EXHIBIT 10.2
INTEREST PURCHASE AGREEMENT
THIS INTEREST PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 23rd day of March, 2004, by and among MONTEX EXPLORATION, INC., a
Delaware corporation (the "Company"), TOUCHSTONE VICKSBURG, INC., a Nevada
corporation ("Touchstone Vicksburg"), and TOUCHSTONE AWAKINO, INC., a Nevada
corporation ("Awakino"; together with Touchstone Vicksburg, the "Purchasers").
RECITALS
WHEREAS, the Board of Directors of the Company, and the Boards of
Directors and stockholders of Touchstone Vicksburg and Touchstone Awakino, have
approved, and deem it advisable and in the best interests of their respective
companies and stockholders to consummate, the transactions contemplated hereby
upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, the Company wishes to sell to Touchstone Vicksburg, and
Touchstone Vicksburg wishes to purchase from the Company, the Company's ten
percent (10%) limited partnership interest in PHT Vicksburg, L.P., a Delaware
limited partnership (the "Vicksburg Interest"); and
WHEREAS, the Company wishes to sell to Touchstone Awakino, and Touchstone
Awakino wishes to purchase from the Company, the Company's four and six-tenths
percent (4.6%) membership interest in Awakino South Exploration, LLC, a Delaware
limited liability company (the "Awakino Interest"; together with the Vicksburg
Interest, the "Interests").
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
THE PURCHASE AND SALE
1.1 THE PURCHASE AND SALE.
Upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, the following transactions shall occur:
(a) PURCHASE OF THE VICKSBURG INTEREST.
The Company shall sell to Touchstone Vicksburg, and Touchstone
Vicksburg shall purchase from the Company, one hundred percent (100%) of the
Vicksburg Interest owned by the Company, in consideration for which Touchstone
Vicksburg shall deliver to the Company Forty-Eight Thousand Dollars ($48,000)
(the "Vicksburg Purchase").
(b) PURCHASE OF THE AWAKINO INTEREST.
The Company shall sell to Touchstone Awakino, and Touchstone Awakino
shall purchase from the Company, one hundred percent (100%) of the Awakino
Interest owned by the Company, in consideration for which Touchstone Awakino
shall deliver to the Company One Hundred Fifty Thousand Dollars ($150,000) (the
"Awakino Purchase"; together with the Vicksburg Purchase, the "Transactions").
1.2 CLOSING DATE.
The closing of the Transactions (the "Closing") shall take place at
a time and on a date to be specified by the parties (the "Closing Date") at the
offices of Xxxxxxx Xxxxx & Xxxxx, P.C., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or at such other place as may be mutually agreed upon in
writing by the parties hereto. At the Closing: (i) the Company shall deliver or
cause to be delivered to Touchstone Vicksburg certificates or agreements
evidencing the Vicksburg Interest; (ii) the Company shall deliver or cause to be
delivered to Touchstone Awakino certificates or agreements evidencing the
Awakino Interest; (iii) Touchstone Vicksburg shall deliver or cause to be
delivered to the Company Forty-Eight Thousand Dollars ($48,000) by wire transfer
of immediately available funds to the account or accounts specified by the
Company; (iv) Touchstone Awakino shall deliver or cause to be delivered to the
Company One Hundred Fifty Thousand Dollars ($150,000) by wire transfer of
immediately available funds to the account or accounts specified by the Company;
and (v) each of the parties to this Agreement shall have executed any and all
additional documents and agreements, provided any and all additional consents
and approvals, and taken all such other actions as are required under this
Agreement to complete the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and
warranties to the Purchasers:
2.1 ORGANIZATION AND QUALIFICATION.
The Company is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, with the corporate power and
authority to own and operate its business as presently conducted, except where
the failure to be or have any of the foregoing would not have a Material Adverse
Effect. The Company is duly qualified as foreign corporations to do business and
is in good standing in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except for such failures to be so qualified or in good
standing as would not, individually or in the aggregate, have a Material Adverse
Effect.
