Exhibit 10.1
STOCK PURCHASE AGREEMENT
Reference No.: 2009SPA -003(1)
This Stock Purchase Agreement ("Agreement") made this 28th day of November,
2009, by and among Xxx X. Xxxxxx ("Seller"), certain purchasers ("Purchasers")
as listed in Exhibit A, Green Star Mining Corp. ("GSMC" or "Company"), American
First United Investment Group Limited ("Purchasers' Representative"), setting
forth the terms and conditions upon which the Seller will sell certain shares of
the common stock of GSMC (the "Shares"), personally owned by Seller, to
Purchasers ("Transaction").
IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS, AND REPRESENTATIONS
CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
WITNESSETH:
WHEREAS, Purchasers have appointed American First United Investment Group
limited, to act as the Purchasers' representative ("Purchasers Representative")
for this Transaction.
WHEREAS, the Seller has appointed Xxxxxx X. Xxxxxx, Xx., Attorney At Law,
to act as the Seller's Escrow Agent ("Seller's Escrow Agent") for this
Transaction and to receive and hold all consideration received from the
Purchasers' Escrow Agent for the sale of the Shares and all documents, stock
certificates, stock powers and corporate records of GSMC, in the Xxxxxx X.
Xxxxxx, Xx. Attorney-Client Trust Account, unless other arrangements are agreed
to by all parties.
WHEREAS, the Purchasers' Representative has appointed Xxxxxxx Law, Attorney
At Law, to act as the Purchasers' Agent ("Purchasers' Agent") for this
transaction and to receive and hold all documents, stock certificates, stock
powers and corporate records of GSMC received from the Seller's Escrow Agent for
the sale of the Shares, and the Purchasers' Representative has also appointed
Xxxx X. Xxxx, Attorney At Law, to act as the Purchasers' Escrow Agent
("Purchasers' Escrow Agent") to receive and hold all consideration received from
the Purchasers' Representative in the Xxxx X. Xxxx Attorney-Client Trust Account
for the purchase of the Shares, unless other arrangements are agreed to by all
parties.
WHEREAS, the Seller, Purchasers' Representative, Seller's Escrow Agent, and
Purchasers' Escrow Agent, have entered into an Escrow Agreement dated as of
November 28, 2009, the date of this Agreement, and the Escrow Agreement is
attached hereto as Exhibit B.
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties herewith agree as follows:
ARTICLE I
SALE OF SECURITIES
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1.01 Sale. Subject to the terms and conditions of this Agreement, the
Seller agrees to sell the 436,000 pre-5-for-1 forward split Shares (that is
2,180,000 post-5-for-1 forward split Shares) for a total of Sixty Six Thousand
Eight Hundred and Fifty Four Dollars (U.S.) ($66,854.00) (the "Purchase Price").
This is a private transaction between the Seller and Purchasers.
1.02 Escrow Agent. The Seller and Purchasers' Representative hereby appoint
Xxxxxx X. Xxxxxx, Xx., and Xxxx X. Xxxx, to act as Seller's Escrow Agent, and
Purchasers' Escrow Agent, respectively, pursuant to an Escrow Agreement dated as
of November 28, 2009, the same date as this Agreement. This Agreement, the
Escrow Agreement, and all documents and funds will be held in escrow until the
Closing, except as specifically agreed to be released from escrow in this
Agreement.
1.03 Deposit: (a) It is understood that a deposit ("Deposit") in the amount
of Forteen Thousand Five Hundred and Thirty Four Dollars ($14,534) has been
wired by Purchasers' Representative, and received by, the Xxxx X. Xxxx
Attorney-Client Trust Account as the Deposit on the sale of the Shares being
sold by the Seller, and will be held in the Escrow Account until Closing (as
defined in Article 3.01) or until released as per other sections of this
Agreement.
(b) The Parties hereto acknowledge that immediately upon receipt of the
Deposit by the Purchasers' Escrow Agent, Seller's Escrow Agent forwarded by
overnight delivery, or by email, to Purchasers' Escrow Agent for review by
Purchasers' Representative, a due-diligence package in electronic version, which
included soft copies of original documents of the Company which the Purchasers'
Representative requested, including, but not limited to, articles, bylaws,
minutes, contracts or agreements, if any, financial statements, current
certified shareholder list, copies of all FINRA and SEC correspondence, state
and Federal tax returns, and other documents that were available and requested
by the Purchasers. By signing this Agreement, the Purchasers acknowledge and
agree that the Purchasers have reviewed the Company's due diligence package and
have accepted the Company.
