ADDENDUM TO ACQUISITION AGREEMENT DATED DECEMBER 29, 2006 (“ACQUISITION AGREEMENT”) BY AND AMONG MALIBU MINERALS, INC., A NEVADA CORPORATION (“MALIBU”), FLEX FUELS ENERGY LIMITED, A COMPANY FORMED UNDER THE LAWS OF ENGLAND AND WALES (“FLEX FUELS”),...
EXHIBIT
10.7
ADDENDUM
TO ACQUISITION AGREEMENT DATED DECEMBER 29, 2006 (“ACQUISITION AGREEMENT”) BY
AND AMONG MALIBU MINERALS, INC., A NEVADA CORPORATION (“MALIBU”), FLEX FUELS
ENERGY LIMITED, A COMPANY FORMED UNDER THE LAWS OF ENGLAND AND WALES (“FLEX
FUELS”), CERTAIN
SHAREHOLDERS OF FLEX FUELS (“SHAREHOLDERS”) AND XXXXXX XXXX XXXXX AND XXX
XXXXXX
AND SUPPLEMENTARY AGREEMENT (THE “SUPPLEMENTARY AGREEMENT”THERETO DATED OF SAME
DATE
This
Addendum (the “Addendum”) is made and entered into as of the 29th
day of
May 2007. Unless otherwise defined herein, capitalized terms used in this
Addendum shall have the meaning given to them in the Acquisition Agreement.
WHEREAS,
the Acquisition Agreement contemplated a Private Placement of up to 15,061,729
Stock Units (“Initial Amount”) of Malibu at US $0.90 per unit, or such other
amounts as agreed to between the Parties in order to achieve the Main Funding
of
US $11,800,000 required for the Acquisition and US $400,000 in contingency
expenses, for a net total after commissions of not less than US $12,200,000;
WHEREAS,
Malibu expects to close the Private Placement with the sale of up to 16,605,557
Stock Units resulting in the delivery to Malibu, at closing of the Private
Placement, of up to $15,000,000 (estimated to be $14,922,854) in gross proceeds,
greater than contemplated at the time of execution of the Acquisition Agreement
(“Increase in Main Funding”); and
WHEREAS,
the Parties, wish to allocate US $350,000 of the proceeds to an Investor
Relations program (“IR Program”), to commence as soon as practicable but within
one month of Completion.
NOW,
THEREFORE, in consideration of the respective covenants contained herein and
intending to be legally bound hereby, the Parties hereto mutually agree as
follows:
1. Main
Funding Amount. The Parties agree that the amount of the Main Funding shall
be
US up to $15,000,000 (estimated to be $14,922,854) consisting of up to
16,666,667 Stock Units (estimated to be 16,580,949 Stock Units), such that
US
$11,800,000 shall be disbursed per Malibu’s directions directly to Flex Fuels,
with the remaining net proceeds to be disbursed to Malibu per Malibu’s
directions;
2. The
Parties agree that Flex Fuels has satisfied its delivery obligations of the
Company Financial Statements pursuant to Section 8.1.8 of the Acquisition
Agreement;
3. (a)
The
Parties mutually agree that Section 8.1.9 of the Acquisition Agreement is hereby
amended and replaced in its entirety with the following section:
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“the
delivery of the Voting Trust Agreements entered into by the shareholders of
the
Purchaser holding in aggregate at least 11.5% of the issued and outstanding
Stock Units on the Completion Date (the “11.5% Shareholders”), a form of which
is annexed hereto as Exhibit I; such that the Purchaser will arrange for the
11.5% Shareholders to enter into a Voting Trust Agreement with SRFF giving
the
Purchaser Majority Directors, the right to vote the Stock Units held by the
11.5% Shareholders during the 12 month period from the Completion Date in favor
of any resolution presented to all of the shareholders of Malibu in accordance
with the directions of the Purchaser Majority Directors.”
