STOCK PURCHASE AGREEMENT
EXHIBIT 10.7
STOCK PURCHASE AGREEMENT ("this Agreement") dated as of April 5, 2016 (the “Effective Date”), by and between Black River Petroleum Corp., a Nevada corporation ("Purchaser"), and Xxxxxxxxx Xxxxxxxx, the President, Chief Executive Officer, Secretary, Treasurer, and Chief Financial Officer of Purchaser (the “Purchaser Executive”), parties of the first part and EMS Find, Inc., a Nevada corporation (the “Seller”) being the controlling stockholder of Viva Entertainment Group, Inc., a Delaware corporation (herein “Viva” or the “Company”), Xxxxxx Xxxxxxxx, the Chief Executive Officer of the Company (the “Viva Executive), the Company, and Xxxxx Xxxxxx, the Chief Executive Officer of Seller (the “Seller Executive”), parties of the second part. All parties to this Agreement are sometimes referred to herein as the “Parties”, or individually as a “Party”.
W I T N E S S E T H:
WHEREAS, the Parties have agreed to transfer control of the Company to the Purchaser from Seller through the purchase from the Seller by the Purchaser of all 800 outstanding shares of stock of the Company (the “Shares”) in exchange for an 10% promissory note in the principal amount of $100,000, due six months from the Closing (the “Note”), which shall constitute the purchase price for the Company to be paid by Purchaser (the “Purchase Price”); and
WHEREAS, in connection with the Closing, the Purchaser Executive shall transfer and deliver to the Viva Executive at the Closing an aggregate of 26,629,371 shares of restricted common stock, par value $.00001 per share of the Purchaser (“Purchaser Common Stock”) from shares of Purchaser Common Stock owned by the Purchaser Executive in exchange for payment of $93,625 from the $130,000 of financing arranged by the Purchaser for the acquisition of the Company (the “Acquisition Financing Facility”); and
WHEREAS, the Seller desires to sell, and Purchaser desires to purchase, the Shares pursuant to this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE AGREEMENTS SET FORTH HEREIN, IT IS AGREED AS FOLLOWS:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE SELLER
§1.
Representations and Warranties of the Seller. The Seller represents and warrants to, and agrees with, the Purchaser as follows:
§1.1
Authority of Seller. This Agreement has been duly authorized and executed by the Seller and constitutes the legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms.
§1.2
Non-Contravention. The execution of this Agreement by the Seller and the consummation of the purchase of the Shares contemplated hereby will not (i) violate any provision of the Certificate of Incorporation or by-laws of the Seller, (ii) violate any material court or administrative order, process, judgment or decree to which the Seller, the Company or any of their affiliates is a party or by which any of them (or any of their respective properties or assets) is bound or (iii) to the knowledge of the management of the Seller, violate any provision of, or result in the acceleration of or entitle any party to accelerate (whether after notice or lapse of time or both) any obligation under, or result in the creation or imposition of any material lien, charge, pledge, security interest or other encumbrance upon the property of the Company pursuant to any provision of, any mortgage, lien, lease, agreement, license, or instrument to which the Company is a party, except for such violation or violations (or acceleration or creation of encumbrance, as applicable) which would not have a material adverse effect on the financial condition, business or results of operations of the Company.
§1.3
Consent and Approvals. There are no authorizations, consents, approvals or notices of any federal, state, county, local or foreign regulatory body or official required to be obtained or given or waiting period required to expire in order that this Agreement and the transactions contemplated hereby may be consummated by the Seller.
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§1.4
Brokers. The Seller has not entered into any agreement with any other party and is not responsible for claims by any other party for brokerage or other commissions related to this Agreement or the transactions contemplated hereby.
§1.5
Litigation. No action, suit, proceeding or government investigation is pending, or to the knowledge of the Seller, threatened which seeks to question, delay or prevent the consummation of the transactions contemplated hereby.
§1.6
Ownership of the Shares. The Shares are owned by the Seller beneficially and of record free and clear of all liens, encumbrances and claims, and upon delivery of the certificates representing the Shares in accordance with Section 3.1, the Purchaser will acquire valid and freely transferable title to the Shares, free and clear of all liens, encumbrances, restrictions, equities and claims.
§1.7
Incorporation and Qualification. The Company was duly incorporated and is validly existing and is in good standing under the laws of the State of Delaware with full power and authority to own, lease and operate its properties and assets and to carry on the business conducted by it as currently conducted. The Company is in good standing as a foreign corporation and is duly qualified to do business in every jurisdiction in which the ownership of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the financial condition or business or results of operations of the Company.
§1.8
Capital Stock. (i)
The authorized capital stock of the Company consists of 1,000 shares of common stock, par value $.001 per share, of which 800 are issued and outstanding; (ii) the Shares have been duly authorized and validly issued, and are fully paid and nonassessable; (iii) except for this Agreement, and excepting for the Seller Executive Warrant and the Viva Executive Warrant, as defined below, there are no existing options, warrants, calls, agreements or commitments of any character to purchase or otherwise to receive from the Company or the Seller any of the outstanding or authorized and unissued capital stock of the Company or any securities of the Company convertible into or exchangeable for, or giving any person any preemptive or other right to subscribe for or acquire, any shares of capital stock of the Company, and no such convertible or exchangeable securities or obligations are outstanding; (iv) the Shares are owned by the Seller beneficially and of record are free and clear of all liens, encumbrances and claims, and upon delivery of the certificates representing the Shares in accordance with Section 3.1, the Purchaser will acquire valid and freely transferable title to the Shares, free and clear of all liens, encumbrances, restrictions, equities and claims.
