INTEREST PURCHASE AGREEMENT
THIS
AGREEMENT (the “Agreement”), dated as of January 31, 2008, by and among each of
the persons listed on the signature page hereof (each, a “Member” and jointly
and severally, the “Members”) and Milk Bottle Cards, Inc., a Nevada corporation
(“Publico”).
WITNESSETH:
WHEREAS,
each Member owns of record and beneficially the percentage of capital
membership
interests (the “Interests”) of ForgeHouse LLC, a Georgia limited liability
company (“the Operating Company”), set forth opposite each such Member’s name on
the annexed Schedule 1;
WHEREAS,
the Members’ Interests represent none of the profit and loss interests of the
Operating Company and an aggregate of 30 percent of the capital interests of
the
Operating Company; and
WHEREAS,
the Members are desirous of selling all of their Interests to Publico in
exchange for an aggregate purchase price of One Hundred Seventy-One Thousand
Four Hundred Twenty-Nine Dollars (US$171,429.00) (the “Purchase
Price”).
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements herein
contained, the parties hereby agree as follows:
ARTICLE
1.
PURCHASE
OF INTERESTS
Section
1.1 Sale
of Interests.
On the
terms and subject to the conditions set forth in this Agreement, each Member
hereby agrees to sell, assign, transfer and deliver its, his or her respective
Interest to Publico, free and clear of all liens, claims, charges or
encumbrances, and Publico hereby agrees to purchase the Members’ Interests from
the Members at the Closing, for the consideration set forth in Section 1.2
hereof (the “Transaction”).
Section
1.2 Purchase
Price.
In
exchange for the Interests, Publico shall deliver to the Members, at Closing,
the Purchase Price in good and immediately available funds. The portion of
the
Purchase Price to be paid to each Member shall be as set forth on Schedule
1.2.
Section
1.3 Delivery
of Interest.
Subject
to the terms and conditions hereof, at the Closing, the Members shall transfer
to Publico their Interests by delivering the certificates evidencing the
Interests, accompanied by duly endorsed security powers, with signatures
notarized, in form and substance satisfactory to Publico permitting the transfer
of the Interests to Publico.
Section
1.4 Supplemental
Action.
If, at
any time after the Closing Date, the Members or Publico shall determine that
any
further conveyances, agreements, documents, instruments, and assurances or
any
further action is necessary or desirable to carry out the provisions of this
Article 1, the Members or Publico, as the case may be, shall execute and deliver
any and all proper conveyances, agreements, documents, instruments, and
assurances and perform all necessary or proper acts to carry out the provisions
of this Article 1.
1
ARTICLE
2.
CLOSING;
CLOSING DATE
Section
2.1 The
sale
of the Members’ Interests for the Purchase Price as contemplated hereby (the
“Closing”) shall take place at 6:30 a.m. PST. On January 7, 2008, or such other
date as the parties mutually agree, at the offices of Xxxxx Xxxx LLP, 0000
Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (or such other time or date as
the
parties hereto may mutually agree in writing). The date upon which the Closing
occurs is herein called the “Closing Date.”
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF
THE
MEMBERS
Except
as
set forth in the written disclosure letter delivered at or prior to the
execution hereof to Publico (the “Members Disclosure Letter”), each Member,
severally, hereby represents and warrants to Publico as set forth in this
Article 3. The Members Disclosure Letter shall be arranged
in sections or subsections corresponding to the number and lettered sections
and
subsections contained in this Article 3. The disclosures in any section or
subsection of the Members Disclosure Letter shall qualify the correspondingly
numbered representation and warranty and such other representations and
warranties in this Article 3 to the extent it is reasonably clear from a reading
of the disclosure that such disclosure is applicable to such other
representations and warranties.
Section
3.1 Authorization,
Validity and Effect of Agreements.
The
Member has the requisite power and authority to execute and deliver this
Agreement and to consummate the Transaction. This Agreement constitutes the
valid and legally binding obligation of each Member, enforceable against Member
in accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors’ rights.
