Xxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx de Barbereche
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxxxx 0000 Barbereche
January 23, 2003
Xxxx Xxxxxx Xxxxxxx, director
Xxxxxx Xxxx & Co. Limited
c/x Xxxxxxxx & Co.
00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Re: Tamboril Cigar Company
Dear Xx. Xxxxxxx,
This letter shall constitute a Purchase and Sale Agreement between Xxxxxx
Xxxx & Co. Limited ("Xxxxxx Xxxx"), which is referred to as the "Seller," and
Xxxxx X. Xxxxxx ("Xxxxxx") and Xxxx X. Xxxxxxxx ("Xxxxxxxx"), who are
collectively referred to as the "Purchasers."
The purposes of this Agreement are to:
o Sell a substantial majority of the issued and outstanding equity and
debt securities of Tamboril (collectively the "Tamboril Securities")
to the Purchasers;
o Sell 100% of any other claims that the Seller may have against Tamboril
(collectively the "Tamboril Claims") to the Purchasers;
o Provide a general framework for the future operations of Tamboril; and
o Retain a modest equity interest in Tamboril for the Seller.
The Purchasers understand that all of the Tamboril Securities owned by
the Seller were acquired in reliance on a claim of exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act") and that the Seller is an affiliate of Tamboril. The
Purchasers understand that none of the cash consideration to be paid by them in
connection with the transactions contemplated by this Agreement will inure to
the benefit of Tamboril or any person other than the Seller.
1. Initiation of Transactions
The Purchasers initiated the transactions contemplated by this Agreement
by making an unsolicited offer to purchase the Tamboril Securities and the
Tamboril Claims from the Seller on the terms set forth herein. Prior to making a
formal offer, the Purchasers independently reviewed the registration statements,
reports and other documents that Tamboril and/or the Seller filed with the
Securities and Exchange Commission between May 15, 1997 and December 22, 2000.
With the exception of the specific representations set forth in Paragraph 3, the
Purchasers have relied exclusively on their own investigation of Tamboril and
its affairs and they have not relied on any representations, express or implied,
that are directly or indirectly attributable to the Seller or any of their
respective officers, directors and affiliates.
2. Purchasers' Representations and Warranties
Each of the Purchasers hereby makes the following express representations
and warranties, which may be relied upon by the Seller, Tamboril and their
respective officers, directors and affiliates.
(a) The Purchasers have full power and authority to buy the Tamboril
Securities and the Tamboril Claims from the Seller on the terms set forth
herein. This Agreement has been duly executed and delivered by the Purchasers
and, assuming the due authorization, execution and delivery hereof by the
Seller, constitutes the legal, valid and binding obligation of the Purchasers
enforceable in accordance with its terms.
(b) The Purchasers are acquiring the Tamboril Securities solely for their
own account, for investment, and not with a view to any subsequent
"distribution" thereof within the meaning of that term as defined in the
Securities Act.
(c) The Purchasers are "Accredited Investors" as such term is defined in
Securities and Exchange Commission Rule 501(a).
(d) The Purchasers have sufficient education, knowledge and experience in
business and financial matters that they are capable of evaluating the merits
and risks of their proposed purchase of the Tamboril Securities and the Tamboril
Claims.
(e) The Purchasers are able to bear the economic risks of an investment
in the Tamboril Securities and the Tamboril Claims, and are able to protect
their own interests in connection with the proposed transaction.
(f) The Purchasers have been given the opportunity to review all of the
files and business records of Tamboril including the articles of incorporation,
by-laws, documents defining the rights of security holders, material contracts,
and financial statements and to ask questions of and receive answers from the
former officers and directors of Tamboril with respect to the business of the
Company, the Tamboril Securities, the Tamboril Claims and any other matters
which they considered to be material to their investment decision and all such
questions have been answered to their full satisfaction.
(g) The Purchasers understand that Tamboril will issue stop transfer
instructions to its transfer agent with respect to the Tamboril Securities and
intends to place the following restrictive legend, or a legend similar thereto,
on each certificate representing Tamboril securities:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN PURCHASED FROM AN
AFFILIATE OF THE ISSUER IN A TRANSACTION EFFECTED IN RELIANCE UPON SECTION
4(2) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE NOT
BEEN THE SUBJECT OF A REGISTRATION STATEMENT UNDER THE ACT. THESE
SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT OR AN AVAILABLE EXEMPTION THEREFROM."