(c) The Seller and Purchasers acknowledge that the Company has recently
filed with FINRA, and given notice to the appropriate agencies if required, the
Company's intention to forward split its outstanding 2,500,000 shares on a
5-for-1 basis, to 12,500,000 shares. The Seller hereby agrees that if the
proposed forward split is not approved by FINRA within 30 days after the forward
split application (including the Transfer Agent Verification) is filed with
FINRA, then at Purchasers' Representative's option, by giving written notice to
Seller, the Seller's Escrow Agent and the Purchasers' Escrow Agent, Purchasers'
Representative may cancel this Agreement, and have the entire $14,534 Due
Diligence Deposit returned, contingent upon Purchasers' Representative returning
any and all due diligence documentation provided by the Company.
(d) Purchasers' Representative warrants and represents that before the
Closing (as defined below), Purchasers will provide the Company and Seller with
the names and business backgrounds of the persons who will become the Company's
management as of the Closing.
(e) Account wire transfer instructions for the Deposit, transfer and
payment of funds herein are stated in an exhibit to the Escrow Agreement that is
attached to this Agreement as Exhibit B.
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1.04 Balance of Purchase Price. It is agreed that the balance of the amount
due to the Seller, i.e. $52,320 (the "Balance"), will be wire transferred to the
Purchasers' Escrow Agent immediately upon this Agreement and the Escrow
Agreement being signed by all Parties to those Agreements, and that the Closing
will take place immediately after, on the condition that, (a) the Balance is
received by the Purchasers' Escrow Agent, and (b) the Company receives notice
that FINRA has approved the forward split, unless an extension is agreed to by
the Parties signing this Agreement. It is agreed that all of the Shares shall
remain in the Purchasers' Escrow Account until the full amount of $66,854.00 has
been paid into Seller's Escrow, immediately after which the Closing on the sale
of the Shares shall take place and all stock certificates shall be delivered to
the Purchasers' Representative along with all documents listed in paragraphs
2.12, 2.13 and 3.02 below.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Seller and the Company hereby represent and warrant to the Purchasers'
Representative the following:
2.01 Organization. GSMC is a Delaware corporation duly organized, validly
existing, and in good standing under the laws of that state, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in the state of Delaware and
elsewhere. All actions taken by the incorporators, directors and/or shareholders
of GSMC have been valid and in accordance with the laws of the state of
Delaware. The Company is a reporting company as described by Securities and
Exchange Commission ("SEC"), pursuant to Section 15d of the Securities Exchange
Act of 1934, and is current in its filings, and will remain current up to the
Closing. The Company is currently quoted on the OTCBB, symbol GSTR. After the
Purchase, the Purchasers of the Shares shall file the appropriate filings,
including the Form 8-K, disclosing the acquisition of the Shares by the
Purchasers ("Disclosure Document").
2.02 Capital. The authorized capital stock of GSMC consists of 100,000,000
shares of Common Stock, $0.0001 par value, of which 2,500,000 shares of Common
Stock are issued and outstanding, consisting of the 1,500,000 Shares and
1,000,000 shares that were registered with the SEC on Form S-1. There is no
Preferred Stock authorized. Upon the effectiveness of the stock forward split,
the authorized capital stock of GSMC shall consist of 100,000,000 shares of
Common Stock, $0.0001 par value, of which 12,500,000 shares of Common Stock will
then be issued and outstanding, consisting of the 2,180,000 Shares that are the
subject of this Agreement, the 1,000,000 registered shares, and the 4,000,000
shares issued in the forward split of the 1,000,000 registered shares. All
outstanding shares are fully paid and non-assessable, free of liens,
encumbrances, options, restrictions and legal or equitable rights of others not
a party to this Agreement. At the Closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating GSMC to issue or to transfer from treasury
any additional shares of its capital stock. None of the outstanding Shares of
GSMC are subject to any stock restriction agreements. There are approximately 31
shareholders of record of GSMC, and there are no shares in street name. All of
such shareholders have valid title to such shares and acquired their shares in
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lawful transactions and in accordance with Delaware corporate law and the
applicable securities laws of the United States.
2.03 Financial Statements. The Company is a reporting company under SEC
rules and audited financial statements can be found on Xxxxx.
