Director Compensation
We do not have any standard arrangements by which directors are compensated for any services provided as a director. No cash has been paid to the directors in their capacity as such.
Outstanding Equity Awards
Our directors and officers do not have any unexercised options, stock that has not vested, or equity incentive plan awards.
Options
We do not currently have a stock option plan. No individual grants of stock options, whether or not in tandem with stock appreciation rights known as SARs or freestanding SARs have been made to any executive officer or any director since our inception; accordingly, no stock options have been granted or exercised by any of the officers or directors since inception.
Long-Term Incentive Plans and Awards
We do not have any long-term incentive plans that provide compensation intended to serve as incentive for performance at this time. No individual agreements regarding future payouts under non-stock price-based plans have been made to any executive officer or any director or any employee or consultant; accordingly, no future payouts under non-stock price-based plans or agreements have been granted or entered into or exercised by our officer or director or employees or consultants.
Code of Ethics Policy
We have not yet adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions.
Corporate Governance
There have been no changes in any state law or other procedures by which security holders may recommend nominees to our board of directors. In addition to having no nominating committee for this purpose, we currently have no specific audit committee and no audit committee financial expert. Based on the fact that our current business affairs are simple, any such committees are excessive and beyond the scope of our business and needs.
Involvement in Certain Legal Proceedings
None of our directors, executive officers and control persons has been involved in any of the following events during the past ten years:
- Any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time,
- Any conviction in a criminal proceeding or being subject to any pending criminal proceeding (excluding traffic violations and other minor offenses);
- Being subject to any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his or her involvement in any type of business, securities or banking activities,; or
- Being found by a court of competent jurisdiction (in a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated.
Change-In-Control Arrangements
There are currently no employment agreements or other contracts or arrangements with our officers or directors. There are no compensation plans or arrangements, including payments to be made by us, with respect to our officers, directors or consultants that would result from the resignation, retirement or any other termination of any of our directors, officers or consultants. There are no arrangements for our directors, officers, employees or consultants that would result from a change-in-control.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets forth the number and percentage of our outstanding 4,662,584 common shares owned prior to the acquisition by:
(i) each person known to us to beneficially own more than 5% of its outstanding common stock,
(ii) each director,
(iii) each named executive officer and significant employee, and
(iv) all officers and directors as a group.
| | | | | | |
| Name and address | | Amount | | Percentage | |
| Jerry Niblett | | | | | |
| 4519 West 95th St North Sperry, OK 74073 | | 100,000 | | 2.14% | |
| | | | | | |
| Mike La Lond | | | | | |
| 928 S Braden Tulsa, OK 74112 | | 100,000 | | 2.14% | |
| | | | | | |
| Ron Brewer | | | | | |
| 4012 W. Utica St. Broken Arrow, OK 74011 | | 100,000 | | 2.14% | |
| | | | | | |
| Paul Williams | | | | | |
| 254 Valley View Vista Dr. Pisgah Forest, NC 28768 | | 13,750 | | 0.29% | |
| | | | | | |
| All Officers and Directors As a Group | | 313,750 | | 6.73% | |
| | | | | | |
| Premiere Resources 4142 S Harvard Ave., Suite D3 Tulsa, OK 74135 | | 1,000,000 | | 21.45% | |
| | | | | | |
| Janice Quist 7463 S 227th East Ave Broken Arrow, OK 74014 | | 350,000 | | 7.51% | |
| | | | | | |
| Equitas Resources 3012 East Fourmile Road Cheyenne, WY 82009 | | 1,800,000 | | 38.61% | |
| | | | | | |
| All other 5% owners as a group | | 3,150,000 | | 67.56% | |
The following table sets forth the number and percentage of our 125,000 outstanding series A preferred shares owned by:
(i) each person known to us to beneficially own more than 5% of its outstanding series A preferred shares,
(ii) each director,
(iii) each named executive officer and significant employee, and
(iv) all officers and directors as a group.