(h) The Purchasers will promptly make all regulatory filings that are
necessary or desirable to advise the Securities and Exchange Commission and the
other stockholders of Tamboril of the terms, conditions and provisions of this
Agreement.
(i) All of the Purchasers representations and warranties are true as of
the date of this Agreement, shall be true at the closing date and shall survive
the closing for a period of two (2) years.
3. Seller's Representations and Warranties
The Seller hereby makes the following express representations and
warranties, which may be relied upon by the Purchasers and their respective
affiliates.
(a) The Seller has full power and authority to sell the Tamboril
Securities and the Tamboril Claims to the Purchasers on the terms set forth
herein. The execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action and no other corporate proceeding on the part of the Seller is
necessary to authorize this Agreement or to consummate the transactions
contemplated herein. This Agreement has been duly executed and delivered by the
Seller and, assuming the due execution and delivery hereof by the Purchasers,
constitutes the legal, valid and binding obligation of the Seller enforceable in
accordance with its terms.
(b) The Seller acquired the Tamboril Securities and Tamboril Claims in
December of 2002 by assignment from Summit Capital Limited ("Summit") and
Glacier Capital Limited ("Glacier"). Prior to the assignment, Summit and Glacier
were the sole beneficial owners of the Tamboril Securities described in
Amendment No. 1 to a Schedule 13D report of beneficial ownership that was filed
with the Securities and Exchange Commission by Infinity Emerging Opportunities
Limited ("Infinity"), Summit and Glacier (collectively the "Original Holders")
on August 3, 1998. To the best of Seller's knowledge, the only transactions in
Tamboril Securities that were affected by any of the Original Holders after the
date of the above referenced amendment were (i) a series of intercompany
assignments that ultimately resulted in the transfer of the Infinity holdings to
Summit, and (ii) the subsequent assignments from Summit and Glacier in favor of
the Seller.
(c) Tamboril's Quarterly Report on Form 10-QSB for the period ended
September 30, 1998 states that 13,356,652 shares of Tamboril's $.0001 par value
common stock (the "Common Stock") were issued and outstanding on that date. The
Seller is the assignee and has physical possession of stock certificates
representing 7,380,042 shares, or 55.25%, of the Common Stock.
(d) Tamboril's Quarterly Report on Form 10-QSB for the period ended
September 30, 1998 states that 33,227 shares of Tamboril's $.0001 par value, $50
stated value Series B Convertible Preferred Stock (the "Preferred Stock") were
issued and outstanding on that date. The Seller is the assignee of all 33,227
shares of Preferred Stock, but such shares are held in uncertificated form.
(e) Tamboril's Quarterly Report on Form 10-QSB for the period ended
September 30, 1998 states that $200,000 of Tamboril's 8% Convertible Debentures
("Debentures") were issued and outstanding on that date. The Seller is the
assignee and has physical possession of certificates representing $200,000 of
Debentures.
(f) While the order confirming Tamboril's Amended Plan of Reorganization
that was entered by the U.S. Bankruptcy Court for the Southern District of
Florida on December 7, 2002 provides that the Preferred Stock and Debentures
will be convertible into Common Stock in accordance with their terms, the
conversion process was hindered by administrative delays and has not been
completed and at the date of this Agreement.
(g) During the period between September 30, 1998 and the date of this
letter, Tamboril has not, to Seller's knowledge, issued any other equity
securities, debt securities, debt instruments, options, warrants, calls or other
rights, agreements, arrangements or commitments that obligate Tamboril to issue,
deliver or sell shares of its capital stock or debt securities, or obligate
Tamboril to grant, extend or enter into any such option, warrant, call or other
such right, agreement, arrangement or commitment.
(h) During the period between September 30, 1998 and the date of this
letter, the Original Holders have not, to Sellers knowledge, sold any Tamboril
Securities to unaffiliated third parties; granted any options, warrants, calls
or other rights, agreements, arrangements or commitments that obligate the
Seller or their affiliates to deliver or sell any of their Tamboril Securities;
or obligate the Seller or their affiliates to grant, extend or enter into any
such option, warrant, call or other such right, agreement, arrangement or
commitment.
