ASSIGNMENT AGREEMENT
THIS AGREEMENT effective as of the 20th day of December, 2007.
BETWEEN:
Latin Star Developments Inc., a company incorporated under the laws of Nevis, having an office at Main Street, Charlestown, Nevis
(the “Assignor”)
AND:
Star Resorts Development Inc., a public company incorporated under the laws of the State of Nevada, with an office at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, XX 00000
(the “Assignee”)
(together, the “Parties”)
WHEREAS:
A. The Assignor has rights to the shares and other assets (the “Assets”) through the memoranda of understanding (the “MOU”), real estate purchase agreement (the “REPA”) and all documents that are set out in Schedule “A” of this Agreement (collectively, the “Memoranda”);
B. The Memoranda may be assigned by the Assignor to the Assignee without the consent of any other parties;
C. In accordance with the Memoranda, the Assignor has paid the amount of $3,450,000: the sum of $3,250,000 pursuant to the MOU and the sum of $200,000 pursuant to the REPA. The $3,450,000 was paid by the Assignor in the following advances:
| (i) |
February 26, 2007 a first advance, pursuant to the MOU, in the amount of two hundred thousand dollars ($200,000) ; | |
| (ii) |
Prior to April 27, 2007, a second advance, pursuant to the MOU, in the amount of two hundred thousand dollars ($200,000); | |
| (iii) |
May 2, 2007 a third advance, pursuant to the MOU, in the amount of six hundred eighty thousand dollars ($680,000); | |
| (iii) |
May 18, 2007 a fourth advance, pursuant to the MOU, in the amount of one million five hundred thousand dollars ($1,500,000); |
| (iv) |
June 5, 2007 a fifth advance, pursuant to the MOU, in the amount of six hundred seventy thousand dollars ($670,000); and, | |
| (v) |
June 6, 2007 a sixth advance, pursuant to REPA, in the amount of two hundred thousand dollars ($200,000) |
(together, the “Advances”); and,
D. The Assignor wishes to assign, and the Assignee wishes to assume, all of the Assignor’s right, title, interest in the Assets based on the terms and conditions set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants contained herein (the sufficiency whereof is hereby acknowledged by the Parties), the Parties hereby agree to and with each other as follows:
| 1. |
Assignment. The Assignor hereby assigns, and the Assignee hereby assumes, any and all right, title, interest and obligation set out in the Memoranda and the Assignee further agrees to be bound by the terms and conditions of the Memoranda as if it were an original signatory thereto (the “Assignment”). |
| 2. |
Effect of Assignment. Except as amended by this Agreement, the Parties acknowledge that the Memoranda remain in full force and effect. |
| 3. |
Consideration. |
| 3.1 |
In consideration for this Assignment, the Assignee agrees to pay and the Assignor agrees to accept 6,900,000 fully paid and non-assessable shares in the common stock of the Assignee (the “Assignment Price”), payable on or before the completion of this Assignment. |
| 3.4 |
The completion of this Assignment will take place upon the delivery of the entire Assignment Price by the Assignee to the Assignor. |
| 3.5 |
The Parties acknowledge and agree that the Assignment Price represents their joint, best estimate of present fair market value of the Assignment. |
| 4. |
Achievement Payments. |
| 4.1 |
In consideration of the Assignor having contributed to the creation of circumstances that will permit the Assignee to participate in certain additional business opportunities that potentially increase the value of the Assets, the Assignee will use good-faith efforts to cause the following (each, a “Triggering Event”): |
| (a) the written assignment of the Option, as defined in the MOU, in accordance with and as contemplated by subparagraph 3(d)(iii) of the MOU to the Assignee by Fiducia Capital S.A. (“FC”), on terms and in form and substance acceptable to the Assignee in its sole discretion; |
| (b) the execution of a written agreement, on terms and in form and substance acceptable to the Assignee in its sole discretion, that the Assignee is a 25% beneficiary of a concession by the Province of Neuquén, Argentine, of certain additional land adjacent to the Cerro Bayo project to be developed as part of said project; and, | ||
| (c) the execution of a written agreement, on terms and in form and substance acceptable to the Assignee in its sole discretion, that makes the Assignee a partner in the development and operations of the SMA Hotel & Spa (the “Hotel”), a hotel and spa resort referred to in Recital VI of the MOU. | ||
| 4.2 | Upon the completion of each Triggering Event, the Assignee will issue to the Assignor or its nominee, within 14 days following the satisfaction on the part of the Assignee that the Triggering Event has been completed, 9,200,000 fully paid and non-assessable shares in the common stock of the Assignee. The 9,200,000 fully paid and non-assessable shares will be paid following each Triggering Event by the delivery of a share certificate representing 9,200,000 common shares to the Assignor or its nominee. The Parties agree that the Assignee is not obligated to achieve the completion of one or all of the Triggering Events and failure to do so will not be deemed a breach of this Agreement. |
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| 5. | Restricted Shares. |
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| 5.1 | The Assignor hereby acknowledges that upon the issuance thereof, and until such time as the same is no longer required under the applicable securities laws and regulations, the certificates representing any shares in the common stock of the Assignee issued pursuant to this Agreement will bear a legend in substantially the following form: |
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THE SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). NONE OF THE SECURITIES HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE
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SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT. | |
| 5.2. |
The Assignor hereby acknowledges and agrees to the Company making a notation on its records or giving instructions to the registrar and transfer agent of the Company in order to implement the restrictions on transfer set forth and described in this Agreement. |
| 6. |
Representations of Assignor. The Assignor hereby represents and covenants that: |
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(a) the Assignor is a corporation duly organized, validly existing and in good standing under the laws of Nevis; | |