| | | | | | |
| Name and Address | | Amount | | Percentage | |
| Paul R. Williams 254 Valley View Vista Dr. Pisgah Forest, NC 28768 | | 90,000 | | 72% | |
|
All Officers and Directors as a Group (1 person) | | 90,000 | | 72% | |
The following table sets forth the number and percentage of our 300,000 outstanding series B preferred shares owned by:
(i) each person known to us to beneficially own more than 5% of its outstanding series B preferred shares,
(ii) each director,
(iii) each named executive officer and significant employee, and
(iv) all officers and directors as a group.
| | | | | | |
| Name and Address | | Amount | | Percentage | |
| Eric English 4102 S. 137th W. Ave Sand Springs, OK 74063 | | 175,000 | | 58.33% | |
|
All Officers and Directors as a Group (1 person) | | 175,000 | | 58.33% | |
|
Rail Pro Services, Inc. 4142 S. Harvard Ave Suite D3 Tulsa, OK 74135 | | 125,000 | | 41.67% | |
|
All other 5% owners as a group (1 member) | | 125,000 | | 41.67% | |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During 2011, the Company borrowed $15,000 from Helen English, a related party.
LEGAL PROCEEDINGS
We are not a party to any legal proceedings the outcome of which, in the opinion of our management, would have a material adverse effect on our business, financial condition, or results of operation.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Market Information
Item 5(a)
a) Market Information. Our common stock is not quoted on a market or securities exchange. We cannot provide any assurance that an active market in our common stock will develop. We intend to quote our common shares on a market or securities exchange.
b) Holders. At October 7, 2014, there were 46 common shareholders of Silex Holdings.
c) Dividends. Holders of Silex Holdings common stock are entitled to receive such dividends as may be declared by its board of directors. No dividends on Silex Holdings common stock have ever been paid, and Silex Holdings does not anticipate that dividends will be paid on its common stock in the foreseeable future.
d) Securities authorized for issuance under equity compensation plans. No securities are authorized for issuance by the Company under equity compensation plans.
e) Performance graph
Not applicable.
f) Sale of unregistered securities.
None
Item 5(b) Use of Proceeds. None
Item 5(c) Purchases of Equity Securities by the issuer and affiliated purchasers. None.
DESCRIPTION OF CAPITAL STOCK
The following statements constitute brief summaries of Silex Holdings’ articles of incorporation and bylaws.
(a) Authorized Shares. The aggregate number of shares which the corporation shall have the authority to issue is one hundred million shares (100,000,000 shares). Eighty million (80,000,000) shares shall be designated "Common Stock", and shall have a par value of $.0001. Twenty million (20,000,000 shares shall be designated "Preferred Stock", and shall have a par value of $.0001 per share, and shall be issued for such consideration, expressed in dollars, as the Board of Directors may, from time to time, determine.
(b) Consideration for Shares. All shares of Common Stock and Preferred Stock shall be issued by Silex Holdings for cash, property or services actually performed, for no less than the par value of $.0001 for Common Stock and $.0001 for Preferred Stock. All shares shall be fully paid and non-assessable.
(c) Issuance of Preferred Stock. The Preferred Stock may be issued from time to time in series. The board of directors of Silex Holdings is authorized to establish such series, to fix and determine the variations and the relative rights and preferences as between series, and to thereafter issue such stock from time to time. The board of directors is also authorized to allow for conversion of the Preferred Stock to Common Stock under terms and conditions as determined by the board of directors.
Common Stock
The common stock of Silex Holdings has the following powers, rights, qualifications, limitations and restrictions.
1. The holders of the common stock shall be entitled to one vote for each share of common stock held by them of record at the time for determining the holders thereof entitled to vote
2. After Silex Holdings shall comply with the requirements, if any, with respect to the setting aside of funds as sinking funds or redemption or purchase accounts and subject further to any other conditions which may be affixed in accordance with the provisions hereof, then but not otherwise, the holders of common stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the board of directors; and
3. In the event of a voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding up of Silex Holdings, the holders of the common stock shall be entitled to receive all of the remaining assets of Silex Holdings, tangible and intangible, of whatever kind available for distribution to stock holders, ratably in proportion to the number of common shares held by each.
Preferred Stock
The preferred stock of Silex Holdings has been divided into two series, and has the following powers, rights, qualifications, limitations and restrictions.
