CONFIDENTIAL
CONFIDENTIAL
BY
AND BETWEEN
CLARINBRIDGE,
LLC,
a
Nevada limited liability company
AND
SIBONEY
CORPORATION,
A
Maryland corporation
CONFIDENTIAL
THIS
ASSET PURCHASE
AGREEMENT (this “Agreement”) is made and
entered into as of December 19, 2007 (the “Effective Date”), by and
between Clarinbridge, LLC, a Nevada limited liability company (“Buyer”), and Siboney
Corporation, a Maryland corporation (“Seller”).
1.
|
For
all purposes of this Agreement, capitalized terms not otherwise defined herein
shall have the following meanings:
“Affiliate” means with respect
to any Person (including a Party), such Person’s heirs, assigns, successors,
delegates, agents, legal representatives, officers, directors, managers,
employees, contractors, stockholders, partners, members, subsidiaries or
investors of or in such Person or of or in any Affiliate of such Person, or any
Person which directly or indirectly, through one or more intermediaries,
Controls, is Controlled by, or is under common Control with such
Person.
“Breach” means any breach of,
or any inaccuracy in, any representation or warranty or any breach of, or
failure to perform or comply with, any covenant or obligation, in or of this
Agreement or any other agreement, or any event which with the passing of time or
the providing of notice, or both, would constitute such a breach, inaccuracy or
failure.
“Business Day” means a day of
the year that is not a Saturday, Sunday or a day on which banks are required to
close in the State of New York.
“CEO” means the Chief Executive
Officer of Seller.
“Claim” means any past, present
or future demand, claim, pleading, complaint, charge, suit, action or cause of
action, in law or equity, whether known, unknown, actual or threatened, claiming
any loss, damage, Liability, performance, due, fine, amount, penalty,
assessment, Taxes, costs or expenses including, without limitation, interest,
penalties and attorneys’ fees and disbursements.
“Closing” means the
consummation of the transactions and the making of the deliveries contemplated
by this Agreement.
“Control” or “Controlled” means possession,
directly or indirectly, of a right or rights to direct the management of a
Person.
- 1 -
CONFIDENTIAL
“EST” means Eastern Standard
Time.
“Encumbrance” means any
mortgage, lien, pledge, encumbrance, security interest, deed of trust, option,
encroachment, reservation, determination, ruling, order, decree, writ, judgment,
injunction, condition, restriction, agreement, Claim or equity of any kind, any
filing or agreement to file a financing statement as debtor under the Uniform
Commercial Code (“UCC”)
or any similar statute, or any subordination agreement in favor of another
person.
“Laws” means all foreign,
federal, state and local statutes, laws, ordinances, regulations, rules,
resolutions, orders, rulings, determinations, writs, injunctions, awards
(including, without limitation, awards of any arbitrator), judgments and decrees
applicable to the specified Person and to the businesses and assets of such
Person.
“Liability” means any
liability, debt or other obligation (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due) including,
without limitation, any Liability for Taxes.
“Party” means Buyer or Seller
as a party to this Agreement.
“Person” means any individual,
for-profit or not-for-profit corporation, general or limited partnership,
limited liability company, joint venture, estate, trust, association,
organization, union or other entity or governmental body or agency, including a
Party.
“Taxes” means all federal,
state, local and foreign taxes (including, without limitation, income, profit,
franchise, sales, use, real property, personal property, ad valorem, excise,
employment, social security and wage withholding taxes) and installments of
estimated taxes, assessments, deficiencies, levies, imposts, duties,
withholdings or other similar charges of every kind, character or description
imposed by any governmental authorities, and any interest, penalties or
additions to tax imposed thereon or in connection therewith.
|
2.1.
|
On
the terms and subject to the conditions of this Agreement, Seller hereby agrees
to sell, assign, transfer and deliver to Buyer, and Buyer hereby agrees to
purchase, assume and accept from Seller, the Asset. The sale and
purchase of the Asset shall be effected on the Closing Date (defined in Section 8.1), as more
fully set forth herein. Nothing in this Agreement shall be construed
as Buyer purchasing from Seller anything other than the
Asset. Furthermore, both Parties acknowledge and agree that Buyer
agrees to purchase the Asset to hold for future settlement or other disposition,
and not for the primary purpose of commencing litigation or any dispute with
respect to the Asset.
Buyer
shall not assume or be deemed to have assumed, and Seller shall remain
responsible for, any and all Liabilities of Seller relating to the Asset
including, without limitation, Liabilities or obligations of Seller arising from
Seller’s conduct with respect to the Asset or the underlying assets giving rise
to the Asset, Tax Liabilities related to the Asset, or any Encumbrance affecting
the Asset.
- 2 -
CONFIDENTIAL
|
2.3.
|
For
and in consideration of the conveyances described herein, upon satisfaction of
the conditions described in Section 7, Buyer agrees to
pay in aggregate to Seller, and Seller agrees to accept from Buyer as full
consideration for the sale of the Asset, the sum of ONE MILLION EIGHTEEN
THOUSAND SEVEN HUNDRED TWENTY FIVE U.S. DOLLARS AND NO CENTS (USD$1,018,725.00)
(the “Purchase
Price”).
The
Purchase Price shall be delivered to Seller by Buyer at Closing by wire transfer
of immediately available funds to an account designated by Seller in writing to
Buyer no later than three (3) Business Days prior to Closing (the “Wire Notice”). Each
Party shall be solely responsible for any bank wire or other transaction fees
charged to it by its respective financial institution or escrow in connection
with the delivery of the Purchase Price.
Seller
hereby agrees that the amount of the Purchase Price, and the manner in which it
is to be delivered (as set forth in Sections 2.3 and 2.4, respectively),
constitute adequate and sufficient consideration for the sale to Buyer of all
title, rights and interests held by Seller in and to the Asset and for the
performance by Seller of all of its covenants and agreements
hereunder.
That
certain Letter Agreement on Disclosure of Confidential and Proprietary
Information effective as of October 29, 2007 and entered into by the Parties
(the “Confidentiality
Agreement”) is hereby incorporated herein by reference and shall govern
all aspects of confidentiality, nondisclosure and noncompetition with respect to
Confidential Information (as that term is defined in the Confidentiality
Agreement), the Asset, this Agreement and the transactions contemplated thereby,
and in all such respects not inconsistent with this Agreement. In
addition, the Parties agree that neither Party shall disclose or otherwise
communicate to any other Person (that is not a Party or its Affiliate) the
content, provisions or terms of this Agreement or that any transaction
contemplated thereby shall be or has been consummated (except as permitted by
the Confidentiality Agreement or required under the rules of any regulatory
authority (including the Securities and Exchange Commission) having jurisdiction
over either Party). In the event that Seller is required to make a
disclosure under the rules of any regulatory authority (including the Securities
and Exchange Commission) having jurisdiction over Seller, regarding any aspect
of the transactions contemplated hereby, such disclosure shall not include: (a)
any information provided by Buyer or its Affiliates to Seller respecting
valuation of the Asset or calculation of the Purchase Price; and (b) any other
information that is not reasonably necessary to fulfill the minimum requirements
of the disclosure rules of any regulatory authority (including the Securities
and Exchange Commission) having jurisdiction over Seller.
|
3.2.1.
|
For
valuable consideration, the receipt of which is hereby acknowledged, and through
Closing, Seller agrees that Buyer shall have the right to complete its due
diligence investigation of Seller and the Asset (“Due Diligence”), and Seller
agrees to cooperate fully and in good faith to attempt to complete a transaction
relating to the Asset as expeditiously as possible after Buyer has confirmed
with Seller that Buyer is satisfied with its Due
- 3 -
CONFIDENTIAL
Diligence. In
furtherance of the foregoing, Seller will provide Buyer, upon reasonable request
by Buyer, full access to any documents, records or other materials in the
possession of Seller relating to the Asset and Seller’s business relating to the
Asset, and will furnish Buyer with copies of documents and with such other
information as Buyer may reasonably request, all subject to the provisions of
Section
3.1. If in Buyer’s sole and absolute discretion Buyer is not
satisfied for any reason whatsoever with any of the results of its Due
Diligence, Buyer shall have the right to terminate this Agreement by providing
written notice to Seller at any time prior to Closing. In the event
that this Agreement is terminated pursuant to this Section 3.2.1, the
Parties shall be relieved from all further obligation or Liability hereunder,
except with respect to those terms and provisions which shall survive such
termination as provided herein, including the confidentiality provisions set
forth in Section
3.1 which shall survive.