(i) The Seller has delivered copies of all available financial statements
of Tamboril to the Purchasers. The Purchasers acknowledge that such financial
statements are the sole responsibility of Tamboril's management. Nevertheless,
the Seller is not aware of any material misrepresentations, errors or omissions
in such financial statements and to the best of the Seller's knowledge, such
financial statements have been prepared in accordance with generally accepted
accounting principles and practices consistently followed by Tamboril throughout
the periods indicated; contain and reflect all adjustments and accruals
necessary for a fair presentation of Tamboril's financial condition as of the
relevant dates thereof and the results of Tamboril's operations for the periods
covered thereby; and fairly present the financial condition of Tamboril and its
results of operations as of the relevant dates thereof and for the periods
covered thereby.
(j) Tamboril has not less than $65,000 in cash and cash equivalents at
the date of this Agreement. Tamboril has no other material assets.
(k) Tamboril has not more than $10,000 in accounts payable and accrued
liabilities at the date of this Agreement. Tamboril is also delinquent with
respect to its Delaware Franchise Tax obligations. Tamboril has no other
material liabilities.
(l) To Seller's knowledge, there is no claim, action, suit, litigation,
proceeding, arbitration or investigation of any kind, at law or in equity
(including actions or proceedings seeking injunctive relief), pending or
threatened against Tamboril, or any properties or rights of Tamboril, and
Tamboril is not subject to any continuing order of, consent decree, settlement
agreement or other similar written agreement with, or continuing investigation
by, any governmental entity, or any judgment, order, writ, injunction, decree or
award of any governmental entity or arbitrator, including, without limitation,
cease-and-desist or other orders.
(m) The Seller is not aware of any material misrepresentations, errors or
omissions in the registration statements, reports and other documents that
Tamboril filed with the Securities and Exchange Commission between May 15, 1997
and December 22, 2000.
(n) Xxxx X. Xxxxxxxx, Tamboril's last remaining director and executive
officer resigned his positions effective December 31, 2002 and Tamboril does not
presently have any directors or executive officers that are authorized to act on
behalf of the corporation.
(o) All of the Seller's representations and warranties are true as of the
date of this Agreement, shall be true at the closing date and shall survive the
closing for a period of two (2) years.
4. Agreements to Purchase and Sell
(a) The Seller agree to sell and the Purchasers agree to buy the
following Tamboril Securities and Tamboril Claims for $100:
(i) 4,400,000 certificated shares of Tamboril's Common Stock;
(ii) 33,227 uncertificated shares of Tamboril's Preferred Stock,
together with any and all shares of Common Stock that were issued
or are issuable to the Original Holders and/or the Seller upon the
conversion of the 33,227 shares of Preferred Stock into Common
Stock;
(iii) $200,000 aggregate principal amount of Tamboril's Debentures,
together with any and all shares of Common Stock that were issued
or are issuable to the Original Holders and/or the Seller upon the
conversion of the Debentures into Common Stock;
(iv) All related party debts and claims of any nature that the Original
Holders and/or the Seller have or may have against Tamboril or any
of its properties; and
(v) Any other equity securities, debt securities, debt instruments,
options, warrants, calls or other rights, agreements, arrangements
or commitments that obligate Tamboril to issue, deliver or sell
shares of its capital stock or debt securities to the Original
Holders and/or the Seller.
All Tamboril Securities and Tamboril Claims described in subparagraphs (i)
through (v) above shall be allocated fifty percent (50%) to Xxxxxx and fifty
percent (50%) to Xxxxxxxx. From and after the closing date, the Seller's only
interest in Tamboril will be (i) 2,980,042 of the 7,380,042 certificated shares
of Common Stock held by the Seller, and (ii) up to 72,696 shares of Common Stock
that were, according to Tamboril's Quarterly Report on Form 10-QSB for the
period ended September 30, 1998, issued to the Original Holders in February and
April of 1998 upon the conversion of 2,880 shares of Preferred Stock.