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2.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the Transactions. The execution and delivery of this Agreement by the
Company and the performance by the Company of its obligations hereunder and the
consummation of the Transactions have been duly authorized by its board of
directors and all other necessary corporate action on the part of the Company,
and no other corporate proceedings on the part of the Company is necessary to
authorize this Agreement and the Transactions. This Agreement has been duly and
validly executed and delivered by the Company and, assuming that it has been
duly authorized, executed and delivered by the other parties hereto, constitutes
a legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
2.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of this Agreement by the Company
nor the performance by the Company of its obligations hereunder, nor the
consummation of the Transactions, will: (i) conflict with the Company's
Certificate of Incorporation or Bylaws; (ii) violate any statute, law,
ordinance, rule or regulation applicable to the Company or any of its respective
properties or assets; or (iii) violate, breach, be in conflict with or
constitute a default (or an event that, with notice or lapse of time or both,
would constitute a default) under, or permit the termination of any provision
of, or result in the termination of, the acceleration of the maturity of, or the
acceleration of the performance of any obligation of the Company under, or
result in the creation or imposition of any Liens upon any properties, assets or
business of the Company under, any material contract or any order, judgment or
decree to which the Company is a party or by which the Company or any of its
assets or properties is bound or encumbered except, in the case of clauses (ii)
and (iii), for such violations, breaches, conflicts, defaults or other
occurrences that, individually or in the aggregate, would not have a Material
Adverse Effect.
2.4 TITLE TO THE INTERESTS.
The Company has good and marketable title to the Interests, and the
Interests are owned of record and beneficially by the Company, free and clear of
any Liens. Except for this Agreement, there are no outstanding options,
warrants, agreements, conversion rights, preemptive rights, or other rights to
subscribe for, purchase or otherwise acquire the Interests. There are no voting
trusts or other agreements or understandings to which the Company or any of its
subsidiaries is a party with respect to the voting of the Interests, and there
is no indebtedness of the Company or its subsidiaries issued and outstanding
that has general voting rights with respect to the Interests. Except for this
Agreement, there are no outstanding obligations of any Person to repurchase,
redeem or otherwise acquire any of the Interests.
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2.5 BROKERS AND FINDERS FEES.
Neither the Company or any of its subsidiaries, nor any of their
respective officers, directors, employees or managers, has employed any broker
or finder or incurred any liability for any investment banking fees, brokerage
fees, commissions or finders fees in connection with the Transactions for which
the Company or any of its subsidiaries has or could have any liability.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Each Purchaser (with respect to itself and not with respect to any
other Purchaser) hereby makes the following representations and warranties to
the Company:
3.1 ORGANIZATION AND QUALIFICATION.
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, with the corporate
power and authority to own and operate its business as presently conducted,
except where the failure to be or have any of the foregoing would not have a
Material Adverse Effect. The Purchaser is duly qualified as a foreign
corporation or other entity to do business and is in good standing in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary, except for such
failure to be so qualified or in good standing as would not have a Material
Adverse Effect. The Purchaser is a wholly-owned subsidiary of The Coffee
Exchange, Inc., a Delaware corporation ("CEI").