§1.9
Subsidiaries. The Company does not own, directly or indirectly, any capital stock or other equity securities of any corporation or have any direct or indirect equity or ownership interest in any business other than the business conducted by it (the "Business").
§1.10
Compliance with Regulatory Requirements. The Company has complied with all applicable federal, state and local laws and regulations and all applicable foreign laws and regulations relating to the Business, except, in each case, to the extent that noncompliance would not have a material adverse effect on the financial condition or business or results of operations of the Company.
§1.11
Litigation and Liabilities. There are (i) no actions, suits, proceedings or governmental investigations whatsoever against the Company, at law or in equity or before any court, governmental department, commission, board, agency authority or instrumentality, domestic or foreign, which are pending or, to the knowledge of the management of the Company, threatened; (ii) the Company is not subject to any judgment, stipulation, order, decree or agreement arising from any such action, suit, proceeding or investigation, and (iii) no action, suit proceeding or government investigation is pending or, to the knowledge of the management of the Company, threatened which seeks to question, delay or prevent the consummation of the transactions contemplated hereby.
§1.12
Properties. The Company is not the owner of any real property.
§1.13
Real Property Leases. The Company is not a lessee of any real property, except as disclosed in Schedule 1.13.
§1.14
Licenses and Registrations. The Company has all permits, governmental licenses, registrations and approvals (collectively, "Approvals") necessary to carry on its Business as presently conducted as required by law or the rules and regulations of any federal, state, county or local association, corporation or governmental agency, body, instrumentality
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or commission having jurisdiction over it, except for such Approvals the lack of which would not have a material adverse effect on the financial condition or business or results of operations of the Company.
§1.15
Major Contracts. Schedule 1.15 hereto sets forth every contract or agreement, whether oral or written, to which the Company is a party which is material to the business of the Company. With respect to all such contracts, and except as set forth in Schedule 1.15, the Company is not in material breach thereof or default thereunder and, to the knowledge of the management of the Company, there does not exist under any such contract any event which, with the giving of notice or the lapse of time, would constitute such a breach or default, except for such breaches, defaults and events as to which requisite waivers or consents have been obtained or which would not have a material adverse effect on the financial condition or business or results of operations of the Company.
§1.16
Trademarks and Patents. The Company has no trademarks or patents, except as disclosed in Schedule 1.16.
§1.17
Corporate Records. The Company has heretofore supplied to, made available or caused to be made available, for the inspection by the Purchaser, true and complete originals or copies of (i) the Certificates of Incorporation and By-Laws of the Company, as amended or restated to the date of this Agreement, and (ii) the minute books and stock records of the Company.
§1.18
Labor Matters. The Company is not party to any labor union or collective bargaining agreements, and the Company is in compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours.
§1.19
Compliance with ERISA. The Company has no employee benefit plans in effect.
§1.20
Absence of Material Adverse Changes. Since the date of the Balance Sheet, there has been no material adverse change in the financial position, results of operations, customer or supplier relations, assets or employees of the Company from that reflected on the balance sheet (“Balance Sheet”) included in the financial statements of Seller at December 31, 2015.
§1.24
Indebtedness. Other than as shown on the Balance Sheet, the Company has incurred no (i) indebtedness for borrowed money or for the deferred purchase price of property or services, (ii) indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by the Company (even though the rights and remedies of the Seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (iii) obligations under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases in respect of which the Company is liable as lessee.
ARTICLE II
REPRESENTATIONS OF PURCHASER
§2
Representations and Warranties of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Seller as follows:
§2.1
Incorporation and Authority. The Purchaser has been duly incorporated, is validly existing and is in good standing under the laws of Nevada, has the full power and authority to enter into this Agreement and to consummate the transactions herein contemplated and otherwise carry out its obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
§2.2
Non-Contravention. The execution and delivery of this Agreement by the Purchaser and the consummation of the purchase of the Shares and the transactions contemplated hereby will not (i) violate any provision of the certificate of incorporation or by-laws of the Purchaser, (ii) violate any material court or administrative order, process, judgment or decree to which either the Purchaser or its affiliates is a party or by which any of them (or any of their respective properties or assets) is bound or (iii) to the knowledge of the management of the Purchaser, violate any provision of, or result in the acceleration of or entitle any party to accelerate (whether after notice or lapse of time or both) any obligation under, or result in the acceleration of or entitle any party to accelerate (whether after notice or lapse of time or both) any obligation under, or result in the creation or imposition of any material lien, charge, pledge,
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security interest or other encumbrance upon the property of the Purchaser or its affiliates pursuant to any provision of, any mortgage, lien, lease, agreement, license, or instrument, except for such violation or violations (or acceleration or creation of encumbrance, as applicable) which would not have a material adverse effect on the consummation of the transactions contemplated hereby.