|
3.2.2.
|
Seller acknowledges
that Buyer will incur significant expense in connection with Due
Diligence. As a result, upon execution and delivery of this Agreement
by Seller and through Closing: (a) Seller shall terminate any existing
discussions or negotiations and shall cease to provide information to or
otherwise cooperate with any party other than Buyer and its Affiliates with
respect to any transaction relating to the Asset including, without limitation,
a sale, exchange, transfer, gift, loan or pledge of the Asset (“Asset Transaction”); (b) unless and until this Agreement is terminated
pursuant to Section 11, neither Seller nor any of its Affiliates will directly or indirectly encourage,
solicit, initiate, have or continue any discussions or negotiations or
participate in any discussions or negotiations with, or provide any information
to or otherwise cooperate in any other way with, or enter into any agreement,
letter of intent, term sheet or agreement in principle with, or facilitate or
encourage any effort or attempt by any Person (other than with Buyer and its
Affiliates) concerning any Asset Transaction; (c) Seller shall notify Buyer promptly of
any inquiries, proposals or offers made by any Person to Seller with respect to
any Asset Transaction and furnish Buyer with
the general terms thereof (including, without
limitation, the type and amount of consideration offered, the purpose of the
proposed Asset Transaction and the identity of such Person and proof of such
Person’s ability to pay such consideration, notwithstanding any confidentiality
agreement with such Person to which Seller may be party, provided that Buyer
shall maintain such terms of confidentiality); (d) Seller shall deal
exclusively with Buyer with respect to the Asset at the exclusion of any other
prospects respecting an Asset Transaction; and (e) Buyer shall, in the event of
any proposed Bona Fide Offer (as defined in this Section 3.2.2)
respecting the Asset, have a right of first refusal to purchase the Asset from
Seller, for a price that is substantially similar to the consideration proposed
in a Bona Fide Offer and under the terms and conditions of this Agreement, in
lieu of such Person, by providing Seller with written notice, within thirty (30)
days of receiving notice from Seller of a Bona Fide Offer, of Buyer’s intent to
purchase the Asset. In the event that Buyer exercises such right of
first refusal, Closing shall occur within thirty (30) days of the date of such
exercise. “Bona Fide
Offer” for purposes of this Section 3.2.2 means
an irrevocable and verifiable offer by a Person other than by an Affiliate of
Seller to enter into a transaction respecting the Asset, regardless of the form
or type of transaction.
Seller shall not, from the Effective Date through
Closing, have sold, assigned, exchanged, transferred, gifted, loaned, settled or
otherwise pledged the Asset to the favor of another Person, or otherwise placed
or allowed to be placed on the Asset any Encumbrance, and shall have maintained
the Asset in accordance with Section 4.5. Notwithstanding anything to the
contrary in this Section 3.3, if and
only if in the event that the transactions contemplated herein are not
consummated by the Parties, nothing in this Agreement shall be construed to
limit, either directly or indirectly, any rights provided to Seller under any
Laws respecting the Asset, including any ability or right it may have to
participate in any settlement respecting the Asset.
- 4 -
CONFIDENTIAL
If,
from the Effective Date and at any time through Closing, Seller becomes aware of
any information which would cause the condition precedent set forth in Section 7.1 not to be
satisfied, Seller covenants that it will promptly inform
Buyer. Subject to the terms and conditions hereof, from the Effective
Date through Closing the Parties shall not take any action which reasonably
could be expected to render any representation or warranty or covenant contained
in this Agreement untrue or incorrect in any material respect (except to the
extent a representation or warranty or covenant is qualified by materiality, in
which case the Parties shall refrain from taking any action that would render
such representation or warranty or covenant untrue or incorrect in any respect)
through Closing. From the Effective Date through Closing, upon
learning thereof, each Party shall provide prompt written notice to the other
Party of any adverse development causing a Breach of any of such Party’s own
representations and warranties or of any material development affecting the
ability of such Party to consummate the transactions contemplated hereby and
carry out its obligations hereunder. No disclosure by any Party
pursuant to this Section
3.4 shall be deemed to prevent or cure any misrepresentation, Breach
of warranty or Breach of covenant by such Party.
|
3.5.
|
Each
Party shall use commercially reasonable efforts to take all action and to do all
things necessary, proper, or advisable in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the conditions precedent to Closing set forth in Sections 6 and
7).
Seller
represents and warrants to Buyer as follows:
Seller
is a Maryland corporation duly incorporated, validly existing and in good
standing under the Laws of the State of Maryland, and has full and unrestricted
corporate authority to sell, transfer, assign or otherwise dispose of the Asset,
to execute this Agreement and to carry out the transactions contemplated
hereby.
|
4.2.
|
The
execution, delivery and performance by Seller of this Agreement and all other
documents contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the consummation by
Seller of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action on the part of Seller.
|
4.3.
|
The
execution, delivery and performance by Seller of this Agreement and all other
documents contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the consummation by
Seller of the transactions contemplated hereby and thereby (a) do not and
will not conflict with, or violate any provision of, any Law having
applicability to Seller or any of its assets, except for such conflicts or
violations which would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of Seller to close the
transactions contemplated hereby, or any provision of any governing document of
Seller, (b) do not and will not conflict with, or result in any Breach of,
or constitute a default under any material agreement to which Seller is a party
or by which it or any of its assets may be bound, and (c) do not and
will
- 5 -
CONFIDENTIAL
not
result in or require the creation or imposition of or result in the acceleration
of any indebtedness with respect to Seller or any of its assets.
|
4.4.
|
Seller
or its Affiliates have not caused any security interests or other Encumbrance
upon the Asset in connection with any failure (or alleged failure) to pay any
Taxes, and Seller is not aware and has no reason to be aware of any dispute or
Claim concerning any Liability for Taxes in connection with or that may affect
the Asset.
|
4.5.
|
Except
as set forth on Schedule
4.5, Seller has good, valid and marketable title to the Asset owned by
it, free and clear of all Encumbrances.
|
4.6.
|
Except
for those Claims included in the list of Encumbrances set forth on Schedule 4.5 that
will be satisfied prior to or at Closing, there are no Claims affecting or
involving Seller or the Asset or the transactions contemplated by this Agreement
which may prohibit or otherwise restrict the sale of the Asset by Seller to
Buyer.
|
4.7.
|
This
Agreement constitutes a valid and binding obligation of Seller, enforceable in
accordance with its terms, and each document to be executed by Seller pursuant
hereto, when executed and delivered in accordance with the provisions hereof,
shall be a valid and binding obligation of Seller, enforceable in accordance
with its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and (b)
general principles of equity as determined by a court of competent jurisdiction
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
|
4.8.
|
No
information in any significant written materials furnished or to be furnished by
Seller to Buyer pursuant to this Agreement, or in connection herewith or with
the transactions contemplated hereby, contains or will contain any untrue or
misleading statement or omit or will omit any fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which made, not misleading.
|
4.9.
|
Both
prior to and through Closing, after giving effect to the transactions
contemplated by this Agreement and the other agreements executed in connection
herewith, Seller is not and will not be insolvent.
There
are no bankruptcy, reorganization or arrangement Claims pending against, being
contemplated by, or threatened against Seller.