(b) Pending the issuance of certificates for the shares of Common Stock
issuable upon conversion of the 33,227 shares of Preferred Stock and $200,000
aggregate principal amount of Debentures, the Seller appoints the Purchasers as
its' proxies to vote the 2,980,042 certificated shares of Common Stock retained
by Seller. This proxy may be exercised jointly by the Purchasers, or by either
of them, for the purpose of approving any corporate action that the Purchasers
deem necessary, desirable or convenient to accomplish the purposes of this
Agreement. The foregoing proxy is coupled with an interest and shall be
irrevocable until the earlier of (i) the issuance of certificates for the shares
of Common Stock issuable upon conversion of the Preferred Stock and Debentures,
or (ii) six months from the date of this Agreement.
5. Closing and Escrow Arrangements
As soon as practicable after the execution of this Agreement, each of the
Seller will deliver, or cause to be delivered to Xxxxx & Xxxxxx, LLP (the
"Escrow Agent") duly authenticated certificates and assignments representing the
Tamboril Securities and Tamboril Claims, all duly executed for transfer, and the
Purchasers will each deliver, or cause to be delivered to the Escrow Agent good
funds in the amount of $50, or $100 in the aggregate. Upon the due receipt of
all required payments, stock certificates and assignments, the Escrow Agent
shall conduct a final closing of the transaction and distribute the payment
funds, stock certificates and assignments to the persons entitled thereto under
the terms of this Agreement.
6. Post-Closing Obligations of the Purchasers
(a) After the closing of this Agreement, the Purchasers shall:
(i) Promptly file such reports and other documents as may be necessary
or desirable under the circumstances to notify the Securities and
Exchange Commission, in accordance with all applicable
regulations, that they have purchased the Tamboril securities from
the Seller;
(ii) Promptly take such action as may be necessary or desirable under
the circumstances to elect a board of directors in accordance with
the requirements of the General Corporation Law of Delaware and to
notify the Securities and Exchange Commission of such actions in
accordance with all applicable regulations;
(iii) Use reasonable commercial efforts to restore the valid corporate
existence of Tamboril under the General Corporation Law of
Delaware;
(iv) Use reasonable commercial efforts to retain a qualified firm of
certified public accountants to audit the financial statements of
Tamboril for such periods as may be required by the applicable
rules of the Securities and Exchange Commission;
(v) Use reasonable commercial efforts to prepare and file Tamboril's
delinquent Securities and Exchange Commission reports for the
periods required by applicable Securities and Exchange Commission
rules and regulations;
(vi) Use reasonable commercial efforts to develop and implement plan to
reorganize Tamboril as a "public shell," provided that upon
completion of the reorganization the Seller will own not less than
8.9% and not more than 9.9% of the then outstanding Common Stock
of Tamboril;
(vii) Use reasonable commercial efforts to prepare and file an
Information Statement containing the information specified in
Securities and Exchange Commission Regulation 14C and take such
other action as may be necessary to fully comply with the
requirements of Regulation 14C.
(viii) Use reasonable commercial efforts to seek, investigate and, if the
results of such investigation warrant, effect a business
combination with a suitable privately held company that wants to
become publicly held; and
(ix) Cause Tamboril to pay any and all governmental charges and
assessments, professional fees and expenses, administrative costs
and expenses and direct out of pocket costs associated with the
tasks set forth in subparagraphs (i) through (vi).
(b) The Purchasers shall not cause or authorize Tamboril to issue
additional equity securities to the Purchasers or any of their respective
affiliates. Notwithstanding the foregoing, if the available financial resources
of Tamboril are insufficient to pay the costs and expenses associated with any
of the tasks specified in subparagraphs (i) through (vii) of paragraph 5(a), the
Purchasers may elect to loan Tamboril any and all additional funds necessary to
complete the reorganization and effect a business combination with a suitable
privately held company.
(c) If the Purchasers are unable to accomplish any of the tasks specified
in subparagraphs (i) through (vii) of paragraph 5(a) within 18 months from the
date of this Agreement, the Purchasers shall promptly take such additional
action as may be necessary to liquidate and dissolve Tamboril and distribute its
remaining assets, if any, in accordance with the requirements of the General
Corporation Law of Delaware and the applicable rules of the Securities and
Exchange Commission.
