PURCHASE AND SALE AGREEMENT
This
Purchase and Sale Agreement (this “Agreement”) is made and entered into as of
December 5, 2006, by and among Xxxxxx Xxxxxx and Xx. Xxxxx Xxxxxx (Xxx. Xxxxxx
and Xx. Xxxxx, together are referred herein as the “Sellers”) and Xxxxxx
Xxxxx (
the
“Buyer”).
WHEREAS,
the Sellers own in the aggregate seven million six hundred thousand (7,600,000)
shares (the “Shares”) of common stock of Terrapin Enterprises, Inc., a Nevada
corporation (the “Company”) representing 73.8% of the issued and outstanding
share capital of the Company; there being a total of ten million two hundred
ninety thousand (10,290,000) shares issued and outstanding.
WHEREAS,
The Sellers wish to sell to the Buyer, and the Buyer wishes to purchase from
the
Sellers, the Shares for such consideration and on such terms as set out
below;
NOW
THEREFORE, in consideration of the above premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Purchase
and Sale; Purchase Price; Closing.
(a) Purchase
and Sale.
Upon
the terms and subject to the conditions of this Agreement, at the Closing
(hereafter defined), the Sellers shall sell, transfer and assign to the Buyer,
and the Buyer shall purchase from the Sellers, the Shares and any and all rights
in the Shares to which the Sellers are entitled, and by doing so the Sellers
shall be deemed to have assigned all of the Sellers’ right, title and interest
in and to the Shares to the Buyer. Such sale of the Shares shall be evidenced
by
stock certificates, duly endorsed in blank or accompanied by stock powers duly
executed in blank, or other instruments of transfer in form and substance
reasonably satisfactory to the Buyer.
(b)
Purchase
Price.
The
aggregate purchase price for the purchase of the Shares shall be fifty thousand
($50,000) dollars (the “Purchase Price”), payable by wire transfer of
immediately available funds.
(c)
Closing.
(1)
The
Closing of the transactions contemplated under this Agreement (the "Closing")
shall take place simultaneously with the execution and delivery of this
Agreement. The closing will take place in the City of New York or at such other
place mutually agreed upon.
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(2)
At
the
Closing:
(a)
The
Buyer shall pay to the Sellers the Purchase Price by wire transfer of
immediately available funds pursuant to wire instructions previously delivered;
and
(b)
The
Sellers shall deliver or cause to be delivered to the Buyer (i) the stock
certificates evidencing the Shares owned by them duly endorsed in blank or
accompanied by stock powers duly executed in blank, in proper form for transfer;
(ii) a list from the transfer agent of the Company; (iii) the resignations
of
Xxxxxx Xxxxxx and Xxxxx Xxxxxx from their positions as officers and
employees of the Company, effective at the Closing; (iv) the resignations of
Xxxxxx Xxxxxx, as a director of the Company, effective ten days after the
Company files with the SEC a Schedule 14f-1; and (v) any other documents
requested by the Buyer to consummate the transactions contemplated by this
Agreement. The Buyer acknowledges that subsequent to the Closing, it is his
responsibility to file a Form 3 pursuant to requirements of Section 16(a) of
the
Exchange Act; and a Schedule 13 D in accordance with the requirements of Section
240.13d-1of
the
Exchange Act.
2. Representations
of Sellers.
Each
Seller, jointly and severally, and the Company hereby represents and warrants
to
the Buyer the following:
(a)
Authority.
The
Sellers have the absolute and unrestricted right, power, legal capacity and
authority to enter into and perform their obligations under this Agreement,
to
carry out their obligations hereunder and to consummate the transactions
contemplated hereby. Assuming the due authorization, execution and delivery
by
the Buyer, this Agreement, when executed and delivered by the Buyer, will be
a
valid and binding obligation of the Sellers, enforceable against the Sellers
in
accordance with its terms. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach or violation of (i) any instrument, contract or agreement
to
which the Sellers are parties or by which they are bound, or (ii) any federal,
state, local or foreign law, ordinance, judgment, decree, order, statute, or
regulation, or that of any other governmental body or authority, applicable
to
the Company or either Sellers or his or her respective assets or properties.
(b) Capitalization.