2.04 Filings with Government Agencies. GSMC is a Section 15d reporting
company and files annual and quarterly reports with the SEC and is current in
all filings. GSMC has made all required filings with the state of Delaware that
might be required. Upon the purchase of the Shares by the Purchasers, those
Purchasers will have the full responsibility for filing any and all documents
required by the Securities and Exchange Commission, and/or any other government
agency that may be required. The Seller will supply the Purchasers'
Representative with all information that is currently available for the Company.
The Purchasers understands that the Seller will have no responsibility
whatsoever for any filings made by the Company after the Closing, either with
the SEC, FINRA or with the State of Delaware, except to provide the information
that the Purchaser's accountants will need to file the Form 10-Q for the quarter
ending November 30, 2009.
It is agreed that the Seller and the Company will be responsible for all
filings required up to the time of Closing, including the Form 10-K due for the
period ended February 28, 2009 (which was filed), and the Form 10-Q for the
period ended August 31, 2009 (which was filed). The Seller will fully cooperate
with, and will cause the Company's current CPA to fully cooperate with, the
Purchasers with respect to the information required for the filing of the Form
10-Q for the quarter ending November 30, 2009, which filing will be made by the
Purchasers, after the Closing.
2.05 Liabilities. It is understood and agreed that the purchase of the
Shares is predicated on GSMC not having any liabilities at Closing, and the
Company will not, as of Closing, have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise that will not be
paid at Closing. Both the Seller and the Company are not aware of any pending,
threatened or asserted claims, lawsuits or contingencies involving the Company
or its Shares. There is no dispute of any kind between GSMC and any third party,
and no such dispute will exist at the Closing of this transaction, and at the
Closing, GSMC will be free from any and all liabilities, liens, claims and/or
commitments. The Seller agrees to indemnify the Purchasers against any past
liabilities pertaining to its conduct of business that should arise within three
(3) months of Closing.
2.06 Tax Returns. GSMC has filed all required state and Federal tax
returns. As of Closing, there shall be no taxes of any kind due or owing.
2.07 Ability to Carry Out Obligations. The Seller has the right, power, and
authority to enter into, and perform his obligations under this Agreement. The
execution and delivery of this Agreement by the Seller and the performance by
the Seller of her obligations hereunder will not cause, constitute, or conflict
with or result in (a) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which GSMC, its officers, directors or Seller are a party, or by which they
may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would cause GSMC (and/or assigns) to
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be liable to any party, or (c) an event that would result in the creation or
imposition of any lien, charge, or encumbrance on any asset of GSMC or upon the
Shares of the Company to be acquired by the Purchasers.
2.8 Contracts, Leases and Assets. GSMC is not a party to any contract,
agreement or lease, other than (a) the normal contract with the Transfer Agent,
and (b) its mining claim, known as the Golden Princess mining claim, which
expires on September 1, 2010 (the "Mining Claim"), a copy of which has been
given to the Purchaser. No person holds a power of attorney from GSMC or the
Seller. GSMC has a 100% undivided, good and marketable interest in the Mining
Claim, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. GSMC shall maintain valid and
effective interest in the Mining Claim unless otherwise required by the
Purchasers' Representative. At the Closing, GSMC will have no assets of any
kind, except for the Mining Claim, and will have no liabilities of any kind or
nature.
2.9 Compliance with Laws. To the best of the knowledge of the Seller, GSMC
has complied in all material respects, with, and is not in violation of any, and
has not received notice of any violation of, federal, state, or local statute,
law, and/or regulation pertaining. To the best of the knowledge of the Seller,
GSMC has complied with all, and has not received notice of a violation of any,
federal and state securities laws in connection with the offer, sale and
distribution of its securities. At the time that GSMC issued the Shares to the
Seller, the Company was entitled to use the exemptions provided by the
Securities Act of 1933 relative to the sale of its Shares. The Shares being sold
herein are being sold in a private transaction between the Seller and the
Purchasers, and the Seller make no representation as to whether the Shares are
subject to trading restrictions under the Securities Act of 1933, as amended and
rules thereunder.
2.10 Litigation. Prior to and as of the Closing, GSMC is not a party to any
suit, action, arbitration, or legal, administrative, or other proceeding, and
has not received notice of any pending governmental investigation. There is no
basis for any such action or proceeding, and no such action or proceeding is
threatened against GSMC. GSMC is not a party to or in default with respect to
any order, writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
2.11 Conduct of Business. Prior to the Closing, GSMC shall conduct its
business in the normal course, and shall not (without the prior written approval
of Purchasers' Representative) (i) sell, pledge, or assign any assets, (ii)
amend its Certificate of Incorporation or Bylaws, (iii) declare dividends,
redeem or sell stock or other securities, except for the aforesaid 5-for-1
forward split, (iv) incur any liabilities, except in the normal course of
business, (v) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (vi) enter into any other
transaction.