(d) In the event that (i) the Purchasers are unable to accomplish any of
the tasks specified in subparagraphs (i) through (vii) of paragraph 6(a) within
18 months from the date of this Agreement or they otherwise elect to abandon
their plan to reorganize Tamboril and effect a business combination with a
suitable privately held company, and (ii) the available financial resources of
Tamboril are insufficient to pay the costs and expenses of liquidation and
dissolution as specified in paragraph 6(c), then the Purchasers shall be
obligated to advance any and all additional funds that may be necessary to
complete the orderly dissolution and liquidation of Tamboril.
7. Post-Closing Obligations and Rights of the Seller
(a) After the closing of this Agreement, the Seller shall:
(i) Take such steps as may be reasonably required to put Purchasers in
actual possession of and control over the Tamboril Securities and
Tamboril Claims, together with any business properties or records
of Tamboril that are in the actual control of the Seller;
(ii) Execute, acknowledge and deliver such other and further
assignments, instruments of transfer and other documents as may be
reasonably required to effectuate the assignment and transfer of
the Tamboril Securities and Tamboril Claims to the Purchasers;
(iii) Take such other and further actions as may be reasonably required
to perfect the Purchasers' actual possession of and operating
control over Tamboril's business properties and records;
(iv) For a period of 6 months after the closing date, cause their
employees and the former officers and directors of Tamboril to
provide reasonable cooperation and assistance to the Purchasers in
connection with the Purchaser's efforts to restructure the affairs
of Tamboril.
(b) After the closing of this Agreement, the Seller shall have the right
to review and comment on the factual disclosures in any and all registration
statements, reports and other documents that Tamboril and/or the Purchasers
propose to file with the Securities and Exchange Commission that refer to this
Agreement, the Seller's historical involvement in the affairs of Tamboril, or
the Seller's ongoing status as a minority stockholder of Tamboril. If the Seller
exercises the foregoing right, the Purchasers shall promptly incorporate all
reasonable amendments proposed by the Seller in such filings.
(c) Except as specifically set forth in this Agreement, the Seller shall
have no rights, privileges or duties beyond the rights, privileges and duties
generally accorded to minority stockholders under the General Corporation Law of
Delaware.
8. Indemnification
(a) From and after the closing date, the Seller shall indemnify the
Purchasers against and hold the Purchasers harmless from all damages, losses or
liabilities in respect of suits, proceedings, demands, judgments, damages,
expenses and costs (including, without limitation, reasonable counsel fees and
costs and expenses incurred in the investigation, defense or settlement of any
claims covered by this indemnity) (collectively, the "Indemnifiable Damages")
which the Purchasers may suffer or incur by reason of (i) the inaccuracy of any
of the representations and warranties of the Seller contained in this Agreement;
or (ii) the nonperformance by the Seller of any of the affirmative obligations
set forth in this Agreement. Notwithstanding the foregoing, the Purchasers shall
not be entitled to indemnification for any actions taken by Tamboril or its duly
elected officers and directors if such actions were taken within the course and
scope of their employment as officers and directors of Tamboril or taken without
the prior knowledge and express consent of the Seller. Without limiting the
generality of the foregoing, the maximum amount recoverable Indemnifiable
Damages shall not exceed the sum of $100, plus the cash consideration, if any,
actually received by the Seller upon the resale of the Tamboril shares retained
by them. No action for the enforcement of the representations and warranties of
the Seller may be commenced with respect to any claim made more than two (2)
years following the closing date.
