SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT ("AGREEMENT"), dated as of May 3, 2000 among
Fayber Capital, Inc. ("Seller"), Cypress Capital, Inc. ("CCI"), and US Crude,
Ltd. ("Buyer"), a California Corporation.
W I T N E S S E T H:
A. WHEREAS, CCI is a corporation duly organized under the laws of the State of
Nevada.
B. WHEREAS, Buyer wishes to purchase 18,675,000 of the outstanding common shares
of CCI free and clear of liens and encumbrances from Seller (the "Purchase
Shares").
C. WHEREAS, the parties intend to subsequently merge CCI, the wholly-owned
subsidiary, with and into the Buyer.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
THE CONSIDERATION
1.1 Subject to the conditions set forth herein, Seller shall sell and Buyer
shall purchase 18,675,000 shares of common stock of CCI. The transactions
contemplated by this Agreement shall be completed simultaneously herewith. The
purchase price for the shares to be paid by Buyer to Seller is $150,000 in cash
(the "Consideration") for which $150,000 is herewith paid into escrow with M.A.
Xxxxxxx.
ARTICLE II
CONVEYANCE OF SHARES
2.1 The Purchase Shares shall be delivered and conveyed by Seller to Buyer
simultaneously herewith, with duly executed stock powers, upon receipt of the
Consideration by Seller.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS TO CCI
Seller and CCI each hereby, jointly and severally, represent, warrant
and covenant to Buyer as follows:
3.1 CCI is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada, and has the corporate power and authority
to own or lease its properties and to carry on its business as it is now being
conducted. The Articles of Incorporation and Amendments and Bylaws of CCI,
copies of which have been delivered to Buyer, are complete and accurate, and the
minute books of CCI, copies of which have also been delivered to Buyer, contain
a record, which is complete and accurate in all material respects, of all
meetings, and all corporate actions of the shareholders and Board of Directors
of CCI.
3.2 The authorized capital stock of CCI consists of 75,000,000 shares of Common
Stock and 25 million shares of Preferred Stock. There are 18,675,000 shares of
Common Stock issued and outstanding. All such shares of capital stock of CCI are
validly issued, fully paid and nonassessable. CCI has no outstanding options,
warrants, or other rights to purchase, or subscribe to, or other securities
convertible into or exchangeable for any shares of capital stock of CCI, or
contracts or arrangements of any kind relating to the issuance, sale or transfer
of any capital stock or other equity securities of CCI. All of the outstanding
shares of capital stock of CCI have been offered, issued, sold and delivered in
compliance with applicable federal and state securities laws and none of such
securities were, at the time of issuance, subject to preemptive rights.
3.3 CCI does not own nor has it ever owned any outstanding shares of capital
stock or other equity interests of any partnership, joint venture, trust,
corporation, limited liability company or other entity and there are no
obligations of CCI to repurchase, redeem or otherwise acquire any capital stock
or equity interest of another entity.
3.4 This Agreement has been duly authorized, validly executed and delivered on
behalf of the Seller and CCI and is a valid and binding agreement and obligation
of the Seller and CCI enforceable against each Seller, jointly and severally,
and against CCI in accordance with its terms, subject to limitations on
enforcement by general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors' rights generally, and the Seller and CCI
each have complete and unrestricted power to enter into and, upon the
appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
3.5 Neither the making of nor the compliance with the terms and provisions of
this Agreement and consummation of the transactions contemplated herein by CCI
will conflict with or result in a breach or violation of the Articles of
Incorporation or Bylaws of CCI, or of any material provisions of any indenture,
mortgage, deed of trust or other material agreement or instrument to which CCI
is a party or by which it or any of its material properties or assets are bound,
or of any material provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over CCI, or any of its material properties or assets, or will
result in the creation or imposition of any material lien, charge or encumbrance
upon any material property or assets of CCI pursuant to the terms of any
agreement or instrument to which CCI is a party or by which CCI may be bound or
to which any of CCI property is subject and no event has occurred with which
lapse of time or action by a third party could result in a material breach or
violation of or default by CCI.
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3.6 Except as disclosed herein, and based upon the representations and
warranties of the Buyer set forth herein, no authorization, consent, approval,
exemption or other action by or notice to any government entity or filing with
or consent of any governmental body is required for the sale of the Purchase
Shares to Buyer pursuant to this Agreement.