The
Company’s authorized capital stock consists of 100,000,000 shares of common
stock, of which 10,290,000 shares are issued and outstanding. The Sellers are
the sole record and beneficial owners of the Shares and has good and marketable
title to the Shares, free and clear of any liens, pledges, hypothecations,
charges, adverse claims, options, preferential arrangements or restrictions
of
any kind, including, without limitation, any restriction of the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership
(collectively, “Encumbrances”), other than Encumbrance created by applicable
federal and state securities laws. Upon the execution and delivery of this
Agreement and payment of the purchase price, the Buyer shall be the lawful
record and beneficial owner of the Shares, free and clear of all Encumbrances,
other than any Encumbrances expressly created by applicable federal and state
securities laws.
There
are no stockholders’ agreements, voting trust, proxies, options, rights of first
refusal or any other agreements or understandings with respect to the
Shares.
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(c)
Valid
Issuance.
All of
the Shares of the Company being sold by the Sellers and bought by the Buyer
are
duly authorized, validly issued, fully paid and non-assessable, and were not
issued in violation of any preemptive or similar rights. There are no
outstanding subscriptions, options, warrants, puts, calls, agreements or other
rights of any type or other securities, including without limitation, any
agreements or securities (1) requiring the issuance, sale, transfer, repurchase,
redemption or other acquisition of any shares of capital stock of the Company,
(2) restricting the transfer of any shares of capital stock of the Company,
or
(3) relating to the voting of any shares of capital stock of the Company. There
are no issued or outstanding indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities having the right
to
vote), upon the happening of a certain event or otherwise, on any matters on
which the equity holders of the Company may vote.
(d)
SEC
Documents.
All
reports and other documents filed by the Company with the SEC (the “SEC
Documents”) complied, as of their respective dates, in all material respects
with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”) or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
as the case may be, and other federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a fact or omitted to state a 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 Company included in the SEC Documents comply as to form and
substance in all respects with applicable accounting requirements and the
published rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be otherwise
indicated in such financial statements or the notes thereto or in the case
of
unaudited interim statements, to the extent they may not include footnotes
or
may be condensed or summary statements) and fairly present in all respects
the
financial position of the Company as of 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 year-end audit adjustments). The Company has
not
received any letters, notices or any notifications from the SEC, NASD or NASAQ
with respect to the Company or any of its officers or directors, with exception
of the Delinquency Notification issued by the NASD on April 21, 2006, the
delinquency being remedied with the filing of the Form 10-KSB and the subsequent
removal of the ‘E’ from the Company’s ticker symbol.
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(e)
No
Undisclosed Liabilities.
The
Company has no liabilities or obligations that are not disclosed in the SEC
Documents, and as of the Closing shall have no debts, liabilities or
obligations, direct or indirect, contingent or otherwise, including without
limitation, any tax obligations.
(f) No
Undisclosed Events or Circumstances.
No
event or circumstance has occurred or exists with respect to the Company or
its
businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been
so
publicly announced or disclosed in the SEC Documents.
(g) Litigation
and Other Proceedings.
There
are no lawsuits or proceedings pending or threatened, against the Company or
its
officers or directors, nor has the Company or the Sellers received any written
or oral notice of any such action, suit, proceeding or
investigation.
(h)
Full
Disclosure.
No
representation or warranty or other statement made by the Company of the Sellers
in this Agreement or otherwise in connection with the transactions contemplated
herein contains any untrue statement or omits to state a fact necessary to
make
any of them, in light of the circumstances in which it was made, not misleading.
3.
Buyer’s
Representations.
The
Buyer
hereby represents and warrants to each Seller the following:
(a) Authority.
The
Buyer has the absolute and unrestricted right, power, legal capacity and
authority to enter into and perform his respective obligations under this
Agreement, to carry out his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Buyer. No filing with, authorization from or consent or
approval of any governmental body, agency, official or authority or any other
third party is necessary or required to be made or obtained to enable the Buyer
to enter into, and to perform his respective obligations under, this Agreement.
