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STOCK PURCHASE AGREEMENT
by and among
GOLDEN TARGET PTY LTD.
and
LIQUID FINANCIAL ENGINES, INC.
and
CERTAIN STOCKHOLDERS LISTED ON EXHIBIT A
As of July 23, 2009
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STOCK PURCHASE AGREEMENT, dated as of July 23, 2009 by and among Golden
Target Pty Ltd., an Australian corporation (hereinafter referred to as the
"'Buyer"), Liquid Financial Engines, Inc., a Florida corporation (the
"Company"), and the stockholders listed on Exhibit A (the "Sellers").
WITNESSETH:
WHEREAS, Buyer desires to purchase (the "Purchase") in the aggregate
12,700,000 shares (the "Shares") of common stock, par value $.0001 per share of
the Company (the "Common Stock"), from the Sellers, including 12,000,000 shares
of Common Stock owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Principal Seller"), for an
aggregate purchase price of $260,000 and the Sellers desire to sell the Shares
to the Buyer, and/or its designees;
WHEREAS, the Sellers (other than the Principal Seller) have executed
special powers of attorney (the "Powers of Attorney") appointing the Principal
Seller as their attorney in fact with the power to execute this Agreement on
behalf of the Sellers, to deliver the Shares to the Buyer and to receive the
Purchase Price therefore and to take any and all other actions and to execute
any and all other documents and instruments that are necessary or desirable to
carry out the terms of this Agreement;
WHEREAS, the Company is a corporation subject to the reporting requirements
of Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
WHEREAS, the shares of Common Stock are eligible for quotation on the OTC
Bulletin Board (the "OTCBB") under the symbol "LIQU;"
WHEREAS, immediately following the closing of the Purchase, the outstanding
securities of the Company shall be 13,200,000 shares of Common Stock consisting
of (a) 12,700,000 shares of Common Stock owned by the Buyer, and (b) 500,000
shares of Common Stock owned by the Company's other stockholders.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
representations and warranties contained herein, the parties hereto do hereby
agree as follows:
1. SALE OF SECURITIES, ETC.
1.1 Share Purchase. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 2.1 below) to be held pursuant
to Section 2 below, the Sellers shall sell, assign, transfer, convey and deliver
to Buyer (and/or its designees), and Buyer (and/or its designees) shall purchase
and acquire from the Sellers, good and marketable title to the Shares, free and
clear of all mortgages, liens, encumbrances, claims, equities and obligations to
other persons of every kind and character, except that the Shares will be
"restricted securities" as defined in the Securities Act of 1933, as amended
(the "Securities Act"). The aggregate purchase price for the Shares shall be
$260,000, payable to the Sellers in the amounts set forth on Exhibit A (the
"Purchase Price").
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1.2 Post-Closing Capital Structure. Immediately following the Closing
there shall be no outstanding securities of the Company except 13,200,000 shares
of Common Stock consisting of (a) 12,700,000 owned by the Buyer; and (b) 500,000
shares of Common Stock owned by at least 25 other stockholders of the Company.
2. THE CLOSING
2.1 Place and Time. The closing of the sale and purchase of the
Shares (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP,
666 Fifth Avenue, New York, N.Y. 10103 on such date (the "Closing Date") and
time as the parties shall so agree. Except as agreed to by the parties, the
Closing shall occur on or before July 31, 2009.
2.2 Deliveries by the Sellers. At the Closing, the Sellers shall
deliver the following to Buyer:
(a) Certificates representing the 12,700,000 Shares duly
registered in the name of the Buyer and evidence of the cancellation of the
Shares that were previously registered in the names of the Sellers;
(b) A certificate executed by the Principal Seller, attesting to
(i) the accuracy of the representations and warranties of the Sellers made in
this Agreement, and (ii) acknowledging receipt of the $260,000; and
(c) The original Powers of Attorney and all other documents,
instruments and writings required (or reasonably requested by the Buyer and/or
its counsel), by this Agreement to be delivered by the Sellers at the Closing.
2.3 Deliveries by the Company. At the Closing, the Company shall
deliver to the Buyer the following:
(a) A certificate executed by the Company, attesting to the
accuracy of the representations and warranties of the Company made in this
Agreement,
(b) A certificate issued by the Florida Secretary of State as to
the good standing of the Company as of the date of the Closing;
(c) A true and complete copy of the Articles of Incorporation of
the Company as in effect as of the date of the Closing, certified by the
Secretary of State of Florida;
(d) A true and correct copy of the By-Laws (as amended) of the
Company as in effect as of the date of the Closing, certified by the Secretary
of the Company;
(e) Board Resolutions authorizing all transactions contemplated
by this Agreement, including, without limitation with respect to the appointment
of the officers and directors provided for in Section 7.7 below; and
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(f) The Company's original minute books containing the
resolutions and actions by written consent of the directors and stockholders of
the Company and the Company's other original books and records, including the
Company's financial and accounting records (including the Company's general
ledger), all banking records and federal and state tax and other regulatory
filings and filing codes (including SEC ▇▇▇▇▇ filing codes) in whatever media
they exist, including paper and electronic media.