3.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
The Purchaser has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the Transactions. The execution and delivery of this Agreement by the
Purchaser and the performance by the Purchaser of its obligations hereunder and
the consummation of the Transactions have been duly authorized by its Board of
Directors and all other necessary corporate action on the part of the Purchaser,
and no other corporate proceedings on the part of the Purchaser is necessary to
authorize this Agreement and the Transactions. This Agreement has been duly and
validly executed and delivered by the Purchaser and, assuming that it has been
duly authorized, executed and delivered by the other parties hereto, constitutes
a legal, valid and binding obligation of the Purchaser, in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
3.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of this Agreement by the
Purchaser, nor the performance by the Purchaser of its obligations hereunder or
the consummation of the Transactions, will: (i) conflict with the Purchaser's
Articles of Incorporation or Bylaws; (ii) violate any statute, law, ordinance,
rule or regulation, applicable to the Purchaser or any of its respective
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properties or assets; or (iii) violate, breach, be in conflict with or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or permit the termination of any provision
of, or result in the termination of, the acceleration of the maturity of, or the
acceleration of the performance of any obligation of the Purchaser, or result in
the creation or imposition of any Lien upon any of its properties, assets or
business under, any material contract or any order, judgment or decree to which
the Purchaser is a party or by which it or any of its respective assets or
properties is bound or encumbered except, in the case of clauses (ii) and (iii),
for such violations, breaches, conflicts, defaults or other occurrences which,
individually or in the aggregate, would not have a Material Adverse Effect on
its obligation to perform its respective covenants under this Agreement.
3.4 INVESTMENT INTENT.
The Interest being acquired in connection with the Transactions is
being acquired for the Purchaser's own account for investment purposes only and
not with a view to, or with any present intention of, distributing or reselling
any of such Interest. The Purchaser acknowledges and agrees that the Interest
has not been registered under the Securities Act or under any state securities
laws, and that the Interest may not be, directly or indirectly, sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act and applicable state securities
laws, except pursuant to an available exemption from such registration. The
Purchaser also acknowledges and agrees that neither the SEC nor any securities
commission or other Governmental Authority has (a) approved the transfer of the
Interest or passed upon or endorsed the merits of the transfer of the Interest,
this Agreement or the Transactions; or (b) confirmed the accuracy of, determined
the adequacy of, or reviewed this Agreement. The Purchaser has such knowledge,
sophistication and experience in financial, tax and business matters in general,
and investments in securities in particular, that is capable of evaluating the
merits and risks of this investment in the Interest, and the Purchaser has made
such investigations in connection herewith as they deemed necessary or desirable
so as to make an informed investment decision without relying upon the Company
for legal or tax advice related to this investment. The Purchaser is an
"accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act
3.5 BROKERS AND FINDERS.
Except as described in Section 5.9, neither the Purchaser, nor any
of its respective officers, directors, employees or managers, has employed any
broker or finder or incurred any liability for any investment banking fees,
brokerage fees, commissions or finders' fees in connection with the Transactions
for which the Purchaser has or could have any liability.
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ARTICLE IV
CERTAIN COVENANTS
4.1 CONFIDENTIALITY.
Each party shall hold, and shall cause its respective Affiliates and
representatives to hold, all Confidential Information made available to it in
connection with the Transactions in strict confidence, shall not use such
information except for the sole purpose of evaluating the Transactions and shall
not disseminate or disclose any of such information other than to its directors,
officers, managers, employees, shareholders, interest holders, Affiliates,
agents and representatives, as applicable, who need to know such information for
the sole purpose of evaluating the Transactions (each of whom shall be informed
in writing by the disclosing party of the confidential nature of such
information and directed by such party in writing to treat such information
confidentially). The above limitations on use, dissemination and disclosure
shall not apply to Confidential Information that (i) is learned by the
disclosing party from a third party entitled to disclose it; (ii) becomes known
publicly other than through the disclosing party or any third party who received
the same from the disclosing party, provided that the disclosing party had no
knowledge that the disclosing party was subject to an obligation of
confidentiality; (iii) is required by law or court order to be disclosed by the
parties; or (iv) is disclosed with the express prior written consent thereto of
the other party. The parties shall undertake all necessary steps to ensure that
the secrecy and confidentiality of such information will be maintained in
accordance with the provisions of this subsection (a). Notwithstanding anything
contained herein to the contrary, in the event a party is required by court
order or subpoena to disclose information that is otherwise deemed to be
confidential or subject to the confidentiality obligations hereunder, prior to
such disclosure, the disclosing party shall: (i) promptly notify the
non-disclosing party and, if having received a court order or subpoena, deliver
a copy of the same to the non-disclosing party; (ii) cooperate with the
non-disclosing party, at the expense of the non-disclosing party, in obtaining a
protective or similar order with respect to such information; and (iii) provide
only that amount of information as the disclosing party is advised by its
counsel is necessary to strictly comply with such court order or subpoena.