(b) The
Parties agree that the Voting Trust Agreements have been entered into and
delivered to Flex Fuels pursuant to Section 8.1.9 of the Acquisition Agreement,
as amended by Section 3(a) of this Addendum, such that the 11.5% Shareholders
shall deliver the certificates underlying the Voting Trust Agreements to SRFF
within 20 calendar days of the Completion Date;
4. (a)
The
Parties mutually agree that Section 8.1.10 of the Acquisition Agreement is
hereby amended and replaced in its entirety with the following section:
“the
delivery by the Purchaser of the Lock-up Agreements entered into by the 11.5%
Shareholders, a form of which is annexed hereto as Exhibit II.”
(b) The
Parties agree that Malibu has delivered the Lock-up Agreements have to Flex
Fuels pursuant to Section 8.1.10 of the Acquisition Agreement, as amended by
Section 4(a) of this Addendum;
5. The
Parties agree that the requirement for the Business Transfer Agreement and
the
requirement for the delivery of a duly executed Business Transfer Agreement
in
8.6.3 of the Acquisition Agreement are waived and that Completion is not
conditional on delivery of the Business Transfer Agreement;
6. (a)
The
Parties mutually agree that Section 8.6.2 of the Acquisition Agreement is hereby
amended and replaced in its entirety with the following section:
“produce
to the Shareholders a certified copy of the resolution of the board of the
Purchaser authorizing the allotment and issue of the Consideration Shares to
the
Shareholders and appointing Xxxxxx Xxxx Xxxxx and Xxxx Xxxxxxx as directors
of
the Purchaser; and”
(b) The
Parties agree that Malibu has delivered a copy of the unanimous written consent
of its Board of Directors appointing Xxxxxx Xxxx Xxxxx and Xxxx Xxxxxxx as
members of the Board of Directors of Malibu effective as of the Completion
Date;
7. The
Parties agree that as a result of the Increase in Main Funding, the number
of
issued and outstanding shares of Malibu’s common stock, $0.001 par value per
share (the “Common Stock”) immediately prior to Completion shall be
approximately 39,622,953;
thereby pursuant to Section 3.3 of the Acquisition Agreement, the amount of
Consideration Shares shall, immediately after Completion represent 38.55% of
all
of the issued and outstanding shares of Malibu’s Common
Stock;
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8. The
Parties agree that Malibu has delivered to Flex Fuels in a reasonable manner
a
confirmation that the Common Stock has been approved for listing on the
Principal Market (no further comments on Form 211 application), thereby
satisfying Section 8.1.11 of the Acquisition Agreement;
9. Malibu
acknowledges that contrary to the requirements set forth in Section 4.3 of
the
Acquisition Agreement, the Malibu Representative (or his alternate) has not
been
an attendee of the monthly board meetings of the board of directors of Flex
Fuels as required under Section 4.3, and Malibu hereby waives this requirement
and the condition of the presence of the Malibu Representative (or his
alternate) during said meetings for purposes of achieving a quorum during said
meetings of the board of directors of Flex Fuels;
10. Malibu
hereby agrees that the management agreements, set forth as #3-7, which are
to be
effective upon Completion, are to be entered into with Flex Fuels instead of
Malibu, such that Xxxxxx Xxxx Xxxxx, Xxx Xxxxxx, Xxxxxx Xxxxxx, Xxxx Xxx Xxxxxxx
and Xxxx Xxxxxxx shall serve as officers and/or directors of the Company and
will be compensated by Flex Fuels for the provision of their services in their
authorized capacities to Malibu pursuant to the agreements entered into with
Flex Fuels;
11. Annexed
hereto as Exhibit A is a signed copy of the final Disclosure Letter delivered
by
the Company, the Shareholders, Xxxxxx Xxxx Xxxxx and Xxx Xxxxxx to
Malibu;
12. Annexed
hereto as Exhibit B is a signed copy of the final Disclosure Letter delivered
by
Malibu to the Company, the Shareholders, Xxxxxx Xxxx Xxxxx and Xxx
Xxxxxx;
13. The
Parties mutually agree that Section 10 of the Acquisition Agreement is hereby
amended and replaced in its entirety with the following section:
“Not
withstanding the provisions of 8.1.9 of the Acquisition Agreement as amended,
as
amended by Section 3(a) of the Addendum, dated as of the Completion Date entered
into by the Parties, on Completion and for a twenty four month period
thereafter, each of the Shareholders and each of the Remaining Shareholders
agree to exercise all votes exercisable by each of them as a director and/or
shareholder of the Purchaser in the respect only of, at any time, any
nomination, appointment and removal of up to two directors of the board of
directors of the Purchaser at one time in accordance with the directions of
the
25% Shareholders (the “Request”), unless otherwise required by the applicable
SEC laws and regulations, the Purchaser’s state of incorporation’s laws, or the
Principal Market rules or regulations. The “25% Shareholders” shall mean the
shareholders of the Purchaser existing immediately prior to Completion
(excluding the Shareholders
and the Remaining Shareholders) holding in the aggregate not less than 25%
of
the total issued share capital of the Purchaser immediately after Completion
and
at the time of such Request.”