(g) Duly executed resignations of all of the Company's officers
and directors.
(h) All other documents, instruments and writings required by
this Agreement to be delivered by the Company at the Closing, all of the
Company's original books of account and record, and any other documents or
records relating to the Company's business reasonably requested by Buyer in
connection with this Agreement.
2.4 Deliveries by Buyer. At the Closing, the Buyer shall deliver the
following to the Sellers and the Company:
(a) The Purchase Price payable by wire transfer to the account
of the Sellers' counsel.
(b) A certificate executed by the Buyer, attesting to the
accuracy of the representations and warranties of Buyer made in this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SELLER AND THE COMPANY
The Principal Seller and the Company jointly and severally represent,
warrant and covenant to and with Buyer, both as of the date of this Agreement
and as of the date of Closing, as an inducement to Buyer to enter into this
Agreement and to consummate the transaction contemplated hereby as follows:
3.1 Authorization of Agreement. The Company and the Sellers are fully
able, authorized and empowered to execute and deliver this Agreement and any
other agreement or instrument contemplated by this Agreement and to perform
their respective covenants and agreements hereunder and thereunder. This
Agreement and any such other agreement or instrument, upon execution and
delivery by the Sellers and the Company (and assuming due execution and delivery
hereof and thereof by the other parties hereto and thereto), will constitute a
valid and legally binding obligation of the Sellers and the Company, in each
case enforceable against each of them in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect which
affect creditors' rights generally and by legal and equitable limitations on the
availability of specific performance and other equitable remedies against the
Company and the Sellers under or by virtue of this Agreement or such other
agreement or instrument. Each of the Sellers (other than the Principal Seller)
has executed a Power of Attorney, substantially in the form attached hereto as
Exhibit B and such Powers of Attorney are valid, binding and legally enforceable
obligations of the Sellers that have not been modified or revoked and remain in
full force and effect.
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3.2 Ownership of the Shares. The Sellers are the record and
beneficial owner of the Shares. The Sellers hold the Shares free and clear of
any lien, pledge, encumbrance, charge, security interest, claim or right of
another and have the absolute right to sell and transfer the Shares to the Buyer
as provided in this Agreement without the consent of any other person or entity.
Upon transfer of the Shares to Buyer hereunder, Buyer will acquire good and
marketable title to the Shares free and clear of any lien, pledge, encumbrance,
charge, security interest, claim or right of another.
3.3 No Breach. Neither the execution and delivery of this Agreement
nor compliance by the Company and/or the Sellers with any of the provisions
hereof nor the consummation of the transactions and actions contemplated hereby
will:
(a) violate or conflict with any provision of the Articles of
Incorporation or By-Laws of the Company;
(b) violate or, alone or with notice of the passage of time,
result in the material breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a material default under,
the terms of any agreement or other document or undertaking, oral or written to
which the Sellers and/or the Company is a party or by which any of them or any
of their respective properties or assets may be bound;
(c) result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Sellers and/or
the Company pursuant to the terms of any such agreement or instrument;
(d) violate any statute, ordinance, regulation judgment, order,
injunction, decree or award of any court or governmental or quasi governmental
agency against, or binding upon the Sellers and/or the Company or upon any of
their respective properties or assets; or
(e) violate any law or regulation of any jurisdiction relating
to the Sellers and/or the Company or any of their respective assets or
properties.
3.4 Obligations; Authorizations. Neither the Company nor the Sellers
are (i) in violation of any judgment, order, injunction, award or decree which
is binding on any of them or any of their assets, properties, operations or
business which violation, by itself or in conjunction with any other such
violation, would materially and adversely affect the consummation of the
transaction contemplated hereby; or (ii) in violation of any law or regulation
or any other requirement of any governmental body, court or arbitrator relating
to him, her or it, or to his, her or its assets, operations or businesses which
violation, by itself or in conjunction with other violations of any other law,
regulation or other requirement, would materially adversely affect the
consummation of the transaction contemplated hereby.
3.5 Consents. All requisite consents of third parties, including, but
not limited to, governmental or other regulatory agencies, federal, state or
municipal, required to be received by or on the part of the Company and the
Sellers for the execution and delivery of this Agreement and the performance of
their respective obligations hereunder have been obtained and are in full force
and effect. The Company and the Sellers have fully complied with all conditions
of such consents.
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3.6 SEC Reports. The Company has filed in a timely manner with the
Securities and Exchange Commission (the "SEC"), all reports required to be filed
and is "current" in its reporting obligations. The Company has delivered to
Buyer a true and correct copy of all filings made by the Company with the SEC
since its inception (collectively, the "SEC Reports"). As of their respective
dates, the SEC Reports complied in all material respects with the requirements
of the Securities Act of 1933, as amended (the "Act') and/or the Exchange Act,
as applicable, and the rules and regulations promulgated thereunder and none of
the SEC Reports contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.7 Financial Statements. The financial statements (the "Financial
Statements") of the Company included in the SEC Reports (including in each case
the related notes thereto) (i) are in accordance with the books and records of
the Company, (ii) are correct and complete in all material respects, (iii)
present fairly the financial position and results of operations of the Company
as of the respective dates indicated (subject, in the case of unaudited
statements, to normal, recurring adjustments, none of which were material) and
(iv) have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP").