Series A preferred stock
1. The holders of the Series A preferred stock shall be entitled to one vote for each share of preferred stock held by them of record at the time for determining the holders thereof entitled to vote.
2. Each Series A preferred share is convertible into common shares worth an aggregate of $2.00.
3. After Silex Holdings shall comply with the requirements, if any, with respect to the setting aside of funds as sinking funds or redemption or purchase accounts and subject further to any other conditions which may be affixed in accordance with the provisions hereof, then but not otherwise, the holders of preferred stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the board of directors; and
4. In the event of a voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding up of Silex Holdings, the holders of the preferred stock shall be entitled to receive all of the remaining assets of Silex Holdings, tangible and intangible, of whatever kind available for distribution to stock holders, ratably in proportion to the number of preferred shares held by each.
Series B Preferred Stock
1. The holders of the Series B preferred stock shall be entitled to one vote for each share of preferred stock held by them of record at the time for determining the holders thereof entitled to vote.
2. Each Series B preferred share is convertible into common shares worth an aggregate of $1.00.
3. After Silex Holdings shall comply with the requirements, if any, with respect to the setting aside of funds as sinking funds or redemption or purchase accounts and subject further to any other conditions which may be affixed in accordance with the provisions hereof, then but not otherwise, the holders of preferred stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the board of directors; and
4. In the event of a voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding up of Silex Holdings, the holders of the preferred stock shall be entitled to receive all of the remaining assets of the Silex Holdings, tangible and intangible, of whatever kind available for distribution to stock holders, ratably in proportion to the number of preferred shares held by each.
Transfer Agent
Silex Holdings acts as its own transfer agent.
Indemnification of Directors and Officers
Silex Holdings shall indemnify any officer or director or any former officer or director, to the full extent permitted by law. We shall indemnify any officer or director in connection with any proceedings, including appeals, if he or she acted in good faith and in a manner he or she reasonably believed to be in the best interests of Silex Holdings and they had no reasonable cause to believe that his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in the best interests of Silex Holdings or had reasonable cause to believe that his or her conduct was unlawful.
At present, there is no pending litigation or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation or preceding that may result in a claim for indemnification.
We do not have any insurance policies covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
There have not been any changes in or disagreements with accountants on accounting and financial disclosure or any other matter.
Item 3.02 – Unregistered Sales of Equity Securities
On October 1, 2014, the Company issued 363,500,000 common shares to the shareholders of Silex Holdings under the securities purchase agreement, as described above. These common shares were issued in return for 4,662,584 Silex Holdings common shares. These common shares were issued under an exemption from registration under Section 4(a) (2) of the Securities Act. The shareholders of Silex Holdings are knowledgeable enough to be considered “sophisticated investors”, they had access to the type of information normally provided in a prospectus for a registered securities offering, and have agreed not to resell or distribute the securities to the public.
Item 9.01 - Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
To be filed by amendment
(b) Pro forma financial information.
To be filed by amendment
(c) Shell company transactions.
Not applicable
(d) Exhibits
(10) Stock Purchase Agreement dated May 21, 2013 by and between the Company, Ronald Brewer, as agent and attorney-in-fact for Sellers and RJD Green.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
RJD Green, Inc.
October 7, 2014
By: /s/ Rex Washburn
Rex Washburn
Chief Executive Officer
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of May 31, 2013 (this “Agreement”), is entered into with Ronald Brewer, as agent and attorney-in-fact (the “Sellers’ Agent”) for the sellers listed on Schedule A hereto (the “Sellers”) RJD Green, Inc. (the “Purchaser”) and Zahoor Ahmad, individually. Purchaser, Ahmad and Sellers are each referred to herein as a “Party” and collectively, as the “Parties.”
BACKGROUND
Sellers are the owners of 4,662,584 shares of common stock of Silex Holdings Inc. (the “Company”), representing 80% of the issued and outstanding capital stock of the Company as of the date hereof calculated on an actual basis and a fully-diluted basis. Sellers desires to sell to Purchaser 4,662,548 shares of said stock (the “Sellers’ Shares”). Purchaser desires to purchase all of the Sellers’ Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants herein contained, the Parties agree as follows:
1.
Purchase and Sale.