Buyer
hereby represents and warrants to Seller as follows:
- 6 -
CONFIDENTIAL
Buyer
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has the full and
unrestricted limited liability company power and authority to acquire, own and
hold the Asset, to execute and deliver this Agreement and to carry out the
transactions contemplated hereby.
|
5.2.
|
The
execution, delivery and performance by Buyer of this Agreement and all other
documents contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the consummation by
Buyer of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary limited liability company action on the part of
Buyer.
|
5.3.
|
The execution, delivery and performance
by Buyer of this Agreement and all other documents contemplated hereby, the
fulfillment of and compliance with the respective terms and provisions hereof
and thereof, and the consummation by Buyer of the transactions contemplated
hereby and thereby (a) do not and will not conflict with, or violate any
provision of, any Law having applicability to Buyer or any of its assets, except
for such conflicts or violations which would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of Buyer to close the transactions contemplated hereby, or any provision
of any governing document of Buyer, (b) do not and will not conflict with,
or result in any Breach of, or constitute a default under any material agreement
to which Buyer is a party or by which it or any of its assets may be bound, and
(c) do not and will not result in or require the creation or imposition of
or result in the acceleration of any indebtedness with respect to Buyer or any
of its assets.
Buyer and its Affiliates have never
been, are not and have no intention of being affiliated with Cuba in violation
of any Law, and any and all principals owning or otherwise having an investment
in the interests of Buyer, in whole or in part, with respect to such ownership
or investment, are and remain in compliance with applicable Law including, but
not limited to, U.S. Laws relating to the economic embargo against Cuba,
counterterrorism, anti-drug trafficking, foreign corrupt practices and other
“know your customer” requirements.
|
5.5.
|
This
Agreement constitutes a valid and binding obligation of Buyer, enforceable in
accordance with its terms, and each document to be executed by Buyer pursuant
hereto, when executed and delivered in accordance with the provisions hereof,
shall be a valid and binding obligation of Buyer, enforceable in accordance with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and (b)
general principles of equity as determined by a court of competent jurisdiction
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
The
obligations of Seller under this Agreement are subject to the fulfillment, at or
prior to Closing, of each of the following conditions precedent, and failure to
satisfy any such condition precedent shall excuse and discharge all obligations
of Seller to carry out the provisions of this Agreement, unless such failure is
agreed to in writing by Seller:
- 7 -
CONFIDENTIAL
The
representations and warranties made by Buyer in this Agreement shall be true and
complete in all respects when made and on and through Closing as though such
representations and warranties were made on and as of such time, except to the
extent a representation or warranty is qualified by materiality, in which case
Seller shall refrain from taking any action that would render such
representation or warranty untrue or incorrect in any respect.
|
6.2.
|
Buyer
shall have performed and complied in all material respects with all covenants
required by this Agreement to be performed or complied with by Buyer prior to
Closing.
|
6.3.
|
No
action or proceeding by or before any governmental authority shall have been
instituted by Buyer or its Affiliates (and not subsequently dismissed, settled
or otherwise terminated) which is reasonably expected to restrain, prohibit or
invalidate the transactions contemplated by this Agreement.
|
6.4.
|
Buyer
shall have delivered to Seller a certificate executed by a senior officer of
Buyer, certifying to the fulfillment by Buyer of the conditions set forth in
Sections 6.1 through 6.3 (“Officer
Certificate”).
The
obligations of Buyer under this Agreement are subject to the fulfillment, at or
prior to Closing, of each of the following conditions, and failure to satisfy
any such condition shall excuse and discharge all obligations of Buyer to carry
out the provisions of this Agreement, unless such failure is agreed to in
writing by Buyer:
The
representations and warranties made by Seller in this Agreement shall be true,
complete and correct in all material respects when made and on and through
Closing as though such representations and warranties were made on and as of
such time, except to the extent a representation or warranty is qualified by
materiality, in which case Seller shall refrain from taking any action that
would render such representation or warranty untrue or incorrect in any
respect.
|
7.2.
|
Seller
shall have performed and complied in all material respects with all covenants
required by this Agreement to be performed or complied with prior to
Closing.
|
7.3.
|
No
action or proceeding by or before any governmental authority shall have been
instituted by Seller or its Affiliates (and not subsequently settled, dismissed
or otherwise terminated) which is reasonably expected to restrain, prohibit or
invalidate the transactions contemplated by this Agreement.
- 8 -
CONFIDENTIAL
|
7.4.
|
At
or prior to Closing, the secured creditors of Seller including, but not limited
to, those listed in Schedule
7.4 shall have provided in writing to Seller their respective consents
(the “Material
Consents”) to the transactions contemplated hereby. In
addition, Seller shall have caused such creditors to provide Buyer at or prior
to Closing with UCC termination statements as shall be required to release any
Encumbrances affecting the Asset, which termination statements may be filed by
Buyer only upon Seller’s receipt of the Purchase Price. In the event
that Buyer provides Seller with such termination statements prior to Closing and
Seller does not receive the Purchase Price or the transactions contemplated
hereby are not otherwise consummated, Buyer shall immediately return such
termination statements to Buyer and shall destroy any and all copies thereof in
Buyer’s possession.
At
or prior to Closing, Seller shall have delivered to Buyer a short-form
certificate issued by the Maryland Secretary of State evidencing the good
standing of Seller, as of a date not more than thirty (30) days prior to the
Closing Date, as a corporation organized under the laws of the State of
Maryland.
Seller
shall have delivered to Buyer a certificate executed by the Secretary of Seller
and dated as of the Closing Date, as to the articles of incorporation and
by-laws of Seller, the resolutions adopted by the board of directors of Seller
in connection with this Agreement, and the incumbency of the CEO of Seller,
along with copies of said articles, by-laws and resolutions attached as exhibits
thereto (“Secretary
Certificate”).
|
7.7.
|
Seller
shall have delivered to Buyer a certificate executed by the CEO of Seller and
dated as of the Closing Date, certifying to the fulfillment by Seller of the
conditions set forth in Sections 7.1 through
7.4 (“CEO
Certificate”).
8.
|
|
8.1.
|
Closing
shall occur on no later than the fifth (5th)
Business Day after the satisfaction or waiver of the conditions precedent set
forth in Sections 6 and 7, but in no event
later than December 31, 2007, unless otherwise agreed by the Parties in writing
(the “Closing
Date”).
|
8.2.
|
On
or prior to the Closing Date, Seller shall deliver to Buyer the
following:
8.2.1. a
Secretary’s Certificate, to the effect and substantially in the form of Exhibit
B attached hereto and incorporated herein, as required by Section
7.6;
8.2.2. a CEO
Certificate, to the effect and substantially in the form of Exhibit
C attached hereto and incorporated herein, as required by Section
7.7;
- 9 -
CONFIDENTIAL
8.2.3. a Xxxx of
Sale and Assignment of Rights to the effect and substantially in the form of
Exhibit
D attached hereto and incorporated herein, and such other instruments of
transfer as Buyer shall reasonably require to have title to the Asset
transferred to Buyer;
8.2.4. a Letter
from Southwest Bank of St. Louis in favor of Buyer to the effect and
substantially in the form of Exhibit
E attached hereto and incorporated herein;
8.2.5. a Letter
from Xxxxxxx X. Xxxxxxx in favor of Buyer to the effect and substantially in the
form of Exhibit
F attached hereto and incorporated herein;
8.2.6. a Letter
from Xxxxx X. Xxxxxxx in favor of Buyer to the effect and substantially in the
form of Exhibit
G attached hereto and incorporated herein;
8.2.7. all original
documentation including, without limitation, decisions, opinions, judgments,
maps, photographs, exhibits, legal descriptions, agreements, share certificates
or other proofs of ownership, title or rights in or pertaining to the Asset and
its underlying assets giving rise to the Asset, to the extent that originals are
in Seller’s possession are reasonably accessible to Seller, or otherwise copies
of such documentation shall suffice; and
8.2.8. such other
documentation as Buyer may reasonably request.
|
8.3.
|
On
or prior to the Closing Date, but in no event prior to Buyer’s receipt of
Seller’s Closing deliveries set forth in Section 8.2, Buyer
shall deliver the following:
8.3.1. a wire
transfer of the Purchase Price payable in accordance with Section 2.4;
8.3.2. an Officer
Certificate, to the effect and substantially in the form of Exhibit
H attached hereto and incorporated herein, as required by Section 6.4;
and
8.3.3. such
other documents as Seller may reasonably request.