3.8 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
has full power and authority to own, lease and operate its properties and to
carry on its business as now being and as heretofore conducted. The Company is
not qualified or licensed to do business as a foreign corporation in any other
jurisdiction and neither the location of its assets nor the nature of its
business requires it to be so qualified.
3.9 Capitalization. The total authorized and issued capital stock of
the Company as of the date of this Agreement is 250,000,000 authorized and
13,200,000 outstanding shares of Common Stock. There are no subscriptions,
options, warrants, convertible or exchangeable securities or other rights'
agreements or commitments (oral or otherwise) obligating the Company to issue
any shares of its capital stock or other securities.
3.10 Articles of Incorporation, and By-Laws; Amendment to Charter
Document. Annexed hereto as Exhibit 3.10 is a true and complete copy of the
Articles of Incorporation and By-Laws of the Company as in effect on the date
hereof, certified by the Secretary of the Company in the case of the By-Laws and
by the Secretary of State of the State of Florida in the case of the Articles of
Incorporation.
3.11 Officers and Directors. The Secretary's Certificate provided
therewith identifies all of the current officers and directors of the Company.
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3.12 Liabilities Etc.
(a) The Company has filed all federal, state and local tax
returns which are required to be filed by it, through and including the date
hereof and as of the Closing date, including, but not limited to, its Federal
Income Tax Returns and Florida Franchise Tax Returns and all taxes shown to be
due thereon (together with any applicable penalties and interest) have been
paid. The Company has not incurred any liability for taxes except in the
ordinary course of business. The Company has paid or provided adequate reserves
for all taxes which have become due for all periods prior to the date of this
Agreement or pursuant to any assessments received by it or which the Company is
obligated to withhold from amounts owing to any employee, creditor or other
third party as at or with respect to any period prior to the date of this
Agreement. The federal Income tax Returns of the Company have never been audited
by the Internal Revenue Service. The Company has not waived any statute of
limitations in respect of taxes, nor agreed to any extension of time with
respect to a tax assessment or deficiency.
(b) On the date hereof and as of the Closing date, there are no
liabilities, debts or obligations of the Company, whether accrued, absolute,
contingent or otherwise (the "Liabilities") that are not reflected in the
Financial Statements, except as incurred in the ordinary course of business and
not exceeding $5,000 in the aggregate.
3.13 Adverse Developments. Since September 29, 2008, there has been
no material adverse change in the business, operations or condition (financial
or otherwise) of the Company; nor has there been since such date, any damage,
destruction or loss, whether covered by insurance or not, materially or
adversely affecting the business, properties or operations of the Company.
3.14 Actions and Proceedings. Neither the Sellers nor the Company is
a subject to any outstanding orders, writs, injunctions or decrees of any court
or arbitration tribunal or any governmental department, commission, board,
agency or instrumentality, domestic or foreign, against, involving or affecting
the business, properties or employees of the Company or the Seller' right to
enter into, execute and perform this Agreement (or any of the transactions
contemplated hereby). There are no actions, suits, claims or legal,
administrative or arbitration proceedings or investigations, including any
warranty or product liability claims (whether or not the defense thereof or
liabilities in respect thereof are covered by policies of insurance) relating to
or arising out of the business, properties or employees of the Company pending
or, to the best knowledge of the Company and the Sellers, threatened against or
affecting the Company.
3.15 Compliance with Laws. The Company has complied in all material
respects with all laws, ordinances, regulations and orders applicable to the
conduct of its business, including all laws relating to environmental matters,
employees and working conditions.
3.16 Bank Accounts and Credit Cards. Except as set forth on Exhibit
3.16 hereto, as of the date hereof, the Company does not have any bank account,
safe deposit box or credit or charge cards.
3.17 Stockholders. Attached hereto as Exhibit 3.17 is a current
stockholder list as provided by the Company's transfer agent. Immediately
following the Closing, the Company shall continue to have at least 25
stockholders other than the Buyer.
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3.18 Capitalization; No Preemptive Rights, Etc. As of the date of
this Agreement, the Company has authorized 250,000,000 shares of Common Stock.
All of the issued and outstanding shares of Common Stock are duly authorized and
validly issued and outstanding, fully paid and non-assessable. There are no
pre-emptive rights (or other similar rights, including any rights of first
refusal) outstanding relating to the Shares.
3.19 Subsidiaries. There are no corporations, partnerships or other
business entities controlled by the Company. As used herein, "controlled by"
means (i) the ownership of not less than fifty (50%) percent of the voting
securities or other interests of a corporation, partnership or other business
entity, or (ii) the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a corporation,
partnership or other business entity, whether through the ownership of voting
shares, by contract or otherwise. The Company has not made any investments in,
nor does it own, any of the capital stock of, or any other proprietary interest
in, any other corporation, partnership or other business entity.