Sellers shall sell, transfer, convey and deliver unto Purchaser the Sellers’ Shares, and Purchaser shall acquire and purchase the Sellers’ Shares from Sellers.
2.
Purchase Price.
(a)
General. The purchase price (the “Purchase Price”) for the Sellers’ Shares, in the aggregate, is 363,500,000 common shares of Purchaser with 113,500,000 shares being held by the shareholders of Silex Holdings Inc. as purchase price and Purchaser agrees to return 250,000,000 shares to treasury stock at closing. Purchaser retains 24,000,000 shares of common stock.
(b)
Payment at Closing. At the Closing (as defined in Section 3(a)), Purchaser shall issue to Sellers the common shares, as set forth and allocated on Schedule A.
3.
The Closing.
(a)
General. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place as follows:
i.
Sellers shall deliver the original Certificates (below defined) to the Purchaser with a copy to J.M. Walker & Associates via email, jmwlkr85@gmail.com.
ii.
In addition, Sellers shall deliver to Purchaser, via email, care of J.M. Walker & Associates at the email address set forth above, copies of the balance of Sellers’ closing deliverables identified below in Section 3(b)(i) (together with the Certificates, the “Sellers’ Closing Deliverables”).
iii.
If Purchaser approves of Sellers’ Closing Deliverables, Purchaser shall so notify Sellers’ Agent. Upon the receipt of such notification, Purchaser and Sellers’ Agent shall exchange executed copies of this Agreement via email, with originals to follow via courier. Sellers’ Agent shall also deliver originals of Sellers’ Closing Deliverables to J.M. Walker & Associates, Attorneys At Law, 7841 South Garfield Way, Centennial, CO 80122.
(b)
Deliveries at the Closing.
(i)
At the Closing, Sellers’ Agent shall deliver to Purchaser, or any other person described below:
(A)
Certificate(s) evidencing all of the Sellers’ Shares (the “Certificates”), endorsed in blank or accompanied by duly executed assignment documents and including a Medallion Guarantee (or such other verifications acceptable to the Company’s stock transfer agent (the “Transfer Agent”)), to be delivered as specified in Section 3(a) (i);
(B)
The Company’s full and complete articles of incorporation and bylaws, certified by the Secretary of the Company;
(C)
The Company’s full and complete minute book and corporate seal and all other original corporate documents and agreements, certified by the Secretary of the Company;
(D)
A Certificate of Existence with Status in Good Standing in respect of the Company, issued by the State of Oklahoma, dated not earlier than seven days prior to the Closing;
(E)
a full and complete list of the Company’s stockholders of record, certified by the Transfer Agent as of a date not earlier than seven days prior to the Closing (the “Stockholder List”) and
(F)
Any other documents, books, records (including tax records and bank statements), agreements, and financial data of any sort relating to the Company.
(i)
At the Closing, Purchaser shall deliver to Sellers’ Agent, or any other person described below:
(A)
Certificate(s) evidencing the Purchase Price, to be delivered as specified in Section 3(a) (iii);
(B)
Resignation of Zahoor Ahmad as current sole officer;
(C)
Zahoor Ahmad’s written agreement to remain on the Board of Directors for not more than Sixty (60) days;
(D)
Treasury Order relating to the Cancellation Resolution of 375,390,000 Purchaser common shares held by Zahoor Ahmad; and
(E)
Purchaser’s written agreement not to reverse its common shares for a period of six months from the date of Closing.
1.
General Representations and Warranties of Sellers.
On behalf of the Seller, Sellers’ Agent represents and warrants to Purchaser that the statements contained in this Section 4 are correct and complete as of the Closing.
(a)
Sellers have full power and authority to execute, deliver and perform such Sellers’ obligations under this Agreement and to sell, assign, transfer and deliver to Purchaser the Sellers’ Shares as contemplated hereby. No permit, consent, approval or authorization of, or declaration,
filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and delivery by Sellers of this Agreement and the consummation of the transactions contemplated hereby.
(b)
Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby or compliance with the terms and conditions hereof by Sellers will violate or result in a breach of any term or provision of any agreement to which Sellers are bound or are a party, or be in conflict with or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or cause the acceleration of the maturity of any obligation of Sellers under any existing agreement or violate any order, writ, injunction, decree, statute, rule or regulation applicable to Sellers or any properties or assets of Sellers.