All
representations, warranties, covenants, indemnities and other promises made by
any Party to this Agreement herein or pursuant hereto shall also be deemed made
on and through Closing as though such representations, warranties, covenants,
indemnities and other promises were made on and as of such time, and all such
representations, warranties, covenants, indemnities and other promises shall
survive Closing and any investigation, audit or inspection at any time made by
or on behalf of any Party for a period of two (2) years after the Closing
Date.
Subject
to the conditions and provisions of this Section 9.2, Seller
hereby agrees to indemnify, defend and hold harmless Buyer and its Affiliates
from and against and in any respect of all Claims asserted against, resulting
to, imposed upon or incurred by Buyer or its Affiliates, directly or indirectly,
by reason of or resulting from any Breach of any representation or warranty or
noncompliance with any covenants given or made in this
- 10 -
CONFIDENTIAL
Agreement
by Seller or its Affiliates, or from any Liabilities of Seller relating to the
Asset including, but not limited to, any Claim of any secured creditor of Seller
including, without limitation, Southwest Bank of St. Louis, Xxxxxxx X. Xxxxxxx,
or Xxxxx X. Xxxxxxx. Buyer's knowledge prior to and
through Closing of any inaccuracy or Breach of any representation, warranty or
covenant made or to be performed by Seller under this Agreement or the
agreements contemplated hereby shall not limit or affect any right of Buyer or
its Affiliates to indemnification under this Section
9.2.
Seller
acknowledges and agrees that the Asset and the transactions contemplated hereby
are unique, and that the harm to Buyer resulting from any Breach by Seller of
its obligations hereunder cannot be adequately compensated by
damages. Accordingly, Seller agrees that Buyer shall be entitled,
without the requirement of having to post a bond or other security, to equitable
relief, including injunctive relief and specific performance in order to enforce
its rights hereunder. Such remedies will not be the exclusive
remedies for any Breach by Seller, but will be in addition to all other remedies
available, at law or in equity, to Buyer.
11.
|
|
11.1.
|
This
Agreement may be terminated at any time prior to Closing under any one or more
of the following circumstances:
11.1.1. by
the mutual written consent of the Parties;
11.1.2. by
written notice of Buyer to Seller in accordance with Section 3.2.1;
11.1.3. by
written notice of Buyer to Seller, if any of the conditions precedent set forth
in Section 7 have not been
fulfilled by December 31, 2007, or after learning of a Breach of a
representation or warranty by Seller which would cause the conditions set forth
in Section 7.1
not to be satisfied, provided that Seller shall have a reasonable opportunity to
cure such Breach prior to any termination by Buyer;
11.1.4. by
written notice of Seller to Buyer, if any of the conditions precedent set forth
in Section 6 have not been
fulfilled by the Closing Date, or after learning of a Breach of a representation
or warranty by Seller which would cause the conditions set forth in Section 6.1 not to be
satisfied, provided that Buyer shall have a reasonable opportunity to cure such
Breach prior to any termination by Seller; or
11.1.5. by
either Party by written notice to the other Party, if (a) Closing has not
occurred by December 31, 2007 and (b) the failure to close on or before the
Closing Date did not result from the failure of the Party seeking termination of
this Agreement to fulfill any undertaking or commitment provided for herein that
such Party is required to fulfill prior to Closing.
|
11.2.
|
In
the event that this Agreement is terminated as provided in this Section 11.2, this
Agreement shall forthwith become wholly void and of no effect, and the Parties
shall be released from all obligations hereunder, other
than except with respect to those terms and provisions which shall survive such
termination as provided herein (including Section 3.1 with
respect to confidentiality).
- 11 -
CONFIDENTIAL
12.
|
12.1.
|
Each
Party agrees that, from time to time, whether before, at or after Closing, such
Party will take or cause to be taken such further actions to execute, deliver
and file or cause to be executed, delivered and filed such further documents,
and will obtain such consents, as may be necessary or as may be reasonably
requested by the other Party, in order to fully effectuate the purposes,
intents, terms and conditions of this Agreement.
12.2.
|
Subject
to the indemnity provisions of Sections 9.2 and 12.3, each Party
shall pay its own expenses incident to this Agreement and the transactions
contemplated hereunder including, without limitation, all attorneys’ and
accounting costs, fees, disbursements and Taxes.
12.3.
|
Each
Party represents and warrants to the other Party that such Party has not engaged
any broker, finder or agent in connection with the transactions contemplated by
this Agreement that will give rise to any unpaid Liability to any broker, finder
or agent for any brokerage fees, finders’ fees or commissions with respect to
the transactions contemplated by this Agreement, for which Seller or Buyer will
be responsible after Closing. Each Party agrees to indemnify, defend
and hold harmless each other Party and its Affiliates from and against any and
all Claims asserted against such Party or its Affiliates for any such broker
fees or commissions by any persons purporting to act or to have acted for or on
behalf of the indemnifying party.
12.4.
|
This
Agreement is intended solely for the benefit of the Parties and their respective
heirs, successors, permitted assigns and legal representatives, and is not
intended to confer any benefit upon, or create any rights in favor of, any
Person other than the Parties.
12.5.
|
Buyer
shall have the right to assign its rights and obligations under this Agreement,
in whole or in part, to an Affiliate or to designate any of its Affiliates (to
the extent permitted by Law) to perform any of its obligations hereunder;
provided, however, that Buyer shall remain liable to Seller for the satisfaction
of Buyer’s obligations hereunder. Except as set forth in the
preceding sentence, neither Party may assign its rights and obligations under
this Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the other Party, and any such assignment
contrary to the terms hereof shall be null and void and of no force and
effect. In no event shall the assignment by a Party of its rights or
obligations under this Agreement, whether before, at or after Closing, release
such Party from its obligations hereunder.
This
Agreement, together with its Exhibits, Schedules, the Confidentiality Agreement
and the other documents specifically furnished pursuant hereto, constitute the
entire agreement by and among the Parties with respect to the transactions
contemplated herein, and supersede all prior oral or written agreements,
commitments, promises or understandings with respect to the matters provided for
herein. In the event of any conflict between this Agreement and any
Exhibit or Schedule to this Agreement, the Confidentiality Agreement and/or any
other document specifically furnished pursuant hereto, this Agreement shall take
precedence and its terms shall govern.
- 12 -
CONFIDENTIAL
No
amendment, modification or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed and delivered by the Party against
whom enforcement of such amendment, modification or discharge is
sought.
The
rights and remedies of the Parties are cumulative and not
alternative. No delay or failure on the part of any Party in
exercising any right, power or privilege under this Agreement or under any other
documents furnished in connection with or pursuant to this Agreement shall
impair any such right, power or privilege or be construed as a waiver of any
default or any acquiescence therein. No single or partial exercise of
any such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any Party unless made in
writing and signed by the Party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
12.8.
|
If
any term or provision of this Agreement, its Exhibits, Schedules, the
Confidentiality Agreement or any other document specifically furnished pursuant
hereto shall held by an authority of competent jurisdiction to be invalid or
unenforceable in any respect, in whole or part, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability only, and shall
not affect in any way the remaining terms or provisions of this Agreement, its
Exhibits, Schedules, the Confidentiality Agreement or any other document
specifically furnished pursuant hereto.
12.9.
|
This
Agreement, the rights and obligations of the Parties, and any disputes arising
from, under, based on or related to this Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without regard
to conflicts of law principles).