3.20 Environmental. As used in this Agreement, the term "Hazardous
Materials" shall mean any waste material which is regulated by any state or
local governmental authority in the states in which the Company conducts
business, or the United States Government, including, but not limited to, any
material or substance which is (i) defined as "hazardous waste," "hazardous
material," "hazardous substance," "extremely hazardous waste" or "restricted
hazardous waste" under any provision of Florida law, (ii) petroleum, (iii)
asbestos, (iv) designated as a "hazardous substance" pursuant to Section 311 of
the Clean Water Act, 33 U.S.C. 1251 et seq. (33 U.S.C. 1321) or listed pursuant
to Section 307 of the Clean Water Act (33 U.S.C. 1317), (v) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq. (42 U.S.C. 6901), or (vi) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. (42 U.S.C.
9601). The current operations of the Company and its current and, to the best of
its knowledge, its past use comply and then complied in all material respects
with all applicable laws and governmental regulations including all applicable
federal, state and local laws, ordinances, and regulations pertained to air and
water quality. Hazardous Materials, waste, disposal or other environmental
matters, including the Clean Water Act, the Clean Air Act, the Federal Water
Pollution Control Act, the Solid Waste Disposal Act, the Resource Conservation
Recovery Act, and the statutes, rules and regulations and ordinances or the
state, city and country in which the Company's property is located.
3.21 Litigation, Compliance with Law. There are no actions, suits,
proceedings, or governmental investigations (or any investigation of any
self-regulatory organization) relating to the Company or to any of its
properties, assets or businesses pending or, to the best of its knowledge,
threatened, or any order, injunction, award or decree outstanding against the
Company or against or relating to any of its properties, assets or businesses.
The Company is not in violation of any law, regulation, ordinance, order,
injunction, decree, award or other requirements of any governmental body, court
or arbitrator relating to its properties, assets or business.
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3.22 Agreements and Obligations; Performance. Other than pursuant to
this Agreement and the agreements and other relationships listed on Exhibit 3.22
attached hereto, the Company is not a party to, or bound by any: (i) contract,
arrangements, commitment or understanding which involves aggregate payments or
receipts in excess of $1,000; (ii) contractual obligation or contractual
liability of any kind to any Company stockholder; (iii) contract, arrangement,
commitment or understanding with its customers or any officer, employee,
stockholder, director, representative or agent thereof for the repurchase of
products, sharing of fees, the rebating of charges to such customers, bribes,
kickbacks from such customers or other similar arrangements; (iv) contract for
the purchase or sale of any materials, products or supplies which contain, or
which commits or will commit it for a fixed term; (v) contract of employment
with any officer or employee not terminable at will without penalty or premium
or any continuing obligation of liability; (vi) deferred compensation, bonus or
incentive plan or agreement not cancelable at will without penalty or premium or
any continuing obligation or liability: (vii) management or consulting agreement
not terminable at will without penalty or premium or any continuing obligation
or liability; (viii) lease for real or personal property (including borrowings
thereon), license or royalty agreement; (ix) union or other collective
bargaining agreement; (x) agreement, commitment or understanding relating to the
indebtedness for borrowed money; (xi) contract involving aggregate payments or
receipts of $1,000 or more which, by its terms, requires the consent of any
party thereto to the consummation of the transactions contemplated hereby; (xii)
contract containing covenants limiting the freedom of the Company to engage or
compete in any line of business or with any person in any geographic area;
(xiii) contract or opinion relating to the acquisition or sale of any business;
(xiv) voting trust agreement or similar stockholders' agreement; and/or (xiv)
other contract, agreement, commitment or understanding which materially affects
any of its properties, assets or business, whether directly or indirectly, or
which was entered into other than in the ordinary course of business.
3.23 Permits and Licenses. The Company is in compliance in all
material respects with all requirements, standards and procedures of the
federal, state, local and foreign governmental bodies which issued such permits,
licenses, orders, franchises and approvals.
3.24 Employee Benefit Plans. The Company does not maintain and is not
required to make contributions to any "pension" and "welfare" benefit plans
(within the respective meanings of Sections 4(2) and 4(1) of the Employee
Retirement Income Security Act of 1974, as amended).
3.25 Trading. The shares of Common Stock are quoted on the OTCBB
under the symbol "LIQU." and are eligible for deposit with the Depository Trust
Company The Company has not received any correspondence and/or notice (nor has
any reason to believe it will in the future receive) regarding the continued
eligibility of the Common Stock to be quoted on the OTCBB.
3.26 Insurance. The Company has no insurance policies. The Company
does provide health insurance for its sole employee.
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3.27 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
(a) The Company (i) makes and keeps accurate books and records
and (ii) maintain and has maintained effective internal control over financial
reporting as defined in Rule 13a-15 under the Securities Exchange Act of 1934,
as mended (the "Exchange Act") and a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of the Company's financial
statements in conformity with accounting principles generally accepted in the
United States and to maintain accountability for its assets, (C) access to the
Company's assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for the Company's
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(b) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to
ensure that the information required to be disclosed by the Company in the
reports it will file or submit under the Exchange Act is accumulated and
communicated to management of the Company, including its principal executive
officer and principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure to be made and (iii) such disclosure
controls and procedures are effective in all material respects to perform the
functions for which they were established.