§2.3
Consents and Approvals. There are no authorizations, consents, approvals or notices of any federal, state, county, local or foreign regulatory body or official required to be obtained or given or waiting period required to expire in order that this Agreement and the transactions contemplated hereby may be consummated by the Purchaser.
§2.4
Brokers. The Purchaser has not entered into any agreement with any other party and is not responsible for claims by any other party for brokerage or other commissions related to this Agreement or the transactions contemplated hereby.
§2.5
Litigation. No action, suit, proceeding or government investigation is pending or, to the knowledge of the Purchaser, threatened which seeks to question, delay or prevent the consummation of the transactions contemplated hereby.
§2.6
Securities Act of 1933. The Purchaser is acquiring the Shares solely for the purpose of investment and not with a view to, or for sale in connection with, any distribution thereof. The Purchaser acknowledges that the Shares are not registered under the Securities Act of 1933, as amended, and that the Shares may not be transferred or sold except pursuant to the registration provisions of such Act or pursuant to an applicable exemption therefrom and in accordance with state securities laws and regulations as applicable. The Purchaser has sufficient knowledge and experience in investing in and operating businesses similar to the Company's so as to be able to evaluate the risks and merits of its investment in the Company and it is able financially to bear the risks thereof.
§2.7
Separate Counsel. Purchaser represents and acknowledges that it has not been represented by Xxxxxxx Xxxxx Law PLLC or Xxxxxxx & Xxxxxxxx, P.C. in connection with this Agreement and has been advised by its own counsel.
ARTICLE III
SALE OF SHARES; CLOSING
§3.1
Sale of Shares. Subject to the terms and conditions herein stated, Purchaser, Seller, the Seller Executive, the Buyer Executive and the Viva Executive agree to the following deliveries and transactions at the Closing:
(a)
Seller shall transfer, sell and assign to Purchaser a certificate for the 800 Shares, representing all of the issued and outstanding shares of common stock of the Company, said certificate representing the Shares shall be duly endorsed in blank, or accompanied by stock powers duly executed in blank, by the Seller transferring the same, with all necessary transfer tax and other revenue stamps, acquired at the Seller’ expense, affixed and cancelled and deliver to Purchaser an assignment in the form of Exhibit A hereto; and
(b)
The Purchaser Executive shall, upon receipt of payment of $93,625 from the Acquisition Financing Facility arranged by the Company further transfer and deliver 26,629,371 shares (the “Control Block Shares”) of restricted Purchaser Common Stock held by the Purchaser Executive, which Control Block Shares shall be assigned and transferred to the Viva Executive and/or to the persons and/or entities in the respective names and denominations specified by the Viva Executive; and
(c)
the Purchaser shall issue to Seller a six-month promissory note in the principal amount of $100,000, bearing interest at the rate of 10% per annum, payable to Seller in principal payments of $50,000, $25,000 and $25,000, respectively, each such payment to be paid out of the first proceeds of each of the first three tranches of external financing from LG Capital Funding, LLC received by the Company following the Closing (substantially in the form of Exhibit B hereto, the “Note)
(d)
at the Closing the two outstanding common stock purchase warrants to purchase shares of common stock of the Company held by the Seller Executive (the “Seller Executive Warrant”) and by the Viva Executive (the “Viva Executive Warrant”) shall be cancelled;
(e)
at the Closing, the Employment Agreement between the Company and the Viva Executive and the director engagement agreement between the Seller and the Viva Executive shall be terminated by the
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parties thereto, the Viva Executive shall resign as a director of the Seller, and the Viva Executive shall assign to Seller for cancellation or further transfer the common stock purchase warrant to purchase common stock of the Seller held by the Viva Executive.
(f)
at or prior to the Closing, the Purchaser Executive shall appoint the Viva Executive as a director of the Purchaser, and as the Chief Executive Officer of the Purchaser, and the employment agreement of the Purchaser Executive with Purchaser shall be terminated by the Seller’s Board of Directors. On the fifth business day following the Closing, the term of the Purchaser Executive as a member of the Board of Directors of Purchaser shall terminate; Purchaser executive shall furnish Seller with his written resignation confirming his resignation from all offices and as a director of Purchaser.
§3.2
Closing. The sale referred to in Section 3.1 shall take place at 10:00 A.M. at the offices of Szaferman Xxxxxx Xxxxxxxxx & Blader, PC., 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxxx, XX 00000, on April 1, 2016, or at such other time and date (not later than April 15, 2016) as the parties hereto shall by written instrument designate (the "Closing"). Such time and date are herein referred to as the "Closing Date".
ARTICLE IV
COVENANTS OF THE PARTIES
§4.1
Conduct of Business of the Company. During the period from the date of this Agreement to the Closing Date, Seller shall cause the Company to conduct its operations only according to its ordinary and usual course of business and to use its best efforts to preserve intact its business organization, keep available the services of its officers and employees and maintain satisfactory relationships with licensors, suppliers, distributors, clients and others having business relationships with the Company. Prior to the Closing Date and except as may be first approved by the Purchaser or as is otherwise permitted or required by this Agreement, Seller will cause (a) the Company's Certificate of Incorporation and By-Laws to be maintained in their respective forms as on the date of this Agreement, (b) the Company to refrain from entering into any contract or commitment except contracts in the ordinary course of business, and (c) the Company to refrain from making any withdrawals from any of its bank accounts other than in the ordinary course of business and from any change affecting any bank, safe deposit or power of attorney arrangements of the Company.