3.7 There is no claim, legal action, arbitration, governmental investigation or
other legal or administrative proceeding, nor any order, decree or judgment in
progress, pending or in effect, or to the best knowledge of the Seller
threatened against or relating to CCI or affecting any of its assets,
properties, business or capital stock. There is no continuing order, injunction
or decree of any court, arbitrator or governmental authority to which CCI is a
party or by which CCI or its assets, properties, business or capital stock are
bound.
3.8 CCI has accurately prepared and filed all Federal, state and other tax
returns required by law, domestic and foreign, to be filed by it, has paid or
made provisions for the payment of all taxes shown to be due and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of CCI for all current taxes and other charges to which CCI
is subject and which are not currently due and payable. None of the Federal
income tax returns of CCI have been audited by the Internal Revenue Service or
other foreign governmental tax agency. CCI has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
pending or threatened against CCI for any period, nor of any basis for any such
assessment, adjustment or contingency.
3.9 Seller are the legal, beneficial and registered owners of the Purchase
Shares, free and clear of any liens, charges, encumbrances, voting trusts,
shareholder agreements or rights of any kind granted to any person or entity, or
any interest in or the right to purchase or otherwise acquire any of the
Purchase Shares from the Seller at any time upon the happening of any stated
event and may transfer such shares without the consent of any third party. Upon
closing of the transactions contemplated hereby, the Buyer will acquire all
right, title and interest in the Purchase Shares, free and clear of all liens,
charges or encumbrances and will have all of Seller's entire right, title and
interest in and to the Purchase Shares. All Purchase Shares owned by Seller are
set forth hereto on Schedule 3.9.
3.10 Other Shareholders who join this Agreement by Addendum shall warrant and
represent that the shares sold by such shareholders are free and clear of any
liens and encumbrances and may be transferred without consent of any third
party.
3.11 CCI has delivered to Buyer audited financial statements dated December
1, 1999. All such statements, herein sometimes called "CCI Financial Statements"
are complete and correct in all material respects and, together with the notes
to these financial statements, present fairly the financial position and results
of operations of CCI for the periods indicated. All financial statements of CCI
have been prepared in accordance with generally accepted accounting principles.
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3.12 As of the date hereof, the total indebtedness of CCI is $0. CCI and the
Seller hereby, jointly and severally, represent and warrant that all outstanding
indebtedness of CCI shall have been paid and released prior to the closing of
the transactions hereby and that there are no outstanding liens, charges or
encumbrances on the assets of CCI.
3.13 Since the dates of the CCI Financial Statements, there have not been any
material adverse changes in the business or condition, financial or otherwise,
of CCI. CCI does not have any liabilities, commitments or obligations, secured
or unsecured except as shown on updated financials (whether accrued, absolute,
contingent or otherwise).
3.14 CCI is not a party to any contract performable in the future.
3.15 The representations and warranties of the Seller and CCI shall be true and
correct as of the date hereof.
3.16 CCI has delivered to Buyer, all of its corporate books and records for
review.
3.17 CCI has no employee benefit plan in effect at this time.
3.18 No representation or warranty by CCI or the Seller in this Agreement, or
any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
3.19 Seller or CCI have delivered, to Buyer true and correct copies of a Form
10SB declared effective by the Securities and Exchange Commission ("SEC") and
each of its other reports to shareholders filed with the SEC for the year ended
December 31, 1999. CCI is a registered company under the Securities Exchange Act
of 1934, as amended.
3.20 CCI has duly filed all reports required to be filed by it under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended (the "Federal Securities Laws"). No such reports, or any reports sent to
the shareholders of CCI generally contained any untrue statement of material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements in such report, in light of the circumstances
under which they were made, not misleading.
3.21 The Seller have not received any general solicitation or general
advertising regarding the shares of Buyer's common stock comprising the
Consideration.
3.22 CCI has conducted no business to date, has incurred no liabilities and has
no contract or open account affiliations whatsoever.
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ARTICLE IV
TERMINATION OF REPRESENTATION AND
WARRANTIES AND CERTAIN AGREEMENTS; INDEMNIFICATION
4.1 The respective representations and warranties of the parties hereto shall
survive this Agreement for three years and the covenants shall survive
hereafter.