(c) Since September 29, 2008, except as disclosed in the SEC
Reports, (i) the Company has not been advised of (A) any significant
deficiencies in the design or operation of internal controls that could
adversely affect the ability of the Company and each of its subsidiaries to
record, process, summarize and report financial data, or any material weaknesses
in internal controls and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the internal
controls of the Company and each of its subsidiaries, and (ii) since that date,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(d) There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as such, to
comply with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith.
3.28 Disclosure. Neither this Agreement, nor any certificate,
exhibit, or other written document or statement, furnished to the Buyer by the
Sellers and/or the Company in connection with the transactions contemplated by
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to be stated in order
to make the statements contained herein or therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company and the Sellers, both as
of the date of this Agreement and as of the date of the Closing, as follows:
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4.1 Authorization of Agreement. The Buyer is fully able, authorized
and empowered to execute and deliver this Agreement, and any other agreement or
instrument contemplated by this Agreement, and to perform his, her or its
obligations contemplated hereby and thereby. This Agreement, and any such other
agreement or instrument, upon execution and delivery by Buyer (and assuming due
execution and delivery hereof and thereof by the other parties hereto and
thereto), will constitute the legal, valid and binding obligation of each of the
Buyer, in each case enforceable against each of them in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect which affect creditors' rights generally and by legal and equitable
limitations on the availability of specific performance and other equitable
remedies against the Buyer under or by virtue of this Agreement or such other
agreement or instrument.
4.2 No Buyer Defaults. Neither the execution and delivery of this
Agreement, nor the consummation of the transaction contemplated hereby, will (i)
violate, conflict with or result in the breach or termination of, or otherwise
give any other contracting party the right to terminate, or constitute a default
under the terms of, any mortgage, bond, indenture or material agreement to which
the Buyer is a party or by which the Buyer or any of their property or assets
may be bound or materially affected, (ii) violate any judgment, order,
injunction, decree or award of any court, administrative agency or governmental
body against, or binding upon, the Buyer or upon the property of the Buyer, or
(iii) constitute a violation by the Buyer of any applicable law or regulation of
any jurisdiction as such law or regulation relates to Buyer or to the property
of the Buyer.
4.3 No Litigation, Etc. There is no material suit, action, or legal,
administrative, arbitration or other proceeding or governmental investigation
pending or, to Buyer's best knowledge, threatened against, materially affecting
or which will materially affect, the property of the Buyer.
4.4 Investment Intent. The Buyer is acquiring the securities being
purchased pursuant to this Agreement for its own account and for investment
purposes and not with a view to distribution or resale, nor with the intention
of selling, transferring or otherwise disposing of all or any part of the Shares
except in compliance with all applicable provisions of the Securities Act, the
rules and regulations promulgated by the SEC thereunder, and applicable state
securities laws.
4.5 Legend. The Buyer understands that all certificates representing
the Shares acquired by it pursuant to this Agreement shall bear the following
restrictive legend, or one substantially similar thereto:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for investment
and may not be sold, transferred or assigned in the absence of an effective
registration statement for those shares under the Securities Act of 1933, as
amended, or an opinion satisfactory to the Company's counsel that registration
is not required under said Act."
5. PRE-CLOSING COVENANTS AND AGREEMENTS OF THE PARTIES.
The Sellers and the Company and the Buyer (as to covenants they
expressly are providing below in this Section 5 hereby covenant and agree that,
from the date hereof and until the Closing:
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5.1 Access. The Company (and its subsidiaries) shall afford to the
officers, attorneys, accountants and other authorized representatives of the
Buyer free and full access, during regular business hours and upon reasonable
notice, to the Company's books, records, personnel and properties (including,
without limitation, the work papers prepared by its auditors) so that the Buyer
may have full opportunity to make such review, examination and investigation as
it may desire of the Company's business and affairs. The Company will cause its
employees, accountants and attorneys to cooperate fully with said review,
examination and investigation and to make full disclosure to the Buyer of all
material facts affecting the Company's financial conditions and business
operations.
5.2 Conduct of Business. The Company shall each conduct its business
only in the ordinary and usual course and make no material change thereto.
5.3 Liabilities. Neither the Company shall incur any obligation or
liability, absolute and continent, except as in the ordinary course of its
business.
5.4 No Breach. Each of the parties hereto will (i) use its best
efforts to assure that all of its respective representations and warrants
contained herein are true in all material respects at and as of the date hereof,
and as of the Closing no breach shall occur with respect to any of the parties'
covenants, representations or warranties contained herein that has not been
cured by the Closing; (ii) not voluntarily take any action or do anything which
will cause a material breach of or default respecting such covenants,
representations or warranties; and (iii) promptly notify the other of any event
or fact which represents a breach or default.
5.5 Other SEC/FINRA Filings. The Company shall file with the SEC and
the FINRA (if required) all required forms and disclosure items in a timely
manner (which forms and disclosure items must be approved by legal counsel to
the Company and the Buyer prior to filing and/or disclosure) required and/or
relating to this Agreement or otherwise.