2.12 Corporate Documents. Each of the following original documents, which
shall be true, complete and correct in all material respects, will be given to
Purchasers at the Closing:
(i) Certificate of Incorporation and all amendments thereto;
(ii) Bylaws and all amendments thereto;
(iii) Minutes and Consents of Shareholders;
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(iv) Minutes and Consents of the board of directors;
(v) List of officers and directors;
(vi) Certificate of Good Standing from the Secretary of State of
Delaware;
(vii) Current certified Shareholder list from the Transfer Agent;
(viii) Stock register and stock certificate records, if any;
(ix) All of GSMC's bank records and other financial records; and (x)
XXXXX filing codes.
2.13 Closing Documents. All original minutes, consents or other documents
pertaining to GSMC will be delivered to Purchaser at the Closing, all of which
shall be valid and in accordance with the laws of Delaware.
2.14 Title. The Seller has good and marketable title to all of the Shares
being sold by her to the Purchasers pursuant to this Agreement. The Shares will
be, at the Closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind, except for
restrictions on transfer imposed by federal and state securities laws. None of
the Shares are or will be subject to any voting trust or other agreement. No
person holds or has the right to receive any proxy or similar instrument with
respect to such Shares. Except for this Agreement, the Seller is not a party to
any agreement which offers or grants to any person the right to purchase or
acquire any of the Shares. There is no applicable local, state or federal law,
rule, regulation, or decree which would, as a result of the purchase of the
Shares by Purchasers (and/or assigns) impair, restrict or delay the Purchasers'
voting rights with respect to the Shares.
2.15 Transfer of Shares. The Seller will have the responsibility for
sending all certificates representing the Shares being purchased, along with the
proper Stock Powers with Signature Guarantees acceptable to the Transfer Agent,
for delivery to the Purchasers.
The Purchasers will have the responsibility of sending the certificates for
the Shares, along with the above-referred to stock powers, to the Transfer Agent
for the Company, to have the certificates changed into their respective names
and denominations, and the Purchasers shall be responsible for all costs
involved in such changes and in mailing new certificates to all Purchasers.
2.16 Subsidiary. The Company has no subsidiaries or any direct or indirect
ownership interest in any other corporation, partnership, association, firm or
business in any manner, except for the aforesaid Mining Claim.
2.17 Representations. All representations shall be true as of the Closing,
and all such representations shall survive the Closing.
ARTICLE III
CLOSING
3.01 Closing for the Purchase of Common Stock. The Closing (the "Closing")
of this transaction for the Shares of Common Stock being purchased will occur
immediately after all of the documents, conditions and consideration described
in Paragraphs 1.04, 2.12 above and in 3.02 below, have been delivered, or other
arrangements made and agreed to.
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This Agreement may be terminated by either party, in the event of any
material breach by the other party.
3.02 Documents and Payments to be Delivered at Closing of the Purchase of
the Shares. As part of the Closing of the purchase of the Shares, those
documents listed in 2.12 of this Agreement, as well as the following documents,
in form reasonably acceptable to counsel to the parties, shall be delivered:
(a) By the Seller:
(i) stock certificate or certificates, along with stock powers with
signature guarantees acceptable to the transfer agent, representing the
Seller's 436,000 pre-forward split Shares, endorsed in favor of the name or
names as designated by Purchasers' Representative or left blank, as
instructed by Purchasers.
(ii) the resignation of all officers of the Company.
(iii) the appointment of a new President, Secretary and Treasurer of
the Company as designated by Purchasers' Representative, and the
resignation of all officers of GSMC.
(iv) the appointment of new directors of GSMC as designated by the
Purchasers' Representative and the resignation of all of GSMC's current
directors.
(v) All of the business and corporate records of GSMC, including but
not limited to correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings or consents,
financial statements, shareholder listings, stock transfer records,
agreements and contracts that exist.
(vi) Such other documents of GSMC as may be reasonably required by
Purchasers' Representative, if available.