§4.2
Exclusive Dealing. During the period from the date of this Agreement to the Closing Date, Seller shall not, and shall cause the Company to refrain from taking any action to, directly or indirectly, encourage, initiate or engage in discussions or negotiations with, or provide any information to, any corporation, partnership, person, or other entity or group, other than the Purchaser, concerning any purchase of the Shares or any merger, sale of substantial assets or similar transaction involving the Company.
§4.3
Review of the Company. Purchaser may, prior to the Closing Date, through its representatives, review the properties, books and records of the Company and its financial and legal condition as it deems necessary or advisable to familiarize itself with such properties and other matters; such review shall not, however, affect the representations and warranties made by Seller. The Seller shall cause the Company to permit Purchaser and its representatives to have, after the date of execution hereof, full access to the premises and to all the books and records of the Company and to cause the officers of the Company to furnish Purchaser with such financial and operating data and other information with respect to the business and properties of the Company as Purchaser shall from time to time reasonably request. In the event of termination of this Agreement, Purchaser shall keep confidential any material information obtained from Seller or the Company concerning the Company's properties, operations and business (unless readily ascertainable from public or published information or trade sources) until the same ceases to be material (or becomes so ascertainable) and shall return to the Company all copies of any schedules, statements, documents or other written information obtained in connection therewith.
§4.4
Closing Costs. Seller shall be responsible for all legal and accounting costs incurred by the Parties in connection with the Closing of the purchase and sale of the Company provided for in this Agreement.
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS
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§5
Conditions to Purchaser's Obligations. The purchase of the Shares by Purchaser on the Closing Date is conditioned upon receipt by Purchaser of the documents listed in Sections 5.1 through 5.5, evidenced by an Officer’s Certificate in the form of Exhibit C hereto, and compliance with Section 5.6.
§5.1
No Material Adverse Change. Prior to the Closing Date, there shall be no material adverse change in the assets or liabilities, the business or condition, financial or otherwise, the results of operations, or prospects of the Company, whether as a result of any legislative or regulatory change, revocation of any license or rights to do business, fire, explosion, accident, casualty, labor trouble, flood, drought, riot, storm, condemnation or act of God or other public force or otherwise, and Seller shall have delivered to Purchaser a certificate, dated the Closing Date, to such effect.
§5.2
Truth of Representations and Warranties. The representations and warranties of Seller contained in this Agreement or in any Schedule delivered pursuant hereto shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date, and Seller shall have delivered to Purchaser on the Closing Date a certificate, dated the Closing Date, to such effect.
§5.3
Performance of Agreements. Each and all of the agreements of Seller to be performed on or before the Closing Date pursuant to the terms hereof shall have been duly performed, and Seller shall have delivered to Purchaser a certificate, dated the Closing Date, to such effect.
§5.4
No Litigation Threatened. No action or proceedings shall have been instituted or, to the best knowledge, information and belief of Seller, shall have been threatened before a court or other government body or by any public authority to restrain or prohibit any of the transactions contemplated hereby, and Seller shall have delivered to Purchaser a certificate, dated the Closing Date, to such effect.
§5.5
Assignment of Receivables. Seller shall execute and deliver to Purchaser a Xxxx of Sale and Assignment and Assumption Agreement in the form attached as Exhibit B assigning and transferring to Purchaser all receivables or debt obligations of the Company owing to or held by the Company at the Effective Date.
§5.6
Proceedings. All proceedings to be taken in connection with the transactions contemplated by this Agreement and all documents incident thereto shall be satisfactory in form and substance to Purchaser and its counsel, and Purchaser shall have received copies of all such documents and other evidences as it or its counsel may reasonably request in order to establish the consummation of such transactions and the taking of all proceedings in connection therewith.
ARTICLE VI
CONDITIONS TO SELLER’S OBLIGATIONS
§6
Conditions to Seller’s Obligations. The sale of the Shares by Seller on the Closing Date is conditioned upon compliance by Purchaser with Section 6.1 and 6.2.
§6.1
Truth of Representations and Warranties. The representations and warranties of Purchaser contained in this Agreement shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date.
§6.2
Proceedings. All proceedings to be taken in connection with the transactions contemplated by this Agreement and all documents incident thereto shall be reasonably satisfactory in form and substance to Seller and their counsel.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNITY
§7.1
Survival of Representations. The respective representations and warranties of Seller and Purchaser contained in this Agreement or in any Schedule delivered pursuant hereto shall survive the purchase and sale of the Shares contemplated hereby.
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§7.2
Indemnification of Purchaser.