5.6 Public Announcements. No party hereunder shall, without the
express prior written consent of the Company and the Buyer make any announcement
or otherwise disclose any information regarding this Agreement and/or the
transactions contemplated hereby other than as required by law or otherwise
deemed advisable in counsel's opinion to ensure compliance with public
disclosure requirements under the federal securities laws; provided, however,
that the parties hereto agree that the Company, following the closing of the
Purchase, shall file a Current Report on Form 8-K with the SEC in the period
proscribed by applicable law.
5.7 Brokers. Each of the Company and the Sellers on the one hand, and
the Buyer on the other hand represent and warrant to the other that neither has
employed any broker, finder or similar agent and no person or entity with which
each has had any dealings or communications of any kind is entitled to any
brokerage, finder's or placement fee or any similar compensation in connection
with this Agreement or the transaction contemplated hereby.
5.8 Expenses. Each of the parties hereto agrees to bear its own
expenses in connection with the negotiation, preparation, execution and delivery
of this Agreement and the consummation of the transaction contemplated hereby.
12
5.9 Further Assurances. Each of the parties shall execute such
documents or other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated in this Agreement.
6. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
6.1 Nature of Statements. All statements contained in any Exhibit,
certificate or other instruments delivered by or on behalf of any party hereto
pursuant to this Agreement, shall be deemed representations and warranties by
such party.
6.2 Survival of Representations and Warranties. Regardless of any
investigation at any time made by or on behalf of any party hereto or of any
information any party may have in respect thereof, all covenants, agreements,
representations and warranties made hereunder or pursuant hereto or in
connection with the transaction contemplated hereby shall survive the Closing
and continue in effect through the third anniversary of the Closing except that
the representations and warranties set forth in Section 3.2 (with respect to
environmental law only) shall continue in effect until the expiration of the
applicable statute of limitations, and the agreements of indemnity for claims
set forth in Sections 9 and 10 shall survive the Closing and continue in effect
for the period during which such claims are enforceable.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE BUYER
The obligations of the Buyer to effectuate the Closing is subject to
the fulfillment, prior to the date of Closing, of each of the following
conditions (any one or more of which may be waived by the Buyer unless such
condition is a requirement of law).
7.1 Representations and Warranties. All representations and
warranties of the Company and the Sellers contained in this Agreement and in any
written statement, Exhibit or other documents delivered pursuant hereto or in
connection with the transactions contemplated hereby shall be true and correct
in all material respects as of the date hereof and as of the Closing Date.
7.2 Covenants. The Company and the Sellers shall have performed and
complied in all material respects with all covenants and other agreements
required by (or contained in) this Agreement to be performed or complied with or
by them prior to or at the Closing Date.
7.3 No Actions. No action, suit, proceeding or investigation shall
have been instituted against the Sellers or the Company, and be continuing
before a court or before or by a governmental body or agency, and be unresolved,
to restrain or to prevent or to obtain damages in respect of, the carrying out
of the transactions contemplated hereby or which might materially and adversely
affect the rights of the Buyer to consummate the transactions contemplated
hereby.
7.4 Approvals. The Sellers and the Company shall have obtained all
approvals and consents to consummate this Agreement and the transactions to be
consummated at or immediately following the Closing, in accordance with all
applicable laws, rules and regulations.
13
7.5 Due Diligence. The Buyer shall have completed to its sole
satisfaction its due diligence of the Company, the Sellers and all other items
it deems necessary and/or advisable, and shall be satisfied with the results
thereof.
7.6 Closing Documents. The Buyer shall receive all of the documents
(executed where applicable) set forth in Section 2.2 and Section 2.3 of this
Agreement, which documents shall be in form and substance reasonably
satisfactory to Buyer and its legal counsel.
7.7 Resignation of Officers and Directors. Effective on the Closing
Date, all officers and directors of the Company shall have resigned as officers
and directors of the Company and they shall have appointed ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
the President, Chief Executive Officer and sole director of the Company and Mr.
▇▇▇▇▇ ▇▇▇ as the Chief Financial Officer and Secretary of the Company.
7.8 Amendment of By-laws. The By-laws of the Company shall have been
amended prior to the Closing Date to expressly elect that the Company shall not
be subject to Florida Business Corporation Act Section 607.0901 (Affiliated
Transactions) and the amendment shall be approved by the vote of the holders of
a majority of the outstanding shares of Common Stock, excluding shares owned by
the Principal Seller.
8. CONDITIONS PRECEDENT TO THE OBLIGATION TO THE COMPANY AND THE SELLERS
TO CLOSE
The obligations of the Company and the Sellers to effectuate the
Closing is subject to the fulfillment, prior to the date of Closing, of each of
the following conditions (any one or more of which may be waived by the
Principal Seller unless such condition is a requirement of law).
8.1 Representations and Warranties. All representations and
warranties of the Buyer contained in this Agreement and in any written
statement, Exhibit or other documents delivered pursuant hereto or in connection
with the transactions contemplated hereby shall be true and correct in all
material respects as of the date hereof. and as of the Closing Date.
8.2 Covenants. The Buyer shall have performed and complied in all
material respects with all covenants and other agreements required by (or
contained in) this Agreement to be performed or complied with by it prior to or
at the Closing.