4.2 The right to indemnification, payment of Damages (as defined in section 4.5)
or other remedy based on any representation, warranty, covenant or obligation of
a party hereunder shall not be affected by any investigation conducted with
respect to, or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the execution and delivery of this Agreement, with
respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant or obligation.
4.3 The waiver of any condition to a party's obligation to consummate the
transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
4.4 CCI and the Seller, jointly and severally, shall indemnify and hold harmless
the Buyer, and each of its representatives, employees, officers, directors,
stockholders, controlling persons and affiliates (collectively, the "Buyer
Indemnified Persons") for, and will pay to the Buyer Indemnified Persons, the
amount of, any loss, liability, claim, damage (including, without limitation,
incidental and consequential damages), cost, expense (including, without
limitation, interest, penalties, costs of investigation and defense and the
reasonable fees and expenses of attorneys and other professional experts) or
diminution of value, whether or not involving a third-party claim (collectively,
"Damages"), directly or indirectly arising from, attributable to or in
connection with:
(a) any representation or warranty made by the Seller and CCI in this
agreement or any of the Seller' and CCI closing deliveries, that
is, or was at the time made, false or inaccurate, or any breach
of, or misrepresentation with respect to, any such representation
or warranty; and
(b) any breach by any of the Seller or CCI of any covenant, agreement
or obligation of the Seller contained in this agreement.
(c) any claims or litigation relating to CCI now pending or threatened
or which may hereafter be brought against Buyer and/or CCI based
upon events occurring prior to the date hereof and not
attributable to the acts of the Buyer.
(d) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, losses, liabilities and reasonable
legal and other expenses incident to any of the foregoing.
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4.5 The Seller and CCI shall have no liability for indemnification with respect
to any representation or warranty, unless, on or before the [third] anniversary
of the date hereof, the Buyer notifies the Seller of a claim specifying the
basis thereof in reasonable detail to the extent then known by the Buyer. A
claim with respect to any covenant, agreement or obligation contained in this
agreement, may be made at any time without any time limitation.
4.6 Promptly after receipt by an indemnified party of written notice (the
"Notice of Claim") of the commencement of any action, suit or proceeding against
it, or written threat thereof, such indemnified party will, if a claim is to be
made against an indemnifying party under either of said sections, as applicable,
give notice to the indemnifying party of the commencement of such action, suit
or proceeding. The indemnified party shall furnish to the indemnifying party in
reasonable detail such information as the indemnified party may have with
respect to such indemnification claims (including copies of any summons,
complaint or other pleading which may have been served on it and any written
claim, demand, invoice, billing or other document evidencing or assenting the
same). Subject to the limitations set forth in this section, no failure or delay
by the indemnified party in the performance of the foregoing shall reduce or
otherwise affect the obligation of the indemnifying party to indemnify and hold
the indemnified party harmless except to the extent that such failure or delay
shall have materially and adversely affected the indemnifying party's ability to
defend against, settle or satisfy any action, suit or proceeding the claim for
which the indemnified party is entitled to indemnification hereunder. The
foregoing shall not apply to the extent inconsistent with the provisions of
section 4.8 relating to Proceedings.
4.7 If the claim or demand set forth in the Notice of Claim given by the
indemnified party is a claim or demand asserted by a third party, the
indemnifying party shall have 30 days after the Date of Notice of Claim to
notify the indemnified party in writing of its election to defend such third
party claim or demand on BEHALF OF THE INDEMNIFIED PARTY (THE "NOTICE PERIOD");
PROVIDED, HOWEVER, that the indemnified party is authorized to file any motion,
answer or other pleading which it deems necessary or appropriate to protect its
interests during the Notice Period. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall make available to
the indemnifying party and its agents and representatives all records and other
materials which are reasonably required in the defense of such third party claim
or demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third party
claim or demand, and so long as the indemnifying party is diligently defending
such third party claim in good faith, the indemnified party shall not pay,
settle or compromise such third party claim or demand. If the indemnifying party
elects to defend such third party claim or demand, the indemnified party shall
have the right to control the defense of such third party claim or demand, at
the indemnified party's own expense. If the indemnifying party does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the indemnified party shall have the right, in
addition to any other right or remedy it may have hereunder at the indemnifying
party's expense, to defend such third party claim or demand.