(a)
Subject to the limitations hereinafter set forth, Seller shall indemnify and save Purchaser and each of its shareholders and affiliates, harmless from, against, for and in respect of:
(i)
any and all damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances and reasonable costs and expenses suffered, sustained, incurred or required to be paid by any indemnified party because of (A) the claims of any broker or finder engaged by Seller; (B) the material untruth, inaccuracy or breach of any representation, warranty, agreement or covenant of Seller contained in or made in connection with this Agreement or any Schedule hereto; and
(ii)
all reasonable costs and expenses (including, without limitation, attorney's fees, interest and penalties) incurred by any indemnified party in connection with any action, suit, proceeding, demand, assessment or judgment incident to any of the matters indemnified against in this Section 7.2.
(b)
The indemnification provided for in subparagraph (a)(i)(B) of this Section shall relate to damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances, and reasonable costs and expenses in excess of One Thousand Dollars ($1,000), unless such matter or item is provided for or reserved against in the Company's financial statements described in Section 1.10; provided, however, that any such damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances and reasonable costs and expenses shall be net of any undisclosed, tangible assets of the Corporation not set forth in the Balance Sheet (excluding any revaluation of present assets), plus any tax benefit enjoyed by the Purchaser or the Company because of the payment or accrual of any amount giving rights to any claim for indemnification hereunder.
§7.3
Indemnification of Seller.
(a)
Purchaser shall indemnify and save Seller harmless from, against, for and in respect of:
(i)
any and all damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances and reasonable costs and expenses suffered, sustained, incurred or required to be paid by Seller because of (A) the claims of any broker or finder engaged by Purchaser; or (B) the untruth, inaccuracy or breach of any representation, warranty, agreement or covenant of Purchaser contained in or made pursuant to this Agreement; and
(ii)
all reasonable costs and expenses (including, without limitation, attorney's fees, interest and penalties) incurred by Seller in connection with any action, suit, proceeding, demand, assessment or judgment incident to any of the matters indemnified against in this Section 7.3.
(b)
The indemnification provided for in subparagraph (a)(i)(B) of this Section shall relate to damages, losses, settlement payments, obligations, liabilities, claims, actions or causes of action, encumbrances, and reasonable costs and expenses in excess of One Thousand Dollars ($1,000).
§7.4
Rules Regarding Indemnification
(a)
The obligations and liabilities of each indemnifying party hereunder with respect to claims resulting from the assertion of liability by the other party or third parties shall be subject to the following terms and conditions:
(i)
The indemnified party shall give prompt written notice to the indemnifying party of any claim which might give rise to a claim by the indemnified party against the indemnifying party based on their indemnity agreements contained in Sections 7.2 and 7.3 hereof, stating the nature and basis of said claims and the amounts thereof, to the extent known.
(ii)
In the event any such action, suit or proceeding is brought against the indemnified party, with respect to which the indemnifying party may have liability under the indemnity agreements contained in Sections 7.2 and 7.3 hereof, the action, suit or proceeding shall, upon the written acknowledgement by the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended (including all proceedings on appeal or for review which counsel for the indemnified party shall deem appropriate) by the indemnifying party. The indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the
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indemnified party's own expense unless (A) the employment of such counsel and the payment of such fees and expenses both shall have been specifically authorized by the indemnifying party in connection with the defense of such action, suit or proceeding, or (B) such indemnified party shall have reasonably concluded and specifically notified the indemnifying party that there may be specific defense available to it which are different from or additional to those available to the indemnifying party or that such action, suit or proceeding involves or could have an effect upon matters beyond the scope of the indemnity agreements contained in Sections 7.2 and 7.3 hereof, in any of which events the indemnifying party, to the extent made necessary by such defense, shall not have the right to direct the defense of such action, suit or proceeding on behalf of the indemnified party. In such case only that portion of such fees and expenses reasonably related to matters covered by the indemnity agreements contained in Sections 7.3 and 7.4 hereof shall be borne by the indemnifying party. The indemnified party shall be kept fully informed of such action, suit or proceeding at all stages thereof whether or not it is so represented. The indemnifying party shall make available to the indemnified party and its attorneys and accountants all books and records of the indemnifying party relating to such proceedings or litigation and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding.
(b)
The indemnified party shall not make any settlement of any claims without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed.
(c)
Except as herein expressly provided, the remedies provided in Sections 7.2 through 7.4 hereof shall be cumulative and shall not preclude assertion by any party of any other rights or the seeking of any other rights or remedies against any other party hereto.
ARTICLE VIII
FURTHER AGREEMENTS OF SELLER AND PURCHASER
§8.1
Publicity. Seller and Purchaser shall cooperate with each other in the development and distribution of all news releases and other public information disclosures relating to the transactions contemplated by this Agreement and any material transactions incident thereto. Neither Seller nor Purchaser will promulgate any such release or make any other public disclosure without the prior written consent of the other. This paragraph shall not, however, restrict disclosure of information that a party's counsel deems necessary to maintain compliance with and to prevent violation of applicable federal or state law.
ARTICLE IX
MISCELLANEOUS
§9.1
Expenses. The parties hereto shall pay all of their own expenses relating to the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of their respective counsel and financial advisers.
§9.2
Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of Florida.
§9.3
"Person" Defined. "Person" shall mean and include an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or other department or agency thereof.
§9.4
Captions. The Article and Section captions used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.