8.3 No Actions. No action, suit, proceeding or investigation shall
have been instituted against the Buyer, and be continuing before a court or
before or by a governmental body or agency, and be unresolved, to restrain or to
prevent or to obtain damages in respect of, the carrying out of the transactions
contemplated hereby, or which might materially and adversely affect the rights
of the Sellers and the Company to consummate the transactions contemplated
hereby.
8.4 Approvals. The Buyer shall have obtained all required consents
and approvals to this Agreement and the transactions to be consummated at or
immediately following the Closing, in accordance with all applicable laws, rules
and regulations.
14
8.5 Closing Documents. The Sellers and/or the Company shall receive
all of the documents set forth in Section 2.4 of this Agreement, which documents
shall be in form and substance reasonably satisfactory to such parties and their
legal counsel.
9. INDEMNIFICATION BY THE COMPANY AND THE PRINCIPAL SELLER
9.1 Claims Against the Company and the Principal Seller.
(a) The Company and the Principal Seller, jointly and severally,
shall indemnify and hold the Buyer harmless from and against any loss, damage or
expense (including reasonable attorneys' fees) caused by or arising out of any
claim made against the Company:
(i) for any broker's or finder's fee or any similar fee,
charge or commission incurred by the Company and/or the Sellers prior to or in
connection with this Agreement or the transaction contemplated hereby;
(ii) for any foreign, Federal, state or local tax of any
kind arising out of or by reason of the existence or operations of the Company
and/or the Sellers prior to the Closing, including, without limitation, any
payroll taxes owed by the Company on account of compensation paid to any
employee of the Company prior to such date;
(iii) in respect of any salary, bonus, wages or other
compensation of any kind owed by the Company to its employees for services
rendered on or prior to the Closing;
(iv) for any damages to the environment caused by or arising
out of any pollution resulting from or otherwise attributable to the operation
of the business of the Company prior to the Closing;
(v) in respect of any payable of the Company incurred prior
to the Closing;
(vi) in respect of any liability or indebtedness for
borrowed money or otherwise incurred on or before the Closing, including,
without limitation, with respect to the execution and performance of this
Agreement; and
(vii) for expenses required to be borne by the Company
and/or the Sellers under the provisions of this Agreement.
(b) Other Matters. The Company and the Principal Seller, jointly
and severally, shall also indemnify and hold the Buyer harmless from and against
any loss, damage or expense (including reasonable attorneys' fees) caused by or
arising out of (i) any breach or default in the performance by the Company and
the Sellers of any covenant or agreement of the Company and the Sellers
contained in this Agreement, (ii) any breach of warranty or inaccurate or
erroneous representation made by the Company and the Sellers herein or in any
Exhibit, certificate or other instrument delivered by or on behalf of the
Company and the Sellers pursuant hereto, and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal and accounting fees) incident to any of the foregoing.
15
10. THE INDEMNIFICATION BY BUYER.
The Buyer shall indemnify and hold harmless the Sellers from and
against all loss, damage or expense (including reasonable attorneys' fees)
caused by or arising out of (i) any breach or default in the performance by the
Buyer of any covenant or agreement of the Buyer contained in this Agreement,
(ii) any breach of warranty or inaccurate or erroneous representation made by
the Buyer herein or in any certificate or other instrument delivered by or on
behalf of the Buyer pursuant hereto and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal and accounting fees) incident to the foregoing.
11. NOTICE AND OPPORTUNITY TO DEFEND
Promptly after the receipt by Buyer or the Company and/or the Sellers
of notice of any action, proceeding, claim or potential claim (any of which is
hereinafter individually referred to as a "Circumstance") which could give rise
to a right to indemnification under this Agreement, such party (the "Indemnified
Party") shall give prompt written notice to the party or parties who may become
obligated to provide indemnification hereunder (the "Indemnifying Party"). Such
notice shall specify in reasonable detail the basis and amount, if
ascertainable, of any claim that would be based upon the Circumstance. The
failure to give such notice promptly shall relieve the Indemnifying Party of its
indemnification obligations under this Agreement, unless the Indemnified Party
establishes that the Indemnifying Party either had knowledge of the Circumstance
or was not prejudiced by the failure to give notice of the Circumstance. The
Indemnifying Party shall have the right, at its option, to compromise or defend
the claim, at its own expense and by its own counsel, and otherwise control any
such matter involving the asserted liability of the Indemnified Party, provided
that any such compromise or control shall be subject to obtaining the prior
written consent of the Indemnified Party which shall not be unreasonably
withheld. An Indemnifying Party shall not be liable for any costs of settlement
incurred without the written consent of the Indemnifying Party. If any
Indemnifying Party undertakes to compromise or defend any asserted liability, it
shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of or defense against any such asserted liability. All
costs and expenses incurred in connection with such cooperation shall be borne
by the Indemnifying Party, provided such costs and expenses have been previously
approved by the Indemnifying Party. In any event, the Indemnified Party shall
have the right at its own expense to participate in the defense of an asserted
liability.