Neither the execution and delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby, will conflict with, or (with or without
notice or lapse of time, or both) result in a termination, breach or violation
of (i) any instrument, contract or agreement to which the Buyer is a party
or by
which he is bound, or (ii) any federal, state, local or foreign law, ordinance,
judgment, decree, order, statute, or regulation, or that of any other
governmental body or authority, applicable to the Buyer or his assets or
properties.
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(b) Investment
Purpose.
The
Buyer is acquiring the Shares for his own account, for investment purposes
only
and not with a view to the resale or distribution of any part thereof. The
Buyer
understands that the Shares are restricted securities and can not be offered
for
sale, sold, transferred or otherwise disposed of without an effective
registration statement pursuant to the Securities Act of 1933, as amended,
or an
applicable exemption therefrom.
(c) Accredited
Investor.
The
Buyer is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities Act”), and has been provided with all materials and information
requested by the Buyer, including any information requested to verify any
information furnished, and the Buyer has been provided the opportunity for
direct communication between the Sellers and their representatives and the
Buyer
regarding the purchase contemplated by this Agreement, including the opportunity
to ask questions and receive answers from the Sellers or the Company.
(d) Exemption
from Registration.
The
Buyer understands that the Shares are being offered and sold to it in reliance
upon specific exemptions from the registration requirements of United States
federal and state securities laws.
4.
Indemnification.
Each
Seller shall indemnify and hold harmless the Buyer and his respective employees,
trustees, agents, beneficiaries, affiliates, representatives and their
successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys’ fees and costs) resulting directly or indirectly from any
misrepresentation, breach of warranty or nonfulfillment of any covenant or
agreement on the part of the Sellers.
5.
Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Nevada without regard to principles of conflicts of laws.
(b) If
any
covenant or agreement contained herein, or any part hereof, is held to be
invalid, illegal or unenforceable for any reason, such provision will be deemed
modified to the extent necessary to be valid, legal and enforceable and to
give
effect of the intent of the parties hereto.
(c) This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof. This Agreement supersedes all prior agreements
between the parties with respect to the subject matter hereof or thereof. There
are no representations, warranties, covenants or undertakings with respect
to
the subject matter hereof other than those expressly set forth herein or in
the
other agreements referenced herein.
(d) This
Agreement may not be amended or modified except by the express written consent
of the parties hereto. Any waiver by the parties of a breach of any provision
of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach thereof or of any other provision.
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(e) This
Agreement shall be binding upon, inure to the benefit of, and be enforceable
by
the parties hereto and their respective successors and permitted assignees
and
heirs and legal representatives.
(f) The
parties hereto intend that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any person other than the parties
hereto.
(g) Each
of
the Sellers and the Buyer agrees that this Agreement shall be deemed to have
been jointly and equally drafted by them, and that the provisions of this
Agreement therefore shall not be construed against a party or parties on the
ground that such party or parties drafted or was more responsible for the
drafting of any such provision(s). The parties agree that they have each
carefully read the terms and conditions of this Agreement, that they know and
understand the contents and effect of this Agreement. Each of the parties
acknowledges that Xxxxx Xxxxx & Associates, PLLC has acted and
continues to act as legal counsel to the Company. Each party represents that
it
has received advice from counsel of its own choosing regarding the transactions
contemplated herein. Notwithstanding the foregoing, each of the parties’ waives
any objections or rights it has or may have which would impair, hinder or
eliminate such law firm’s right or ability to represent or counsel the
Company or its affiliates after the date hereof.
(h) The
parties hereto agree to execute and deliver such further documents and
instruments and to do such other acts and things any of them, as the case may
be, may reasonably request in order to effectuate the transactions contemplated
by this Agreement.
(i) This
Agreement may be executed in counterparts and by facsimile, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
[Remainder
of Page Intentionally Omitted; Signature Page to Follow]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
executed by its duly authorized officer or representative as of the date first
above written.
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SELLERS:
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
00
Xxxxxxx Xxxx
Xxxxxx,
Xxx Xxxx 00000
Number
of Shares: 7,200,000
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/s/
Xxxxx Xxxxxx
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Xx.
Xxxxx Xxxxxx
00
Xxxxxxx Xxxx
Xxxxxx,
Xxx Xxxx 00000
Number
of Shares: 400,000
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BUYER:
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
Address:
0000 00xx
Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
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