(b) By Purchasers' Representative:
(i) wire transfer to the Xxxxxx X. Xxxxxx, Xx. Attorney-Client Trust
Account the amount of $66,854, representing the $52,320 Balance of the
payment for the Purchase Price for the Shares, plus the $14,534 Due
Diligence Deposit which had been retained in the escrow account of the
Purchasers' Escrow Account. The total of $66,854 being wire transferred to
the Seller's Escrow Agent in accordance with this paragraph 3.02(b)(i)
represents the full payment of $66,854 for the Shares being purchased.
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3.03 Conditions to Closing. The obligations of the Purchasers to enter into
and complete the Closing are subject to the fulfillment on or prior to the
Closing Date of the following conditions:
(a) No Material Adverse Change. There shall not have been any
occurrence, event, incident, action, failure to act, or transaction since
August 31, 2009 which has had or is reasonably likely to cause a material
adverse effect on the Company.
(b) Forward Stock Split. The Company shall have approved a 5-for-1
forward split of its issued and outstanding shares, filed the application
for the forward split with FINRA (with the record date to be a date after
the Closing), and delivered copies of the filing of the forward split
application with FINRA to the Purchasers; and FINRA shall have approved the
5-for-1 forward split and published (on the OTCBB website) the notice of
the forward split and the effective date and mailing date.
(c) Satisfactory Continued Due Diligence. Notwithstanding that the
Purchasers have completed their legal, accounting and business due
diligence of the Company and have accepted the Company, as set forth in
Section 1.03(b), the Due Diligence shall continue to be satisfactory to the
Purchasers, in their sole and absolute discretion.
(d) Legal Opinion. The legal opinion of the Company's attorney,
addressed to the Purchasers, that (A) 1,000,000 of the Company's
pre-forward split shares were duly and properly registered with the SEC on
Form S-1, and are currently free-trading, and (B) the 1,000,000 pre-forward
split registered shares, together with the 4,000,000 shares issuable in
connection with the 5-for-1 forward split, are freely transferable without
restriction and without registration of the forward split shares being
required by the Securities Act of 1933;
ARTICLE IV
INVESTMENT INTENT
4.01 Transfer Restrictions. Purchasers (and/or assigns) agree that the
securities being acquired pursuant to this Agreement may be sold, pledged,
assigned, hypothecated or otherwise transferred, with or without consideration
("Transfer") only pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), or pursuant to an exemption from
registration under the Act.
4.02 Investment Intent. The Purchasers are acquiring the Shares for their
own account for investment, and not with a view toward distribution thereof.
4.03 No Advertisement. The Purchasers acknowledge that the Shares have been
offered to them in direct communication between them and Seller, and not through
any advertisement of any kind.
4.04 Knowledge and Experience. (a) The Purchasers acknowledge that they
have been encouraged to seek their own legal and financial counsel to assist
them in evaluating this purchase. The Purchasers acknowledge that Seller has
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given them and all of their counselors access to all information relating to
GSMC's business that they or any one of them have requested. The Purchasers
acknowledge that they have sufficient business and financial experience, and
knowledge concerning the affairs and conditions of GSMC so that they can make a
reasoned decision as to this purchase of the Shares and are capable of
evaluating the merits and risks of this purchase.
4.05 Restrictions on Transferability. The Purchasers are aware of the
restrictions of transferability of the Shares, and further understand and agree
that the certificates shall bear the following legend.
(a) THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION PROVIDED IN
SECTIONS 4(1) AND 4(2) AND REGULATION D UNDER THE ACT. AS SUCH, THE
PURCHASE OF THIS SECURITY WAS MADE WITH THE INTENT OF INVESTMENT AND NOT
WITH A VIEW FOR DISTRIBUTION. THEREFORE, ANY SUBSEQUENT TRANSFER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE UNLAWFUL UNLESS IT IS REGISTERED
UNDER THE ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
(b) The Purchasers understand that the Shares may only be disposed of
pursuant to either (i) an effective registration statement under the Act,
or (ii) an exemption from the registration requirements of the Act.
(c) Neither GSMC and/or Seller has filed such a registration statement
with the SEC or any state authorities, nor agreed to do so, nor
contemplates doing so in the future for the Shares being purchased; and in
the absence of such a registration statement or exemption, the Purchasers
may have to hold the Shares indefinitely and may be unable to liquidate
them in case of an emergency.
ARTICLE V
REMEDIES
5.01 Arbitration. Any controversy of claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in California in accordance with the Rules of the U.S.
