imposed by the terms of this Agreement.
7. Resignation of Escrow
Holder. Escrow Holder may resign at any time upon giving at
least thirty (30) days’ written notice to the Company; provided, however, that
no such resignation shall become effective until the appointment of a successor
Escrow Holder which shall be accomplished as follows: The Company
shall use its best efforts to appoint a successor Escrow Holder within thirty
(30) days after receiving such notice. The successor Escrow Holder
shall execute and deliver an instrument accepting such appointment and it shall,
without further acts, be vested with all the estates, properties, rights,
powers, and duties of the predecessor Escrow Holder as if originally named as
Escrow Holder. Thereafter, Escrow Holder shall be discharged from any
further duties and liability under this Agreement.
21
8. Documents Presented to
Escrow Holder; Request of Additional Documents. Escrow Holder may act in
reliance upon any instrument or signature believed to be genuine and may assume
that any person purporting to be the Company, as the case may be, is in fact
such person, provided that Escrow Holder may request such certificates, opinions
or other documents evidencing such designations as it deems reasonably
necessary. If the Escrow Holder reasonably requires other or further instruments
in connection with this Escrow Agreement or obligations in respect hereto, the
Company shall furnish such instrument.
9. Reliance on Counsel.
Escrow Holder may act relative hereto upon advice of counsel in reference to any
matter connected herewith and shall not be liable for any mistake of fact or
error of judgment or for any acts or omissions of any kind unless caused by its
willful misconduct or gross negligence.
10. Complete Duties of Escrow
Holder. This Agreement sets forth exclusively the duties of Escrow Holder
with respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into this Agreement against Escrow
Holder.
11. No Representations by Escrow
Holder. Escrow Holder makes no representation as to the validity, value,
genuineness, negotiability or collectibility of any security or other document
or instrument held by or delivered to it.
12. Notices. Notice to
the various parties as called for herein shall be deemed sufficient and received
if made by hand delivery or when mailed by certified mail, return receipt
requested, to the parties at the respective addresses hereinafter set forth
until written notice of a change in the address of such party is received by the
other party hereto.
If to Company, addressed
to:
Ellenoff
Xxxxxxxx & Schole, LLP
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
If to Escrow Holder,
addressed to:
Xxxx Xxxxxxxx, Esq.
SteadyLaw
Group, LLP
000 X. Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
13. Indemnification of Escrow
Holder. Escrow Holder shall be under no obligation to institute or defend
any action, suit or legal proceeding in connection herewith or to take any other
action likely to involve it in expense unless first indemnified to its
satisfaction. The Company and its successors and assigns agrees to indemnify and
hold Escrow Holder harmless against any and all losses, claims, damages,
liabilities, and expenses, including reasonable costs of investigation, counsel
fees, including allocated costs of in-house counsel and disbursements that may
be imposed on Escrow Holder or incurred by Escrow Holder in connection with the
performance of its duties under this Agreement, including but not limited to any
litigation arising from this Agreement or involving its subject
matter.
22
14. Compensation Fees and
Expenses of Escrow Holder. As set forth in Section 3.2(b) and 4 above,
Escrow Holder shall receive as a standard fee a total of Fifty Thousand Dollars
($50,000) for the performance of the services as set forth herein as related to
all Escrow Deposits. However, it is understood that the fees and usual charges
agreed upon for services of Escrow Holder shall be considered compensation for
ordinary services as contemplated by this Agreement. In the event
that the conditions of this Agreement are not promptly fulfilled, or if Escrow
Holder renders any service not provided for in this Agreement, or if the
Company requests a substantial modification of its terms, or if any
controversy arises, or if Escrow Holder is made a party to, or intervenes in,
any litigation pertaining to this Agreement or its subject matter, Escrow Holder
shall be reasonably compensated for such extraordinary services and reimbursed
for all costs, attorneys’ fees, including allocated costs of in-house counsel,
and expenses occasioned by such default, delay, controversy or litigation and
Escrow Holder shall have the right to retain all documents and/or other things
of value at any time held by Escrow Holder in this escrow until such
compensation, fees, costs, and expenses are paid. The Company
promises to pay these sums upon demand. Unless otherwise provided, it
is mutually understood and agreed by and among the parties hereto that the
Escrow Holder may deduct any and all bank charges assessed from each Escrow
Deposit prior to release.
15. Waiver. No waiver of
any breach of any covenant or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof, or of any other covenant
or provision herein contained. No extension of time for performance
of any obligation or act shall be deemed an extension of the time for
performance of any other obligation or act.
16. Modification; Amendment; Law
Governing. This Agreement may be modified or amended; provided, however, that no
modification, amendment or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing signed by all the parties
hereto. This Agreement shall be construed under and governed by the
laws of _________.
17. Signature Pages. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be one and the same instrument. The exchange of copies of
this Agreement and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the parties and may be
used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile shall be deemed to be their original
signatures for all purposes.
[SIGNATURE
PAGE FOLLOWS]
23
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
this ____ day of ____, 2008.
| 1st HOME BUY AND SELL LTD. | ||||
|
|
|
|||
| Name: Xxxxxx Xxxxxx | ||||
| Title:
Director,
CEO and President
|
||||
| ESCROW HOLDER: | ||||
| STEADYLAW GROUP, LLP | ||||
|
|
|
|||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Partner | ||||
24
SCHEDULE
A
ASSETS
AND LIABILITIES OF SELLER NOT INCLUDED IN THIS AGREEMENT
|
·
|
€200,000
from Seller’s UBS bank account
|
|
·
|
Any
equity interests held by Seller (including its own shares), other than the
shares of DK Group Netherlands B.V.
|
25
OFFICERS
AND DIRECTORS OF SELLER
Board of
Managing Directors:
Xxxxxxxxx
Xxxx Xxxxxxx, Chairman
Jorn Xxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Forum
Administrations N.V.
Board of
Supervisory Directors:
Xxxxxxxx
Xxxxxx-Wedellsborg, Chairman
Xxxxx
Xxxxxxx
Xxxx
Xxxxxxxx
26
FINANCIAL
STATEMENTS OF SELLER
[Attached
hereto]
27