§9.5
Notices. Any notice or other communications required or permitted hereunder shall be sufficiently given if delivered in person or sent by courier or by registered or certified mail, postage prepaid, addressed as follows: If to Purchaser, to Purchaser at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, Attention: Chief Executive Officer; and, if to Seller, to Seller at 00 Xxxx Xxxx, Xxxxx 0, Xxxxxxxxxx Xxxxxx, XX 00000, Attention: Chief Executive Officer, or such other address as shall be furnished in writing by any such party, and such notice or communication shall be deemed to have been given as of the date so delivered, sent by courier or mailed.
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§9.6
Parties in Interest. This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
§9.7
Counterparts. This Agreement may be executed in two or more counterparts, all of which taken together shall constitute one instrument.
§9.8
Entire Agreement. This Agreement, including the other documents referred to herein which form a part hereof, contains the entire understanding of the Parties hereto with respect to the subject matter contained herein and therein. This Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter.
§9.9
Amendments. This Agreement may not be changed orally, but only by an agreement in writing signed by all of the Parties hereto. Any provision of this Agreement can be waived, amended, supplemented or modified by written agreement of the Parties.
§9.10
Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.
§9.11
Termination of Agreement. All parties hereto agree to use their best efforts to fulfill the requirements of Articles V and VI as soon aS practicable. If any precondition to the completion of the transactions contemplated hereby is not fulfilled on or prior to April 15, 2016, this Agreement shall be null and void and have no further effect.
IN WITNESS WHEREOF, the Purchaser has caused its corporate name to be hereunto subscribed by its officer thereunto duly authorized, and Seller have executed this Agreement, all as of the day and year first above written.
PURCHASER: BLACK RIVER PETROLEUM CORP.
/s/ Xxxxxx Xxxxxxxx
By: ______________________
Title: Chief Executive Officer
SELLER: EMS FIND, INC.
/s/ Xxxxx Xxxxxx
By: ________________________
Title: Chief Executive Officer
VIVA ENTERTAINMENT GROUP, INC.
/s/ Xxxxxx Xxxxxxxx
By: ________________________
Title: Chief Executive Officer
/s/ Xxxxxxxxx Xxxxxxxx
_____________________________
Xxxxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
______________________________
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx
_______________________________
Xxxxx Xxxxxx
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EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
This XXXX OF SALE AND ASSIGNMENT, made as of the ___ day of April, 2016, from EMS Find, Inc., a Nevada corporation (hereinafter referred to as "Assignor"), to Black River Petroleum Corp, a Nevada corporation (hereinafter referred to as "Assignee");
WITNESSETH:
WHEREAS, by Agreement dated as of April 1, 2016, between Assignor and Assignee, Assignor agreed to convey to Assignee the assets of Viva Entertainment Group, Inc., and Assignee agreed to assume all liabilities, debts and obligations of said Viva Entertainment Group, Assignor, for the considerations set forth in said Agreement, and agreed to execute and deliver to Assignee all instruments necessary or convenient to convey such to Assignee; and
WHEREAS, it is the desire of Assignor and Assignee that Assignor shall execute and deliver this instrument to Assignee for the purpose of more effectually selling, assigning, transferring, delivering and conveying to Assignee Assignor's estates, rights, titles, interests, claims and demands in, to and under the property and assets hereinafter described or referred to;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS THAT, for and in consideration of the premises and other good and valuable considerations, the receipt whereof is hereby acknowledged, and intending to be legally bound hereby, Assignor has sold, assigned, transferred, conveyed, delivered and set over, and by these presents does hereby sell, assign, transfer, convey, deliver and set over to Assignee, its successors and assigns, forever, all estates, rights, titles, interests, claims and demands of Assignor in and to the assets of Assignor listed in Exhibit A attached hereto and made a part hereof.
Nothing in this Xxxx of Sale and Assignment contained shall be construed as an attempt hereby to assign any contract, claim, demand or right which is nonassignable or which an attempt to assign would in any way impair, or as an attempt to transfer any property, right or interest in case such transfer would be invalid for any cause, but Assignor covenants and agrees to hold the same in trust for the sole use and benefit of Assignee and to account to Assignee therefore, and to take any such steps as may be in Assignor's power to validate the transfer of any property, right or interest and the assignment of any such contract, claim, demand or right not now transferable or assignable.
In order, however, that the full value of every such property, contract, claim, demand or right may be realized by and for the benefit of Assignee, its successors and assigns, Assignor covenants and agrees with Assignee that Assignor, its successor or successors, will at the request or under the direction of Assignee, in the name of Assignee or otherwise as Assignee shall specify and as shall be provided by law, take all such action and do or cause to be done all such things as shall in the opinion of Assignee be necessary or proper to enforce every such contract, claim, demand or right and to facilitate the collection of the money due and payable and to grow due and payable in and under every such contract and in respect of such claim, demand or right; and Assignor does hereby covenant to pay and deliver to Assignee, its successors and assigns, all money or other things of value collected and paid to Assignor or to its successor or successors in respect of every such contract, claim, demand or right; Assignee by its acceptance hereof agrees that all costs and expenses of all actions so taken and of all things so done or caused to be done at the request of Assignee shall be borne and paid by Assignee and that Assignee will hold harmless Assignor from any claims which may be made against Assignor for anything that it shall do or cause to be done at the request of Assignee in respect of any such contract, claim, demand or right.