12.10.
|
Any
dispute between the Parties arising from, under, based on or relating to this
Agreement shall be exclusively submitted to and resolved by confidential binding
arbitration in, which shall be brought in St. Louis, Missouri, for any dispute
brought by Buyer, and in Miami, Florida, for any dispute brought by Seller, and
any such arbitration shall be conducted and arbitrator(s) shall be appointed in
accordance with rules of the American Arbitration Association; provided,
however, any request for equitable relief as provided for in this Agreement
shall be brought before the courts of the State of Missouri if brought by Buyer
or the State of Florida if brought by Seller, or they have or can acquire
jurisdiction, in the United States District Court for the Eastern District of
Missouri if brought by Buyer or in the United States District Court for the
Southern District of Florida if brought by Seller, and the Parties expressly
consent to the jurisdiction of such courts and expressly waive any objection to
venue laid therein for such purposes. The Parties agree that process
in any such proceeding described in the preceding sentence may be served on any
Party, anywhere in the world. In the event of any dispute between the
Parties relating to this Agreement, the prevailing Party (as determined by a
court of competent jurisdiction), whether at law or in equity, shall be
reimbursed by the other Party for reasonable attorneys’ fees and costs related
to any such dispute.
All notices,
demands, requests, or other communications which may be or are required to be
delivered to any Party pursuant to this Agreement shall be in writing and shall
be either (a) hand delivered, (b) sent
- 13 -
CONFIDENTIAL
by
courier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or (c) transmitted by
facsimile, addressed as follows (as changed from time to time by each Party,
respectively, in writing):
If
to Buyer:
Attn: Xxxx Xxxxxxxxx,
Manager
Clarinbridge, LLC
c/o 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx
000
Xxxxxx Xxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
With
a copy (which shall not constitute notice to Buyer) to:
Xxxxx X. Xxxxxxxxx, Esq.
The Law Firm of Xxxxx X. Xxxxxxxxx,
P.L.
0000 Xxxx Xxxxxx, Xxxxx
000
Xxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If
to Seller:
Attn: Xxxxxxx X. Xxxxxxx
Siboney Corporation
000 Xxxxx Xxxxxxxx Xxxx, Xxxxx
000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
With
a copy (which shall not constitute notice to Seller) to:
Xxxxxx X. Xxxx
Xxxxxxxx Xxxxxx LLP
One XX Xxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Notices
shall be deemed to be duly given on the date of receipt when received by 5:00
p.m. EST; provided, however, if any notice is received on a date that is not a
Business Day, then such notice shall be due, and shall be deemed to be duly
given when received, by 5:00 p.m. EST on the next succeeding Business
Day.
12.12.
|
Section
headings contained in this Agreement are inserted for convenience of reference
only, shall not be deemed to be a part of this Agreement for any purpose, and
shall not in any way define or affect the meaning, construction or scope of any
of the provisions hereof.
12.13.
|
For purposes of this Agreement,
(a) words in the singular shall be held to include the plural and vice
versa and words of one gender shall be held to include the other gender as the
context requires, (b) the terms “hereof”, “herein”, and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement,
(c) references to Sections and Exhibits, unless otherwise specified, shall be
construed as references to Section and Exhibits of this Agreement, (d) the
word “including” and words of similar import when used in this Agreement shall
mean “including,
- 14 -
CONFIDENTIAL
without
limitation,” unless the context otherwise requires or unless otherwise
specified, (e) the word “or” shall not be exclusive, and (f) the
provisions hereof shall apply, when appropriate, to successive events and
transactions.
Each Party agrees that: (a) it has
carefully read and understands the effect of this Agreement; (b) it has retained
or was given the opportunity to retain the assistance of separate counsel in
carefully reviewing, discussing and construing all terms of this Agreement; (c)
its counsel, where retained, has read and considered this Agreement and has
advised it concerning the effect of executing this Agreement; (d) in executing
this Agreement, it has not relied upon any representation, understanding or
agreement not expressly set forth herein; (e) it (or its Affiliates) have not
made any representations to the other Party or its Affiliates that is not
expressly set forth herein and further, but not in limitation of the foregoing,
it has made no representations to the other Party which relate to or affect the
consideration, cause or any condition for which this Agreement is entered into,
which representations have not been expressly embodied herein; (f) it executes
this Agreement as its free and voluntary act, without duress, coercion or undue
influence exerted by or on behalf of a Party or any other party; and (g) it (or
its Affiliates) has full and complete authorization and power to execute this
Agreement. This Agreement shall, therefore, be deemed and treated as
if drafted by both of the Parties, and no term, condition or provision of this
Agreement shall be construed more strictly against either Party.
12.15.
|
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy of this Agreement, and all of which, when taken
together, shall be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the Parties and may be used in lieu of the
originally signed copy for all purposes. Signatures of the Parties
transmitted by facsimile shall be deemed to be their original signatures for any
purpose whatsoever.
12.16.
|
The
obligations of the Parties hereunder and the provisions of this Agreement which
by their nature survive the termination of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by and against the Parties and their
valid heirs, successors, permitted assigns and legal
representatives.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
- 15 -
CONFIDENTIAL
BUYER:
|
|
CLARINBRIDGE,
LLC,
|
|
a
Nevada limited liability company
|
|
By: /s/ Xxxx
Xxxxxxxxx
|
|
Name:
Xxxx Xxxxxxxxx
|
|
Title:
Manager
|
|
Date:
12/19/2007
|
|
SELLER:
|
|
SIBONEY
CORPORATION,
|
|
a
Maryland corporation
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
Title:
CEO
|
|
Date:
12/19/2007
|
- 16 -
CONFIDENTIAL
EXHIBIT A
Description
of the Asset
That
certain Claim No. CU-2510 against the Republic of Cuba issued in the name of
SIBONEY CORPORATION, a Maryland corporation, said claim being certified in the
amount of TWO MILLION FOUR HUNDRED FIFTY FOUR THOUSAND SIXTY EIGHT DOLLARS AND
NO CENTS (USD$2,454,068.00), together with interest entitled thereupon said
amount at 6% per annum running from November 23, 1959 to date of settlement, as
certified by the United States Foreign Claims Settlement Commission of the
United States Department of Justice, In the Matter of SIBONEY CORPORATION
(Decision No. CU-5906), dated October 20, 1971, as published by the United
States Foreign Claims Settlement Commission of the United States Department of
Justice and rendered pursuant to Title V of the International Claims Settlement
Act of 1949, 22 U.S.C. 1621 et seq., together with all rights, title, interests,
warranties, guarantees, licenses, powers, authorities, permits, actions, awards,
damages, retribution, restitution, monies, compensation, paybacks, proceeds,
rents, issues, profits and any other form of benefit, of, in the favor of or
owing, from the beginning of time until forever, SIBONEY CORPORATION and its
successors and assigns, therein, pertaining thereto or by virtue thereof, or
resulting from any settlement thereof, under the laws of the United States of
America, the Republic of Cuba, international law or any other applicable laws,
rules or regulations, but specifically excluding any
right, title and interest which SIBONEY CORPORATION has or may have in the
underlying leasehold and other property from which Claim No. CU-2510 against the
Republic of Cuba arose.
- i -
CONFIDENTIAL
EXHIBIT
B
Form
of Secretary Certificate
SECRETARY
CERTIFICATE
THIS
SECRETARY’S CERTIFICATE (this “Certificate”) is delivered to
CLARINBRIDGE, LLC, a Nevada limited liability company (“Buyer”), pursuant to Section 7.6 of that
certain Asset Purchase Agreement dated as of December 19, 2007 (the “Purchase Agreement”), by and
among Buyer and
SIBONEY CORPORATION (“Seller”).
The
undersigned certifies to the best of [her/his] actual knowledge
that:
1. Attached
hereto as Exhibit 1 is a
true, correct and complete copy of Seller’s Articles of Incorporation as in
effect on and as of the date hereof, including all amendments and modifications
thereto as of the date hereof (the “Articles”). No
amendment to or restatement of the Articles has been filed as of the date
hereof, and no action has been taken by Seller or its Affiliates in
contemplation of the filing of any amendment to or restatement of the
Articles. No proceeding for the dissolution, merger, consolidation or
liquidation of Seller or for the sale of all or substantially all of its assets
is pending, or, to the best of my knowledge, threatened, and no such proceeding
is contemplated by Seller.