(b) From and after the Closing, the Purchasers shall indemnify the Seller
against and hold it harmless from all damages, losses or liabilities in respect
of suits, proceedings, demands, judgments, damages, expenses and costs
(including, without limitation, reasonable counsel fees and costs and expenses
incurred in the investigation, defense or settlement of any claims covered by
this indemnity) (collectively, the "Indemnifiable Damages") which the Seller may
suffer or incur by reason of (i) the inaccuracy of any of the representations
and warranties of the Purchasers contained in this Agreement; (ii) any liability
for claims made by third parties against the Seller arising out of the
activities of the Purchasers or the operations of Tamboril after the closing
date, (iii) by reason of Purchasers' failure to provide the additional funding
required by paragraph 6(d), or (iv) the nonperformance by the Purchasers of any
of the covenants or agreements contained in this Agreement. Without limiting the
generality of the foregoing, with respect to the measurement of Indemnifiable
Damages, the Seller shall only have the right to (a) be restored to the
financial position it enjoyed immediately prior to the execution of this
Agreement and (b) recover any additional costs or damages incurred as a result
of the Purchasers' failure to perform under paragraph 6(d). No action for the
enforcement of the representations and warranties of the Purchasers may be
commenced with respect to any claim made more than two (2) years following the
closing date.
(c) Promptly, upon receipt of notice of any claim, demand or assessment
or the commencement of any suit, action or proceedings by any party not a party
to this Agreement in respect of which indemnity may be sought on account of an
indemnity agreement contained herein, the party seeking indemnification (the
"Indemnitee") will notify, within sufficient time to respond to such claim or
answer or otherwise plead in such action, the party from whom indemnification is
sought (the "Indemnitor"), in writing, thereof. The omission of such Indemnitee
to notify promptly the Indemnitor of any such claim or action shall not relieve
such Indemnitor from any liability which it may have to such Indemnitee in
connection therewith on account of the indemnity agreements contained herein
unless the Indemnitor is prejudiced thereby, and then only to the extent of the
prejudice caused by such delay. In case any claim, demand or assessment shall be
asserted or suit, action or proceeding commenced against an Indemnitee, and it
shall notify the Indemnitor of the commencement thereof, the Indemnitor will be
entitled to participate therein, and, to the extent that it may wish, to assume
the defense, conduct or settlement thereof, with counsel reasonably satisfactory
to the Indemnitee; provided that no settlement may be made by an Indemnitor on
behalf of an Indemnitee without the Indemnitee's express written consent if such
settlement would impose continuing obligations or any liability upon the
Indemnitee. After notice from the Indemnitor to the Indemnitee of its election
so to assume the defense, conduct or settlement thereof, the Indemnitor will not
be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with the defense, conduct or settlement
thereof. The Indemnitee will cooperate with the Indemnitor in connection with
any such claim, make personnel, books and records relevant to the claim
available to the Indemnitor, and grant such authorizations or powers of attorney
to the agents, representatives and counsel of the Indemnitor as such Indemnitor
may reasonably consider desirable in connection with the defense of any such
claim. In the event that the Indemnitor does not wish to assume the defense,
conduct or settlement of any claim, demand, or assessment, the Indemnitee will
not settle such claim, demand, or assessment without the consent of the
Indemnitor, which shall not be unreasonably withheld. It is understood and
agreed that to the extent the Purchasers or the Seller make a claim for
indemnification within the survival periods stated herein, the responsibility
for indemnification with respect to such claim shall survive until such claim is
resolved. Each of the Purchasers and each of the Seller expressly understands
and agrees that notwithstanding any disclosure herein or in the Schedules hereto
or in any document, certificate, or instrument delivered pursuant hereto of
actual or potential defaults, claims, litigation and the like that may be
asserted against Tamboril, the Seller or the Purchasers, the Seller and the
Purchasers shall be entitled to indemnification against such matters to the
extent set forth above.
9. Miscellaneous
(a) This Agreement constitutes the entire agreement among the parties. It
supersedes all prior agreements and understandings among the parties, and it may
not be modified or amended without the written consent of all parties. This
Agreement may be executed in any number of counterparts, which shall each be
deemed to be an original. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and assigns.
(b) All notices hereunder shall be in writing and addressed to such party
at its address set forth below, or such other address as a party may
subsequently designate in writing.
PURCHASERS
Xxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
1268 Bayshore Drive Chateau de Barbereche
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxxxx 0000 Xxxxxxxxxx
(000) 000-0000 Telephone 00(0)00 000 0000 Telephone
XXXXXXXXXXX@XXXXXX.XXXX E-mail XXX@XXX-XXX.XXX E-mail
----------------------- ---------------
SELLER
Xxxxxx Xxxx & Co. Limited
c/x Xxxxxxxx & Co.