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(b) the Assignor has all requisite corporate power and authority to execute and deliver this Agreement and any other document contemplated by this Agreement to be signed by the Assignor and to perform its obligations hereunder and to consummate the transactions contemplated hereby; | |
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(c) to the best knowledge of the Assignor, there is no claim, charge, arbitration, grievance, action, suit, investigation or proceeding by or before any court, arbiter, administrative agency or other governmental authority now pending or threatened against any of the Memoranda or against the Assignor as holder of such Standstill Agreement that, if adversely resolved or determined, would have a material adverse effect on any of the Memoranda or the value thereof; and, | |
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(d) none of the execution, delivery and performance of this Agreement, or the consummation of the Assignment will conflict with, result in a violation of, cause a default under (with or without notice, lapse of time or both) or give rise to a right of termination, amendment, cancellation or acceleration of any material obligation contained in or the loss of any material benefit under, or result in the creation of any material lien, claim, security interest, charge or encumbrance upon any of the Memoranda. | |
| 7. |
Representations of Assignee. The Assignee hereby represents and covenants that: |
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(a) the Assignee is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada; and, | |
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(b) the Assignee has all requisite corporate power and authority to execute and deliver this Agreement and any other document contemplated by this Agreement to be signed by the Assignee and to perform its obligations hereunder and to consummate the transactions contemplated hereby. |
| 8. |
Entire Agreement. This Agreement constitutes the whole agreement between the Parties in respect of the Assignment contemplated hereby and there are no warranties, representations, terms, conditions, or collateral agreements expressed or implied, statutory or otherwise, other then expressly set forth in this Agreement. |
| 9. |
All Further Acts. Each of the Parties will do any and all such acts and will execute any and all such documents as may reasonably be necessary from time to time to give full force and effect to the provisions and intent of this Agreement. |
| 10. |
Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada, and the Parties hereby attorn to the jurisdiction of the courts of competent jurisdiction of the State of Nevada in any proceeding hereunder. |
| 11. |
Schedules. Schedule “A” is attached to this Agreement and is incorporated herein. |
| 12. |
Headings. The headings and captions contained in this Agreement are for convenience of reference only and will not in any way affect the meaning or interpretation of this Agreement. |
| 13. |
Survival. Each party is entitled to rely on the representations and warranties of the other party and all such representations and warranties will be effective regardless of any investigation that the party has undertaken of failed to undertake. The representations and warranties will survive the effective date of this Agreement and continue in full force and effect until six (6) months after the effective date of this Agreement. |
| 14. |
Successors and Assigns. This Agreement will enure to the benefit of, and be binding upon, the Assignor and the Assignee and their respective successors and assigns. |
| 15. |
Further Assignment. The Assignee may further assign all of its right, title, interest and obligation under any of the Memoranda to any party without the consent of the Assignor. |
| 16. |
Notice. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given if: (i) sent by personal delivery; (ii) faxed with electronic confirmation of delivery; or (iii) sent by internationally-recognized express courier or registered or certified mail (return receipt requested), postage prepaid, to the Parties at the address set out on the first page of this Agreement (or at such other address for a party as will be specified by like notice). All such notices and other communications will be deemed to have been received: |
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(a) in the case of personal delivery, on the date of such delivery; |
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(b) in the case of a fax, when the party sending such fax has received electronic confirmation of its delivery; | |
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(c) in the case of delivery by internationally-recognized express courier, on the Business Day following dispatch; and | |
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(d) in the case of mailing, on the fifth Business Day following mailing. | |
| 17. |
Meaning of “Business Day”. For the purposes of this Agreement, the term “Business Day” means any day other than a Saturday, Sunday, public holiday under the laws of the State of Nevada or other day on which banking institutions are authorized or obligated to close in the State of Nevada. |
| 18. |
Amendment. This Agreement may not be amended except by an instrument in writing signed by each of the Parties. |
| 19. |
Time. Time is of the essence to this Agreement. |
| 20. |
Counterparts and Electronic Means. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will together constitute one and the same instrument. 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 day and year first written above. |
IN WITNESS WHEREOF the Parties have executed this Agreement as of the day and year first above written.
LATIN STAR DEVELOPMENTS INC.
| Per: | /s/ Xxxxx Xxxxxx |
| Authorized Signatory |
| Per: | /s/ Xxxxxxxxx Xxxxxxxx |
| Authorized Signatory |
SCHEDULE “A”
to the assignment agreement between Latin Star Developments Inc. and Star Resorts Development Inc. and dated effective as of December 20, 2007
1. Memorandum of Understanding, dated April 27, 2007, between Fiducia Capital S.A. and Latin Star Developments Inc.
2. Real Estate Purchase Agreement between Santa Xxxxx de los Andes S.A. and Latin Star Developments Inc. for the purchase of a plot of land located in the Agrelo District, Department of Xxxxx de Cuyo, Province of Xxxxxxx