(c)
This Agreement has been duly and validly executed by Sellers’ Agent, and constitutes the valid and binding obligation of Sellers, enforceable against Sellers in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by general limitations on the availability of equitable remedies.
(d)
The Sellers’ Shares are owned beneficially and of record by Sellers and are validly issued and outstanding, fully paid for and non-assessable with no personal liability attaching to the ownership thereof. Sellers own the Sellers’ Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any kind (collectively, “Liens”), and upon delivery of the Sellers’ Shares to Purchaser, Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens. Sellers are not a party to any option, warrant, purchase right, or other contract or commitment that could require Sellers to sell, transfer, or otherwise dispose of any capital stock of the Company or voting rights with respect to such stock (other than pursuant to this Agreement or the Separate Agreements). Sellers are not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
(e)
The dates of acquisition of the Sellers’ Shares by Sellers as specified on Schedule A are true and correct. Such date of acquisition is the respective date on which the Sellers’ Shares were fully paid for by Sellers.
2.
Special Representations and Warranties of Sellers.
Certain Sellers, in their capacity and due to their unique knowledge of the operations of the Company obtained in their capacities as principal shareholders, officers and directors of the Company, as appropriate, represent and warrant to Purchaser that the statements contained in this Section 5 are correct and complete as of the Closing.
(a)
The Company is a corporation duly incorporated, existing and in good standing under the laws of the State of Oklahoma. The Company is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such authorization is required. The Company has full corporate power and authority and all licenses, permits, and authorizations necessary to carry on its business. The Company has no subsidiaries and does not control any other subsidiaries, directly or indirectly, or have any direct or indirect equity ownership or participation in any other entity.
(b)
Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby or compliance with the terms and conditions hereof will (i) violate or result in a breach of any term or provision of any agreement to which the Company is bound or is a party, or the Company’s articles of incorporation or bylaws, (ii) be in conflict with or constitute a default under, or cause the acceleration of the maturity of any obligation of the Company under any existing agreement or instrument or violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of its properties or assets, or (iii) be subject to any state takeover defense statutes.
(c)
The Company’s authorized capital stock consists of exactly Eighty Million (80,000,000) shares of common stock, $.001 par value per share (“Common Stock”), of which Two Million Five Hundred Eighty One Thousand, One Hundred Eighty (2,581,180) shares are issued and outstanding. Additionally, the Company has Twenty Million shares of preferred shares, $.001 par value per share (“Preferred Stock”) of which no shares are issued and outstanding. No other class or series of stock or other equity securities is authorized or outstanding. The Company has not reserved any shares of stock for issuance upon the exercise of options, warrants or any other securities that are exercisable or exchangeable for, or convertible into, the Company’s capital stock. All of the issued and outstanding shares of Common Stock are validly issued, fully paid and non-assessable and have been issued in compliance with applicable laws, including applicable securities laws. There are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of the Company or securities exercisable or exchangeable for, or convertible into, capital stock of the Company, nor is the Company committed to issue any such option, warrant, right or security. There are no agreements relating to the voting, purchase or sale of capital stock (i) between or among the Company and any of its stockholders, (ii) between or among Sellers and any third party (other than the Separate Agreements), or (iii) to the best knowledge of Sellers, between or among any of the Company’s stockholders other than Sellers. The Company is not a party to any agreement granting any stockholder of the Company the right to require the Company to register any securities under the Securities Act of 1933, as amended (the “Securities Act”), or any other securities laws. The Stockholder List accurately reflects the ownership of record of all of the issued and outstanding shares of the Common Stock.
(d)
There is no legal, administrative, investigatory, regulatory or similar action, suit, claim or proceeding which is pending or, to Sellers’ knowledge, threatened against the Company.
(e)
The Company has properly and timely filed all required federal, state, local and foreign tax returns and has paid all taxes, assessments and penalties due and payable. All such tax returns were complete and correct in all respects as filed, and no claims have been assessed with respect to such returns. There are no present, pending, or threatened audit, investigations, assessments or disputes as to taxes of any nature payable by the Company, nor any tax liens (existing or inchoate) on any of the assets of the Company, except for current year taxes not presently due and payable. No federal, foreign, state or local tax audit is currently in progress.