00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
00(0)000 000 0000 Telephone
XXXXXXX@XXXXXXXXXXXXX.XXX E-mail
-------------------------
Notices that are delivered personally or sent by confirmed e-mail shall be
deemed given when sent. Notices that are delivered by a reputable overnight
courier or sent by certified mail, return receipt requested, shall be deemed
given when received.
(c) This Agreement and the transactions contemplated hereby shall be
construed in accordance with and governed by the laws of the State of Delaware.
(d) In the event a dispute between the parties hereto arises out of, in
connection with, or with respect to this Agreement, or any breach thereof, such
dispute shall, on the written request of one party delivered to the other party,
be submitted to and settled by arbitration conducted in Dallas, Texas before a
single arbitrator appointed by the American Arbitration Association in
accordance with the commercial arbitration rules of the American Arbitration
Association then in effect. The award of such arbitrator shall be final and may
be entered by any party hereto in any court of competent jurisdiction. The party
against whom the arbitrator's award is rendered shall pay all costs and expenses
of such arbitration, unless the arbitrator shall specifically allocate costs in
a different manner because the award is not entirely in favor of either party.
(e) The parties to this Agreement acknowledge that Xxxxx & Xxxxxx LLP has
previously served as legal counsel for both the Purchasers and the Seller in
connection with a variety of other legal matters. The Purchasers understand that
Xxxxx & Xxxxxx may be retained to act as legal counsel for the Seller in
connection with this Agreement. All parties to this Agreement waive any and all
conflicts of interest that may arise in connection with Xxxxx & Xxxxxx LLP's
activities as legal counsel for the Seller in connection with this Agreement.
(f) The Purchasers and the Seller shall each pay their respective
expenses incident to this Agreement and the transactions contemplated hereby,
including all fees of their counsel and accountants, whether or not such
transactions shall be consummated. The Purchasers shall pay the reasonable fees
and expenses of Xxxxx & Xxxxxx LLP for providing the escrow services specified
in paragraph 5.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 23rd
day of January 2003.
PURCHASERS
Xxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
SELLER
Xxxxxx Xxxx & Co. Limited
By:
-------------------------------------------
(Xxxx Xxxxxx Xxxxxxx, Director)
CERTIFICATE
Summit Capital Limited and Glacier Capital Limited (collectively the
"Certifying Parties") certify that the representations and warranties of Xxxxxx
Xxxx & Co. Limited set forth in subparagraphs (b) through (n) of Section 3 of
the attached purchase and sale agreement are to the best of the Certifying
Parties' knowledge correct and accurate in all material respects.
As an inducement to the Purchasers, the Certifying Parties hereby agree
to offer their reasonable cooperation in the Seller's efforts to perform the
post-closing obligations set forth in Section 7(a) of the agreement. Without
limiting the generality of the foregoing, the Certifying Parties expressly agree
to:
1. Execute, acknowledge and deliver such other and further assignments,
instruments of transfer and other documents as may be reasonably
required to effectuate the assignment and transfer of the Tamboril
Securities and Tamboril Claims to the Purchasers; and
2. For a period of 6 months after the closing date, cause their employees
to provide reasonable cooperation and assistance to the Purchasers in
connection with the Purchaser's efforts to restructure the affairs of
Tamboril.
All notices to the Certifying Parties shall be in writing and addressed
to such party at its address set forth below, or such other address as a party
may subsequently designate in writing.
Summit Capital Limited Glacier Capital Limited
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx Xxxxxx
X.X. Xxx 000 P.O. Box 556
Charelstown, Nevis, West Indies Charelstown, Nevis, West Indies
00(0)000 000 0000 Telephone 00(0)000 000 0000 Telephone
XXXXXXX@XXXXXXXXXXXXX.XXX E-mail XXXXXXX@XXXXXXXXXXXXX.XXX E-mail
------------------------- -------------------------
IN WITNESS WHEREOF, the Certifying Parties have executed this Certificate
on this 23rd day of January 2003.
Glacier Capital Limited Summit Capital Limited
By: By:
--------------------------- ----------------------------------
(Xxxxx Xxxxxxxx, Director) (Xxxxx Xxxxxxxx, Director)