Section
3.2 Capitalization.
As of
the date hereof, each Member owns none of the profit and loss interests in
Operating Company and an aggregate of 30 percent of the capital interests.
The
Member has no knowledge of any agreements or understandings to which any Member
or the Operating Company is a party with respect to the voting of any Interest
or which restrict the transfer of any such Interests. The Member has no
knowledge of any outstanding contractual obligations of Operating Company to
repurchase, redeem or otherwise acquire any Interest or any other securities
of
Operating Company. True and complete copies of all agreements and instruments
relating to the securities described above and in Section 3.3 of the Members
Disclosure Letter have been provided to Publico and such agreements and
instruments have not been amended, modified or supplemented, and there are
no
agreements to amend, modify or supplement such agreements or instruments in
any
case from the form provided to Publico.
Section
3.3 Litigation.
There
are (i) no continuing orders, injunctions or decrees of any court, arbitrator
or
governmental authority to which the Member is a party or by which any of its
properties or assets are bound or likely to be affected and (ii) no actions,
suits or proceedings pending against the Member or to which any of their
respective properties or assets are subject or, to the knowledge of the Member,
threatened against the Member or to which any of his/its respective properties
or assets are subject, at law or in equity.
Section
3.4 Brokers.
The
Member has not entered into any contract, arrangement or understanding with
any
person or firm that may result in the obligation of such Member or Publico
to
pay any finder’s fees, brokerage or agent’s commissions or other like payments
in connection with the negotiations leading to this Agreement or the
consummation of the Transaction. The Member isnot aware of any claim for payment
of any finder’s fees, brokerage or agent’s commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the Transaction.
2
Section
3.5 Ownership
of Interest.
The
Member is the sole beneficial and record owner of the Interests set forth
opposite such Member’s name on Schedule 1. At the Closing, pursuant to the terms
and conditions of this Agreement, such Member will sell and convey to Publico
such Interests, free and clear of any liens, other than restrictions imposed
by
federal and applicable state securities laws. The Member has not, and as of
the
Closing such Member shall not have, sold or otherwise disposed of, or granted
any options or rights to purchase, and such Member has not, and as of the
Closing shall not have, entered into any agreement obligating such Member to
sell or otherwise dispose of, or to grant options or rights to purchase, any
of
such Interest, except to Publico.
Section
3.6 No
Violation.
The
execution, delivery and performance by such Member of this Agreement and the
consummation of the Transaction do not and will not (i) contravene or conflict
with or constitute a violation of any provision of any law, judgment,
injunction, order or decree binding upon or applicable to the Member, (ii)
require the consent or other action of any person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration
of
any right or obligation of the Member or to a loss of any benefit to which
the
Member is entitled under any provision of any material agreement or other
instrument binding upon the Member; or (iii) result in the creation or
imposition of any material lien on any asset of the Member.
ARTICLE
4.
REPRESENTATIONS
AND WARRANTIES OF PUBLICO
Except
as
set forth in the written disclosure letter delivered at or prior to the
execution hereof to the Members (the “Publico Disclosure Letter”), Publico
hereby represents and warrants to each Member as follows. The Publico Disclosure
Letter shall be arranged in sections or subsections corresponding
to the number and lettered sections and subsections contained in this Article
4.
The disclosures in any section or subsection of Publico Disclosure Letter shall
qualify the correspondingly numbered representation and warranty and such other
representations and warranties in this Article 4 to the extent it is reasonably
clear from a reading of the disclosure that such disclosure is applicable to
such other representations and warranties.
Section
4.1 Organization;
Good Standing; Authority; Compliance With Law.
(a) Publico
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Nevada. Publico has all requisite power and authority
to
own, lease and operate its properties and to carry on its business as now
conducted. Publico is duly licensed or qualified and is in good standing to
transact business as a foreign corporation in each jurisdiction in which the
character of the properties owned or leased by it therein or in which the nature
of its business makes such qualification or licensing necessary, except where
the failure to be so licensed or qualified would not have, individually or
in
the aggregate, a Publico Material Adverse Effect. For purposes of this
Agreement, a “Publico Material Adverse Effect” means a material adverse effect
on the business, assets (including intangible assets), financial condition
or
results of operations of Publico, taken as a whole.