12. MISCELLANEOUS
12.1 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns. No assignment of this Agreement or of any rights
hereunder shall relieve the assigning party of any of its obligations or
liabilities hereunder; provided, however, Buyer may assign the securities it
receives pursuant to this Agreement.
16
12.2 Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, overnight courier, facsimile transmission
or prepaid cable or telegram and confirmed in writing, or mailed first class,
postage prepaid, by registered or certified mail, return receipt requested
(mailed notices and notices sent by facsimile transmission, cable or telegram
shall be deemed to have been given on the date sent) as follows:
If to the Sellers, to the Principal Seller at the address set
forth on Exhibit A, and if to the Company, as follows:
Liquid Financial Assets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Beilly LLP
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to the Buyer, as follows:
Golden Target Pty Ltd.
▇▇▇▇▇ ▇, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
or in any case to such other address or addresses as hereafter shall be
furnished as provided in this Section 12.2 by either of the parties hereto to
the other party hereto.
12.3 Waiver: Remedies. No delay on the part of any of the
Sellers, the Company or Buyer in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
the Sellers, the Company or Buyer of any right, power or privilege hereunder
operate as a waiver of any other right, power or privilege hereunder, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise of any other right, power or privilege
hereunder. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which the parties hereto may otherwise have
at law or in equity.
17
12.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements or understandings (in writing, oral or
otherwise) of the parties relating thereto.
12.5 Amendment. This Agreement may be modified or amended only
by written agreement of the parties hereto.
12.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
12.7 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of New
York without regard to the conflicts of laws principles thereof. The parties
hereto hereby expressly and irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to, arising out of or under this
Agreement, shall be brought solely and exclusively in a federal or state court
located in the City of New York. By its execution hereof, the parties hereby
expressly covenant and irrevocably submit to the in personam jurisdiction of the
federal and state courts located in the City of New York and agree that any
process in any such action may be served upon any of them personally, or by
certified mail or registered mail upon them or their agent, return receipt
requested, with the same full force and effect as if personally served upon them
in the City of New York. The parties hereto expressly and irrevocably waive any
claim that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
12.8 Captions. All Section titles or captions contained in this
Agreement, in any Exhibit referred to herein or in any Exhibit annexed hereto
are for convenience only, shall not be deemed a part of this Agreement and shall
not affect the meaning or interpretation of this Agreement.
12.9 Confidential Information. Each party agrees that such party
and its representatives will hold in strict confidence all information and
documents received from the other parties and, if the transactions herein
contemplated shall not be consummated, each party will continue to hold such
information and documents in strict confidence and will return to such other
party all such documents (including the documents annexed to this Agreement)
then in such receiving party's possession without retaining copies thereof,
provided, however, that each party's obligations under this Section 12.9 to
maintain such confidentiality shall not apply to any information or documents
that are in the public domain at the time furnished by the others or that become
in the public domain thereafter through any means other than as a result of any
act of the receiving party or of its agents, officers, directors or stockholders
which constitutes a breach of this Agreement, or that are required by applicable
law to be disclosed.
18
13. TERMINATION AND WAIVER.
13.1 Termination. Notwithstanding anything herein or elsewhere to the
contrary; this Agreement may be terminated and the transactions provided for
herein abandoned at any time prior to the Closing as follows:
(a) By mutual written consent of the Buyer, Company and the
Sellers; or
(b) By the Company, the Sellers or the Buyer on July 31, 2009,
if the Closing does not occur prior to such date (unless extended by the parties
or unless the failure to close is the result of the actions of the Company or
the Sellers, in which case, Buyer shall have the option of terminating this
Agreement on such date).
13.2 Waiver. Any condition to the performance of any party hereto
which legally may be waived on or prior to the Closing may be waived at any time
by the party entitled to the benefit thereof by action taken or authorized by an
instrument in writing executed by the relevant party or parties. The failure of
any party at any time or times to require performance of any provision hereof
shall in no manner affect the right of such party at a later time to enforce the
same. No waiver by any party of the breach of any term, covenant, representation
or warranty contained in this Agreement as a condition to such party's
obligations hereunder shall release or affect any liability resulting from such
breach, and no waiver of any nature, whether by conduct or otherwise, in any one
or more instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or of any breach of any other term, covenant,
representation or warranty of this Agreement.
Remainder of page intentionally left blank
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered on the day and year first above written.
LIQUID FINANCIAL ENGINES, INC.
By:
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BUYER:
GOLDEN TARGET PTY LTD.
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
SELLERS:
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually and
as attorney -in-fact for the Sellers
listed on Exhibit A
20
Exhibit A
---------
Selling Stockholders
--------------------
Name and Address Number of Shares Purchase Price
---------------- ---------------- --------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 12,000,000 $ 245,669.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇ ▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇ ▇▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇ ▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇ ▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇ ▇▇▇▇▇▇▇ 49,800 $ 1,019.53
▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,800 $ 57.32
21
Exhibit B
---------
Power of Attorney
-----------------
22
Exhibit 3.10
------------
Copies of Charter Documents
23
Exhibit 3.16
------------
Bank Account Information to be listed.
24
Exhibit 3.17
------------
Certified List of Stockholders
25