2. Attached
hereto as Exhibit 2 is a
true, correct and complete copy of the by-laws of Seller, as in effect on and as
of the date hereof, including all amendments and modifications thereto as of the
date hereof.
3. Attached
hereto as Exhibit 3 is a
true, correct and complete copy of resolutions duly adopted by Seller’s board of
directors as of the date hereof in connection with the Purchase Agreement, at
which meeting a quorum was at all times present in person and acting or
unanimous consent was obtained where appropriate, and which resolutions have not
been modified or rescinded since their adoption and are in full force and effect
as of the date hereof.
4. The
following named individuals are duly elected (or appointed) and acting officers
of Seller, and hold, and at all times since their election or appointment have
held, the offices set forth opposite their respective names as of the date
hereof, and the signatures set opposite the respective names and titles of said
officers are their true and authentic signatures. Each such officer
is authorized to execute the Purchase Agreement and the certificates, agreements
and other documents to be delivered by the Purchaser in connection
therewith.
Name
|
Title
|
Specimen
Signatures
|
||
Xxxxxxx
X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx, Xx.
Xxxxxxx
X. Xxxxxxxx
|
CEO
CFO
Secretary
|
___________________________
___________________________
___________________________
|
5. Each
person who, as an officer of Seller, signed the Purchase Agreement and the
certificates, agreements and other documents to be delivered by Seller, together
with any and all amendments thereto, was duly elected or appointed, qualified
and acting as such officer of Seller at the time of the signing thereof and was
duly authorized to sign such document on behalf of Seller, and the signature of
such person appearing on each such document is the genuine signature of such
officer.
- ii -
CONFIDENTIAL
6. Attached
hereto as Exhibit
4 is a short-form good standing certificate from the Secretary of the
State of Maryland. Such certificate certifies that Seller is
currently existing and qualified as a corporation in good standing and qualified
to do business in such jurisdiction and has paid all required franchise taxes
and other fees that are due and payable.
/s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title: Secretary,
Siboney Corporation
I,
Xxxxxxx X. Xxxxxxx, CEO of Seller, hereby certify that Xxxxxxx X. Xxxxxxxx is
the duly elected, qualified and acting Secretary of Seller and that the
signature appearing above is her genuine signature.
/s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
CEO, Siboney Corporation
[ATTACH
EXHIBITS 1 THROUGH 4]
- iii
-
CONFIDENTIAL
EXHIBIT
C
Form
of CEO Certificate
CEO
CERTIFICATE
THIS
CEO CERTIFICATE (this “Certificate”) is delivered to
CLARINBRIDGE, LLC, a Nevada limited liability company (“Buyer”), pursuant to Section 7.7 of that
certain Asset Purchase Agreement dated as of December 19, 2007 (the “Purchase Agreement”), by and
among Buyer and
SIBONEY CORPORATION (“Seller”).
The
undersigned hereby certifies that he is the duly appointed CEO of Seller, and
that Seller is the original, current and sole owner of all title, rights and
interest in the Asset that is the subject of and defined in the Purchase
Agreement, and that, to the best of his knowledge, that the representations and
warranties of Seller in Section 4 of and
elsewhere in the Purchase Agreement as they pertain to Seller and the Asset are
true and complete on the date hereof in all material respects, and that Seller
has performed and complied with all agreements, covenants and conditions
required under the Purchase Agreement to be performed by Seller.
The
undersigned gives this Certificate to the best of his actual
knowledge.
/s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
CEO, Siboney Corporation
- iv -
CONFIDENTIAL
EXHIBIT
D
Form
of Xxxx of Sale and Assignment of Rights
XXXX OF SALE AND ASSIGNMENT
OF RIGHTS
FOR GOOD AND VALUABLE CONSIDERATION,
the receipt, adequacy and legal sufficiency of which are hereby acknowledged,
and as contemplated by Section 8.2.3 of that
certain Asset Purchase Agreement dated as of December 19, 2007 (the “Purchase Agreement”), to which
CLARINBRIDGE, LLC, a Nevada limited liability company (“Buyer”), and SIBONEY
CORPORATION, a Maryland corporation (“Seller”), are parties, Seller
hereby sells, transfers, assigns, conveys, grants and delivers to Buyer,
effective as of 2:02 p.m. (EST) on December 21, 2007 (the “Effective Time”), all of
Seller’s right, title and interest in the asset (“Asset”) as more particularly
described as
That
certain Claim No. CU-2510 against the Republic of Cuba issued in the name of
SIBONEY CORPORATION, a Maryland corporation, said claim being certified in the
amount of TWO MILLION FOUR HUNDRED FIFTY FOUR THOUSAND SIXTY EIGHT DOLLARS AND
NO CENTS (USD$2,454,068.00), together with interest entitled thereupon said
amount at 6% per annum running from November 23, 1959 to date of settlement, as
certified by the United States Foreign Claims Settlement Commission of the
United States Department of Justice, In the Matter of SIBONEY CORPORATION
(Decision No. CU-5906), dated October 20, 1971, as published by the United
States Foreign Claims Settlement Commission of the United States Department of
Justice and rendered pursuant to Title V of the International Claims Settlement
Act of 1949, 22 U.S.C. 1621 et seq., together with all rights, title, interests,
warranties, guarantees, licenses, powers, authorities, permits, actions, awards,
damages, retribution, restitution, monies, compensation, paybacks, proceeds,
rents, issues, profits and any other form of benefit, of, in the favor of or
owing, from the beginning of time until forever, SIBONEY CORPORATION and its
successors and assigns, therein, pertaining thereto or by virtue thereof, or
resulting from any settlement thereof, under the laws of the United States of
America, the Republic of Cuba, international law or any other applicable laws,
rules or regulations, but specifically excluding any
right, title and interest which SIBONEY CORPORATION has or may have in the
underlying leasehold and other property from which Claim No. CU-2510 against the
Republic of Cuba arose
(collectively,
the “Transferred
Items”).
Seller covenants and agrees to warrant
and defend the sale, transfer, assignment, conveyance, grant and delivery of the
Transferred Items hereby made against all persons whomsoever, to take all steps
reasonably necessary to establish the record of Buyer’s title to the Transferred
Items and, at the request of Buyer, to execute and deliver further instruments
of transfer and assignment and take such other actions as Buyer may reasonably
request to more effectively transfer and assign to and vest in Buyer each of the
Transferred Items, all at the sole cost and expense of
Seller. Without limiting any of the foregoing, Seller hereby
constitutes and appoints Buyer the true and lawful agent and attorney in fact of
Seller, with full power of substitution and resubstitution, in whole or in part,
in the name and stead of Seller but on behalf and for the benefit of Buyer and
its successors and assigns, from time to time: (a) to demand, receive and
collect any and all of the Transferred Items and to give receipts and releases
for and with respect to the same, or any part thereof; (b) to institute and
prosecute, in the name of Seller or otherwise if necessary, any and all
proceedings at law, in equity or otherwise, that Buyer or its successors and
assigns may deem proper in order to collect or reduce to possession any of the
Transferred Items and in order to enforce any claim or right of any kind hereby
assigned or transferred, or intended so to be; and (c) to do all things legally
permissible, required or reasonably deemed by Buyer to be required to recover
and collect the
- v -
CONFIDENTIAL
Transferred
Items and to use Seller’s name, if necessary and subject to that certain Letter
Agreement on Disclosure of Confidential and Proprietary Information effective as
of October 29, 2007 and entered into by Buyer and Seller and made a part of the
Purchase Agreement, in such manner as Buyer may reasonably deem necessary for
the collection and recovery of same, Seller hereby declaring that the foregoing
powers are coupled with an interest and are and shall be irrevocable by
Seller.