3
Section
4.2 Authorization,
Validity and Effect of Agreements.
Publico
has the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the Transaction. To the extent required by law,
the
Board of Directors of Publico has approved this Agreement and the Transaction.
The execution by Publico of this Agreement and the consummation of the
Transaction have been duly authorized by all requisite actions on the part
of
Publico, subject to the approvals described in Section 4.2 of Publico Disclosure
Letter. This Agreement constitutes the valid and legally binding obligation
of
Publico, enforceable against Publico in accordance with its terms, subject
to
applicable bankruptcy, insolvency, moratorium or other similar laws relating
to
creditors’ rights and general principles of equity.
Section
4.3 No
Violation.
Neither
the execution and delivery by Publico of this Agreement nor the consummation
by
Publico of the Transaction will: (i) conflict with or result in a breach of
any
provisions of Publico’s articles of incorporation or by-laws; (ii) violate,
result in a breach of any provision of, or constitute a default under, or
require any approval or consent under or result in the termination or in a
right
of termination or cancellation of, or accelerate the performance required by
or
result in a material adverse change to, or result in the creation of any lien,
security interest, charge or encumbrance upon any of Publico’s properties under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust or any license, franchise, permit, lease, contract,
agreement or other instrument to which Publico is a party, or by which Publico
or any of its properties is bound or affected, except for any of the foregoing
matters in this clause which, individually or in the aggregate, would not have
a
Publico Material Adverse Effect; (iii) contravene or conflict with or constitute
a violation of any provision of any law, rule, regulation, judgment, injunction,
order or decree binding upon or applicable to Publico; or (iv) other than the
filings provided for in this Agreement and the filings required under the
Exchange Act, the Securities Act, or applicable state securities and “Blue Sky”
laws (collectively, the “Regulatory Filings”), require any consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority which has not been obtained or made or which is
currently not in the process of being obtained or made, except where the failure
to obtain any such consent, approval or authorization of, or declaration, filing
or registration with, any governmental or regulatory authority would not have
a
Publico Material Adverse Effect.
Section
4.4 No
Brokers.
Publico
has not entered into any contract, arrangement or understanding with any person
or firm that may result in the obligation of such entity or the Members to
pay
any finder’s fees, brokerage or agent’s commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the Transaction. Publico is not aware of any claim for payment directly
by
Publico of any finder’s fees, brokerage or agent’s commissions or other like
payments in connection with the negotiations leading to this Agreement or the
consummation of the Transaction.
ARTICLE
5.
COVENANTS
AND AGREEMENTS OF THE PARTIES
Section
5.1 Litigation.
Between
the date hereof and the Closing Date, the Members shall promptly notify Publico
of any lawsuits, claims, proceedings or investigations which are threatened
or
commenced against any Member, or against any officer, employee, agent,
consultant or director thereof, as applicable.
4
Section
5.2 Actions
with Respect to Closing.
Each of
the parties hereto agrees to use his/its respective best efforts to bring about
the satisfaction of the conditions precedent to the obligation of the other
party hereto to effect the Closing (to the extent that such satisfaction is
dependent on the actions on the part of the initial party of commission or
omission) and to cause his/its covenants and agreements contained in this
Agreement to be satisfied and performed hereunder.
Section
5.3 Public
Statement.
Neither
party hereto shall, without the prior consent of the other, make any public
statement, announcement or release to trade publications or to the press, or
make any statements to any competitor, customer or any third party, with respect
to this Agreement except to the extent that either party is advised by its
counsel that a public statement is required by law.
Section
5.4 Consent
to Jurisdiction and Service of Process.
Any
legal action, suit or proceeding arising out of or relating to this Agreement
or
the Transaction shall be instituted in any state or federal court of competent
jurisdiction located in Manhattan, New York, and each party agrees not to
assert, by way of motion, as a defense, or otherwise, in any such action, suit
or proceeding, any claim that it is not subject personally to the jurisdiction
of such court, that its property is exempt or immune from attachment or
execution, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that
this
Agreement or the subject matter hereof may not be enforced in or by such court.