Assignor does hereby constitute and appoint Assignee, its successors and assigns, Assignor's true and lawful attorney or attorneys, with full power of substitution, for it and in its name, place and stead or otherwise, but on behalf of and for the benefit of Assignee, its successors and assigns, to demand and receive from time to time an and all property and assets, real, personal and mixed, tangible and intangible, hereby sold, assigned, transferred, conveyed and set over, or intended so to be, and to give receipts and releases for and in respect of the same and any part thereof, and from time to time to institute and prosecute in the name of Assignor or otherwise, but at the expense and for the benefit of Assignee, its successors and assigns, any and all proceedings at law, in equity or otherwise, which Assignee, its successors or assigns, may deem proper in order to collect, assert or enforce any claims, rights or title of any kind in and to the properties, assets and business hereby sold, assigned, transferred, conveyed and set over, or intended so to be, and to defend and compromise any and all actions, suits or proceedings in respect of any of said properties, assets, and
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business, and to do any and all such acts and things in relation thereto as Assignee, its successors or assigns, shall deem advisable; Assignor hereby declaring that the appointment hereby made and the powers hereby granted are coupled with an interest and are and shall be irrevocable by Assignor in any manner or for any reason.
Assignor does hereby covenant and agree with Assignee, its successors and assigns, that Assignor will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered to Assignee, its successors and assigns, any and all such further deeds, acts, transfers, assignments, instruments, conveyances, powers of attorney and assurances, as Assignee may demand for the better assuring, conveying and confirming unto Assignee, its successors and assigns, all and singular the properties, assets and business hereby sold, assigned, transferred, conveyed and set over.
In case for any reason Assignee shall not be authorized or qualified to receive an specific property, contract, claim, demand or right owned by Assignor and hereby sold, assigned, transferred, conveyed and set over, or intended so to be, Assignor further covenants to execute and deliver appropriate deeds, acts, transfers, assignments, instruments and conveyances of any such property, claim, contract, demand or right now owned by Assignor when and as Assignee shall be authorized or qualified to receive the same.
This Xxxx of Sale and Assignment and the covenants and agreements herein contained shall be binding upon Assignor, its successors and assigns.
IN WITNESS WHEREOF, Assignor has executed this Xxxx of Sale and Assignment by its officer hereunto duly authorized as of the day and year first above set forth.
By: _____________________
Exhibit A to Xxxx of Sale and Assignment
All assets, receivables or debt obligations of Viva Entertainment Group, Inc. owing to or held by EMS Find, Inc. at April 1, 2016.
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EXHIBIT B
BLACK RIVER PETROLEUM CORP.
PROMISSORY NOTE
$100,000 April 5, 2016
FOR VALUE RECEIVED, BLACK RIVER PETROLEUM CORP., a Nevada corporation (hereinafter called “Borrower” or the “Company”), hereby promises to pay to EMS Find, Inc. (“Holder”), or order, the sum of One Hundred Thousand ($100,000) Dollars, with interest accruing at the annual rate of ten (10.0%) percent, on September 30, 2016 (the “Maturity Date”).
The following terms shall apply to this Note:
ARTICLE I
PAYMENT RELATED PROVISIONS
1.1
Payment Grace Period. The Borrower shall have a ten (10) day grace period to pay any monetary amounts due under this Note, after which grace period a default interest rate of fifteen (15.0%) percent per annum shall apply to the amounts owed hereunder calculated from the date of the default. In no event shall the rate of interest calculated hereunder exceed the maximum amount allowed by law and automatically shall be reduced to such maximum amount.
1.2
Interest Payments. Borrower shall pay interest on the outstanding principal amount of this Note on the Maturity Date. The principal amount of this Note plus any accrued and unpaid interest shall be collectively referred to herein as the “Debt.”
1.3
Repayment. This Note shall be repaid in installments of $50,000, $25,000 and $25,000, respectively, from the first proceeds of each of the first three drawdowns from the Borrower’s loan financing with LG Capital Funding, LLC. If the Borrower’s loan financing specified in the preceding sentence does not provide adequate funds to pay the principal and accrued interest on this Note, Borrower shall continue to be obligated to repay the unpaid principal amount of this Note, in accordance with the terms hereof.
ARTICLE II
EVENTS OF DEFAULT
The occurrence of any of the following events of default (each, an "Event of Default") shall, at the option of the Holder hereof, make all sums or principal and interest then remaining unpaid hereon and all other amounts payable hereunder immediately due and payable, all without demand, presentment or notice, or grace period, all of which hereby are expressly waived, except as set forth below:
2.1
Failure to Pay Principal or Interest. The Borrower fails to pay any installment of principal or interest hereon when due and such failure continues for a period of ten (10) days.
2.2
Breach of Covenant. The Borrower breaches any covenant or other term or condition of this Note and such breach continues for a period of ten (10) days after written notice to the Borrower from the Holder.
2.3
Breach of Representations and Warranties. Any representation or warranty of the Borrower made in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith shall be false or misleading in any material respect.
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2.4
Receiver or Trustee. The Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business; or such a receiver or trustee shall otherwise be appointed.