Arbitration Association then existing, and judgment on the arbitration award may
be entered in any court having jurisdiction over the subject matter of the
controversy.
5.02 Termination. In addition to any other remedies, the Purchasers may
terminate this Agreement, if at the Closing, the Seller has failed to comply
with all material terms of this Agreement, has failed to supply any documents
required by this Agreement unless they do not exist, or has failed to disclose
any material facts which could have a substantial effect on any part of this
transaction.
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5.03 Indemnification. From and after the Closing, the Parties, jointly and
severally, agree to indemnify the other against all actual losses, damages and
expenses, including attorneys' fees, caused by (i) any material breach of this
Agreement by them or any material misrepresentation contained herein, or (ii)
any misstatement of a material fact or omission to state a material fact
required to be stated herein or necessary to make the statements herein not
misleading. Notwithstanding anything to the contray, the Seller hereby waives
any right to indeminification by the Company, in the event that any Purchaser
asserts a claim against the Selller for a breach of any of the provisions of
this Agreement.
5.04 Indemnification Non-Exclusive. The foregoing indemnification provision
is in addition to, and not derogation of any statutory, equitable or common law
remedy any party may have for breach of representation, warranty, covenant or
agreement.
ARTICLE VI
MISCELLANEOUS
6.01 Captions and Headings. The article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
6.02 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged, orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
6.03 Non Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
6.04 Time of Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
6.05 Entire Agreement. This Agreement, including any and all attachments
hereto, including the Escrow Agreement attached as an exhibit hereto, contain
the entire Agreement and understanding between the parties hereto with respect
to the purchase of the Shares, and supersede all prior agreements and
understandings.
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6.06 Partial Invalidity. In the event that any condition, covenant or other
provision of this Agreement is held to be invalid or void by any court of
competent jurisdiction, it shall be deemed severable from the remainder of this
Agreement and shall in no way affect any other condition, covenant or other
provision of this Agreement. If such condition, covenant or other provision is
held to be invalid due to its scope or breadth, it is agreed that it shall be
deemed to remain valid to the extent permitted by law.
6.07 Significant Changes. The Seller understands that significant changes
may be made in the capitalization and/or stock ownership of GSMC, which changes
could involve a reverse stock split and/or the issuance of additional shares,
thus possibly having a dramatic negative effect on the percentage of ownership
and/or number of shares owned by present shareholders of GSMC.
6.09 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures will
be acceptable to all parties.
6.09 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, or on the second day if faxed, and properly addressed or faxed to the
persons stated in Annex A - Notices and Wiring Instructions attached hereto and
made a part hereof.
6.10 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
6.11 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the Closing and shall survive the Closing of this Agreement.
6.12 Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
6.13 Governing Law. This Agreement shall be interpreted and governed in
accordance with the laws of the State of Delaware. The Parties herein waive
trial by jury. In the event that litigation results or arise out of this
Agreement or the performance thereof, the Parties agree that the prevailing
party is entitled to reimbursement for the non-prevailing party of reasonable
attorney's fee, costs, expenses, in addition to any other relief to which the
prevailing party may be entitled.
11
In witness whereof, this Agreement has been duly executed by the parties
hereto as of the date first above written.
SELLER:
SIGNED by
/s/ Xxx X. Xxxxxx
----------------------------------
XXX X. XXXXXX
COMPANY:
GREEN STAR MINING CORP. (Solely to join the Seller in maing the warranties and
representations in Section 2 herein):
/s/ Xxx X. Xxxxxx
----------------------------------
Xxx X. Xxxxxx, President
PURCHASERS' REPRESENTATIVE:
SIGNED by
/s/ Xxx Xxxx
----------------------------------
Mr. Xxx Xxxx
On behalf of
American First United Investment
Group Limited
PURCHASERS:
SIGNED by
/s/ Xxxxxxx Xxxx
----------------------------------
Xxxxxxx Xxxx
12
SIGNED by
/s/ Xxx Xxxx
----------------------------------
Mr. Xxx Xxxx
On behalf of
American First United Investment
Group Limited
SIGNED by
/s/ Xx Xxxx
----------------------------------
Xx. Xx Xxxx
On behalf of
Infinity Wealth Management Ltd
13
Exhibit A-LIST OF PURCHASERS
LIST OF PURCHASERS:
Number of Shares Purchased under this
Stock Purchase Agreement
Name of Purchasers (upon the forward stock split)
------------------ ------------------------------
Xxxxxxx Xxxx 500,000
American First United Investment
Group Limited 800,000
Infinity Wealth Management Ltd 880,000
TOTAL 2,180,000
Exhibit B-ESCROW AGREEMENT
ESCROW AGREEMENT
This Escrow Agreement made this 28th day of November, 2009, by and among
Xxx X. Xxxxxx ("Seller"), American First United Investment Group Limited
("Purchasers' Representative"), representing certain Purchasers ("Purchasers"),
Xxxxxx X. Xxxxxx, Xx., Attorney At Law ("Seller's Escrow Agent"), and Xxxx X.