Each party further irrevocably submits to the exclusive jurisdiction of any
such
court in any such action, suit or proceeding.
ARTICLE
6.
CONDITIONS
TO PUBLICO’S OBLIGATIONS
The
obligations of Publico to consummate the Transaction provided for in this
Agreement shall be subject to the satisfaction of each of the following
conditions
on
or before the Closing Date (unless otherwise stated), subject to the right
of
Publico to waive any one or more of such conditions:
Section
6.1 Representations
and Warranties of the Members.
The
representations and warranties of the Members contained in this Agreement,
including the Schedules hereto, and in the certificates to be delivered to
Publico pursuant hereto and in connection herewith shall be true and correct
in
all material respects on the date hereof and on the Closing Date as though
such
representations and warranties were made on the Closing Date.
Section
6.2 Performance
of this Agreement.
The
Members shall have duly performed or complied in all material respects with
all
of the obligations to be performed or complied with by them under the terms
of
this Agreement on or prior to the Closing Date.
Section
6.3 Certificate
of Members.
Publico
shall have received a certificate signed by all the Members, dated as of the
Closing Date and subject to no qualification, certifying that the conditions
set
forth in Section 6.1 and 6.2 hereof have been fully satisfied. Such certificate
shall be deemed representations and warranties of the Members under this
Agreement.
5
Section
6.4 Third-Party
Consents.
All
consents, permits, and approvals from parties to contracts or other agreements
that may be required in connection with the performance by the Members of their
obligations under this Agreement shall have been obtained.
Section
6.5 Litigation.
At the
Closing Date, no suit, action or other proceeding shall be pending or threatened
before any court or governmental agency in which it is sought (i) to restrain,
prohibit, invalidate or set aside (in whole or in part) the Transaction, (ii)
to
affect the right of the Operating Company to operate or control, after the
Closing Date, its assets, properties and businesses (in whole or in part),
or
(iii) to obtain damages or a discovery order in connection with this Agreement
or the consummation of the Transaction.
Section
6.6 Agreement.
The
Exchange Agreement, a form of which is attached hereto as Exhibit
A,
shall
be in full force and effect (and concurrently closed) at Closing and Publico
shall have received a copy of such executed agreement.
ARTICLE
7.
CONDITIONS
TO THE MEMBERS’ OBLIGATIONS
The
obligations of the Members to consummate the Transaction shall be subject to
the
satisfaction
of
each of the following conditions on or before the Closing Date (unless otherwise
stated), subject to the right of the Members to waive any one or more of such
conditions:
Section
7.1 Representations
and Warranties of Publico.
The
representations and warranties of Publico contained in this Agreement, including
the Schedules hereto, and in the certificates to be delivered to the Members
pursuant hereto and in connection herewith shall be true and correct in all
material respects on the date hereof and on the Closing Date as though such
representations and warranties were made on the Closing Date.
Section
7.2 Performance
of this Agreement.
Publico
shall have duly performed or complied in all material respects with all of
the
obligations to be performed or complied with by it under the terms of this
Agreement on or prior to the Closing Date.
Section
7.3 Certificate
of Publico.
The
Members shall have received a certificate signed by Publico, dated as of the
Closing Date and subject to no qualification, certifying that the conditions
set
forth in Sections 7.1 and 7.2 hereof have been fully satisfied. Such certificate
shall be deemed representations and warranties of Publico under this
Agreement.
Section
7.4 Good
Standing.
Publico
shall have delivered to the Members a certificate of good standing, existence
or
its equivalent with respect to Publico, certified as of a recent date by the
appropriate governmental authority of Publico’s jurisdiction of incorporation,
and each other jurisdiction in which the failure to so qualify and be in good
standing would have a material adverse effect on Publico and its
business.
Section
7.5 Agreement.
The
Exchange Agreement, a form of which is attached hereto as Exhibit
A,
shall
be in full force and effect at Closing.
Section
7.6 Payment
of Invoice.