4.8 The term "Date of Notice of Claim" shall mean the date the Notice of Claim
is effective pursuant to section 5.5 of this Agreement.
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4.9 A claim for indemnification for any matter not involving a third-party claim
may be asserted by notice to the party from whom indemnification is sought.
4.10 Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or the transactions
contemplated hereby or the documents executed and delivered in connection
herewith, and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Agreement, the parties each hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts and appellate courts thereof. The parties irrevocably consent to service
of process out of any of the aforementioned courts in any such action or
proceeding in accordance with the notice provisions set forth in Section 5.5.
The parties each hereby irrevocably waive any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents execute and delivered in
connection herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
ARTICLE V
PROCEDURE FOR CLOSING
5.1 At the Closing Date, the purchase and sale shall be effective with common
stock certificates of CCI being delivered duly executed for 18,675,000 shares of
common stock to Buyer and the delivery of $150,000 per share to Seller from
Buyer (from the Escrow with M.A. Xxxxxxx), together with deliver of all other
agreements, schedules, warranties, and representations set forth in this
Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO THE
CONSUMMATION OF THE PURCHASE
The following are conditions precedent to the consummation of the Agreement on
or before the Closing Date:
6.1 Seller shall have performed and complied with all of its respective
obligations hereunder which are to be complied with or performed on or before
the Closing Date and Seller and CCI and Buyer shall provide one another at the
Closing with a certificate to the effect that such party has performed each of
the acts and undertakings required to be performed by it on or before the
Closing Date pursuant to the terms of this Agreement.
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6.2 No action, suit or proceeding shall have been instituted or shall have been
threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties hereto or their directors or officers
to any material liability, fine, forfeiture or penalty on the grounds that the
transactions contemplated hereby, the parties hereto or their directors or
officers, have violated any applicable law or regulation or have otherwise acted
improperly in connection with the transactions contemplated hereby, and the
parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
6.3 All actions, proceedings, instruments and documents required to carry out
this Agreement and the transactions contemplated hereby and the form and
substance of all legal proceedings and related matters shall have been approved
by counsel for Buyer.
6.4 The representations and warranties made by Buyer and Seller in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of (1) changes caused by transactions suggested or approved in writing
by Buyer or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of CCI during or arising after the date of this Agreement.)
6.5 All outstanding liabilities of CCI shall have been paid and released prior
to closing.
6.6 No change in the management or directors nor exercise of control of CCI may
occur until 1.1 and 2.2 and 5.2 have been completed with deliver of all shares
of outstanding CCI to Buyer and delivery of purchase price to the Other
Shareholders.
ARTICLE VII
MISCELLANEOUS
7.1 This Agreement embodies the entire agreement between the parties, and there
have been and are no agreements, representations or warranties among the parties
other than those set forth herein or those provided for herein.
7.2 To facilitate the execution of this Agreement, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
instrument.
7.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
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7.4 This Agreement may not be amended except by written consent of both parties.
7.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
prepaid, addressed as follows:
To Seller: c/o M.A. Xxxxxxx
00000 X. 00XX Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
To: US Crude, Ltd.
Copy to:
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
7.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of Buyer and
Seller. However, CCI may issue at any time any press release or other public
statement it believes on the advice of its counsel it is obligated to issue to
avoid liability under the law relating to disclosures, but the party issuing
such press release or public statement shall make a reasonable effort to give
the other party prior notice of and opportunity to participate in such release
or statement.
7.7 This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which shall be considered one and the
same agreement. This Agreement may be executed by facsimile signatures.
7.8 This Agreement shall be governed by and construed in accordance with and
enforced under the laws of the state of Colorado applicable to agreements made
and to be performed entirely in that state.
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IN WITNESS WHEREOF, the parties have executed this Agreement this 3rd day of
May, 2000.
SELLER:
FAYBER CAPITAL, INC.
By: /s/Xxxxxxx Xxxxxx, President
CYPRESS CAPITAL, INC.
By:/s/Xxxxxxx Xxxxxx, President
US CRUDE, LTD.
By: /s/Xxxxxxx Xxxxxx
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SCHEDULE 3.9
SELLER PURCHASE SHARES OWNED
Fayber Capital, Inc. 18,675,000
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