4.2 PROHIBITION ON TRADING IN SECURITIES OF CEI.
The Company acknowledges that information concerning the matters
that are the subject matter of this Agreement may constitute material non-public
information under United States federal securities laws, and that United States
federal securities laws prohibit any Person who has received material non-public
information relating to CEI from purchasing or selling securities of CEI, or
from communicating such information to any Person under circumstances in which
it is reasonably foreseeable that such Person is likely to purchase or sell
securities of CEI. Accordingly, until such time as any such non-public
information has been adequately disseminated to the public, the Company shall
not purchase or sell any securities of CEI, or communicate such information to
any other Person.
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4.3 FURTHER ASSURANCES.
Each of the parties hereto agrees to use its reasonable best efforts
to take or cause to be taken all action, to do or cause to be done, and to
assist and cooperate with the other party hereto in doing, all things necessary,
proper or advisable under applicable laws to consummate and make effective, in
the most expeditious manner practicable, the Transactions, including, but not
limited to: (i) the satisfaction of the conditions precedent to the obligations
of any of the parties hereto; (ii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the performance of the obligations hereunder; and (iii) the execution and
delivery of such instruments, and the taking of such other actions, as the other
party hereto may reasonably require in order to carry out the intent of this
Agreement.
4.4 NOTIFICATION OF CERTAIN MATTERS.
Each party hereto shall promptly notify the other party in writing
of any events, facts or occurrences that would result in any breach of any
representation or warranty or breach of any covenant by such party contained in
this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT.
This Agreement and the schedules and exhibits hereto contain the
entire agreement between the parties and supercede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
5.2 AMENDMENT AND MODIFICATIONS.
This Agreement may not be amended, modified or supplemented except
by an instrument or instruments in writing signed by the party against whom
enforcement of any such amendment, modification or supplement is sought.
5.3 EXTENSIONS AND WAIVERS.
At any time prior to the Closing, the parties hereto entitled to the
benefits of a term or provision may (a) extend the time for the performance of
any of the obligations or other acts of the parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto, or (c) waive
compliance with any obligation, covenant, agreement or condition contained
herein. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument or instruments in writing
signed by the party against whom enforcement of any such extension or waiver is
sought. No failure or delay on the part of any party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a waiver of,
or acquiescence in, any breach of any representation, warranty, covenant or
agreement.
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5.4 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided, however,
that no party hereto may assign its rights or delegate its obligations under
this Agreement without the express prior written consent of the other party
hereto. Nothing in this Agreement is intended to confer upon any person not a
party hereto (and their successors and assigns) any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
5.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations and warranties contained herein shall survive
the Closing and shall thereupon terminate eighteen (18) months after the
Closing, except that the representations contained in Sections 2.1, 2.2, 2.4,
3.1, 3.2 and 3.4 shall survive indefinitely. All covenants and agreements
contained herein which by their terms contemplate actions following the Closing
shall survive the Closing and remain in full force and effect in accordance with
their terms. All other covenants and agreements contained herein shall not
survive the Closing and shall thereupon terminate.
5.6 HEADINGS; DEFINITIONS.
The Section and Article headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
5.7 SEVERABILITY.
If any provision of this Agreement or the application thereof to any
Person or circumstance is held to be invalid or unenforceable to any extent, the
remainder of this Agreement shall remain in full force and effect and shall be
reformed to render the Agreement valid and enforceable while reflecting to the
greatest extent permissible the intent of the parties.