The
management fees due and payable as stated on that invoice attached hereto as
Exhibit
B
shall
have been paid-in-full at Closing.
6
ARTICLE
8.
TERMINATION
Section
8.1 Termination.
Anything herein or elsewhere to the contrary notwithstanding, this Agreement
may
be terminated and the Transaction abandoned at any time prior to the Closing
Date:
(a) By
mutual
consent of the Members on the one hand and Publico on the other hand;
or
(b) By
the
Members if any of the conditions set forth in Section 7 hereof shall have become
incapable of fulfillment, and shall not have been waived by the Members;
or
(c) By
Publico if any of the conditions set forth in Section 6 hereof shall have become
incapable of fulfillment, and shall not have been waived by
Publico.
ARTICLE
9.
MISCELLANEOUS
Section
9.1 Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission or, if mailed, three
(3)
days after the date of deposit in the mails, as follows:
(i) if
to
Publico, to:
Milk
Bottle Cards, Inc.
0000
Xxxx
0xx
Xxxxxx
Xxxxxxxxx,
X0 X0X 0X0
with
a
copy to:
(which
shall not constitute notice)
Xxxxx
Xxxx LLP
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
(ii) if
to the
Members, to:
(Name
of
Member)
c/o
Arnall
Xxxxxx Xxxxxxx LLP
000
00xx
Xxxxxx
XX, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000-0000
7
with
a
copy to:
(which
shall not constitute notice)
Xxxxxx
Xxxxxx Xxxxxxx LLP
Attention:
Xxxxxxx X. Xxxxx
000
00xx
Xxxxxx
XX, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000-0000
Any
party
may by notice given in accordance with this Section to the other parties
designate another address or person for receipt of notices
hereunder.
Section
9.2 Entire
Agreement.
This
Agreement (including the schedules and exhibits) and the agreements referred
to
herein and/or executed in connection with the consummation of the Transaction
contain the entire agreement among the parties with respect to the purchase
of
Interest, and supersede all prior agreements, written or oral, with respect
thereto.
Section
9.3 Waivers
and Amendments; Non-Contractual Remedies; Preservation of
Remedies.
This
Agreement may be amended, superseded, canceled, renewed, or extended, and the
terms hereof may be waived, only by a written instrument signed by the parties
or, in the case of a waiver, by the parties waiving compliance. No delay on
the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
of
any such right, power or privilege, nor any single or partial exercise of any
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach
of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach
is
based may also be the subject of any other representation, warranty, covenant
or
agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
Section
9.4 Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of Nevada,
applicable to agreements made and to be performed entirely within such State
(without giving effect to conflicts of law principles thereof).
Section
9.5 Binding
Effect; No Assignment; No Third Party Beneficiaries.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and legal representatives. Nothing contained herein
is intended or shall be construed as creating third party beneficiaries to
this
Agreement. This Agreement is not assignable except by operation of
law.
Section
9.6 Variations
in Pronouns.
All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
Section
9.7 Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto.
Section
9.8 Exhibits
and Schedules.
The
Exhibits and Schedules are a part of this Agreement as if fully set forth
herein. All references herein to Sections, subsections, clauses, Exhibits and
Schedules shall be deemed references to such parts of this Agreement, unless
the
context shall otherwise require.
8
Section
9.9 Headings.
The
headings in this Agreement are for reference only, and shall not affect the
interpretation of this Agreement.
[Signatures
on Following Page]
9
IN
WITNESS WHEREOF,
each of
the parties hereto has executed this Agreement as of the date first above
written.
| PUBLICO | ||
|
Milk
Bottle Cards, Inc,
a
Nevada corporation
|
||
| |
|
|
| /s/ Alexander Man-Kit Xxxx | ||
|
Xxxxxxxxx Man-Kit Ngan, its Assistant Secretary |
||
| MEMBERS | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
|
Name: Xxxx Xxxxxxxxxxxx |
||
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx Xxxxxx |
||
| By: | /s/ Xxx Xxxx | |
|
Name: Xxx Xxxx |
||
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name: Xxxxxx Xxxxxxx |
||