The terms of the Purchase Agreement
including, but not limited to, Seller’s representations, warranties, covenants,
agreements and indemnities relating to the Transferred Items, are incorporated
herein by this reference. Seller acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in
the Purchase Agreement shall not be superseded hereby but shall remain in full
force and effect to the full extent provided therein. In the event of
any conflict or inconsistency between the terms of the Purchase Agreement and
the terms hereof, the terms of the Purchase Agreement shall govern.
SIBONEY
CORPORATION,
|
|
a
Maryland corporation
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
Title:
CEO
|
[INSERT
NOTARY SEAL AND SIGNATURE]
- vi -
CONFIDENTIAL
EXHIBIT
E
Form
of Consent Letter of Southwest Bank of St. Louis
[LETTERHEAD
OF SOUTHWEST BANK OF ST. LOUIS]
December
20, 2007
Attn:
Xxxx Xxxxxxxxx, Manager
Clarinbridge,
LLC
c/o
1000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxx 00000
Facsimile:
(000) 000-0000
Re: Purchase
by Clarinbridge, LLC (“Buyer”) of Certain Asset from
Siboney Corporation (“Debtor”)
Dear
Xx. Xxxxxxxxx:
The
undersigned certifies that [he/she] is a duly appointed and authorized
representative of Southwest Bank of St. Louis (the “Secured
Party”). The Secured Party acknowledges that Buyer and Debtor
have entered into a certain Asset Purchase Agreement (the “Purchase Agreement”) whereby
Buyer is purchasing the following asset of Debtor (the “Asset”):
That
certain Claim No. CU-2510 against the Republic of Cuba issued in the name of
SIBONEY CORPORATION, a Maryland corporation, said claim being certified in the
amount of TWO MILLION FOUR HUNDRED FIFTY FOUR THOUSAND SIXTY EIGHT DOLLARS AND
NO CENTS (USD$2,454,068.00), together with interest entitled thereupon said
amount at 6% per annum running from November 23, 1959 to date of settlement, as
certified by the United States Foreign Claims Settlement Commission of the
United States Department of Justice, In the Matter of SIBONEY CORPORATION
(Decision No. CU-5906), dated October 20, 1971, as published by the United
States Foreign Claims Settlement Commission of the United States Department of
Justice and rendered pursuant to Title V of the International Claims Settlement
Act of 1949, 22 U.S.C. 1621 et seq., together with all rights, title, interests,
warranties, guarantees, licenses, powers, authorities, permits, actions, awards,
damages, retribution, restitution, monies, compensation, paybacks, proceeds,
rents, issues, profits and any other form of benefit, of, in the favor of or
owing, from the beginning of time until forever, SIBONEY CORPORATION and its
successors and assigns, therein, pertaining thereto or by virtue thereof, or
resulting from any settlement thereof, under the laws of the United States of
America, the Republic of Cuba, international law or any other applicable laws,
rules or regulations, but specifically excluding any
right, title and interest which SIBONEY CORPORATION has or may have in the
underlying leasehold and other property from which Claim No. CU-2510 against the
Republic of Cuba arose.
The
Secured Party further acknowledges that it is a party with Debtor
to the following agreements for or through which substantially all of Debtor’s
assets have been pledged as collateral in favor of the Secured Party
including, but not limited to, the Asset: Letter Agreement dated April 2,
2007; Promissory Note dated April 2, 2007 on Loan 120300954-10000; Promissory
Note dated April 2, 2007 on Loan 120300954-22003; Subordination Agreement dated
March 21, 2007 in respect of Xxxxxxx X. Xxxxxxx; Subordination Agreement dated
March 21, 2007 in respect of Xxxxx X. Xxxxxxx; General Business Security
Agreement dated June 1, 2003; Line of Credit Note dated January 5, 2001;
Variable Rate Note dated January 5, 2001; Security Agreement – Accounts dated
January 5, 2001; Security
- vii
-
CONFIDENTIAL
Agreement
– Inventory dated January 5, 2001; Security Agreement –
Equipment dated January 5, 2000; and Security Agreement dated June 12, 1997
(collectively, the “Security
Agreements”).
For good and
valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged, upon Secured Party’s receipt of $1,000,000.00 in the Debtor’s
Account (as defined below), the Secured Party’s lien on the Asset shall be
released, and Secured Party shall file the Uniform Commercial Code termination
statement enclosed herewith. Furthermore, the Secured Party hereby
provides its written consent to the sale of the Asset contemplated by the
Purchase Agreement, and Buyer shall be entitled to rely on such consent in all
cases to that effect.
Payment shall be made to the
following account (the “Account”) by wire transfer pursuant to the following
instructions:
Southwest
Bank of St. Louis
13000
Xxxxxxxxxx Xxxx
Xx. Xxxxx,
XX 00000
ABA #
000000000
For the
account of
Siboney
Corporation
320 X.
Xxxxxxxx Xx. #000
Xx. Xxxxx,
XX 00000
Account #
00000000
This letter shall not operate
to release Debtor from any of the indebtedness secured by the Security
Agreements and all terms of the Security Documents and any other agreements in
favor of Secured Party (except for the release of the Secured Party’s lien on
the Asset) shall remain in full force and effect.
Sincerely,
SOUTHWEST
BANK OF ST. LOUIS
By: /s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title: Senior
Vice President
- viii
-
CONFIDENTIAL
EXHIBIT
F
Form
of Consent Letter of Xxxxxxx X. Xxxxxxx
[PERSONAL
LETTERHEAD OF XXXXXXX X. XXXXXXX]
December
19, 2007
Attn:
Xxxx Xxxxxxxxx, Manager
Clarinbridge,
LLC
c/o
1000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxx 00000
Facsimile:
(000) 000-0000
Re: Purchase
by Clarinbridge, LLC (“Buyer”) of Certain Asset from
Siboney Corporation (“Debtor”)
Dear
Xx. Xxxxxxxxx:
The
undersigned certifies that he is a secured party in relation to Debtor (the
“Secured
Party”). The Secured Party acknowledges that Buyer and Debtor
have entered into a certain Asset Purchase Agreement (the “Purchase Agreement”) whereby
Buyer is purchasing the following asset of Debtor (the “Asset”):
That
certain Claim No. CU-2510 against the Republic of Cuba issued in the name of
SIBONEY CORPORATION, a Maryland corporation, said claim being certified in the
amount of TWO MILLION FOUR HUNDRED FIFTY FOUR THOUSAND SIXTY EIGHT DOLLARS AND
NO CENTS (USD$2,454,068.00), together with interest entitled thereupon said
amount at 6% per annum running from November 23, 1959 to date of settlement, as
certified by the United States Foreign Claims Settlement Commission of the
United States Department of Justice, In the Matter of SIBONEY CORPORATION
(Decision No. CU-5906), dated October 20, 1971, as published by the United
States Foreign Claims Settlement Commission of the United States Department of
Justice and rendered pursuant to Title V of the International Claims Settlement
Act of 1949, 22 U.S.C. 1621 et seq., together with all rights, title, interests,
warranties, guarantees, licenses, powers, authorities, permits, actions, awards,
damages, retribution, restitution, monies, compensation, paybacks, proceeds,
rents, issues, profits and any other form of benefit, of, in the favor of or
owing, from the beginning of time until forever, SIBONEY CORPORATION and its
successors and assigns, therein, pertaining thereto or by virtue thereof, or
resulting from any settlement thereof, under the laws of the United States of
America, the Republic of Cuba, international law or any other applicable laws,
rules or regulations, but specifically excluding any
right, title and interest which SIBONEY CORPORATION has or may have in the
underlying leasehold and other property from which Claim No. CU-2510 against the
Republic of Cuba arose.