5.8 SPECIFIC PERFORMANCE.
The parties hereto agree that in the event that the Company fails to
consummate the Transactions in accordance with the terms of this Agreement,
irreparable damage would occur, no adequate remedy at law would exist and
damages would be difficult to determine, and that the Purchasers shall be
entitled to specific performance in such event, without the necessity of proving
the inadequacy of money damages as a remedy, in addition to any other remedy at
law or in equity.
5.9 EXPENSES.
Whether or not the Transactions are consummated, and except as
otherwise expressly set forth herein, all legal and other costs and expenses
incurred in connection with the Transactions shall be paid by the party
incurring such expenses.
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5.10 NOTICES.
All notices hereunder shall be sufficiently given for all purposes
hereunder if in writing and delivered personally, sent by documented overnight
delivery service or, to the extent receipt is confirmed, telecopy, telefax or
other electronic transmission service to the appropriate address or number as
set forth below.
If to Touchstone Vicksburg or
Touchstone Awakino: with a copy to:
Xxxxxxx Xxxxx & Xxxxx, P.C.
The Coffee Exchange, Inc. 0000 Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx, XX 00000
Suite 158A Attention: Xxxxxxx X. Xxxxxx, Esquire
Bala Cynwyd, PA 19004
Attention: Xxxxxxx X. Xxxxxxxxxx
President
If to the Company: with a copy to:
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Attention: Attention:
5.11 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada, without regard to the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
5.12 ARBITRATION.
If a dispute arises as to the interpretation of this Agreement, it
shall be decided in an arbitration proceeding conforming to the Rules of the
American Arbitration Association applicable to commercial arbitration then in
effect at the time of the dispute. The arbitration shall take place in
Pennsylvania. The decision of the Arbitrators shall be conclusively binding upon
the parties and final, and such decision shall be enforceable as a judgment in
any court of competent jurisdiction. The parties shall share equally the costs
of the arbitration.
5.13 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
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5.14 CERTAIN DEFINITIONS.
As used herein:
(a) "Affiliate" shall have the meanings ascribed to such term in
Rule 12b-2 of the Exchange Act;
(b) "Confidential Information" shall mean the existence and contents
of this Agreement and any Schedules and Exhibits hereto, and all proprietary
technical, economic, environmental, operational, financial and/or business
information or material of one party which, prior to or following the Closing
Date, has been disclosed by the Company, on the one hand, or the Purchasers, on
the other hand, in written, oral (including by recording), electronic, or visual
form to, or otherwise has come into the possession of, the other;
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended;
(d) "Governmental Authority" shall mean any nation or government,
any state, municipality or other political subdivision thereof and any entity,
body, agency, commission or court, whether domestic, foreign or multinational,
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any executive official thereof;
(e) "Liens" shall mean liens, pledges, charges, claims, security
interests, purchase agreements, options, title defects, restrictions on transfer
or other encumbrances, or any agreements (other than this Agreement) to do any
of the foregoing, of any nature whatsoever, whether consensual, statutory or
otherwise;
(f) "Material Adverse Effect" shall mean any adverse effect on the
business, condition (financial or otherwise) or results of operation of (i) in
the case of the Company, the Company and its subsidiaries, if any, that is
material to the Company and its subsidiaries, if any, taken as a whole, (ii) in
the case of Touchstone Vicksburg, Touchstone Vicksburg and its subsidiaries, if
any, that is material to Touchstone Vicksburg and its subsidiaries, if any,
taken as a whole, and (iii) in the case of Touchstone Awakino, Touchstone
Awakino and its subsidiaries, if any, that is material to Touchstone Awakino and
its subsidiaries, if any, taken as a whole;
(g) "Person" shall mean any individual, corporation, partnership,
association, trust or other entity or organization, including a governmental or
political subdivision or any agency or institution thereof;
(h) "SEC" shall mean the Securities and Exchange Commission; and
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TOUCHSTONE VICKSBURG, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
TOUCHSTONE AWAKINO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
MONTEX EXPLORATION, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
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