Xxxx, P.C. Attorney At Law, ("Purchasers' Escrow Agent"), collectively the
"Escrow Agents" or "Escrow Agent."
IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS, AND REPRESENTATIONS
CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
WITNESSETH
WHEREAS:
A. Seller is selling a total of 436,000 shares (2,180,000 post-5-for-1 forward
split shares) of Common Stock of Green Star Mining Corp. ("Shares"), a
Delaware corporation, for a total of Sixty Six Thousand Eight Hundred and
Fifty Four Dollars ($66,854.00) ("Total Purchase Price").
B. Seller and Purchasers have entered into a Stock Purchase Agreement ("Stock
Purchase Agreement") dated November 28, 2009, to which this Escrow
Agreement is attached and made a part hereof.
C. It is necessary to establish an escrow for the consideration and all
documents, stock certificates, stock powers and corporate records with
respect to the transaction.
D. Seller desires that Xxxxxx X. Xxxxxx, Xx., serve as the Seller's Escrow
Agent in connection with the transaction.
E. Purchasers desire that Xxxx X. Xxxx, P.C. serve as the Purchasers' Escrow
Agent in connection with the transaction.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. DEPOSIT. Pursuant to the Stock Purchase Agreement section 1.03,
Purchasers have forwarded an amount of $14,534 by wire transfer as a Deposit
(the "Deposit") to Purchasers' Escrow Agent Attorney Trust Account and the
Escrow Agents shall carry out the instructions in said section 1.03. Account
wire transfer instructions for the deposit, transfer and payment of funds herein
are stated in Annex A- Notices and Wiring Instructions attached hereto and made
a part hereof.
2. BALANCE OF PURCHASE PRICE.Pursuant to the Stock Purchase Agreement
section 1.04, Purchasers will forward the balance of the amount due to the
Seller by wire transfer to Sellers' Escrow Agent Attorney Trust Account and the
Escrow Agents shall carry out the instructions in said section 1.04.
3. CLOSING. The Closing shall take place pursuant to the Stock Purchase
Agreement Article III, and the Escrow Agents shall carry out the instructions in
said Article III.
4. The term "Escrow Agent" in this Agreement means both the Sellers' Escrow
Agent and the Purchasers' Escrow Agent. The Escrow Agent shall have no duties or
obligations other than those specifically set forth herein. The acceptance by
the Escrow Agent of its duties under this Escrow Agreement is subject to the
terms and conditions hereof, which shall govern and control with respect to its
rights, duties, liabilities and immunities.
5. Seller and Purchasers' Representative understand and agree that the
Escrow Agent is not a principal, participant, or beneficiary of the underlying
transactions which necessitate this Escrow Agreement. The Escrow Agent shall be
obligated only for the performance of such duties as are specifically set forth
herein and may rely and shall be protected in acting or refraining from acting
on any instrument believed by it to be genuine and to have been signed or
presented by the proper party or parties, their officers, representatives or
agents. So long as the Escrow Agent has acted in good faith or on the advice of
counsel or has not been guilty of willful misconduct or gross negligence, the
Escrow Agent shall have no liability under, or duty to inquire beyond the terms
and provisions, of this Escrow Agreement, and it is agreed that its duties are
purely ministerial in nature.
6. The Escrow Agent does not have any responsibility to review the
Certificates that shall be held in the Escrow Account for accuracy or
completeness. Seller shall have full responsibility to assure that the
Certificates required by the Stock Purchase Agreement are so delivered to
escrow, and Purchasers' Representative shall have the full responsibility to
review the Shares for completeness and accuracy.
7. The Escrow Agent shall not be obligated to take any legal actions
hereunder which might, in the Escrow Agent's judgment, involve any expense or
liability, unless the Escrow Agent has been furnished with reasonable indemnity.