The
Secured Party further acknowledges that it is a party with Debtor to the
following agreements for or through which substantially all of Debtor’s assets
have been pledged as collateral in favor of the Secured Party including, but not
limited to, the Asset: Note and Warrant Purchase Agreement dated March 21, 2007;
Subordination Agreement dated March 21, 2007 in respect of Xxxxxxx X. Xxxxxxx;
10% Subordinated Secured Promissory Note dated March 21, 2007; and Security
Agreement dated March 21, 2007 (collectively, the “Security
Agreements”).
For
good and valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged, upon Debtor’s receipt of the Purchase Price (as that term is
defined in the Purchase Agreement), the Secured Party does hereby consent to the
release of the Asset from the lien of the Security Agreements, and authorizes
Buyer to file the
- ix -
CONFIDENTIAL
Uniform
Commercial Code termination statements enclosed
herewith. Furthermore, the Secured Party hereby provides its written
consent to the transactions contemplated by the Purchase Agreement, and Buyer
shall be entitled to rely on such consent in all cases to that
effect. This letter shall not operate to release Debtor from any of
the indebtedness secured by the Security Agreements
Sincerely,
/s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
Cc: Xxxxx
X. Xxxxxxxxx, Esq.
- x -
CONFIDENTIAL
EXHIBIT
G
Form
of Consent Letter of Xxxxx X. Xxxxxxx
[PERSONAL
LETTERHEAD OF XXXXX X. XXXXXXX]
December
19, 2007
Attn:
Xxxx Xxxxxxxxx, Manager
Clarinbridge,
LLC
c/o
1000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxx 00000
Facsimile:
(000) 000-0000
Re: Purchase
by Clarinbridge, LLC (“Buyer”) of Certain Asset from
Siboney Corporation (“Debtor”)
Dear
Xx. Xxxxxxxxx:
The
undersigned certifies that he is a secured party in relation to Debtor (the
“Secured
Party”). The Secured Party acknowledges that Buyer and Debtor
have entered into a certain Asset Purchase Agreement (the “Purchase Agreement”) whereby
Buyer is purchasing the following asset of Debtor (the “Asset”):
That
certain Claim No. CU-2510 against the Republic of Cuba issued in the name of
SIBONEY CORPORATION, a Maryland corporation, said claim being certified in the
amount of TWO MILLION FOUR HUNDRED FIFTY FOUR THOUSAND SIXTY EIGHT DOLLARS AND
NO CENTS (USD$2,454,068.00), together with interest entitled thereupon said
amount at 6% per annum running from November 23, 1959 to date of settlement, as
certified by the United States Foreign Claims Settlement Commission of the
United States Department of Justice, In the Matter of SIBONEY CORPORATION
(Decision No. CU-5906), dated October 20, 1971, as published by the United
States Foreign Claims Settlement Commission of the United States Department of
Justice and rendered pursuant to Title V of the International Claims Settlement
Act of 1949, 22 U.S.C. 1621 et seq., together with all rights, title, interests,
warranties, guarantees, licenses, powers, authorities, permits, actions, awards,
damages, retribution, restitution, monies, compensation, paybacks, proceeds,
rents, issues, profits and any other form of benefit, of, in the favor of or
owing, from the beginning of time until forever, SIBONEY CORPORATION and its
successors and assigns, therein, pertaining thereto or by virtue thereof, or
resulting from any settlement thereof, under the laws of the United States of
America, the Republic of Cuba, international law or any other applicable laws,
rules or regulations, but specifically excluding any
right, title and interest which SIBONEY CORPORATION has or may have in the
underlying leasehold and other property from which Claim No. CU-2510 against the
Republic of Cuba arose.
The
Secured Party further acknowledges that it is a party with Debtor to the
following agreements for or through which substantially all of Debtor’s assets
have been pledged as collateral in favor of the Secured Party including, but not
limited to, the Asset: Note and Warrant Purchase Agreement dated March 21, 2007;
Subordination Agreement dated March 21, 2007 in respect of Xxxxx X. Xxxxxxx; 10%
Subordinated Secured Promissory Note dated March 21, 2007; and Security
Agreement dated March 21, 2007 (collectively, the “Security
Agreements”).
For
good and valuable consideration, the adequacy and sufficiency of which is hereby
acknowledged, upon Debtor’s receipt of the Purchase Price (as that term is
defined in the Purchase Agreement), the Secured Party does hereby consent to the
release of the Asset from the lien of the Security Agreements, and authorizes
Buyer to file the Uniform Commercial Code termination statements enclosed
herewith. Furthermore, the Secured Party hereby
- xi -
CONFIDENTIAL
provides
its written consent to the transactions contemplated by the Purchase Agreement,
and Buyer shall be entitled to rely on such consent in all cases to that
effect. This letter shall not operate to release Debtor from any of
the indebtedness secured by the Security Agreements.
Sincerely,
/s/ Xxxxx X.
Xxxxxxx
Xxxxx
X. Xxxxxxx
Cc: Xxxxx
X. Xxxxxxxxx, Esq.
- xii
-
CONFIDENTIAL
EXHIBIT
H
Form
of Officer Certificate
OFFICER
CERTIFICATE
THIS
OFFICER CERTIFICATE (this “Certificate”) is delivered to
SIBONEY CORPORATION, a Maryland corporation (“Seller”), pursuant to Section 6.4 of that
certain Asset Purchase Agreement dated as of December 19, 2007 (the “Purchase Agreement”), by and
among Seller and
CLARINBRIDGE, LLC, a Nevada limited liability company (“Buyer”).
The
undersigned hereby certifies that he is the duly appointed sole Manager of Buyer
and that the representations and warranties of Buyer in Section 5 of and
elsewhere in the Purchase Agreement as they pertain to Buyer are true and
complete on the date hereof in all material respects, and that Buyer has
performed and complied with all agreements, covenants and conditions required
under the Purchase Agreement to be performed by Buyer.
The
undersigned gives this Certificate, to the best of his actual knowledge, as an
officer of Buyer and not in his individual capacity.
CLARINBRIDGE,
LLC,
|
|
a
Nevada limited liability company
|
|
By: /s/ Xxxx
Xxxxxxxxx
|
|
Name:
Xxxx Xxxxxxxxx
|
|
Title: Manager
|
- xiii
-
CONFIDENTIAL
SCHEDULE
4.5
ENCUMBRANCES
1.
|
Southwest
Bank of St. Louis, pursuant to the following: Letter Agreement dated April
2, 2007; Promissory Note dated April 2, 2007 on Loan 120300954-10000;
Promissory Note dated April 2, 2007 on Loan 120300954-22003; Subordination
Agreement dated March 21, 2007 in respect of Xxxxxxx X. Xxxxxxx;
Subordination Agreement dated March 21, 2007 in respect of Xxxxx X.
Xxxxxxx; General Business Security Agreement dated June 1, 2003; Line of
Credit Note dated January 5, 2001; Variable Rate Note dated January 5,
2001; Security Agreement – Accounts dated January 5, 2001; Security
Agreement – Inventory dated January 5, 2001; Security Agreement –
Equipment dated January 5, 2000; and Security Agreement dated June 12,
1997.
|
2.
|
Xxxxxxx
X. Xxxxxxx, pursuant to the following: Note and Warrant Purchase Agreement
dated March 21, 2007; Subordination Agreement dated March 21, 2007 in
respect of Xxxxxxx X. Xxxxxxx; 10% Subordinated Secured Promissory Note
dated March 21, 2007; and Security Agreement dated March 21,
2007.
|
3.
|
Xxxxx
X. Xxxxxxx, pursuant to the following: Note and Warrant Purchase Agreement
dated March 21, 2007; Subordination Agreement dated March 21, 2007 in
respect of Xxxxx X. Xxxxxxx; 10% Subordinated Secured Promissory Note
dated March 21, 2007; and Security Agreement dated March 21,
2007.
|
- xiv
-
CONFIDENTIAL
SCHEDULE
7.4
MATERIAL
CONSENTS
1.
|
Southwest
Bank of St. Louis
|
2.
|
Xxxxxxx
X. Xxxxxxx
|
3.
|
Xxxxx
X. Xxxxxxx
|
- xv
-