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14. The
Parties agree that Completion shall take place on the date of the execution
of
this Agreement and hereby mutually waive the requirements of Section 8.2 of
the
Acquisition Agreement;
15. The
Parties agree that the Definition of “JTC Trustee Ltd.” Set forth in Section 1.1
of the Acquisition Agreement shall be amended and replaced in its entirety
with
the following definition:
“JTC
Trustee Ltd” Means JTC TRUSTEES LIMITED AS TRUSTEE OF THE LOGO INVESTMENT TRUST
having its main office at the Jersey Trust Company, PO Box 1075, Xxxxxxxxx
House, 0 Xxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx, XX0 0XX, Channel
Islands.
16. Allocation
of Proceeds to IR Program:
a) The
Parties agree that US $350,000 of the proceeds from the Private Placement shall
be allocated to and utilized for the IR Program (the “Allocation”) that shall
commence as soon as practicable but within one month of Completion;
b) The
Parties agree that the IR Program shall be directed by Xxxxxx Xxxx, a member
of
the board of directors, and a non-executive officer, of Malibu, or any other
member of the board of directors of Malibu as appointed by the 25% Shareholders
pursuant to Section 10 of the Acquisition Agreement, as amended by Section
13 of
this Addendum, or otherwise designated in writing by the 25% Shareholders;
and
c) The
Parties agree that the Allocation may only be varied with the consent of the
director in (b) above, or as otherwise agreed to in writing by the 25%
Shareholders.
Effect
of
Addendum. Except as otherwise provided herein, all of the terms and conditions
of the Acquisition Agreement shall continue with full force and effect. In
the
event of any conflict between the terms of this Addendum and the terms of the
Acquisition Agreement, the terms of this Addendum shall control.
IN
WITNESS WHEREOF, this Addendum has been executed by the Parties as of the date
first above written:
[Remainder
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MALIBU
MINERALS, INC.
By: /s/
Xxxxxx Xxxx
Name: Xxxxxx
Xxxx
Title: Vice
President Of Alternative Fuel Operations and Director (Authorized
Signatory)
FLEX
FUELS ENERGY LIMITED
By: /s/
Xxxxxx Xxxx Xxxxx
Name:
Xxxxxx Xxxx Xxxxx
Title:
President
SHAREHOLDERS
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
/s/
Xxxx Xxx Xxxxxxx
Xxxx
Xxx
Xxxxxxx
OTHERS
/s/
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx Xxxxx
/s/
Xxx Xxxxxx
Xxx Xxxxxx
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR SUPPLEMENTAL AGREEMENT’S SIGNATORIES FOLLOW]
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[SIGNATURE
PAGE OF SUPPLEMENTAL AGREEMENT’S SIGNATORIES
TO
ADDENDUM TO ACQUISITION AGREEMENT]
Name:
__________________________
Signature
of Authorized Signatory (if applicable):
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
Name:
__________________________
Signature
of Authorized Signatory (if applicable):
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
6
EXHIBIT
A
FLEX
FUELS DISCLOSURE LETTER
7
EXHIBIT
B
MALIBU
MINERALS DISCLOSURE LETTER