8. The Escrow Agent is not bound in any way by any other contract or
agreement between the parties hereto whether or not the Escrow Agent has
knowledge thereof of its terms and conditions and the Escrow Agent's only duty,
liability and responsibility shall be to hold and deal with the funds and
documents as herein directed.
9. The Escrow Agent shall not be bound by any modification, amendment,
termination, cancellation, rescission or supercession of this Escrow Agreement
unless the same shall be in writing and signed by all of the other parties
hereto and, if its duties as Escrow Agent hereunder are affected thereby, unless
it shall have given prior written consent thereto.
10. The parties hereto each jointly and severally agree to indemnify the
Escrow Agent against, and hold the Escrow Agent harmless from anything which the
Escrow Agent may do or refrain from doing in connection with his performance or
non-performance as Escrow Agent under this Agreement and any and all losses,
costs, damages, expenses, claims and attorneys' fees suffered or incurred by the
Escrow Agent as a result of, in connection with or arising from or out of the
acts of omissions of the Escrow Agent in performance of or pursuant to this
Agreement, except such acts or omissions as may result from the Escrow Agent's
willful misconduct or gross negligence.
11. In the event of any disagreement between Seller, and Purchasers'
Representative or either of them post Closing concerning this Escrow Agreement
or between them or any of them and any other person, resulting in adverse claims
or demands being made in connection with the Funds and/or legal possession of
Shares, or in the event that the Escrow Agent is in doubt as to what action the
Escrow Agent should take hereunder, the Escrow Agent may, at its option, refuse
to comply with any claims or demands on it, or refuse to take any other action
hereunder, so long as such disagreement continues or such doubt exists, and in
any such event, the Escrow Agent shall not be or become liable in any way or to
any person for its failure or refusal to act, and the Escrow Agent shall be
entitled to continue so to refrain from acting until:
(a) the rights of Seller and Purchasers' Representative shall have
been fully and finally adjudicated through arbitration as provided herein, or by
a court of competent jurisdiction; or arbitration; and.
(b) all differences shall have been adjusted and all doubt resolved by
agreement between the parties, and the Escrow Agent shall have been notified
thereof in writing signed by all parties.
12. Should Escrow Agent become involved in litigation or arbitration in any
manner whatsoever on account of this agreement or the funds and/or documents,
the parties hereto (other than Escrow Agent), hereby bind and obligate
themselves, their heirs, personal representatives, successors, assigns to pay
Escrow Agent, in addition to any charge made hereunder for acting as Escrow
Agent, reasonable attorneys' fees incurred by Escrow Agent, and any other
disbursements, expenses, losses, costs and damages in connection with or
resulting from such actions.
13. The terms of these instructions are irrevocable by the undersigned
unless such revocation is consented to in writing by each of the Seller and
Purchasers' Representative.
14. The Escrow Agent may resign as Escrow Agent by giving written notice to
Seller and Purchasers. The resignation of the Escrow Agent shall be effective,
and the Escrow Agent shall cease to be bound by this Escrow Agreement, thirty
(30) days following the date that notice of resignation was given.
15. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be given,
or on the third day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, or on the
second day if faxed, and properly addressed or faxed to the persons stated in
Annex A - Notices and Wiring Instructions attached hereto and made a part
hereof, or such other address as shall be furnished in writing by any party in
the manner for giving notices hereunder.
16. This Escrow Agreement shall be construed according to the laws of
Delaware and the parties submit themselves to the exclusive jurisdiction of the
Courts of Delaware in the event of any dispute.
17. This Escrow Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which taken together
shall be deemed to constitute one and the same. Facsimile copies may act as
originals.
18. The Escrow Agent shall be permitted to act as counsel for their
respective parties in any dispute between the Seller and the Purchasers'
Representative, whether or not the Escrow Agent is then holding the funds and
documents pursuant to this Agreement and continues to act as an Escrow Agent
hereunder.
In witness whereof, this Escrow Agreement has been duly executed by the
parties hereto as of the date first above written:
Seller:
/s/ Xxx X. Xxxxxx
-----------------------------------------------------------
Xxx X. Xxxxxx
Purchasers' Representative:
/s/ Xxx Xxxx
-----------------------------------------------------------
Mr. Xxx Xxxx
On Behalf of American First United Investment Group Limited
Seller's Escrow Agent:
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------------------
Xxxxxx X. Xxxxxx, Xx., Esq.
Purchasers' Escrow Agent:
/s/ Xxxx X. Xxxx
-----------------------------------------------------------
Xxxx X. Xxxx, P.C.