2.5
Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings or relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower.
ARTICLE III
REPRESENTATIONS BY HOLDER
Holder represents and warrants to Borrower as follows:
3.1
To the best of his knowledge, Holder has received and examined all information, including financial statements, of or concerning Borrower which Holder considers necessary to making an informed decision regarding this Note. In addition, Holder has had the opportunity to ask questions of, and receive answers from, the officers and agents of Borrower concerning Borrower and to obtain such information, to the extent such persons possessed the same or could acquire it without unreasonable effort or expense, as Holder deemed necessary to verify the accuracy of the information referred to herein.
3.2
The Holder acknowledges and understands that (i) the proceeds of this Note will not be sufficient to provide Borrower with the necessary funds to achieve its current business plan; (ii) the Borrower does not have sufficient cash available to repay this Note; (iii) this Note will not be guaranteed, (iv) Holder bears the economic risk of never being repaid on this Note; and (v) the Borrower may use the proceeds of this Note to satisfy past payables. The Holder has such knowledge and experience in financial and business matters that the Holder is capable of evaluating the merits and risks of the Holder’s investment in this Note.
3.3
The Holder hereby certifies that Holder is an "Accredited Investor" (as that term is defined by Regulation D under the Securities Act of 1933, as amended (the “Securities Act”)).
3.4
Holder is acquiring this Note for its own account, for investment purposes only, and not with a view to the resale or distribution of all or any part thereof.
3.5
Holder acknowledges that this Note (a) has not been registered under applicable securities laws, (b) will be a "restricted security" as defined in applicable securities laws, (c) has been issued in reliance on the statutory exemptions from registration contemplated by applicable securities laws based (in part) on the accuracy of Holder's representations contained herein, and (d) will not be transferable without registration under applicable securities laws, unless an exemption from such registration requirements is available.
3.6
Holder has reviewed the last Annual Report on Form 10-K filed with the SEC by Borrower, and the Current and Quarterly Reports filed since the filing of the last Form 10-K.
3.7
Holder has had this Note and any other documents executed in connection herewith reviewed by its own counsel.
ARTICLE IV
MISCELLANEOUS
4.1
Failure or Indulgency Not Waiver. No failure or delay on the part of Holder hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or the exercise of any other right, power or privilege. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
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4.2
Notices. Any notice herein required or permitted to be given shall be in writing and may be personally served and shall be deemed to be delivered upon receipt or if sent by United States mail, three (3) days after being deposited in the United States mail, certified, with postage pre-paid and properly addressed, or if sent by fax transmission (with the original sent by certified or registered mail or by overnight courier) and shall be deemed to have been delivered on the day telecopied. For the purposes hereof, the addresses and fax numbers of the Holder and the Borrower are as set forth on the signature page hereof. Both Holder and Borrower may change the address and fax number for service by service of written or fax notice to the other as herein provided.
4.3
Definition of Note. The term "Note" and all reference thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented.
4.4
Assignability. This Note may not be assigned by the Borrower without the written consent of the Holder. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns.
4.5
Cost of Collection. If default is made in the payment of this Note, Borrower shall pay the Holder hereof costs of collection, including attorneys' fees.
4.6
Governing Law. This Note has been executed in and shall be governed by the internal laws of the State of New York, without regard to the principles of conflict of laws.
4.7
No Amendment. This Note shall not be amended without the prior written consent of the Holder.
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name on the 5th day of April, 2016.
BLACK RIVER PETROLEUM CORP.
By:____________________________
Name: Xxxxxx Xxxxxxxx
Title: President & Chief Executive Officer
Address for Notices to Borrower: _________________________
Fax: _____________________
Address for Notices to Holder:
Fax: ___________
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EXHIBIT C
OFFICER’S CERTIFICATE
The undersigned, Xxxxx Xxxxxx, Chief Executive Officer of EMS Find, Inc., a Nevada corporation (the “Company”), pursuant to the Stock Purchase Agreement, dated April 1, 2016 (the “Stock Purchase Agreement”), by and among Black River Petroleum Corp., as Purchaser, and the Company, as Seller, and the other Parties to the Stock Purchase Agreement hereby certifies that:
1.
He is the duly appointed Chief Executive Officer of the Company.
2.
The representations and warranties made with respect to the Company and Viva Entertainment Group, Inc., a Delaware corporation (“Viva”), in Article I of the Stock Purchase Agreement are true and correct in all material respects as of the date of this Officer’s Certificate.
3.
As of the date hereof, the Company has satisfied and duly performed all of the conditions and obligations specified in Stock Purchase Agreement to be satisfied on or prior to the Closing Date (as defined in the Stock Purchase Agreement), or such conditions and obligations have been waived.
4.
There has been no material adverse change in the assets or liabilities, business or condition, financial or otherwise, the results of operations, or prospects of Viva since October 31, 2015.
5.
No action or proceedings shall have been instituted or, to the best knowledge, information and belief of the Company, shall have been threatened before a court or other government body or by any public authority to restrain or prohibit any of the transactions contemplated by the Stock Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of the _____ day of April, 2016.
____________________________
Xxxxx Xxxxxx
Chief Executive Officer
SCHEDULE 1.15
Viva Material Contracts
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