The Company has not waived the expiration of the statute of limitations with respect to any taxes. There are no outstanding requests by the Company for any extension of time within which to file any tax return or to pay taxes shown to be due on any tax return.
(f)
The Company has complied in all material respects with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of all governmental authorities, and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against the Company alleging any failure so to comply. Neither the Company, nor any officer, director, employee, consultant or agent of the Company has made, directly or indirectly, any payment or promise to pay, or gift or promise to give or authorized such a promise or gift, of any money or anything of value, directly or indirectly, to any governmental official, customer or supplier for the purpose of influencing any official act or decision of such official, customer or supplier or inducing him, her or it to use his, her or its influence to affect any act or decision of a governmental authority or customer, under circumstances which could subject the Company or any officers, directors, employees or consultants of the Company to administrative or criminal penalties or sanctions.
(g)
No representation or warranty by Sellers in this Agreement, or in any certificate, schedule or exhibit delivered or to be delivered pursuant to 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 make the statements made herein or therein, in light of the circumstances under which they were made, not misleading.
(h)
The Company and Sellers have procured all governmental and third party consents and clearances required in order to effect the Closing.
(i)
No action, suit or proceeding is pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent or delay consummation of any of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) affect adversely the right of Purchaser to own the Sellers’ Shares and to control the Company, or (iv) affect adversely the right of the Company to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling or charge shall be in effect).
(j)
Since March 31, 2013, there has not been any event or condition of any character which has adversely affected, or may be expected to adversely affect, the Company’s business or prospects, including any adverse change in the condition, assets, liabilities (existing or contingent) or business of the Company from that shown in the financial statements of the Company for the fiscal year ended December 31, 2012 and the quarter ended March 1, 2013, except for the changes contemplated by this Agreement.
6.
Representations and Warranties of Purchaser.
Purchaser represents and warrants to Sellers that the statements contained in this Section 6 are correct and complete as of the Closing.
(k)
Purchaser has full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. This Agreement constitutes a valid and binding obligation of Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally or by general limitations on the availability of equitable remedies.
(l)
Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by Purchaser with any of the provisions hereof will: violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or accelerate the performance required under, any existing agreement or other instrument or obligation to which Purchaser is a party or by which Purchaser or any of its properties or assets may be bound or affected, except for such violations, conflicts, breaches or defaults as do not have, in the aggregate, any material adverse effect; or violate any material order, writ, injunction, decree, statute, rule or regulation applicable to Purchaser or any of its properties or assets, except for such violations which do not have, in the aggregate, any material adverse effect.
(m)
No permit, consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or the consent of any third party (collectively, “Purchaser Clearances”) is required in connection with the execution and delivery by Purchaser of this Agreement and the consummation of the transactions contemplated hereby, other than Purchaser Clearances that are already in effect.
(n)
Purchaser is acquiring the Sellers’ Shares for Purchaser’s own account for investment and not for the account of any other person and not with a view to or for distribution, assignment or resale in connection with any distribution, as “distribution” is used in the Securities Act. Purchaser agrees not to sell or otherwise transfer the Sellers’ Shares unless they are registered under the Securities Act and any applicable state securities laws, or an exemption or exemptions from such registration are available. Purchaser has knowledge and experience in financial and business matters such that Purchaser is capable of evaluating the merits and risks of acquiring the Sellers’ Shares.
7.
No Brokers or Finders.
There are no finders and no Parties shall be responsible for the payment of any finders’ or brokers’ fees or similar fees as a result of the transactions contemplated herein. Each Party represents and warrants that it has not, and Sellers represents and warrants that the Company has not, incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees, agents’ commissions, financial advisory fees or similar payment in connection with this Agreement.
3.
The Closing.
(a)
General. In case at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party may reasonably request, all at the sole cost and expense of the requesting Party (unless and to the extent that the requesting Party is entitled to indemnification therefor under Section 9).
Without limiting the generality of the foregoing, Sellers shall, at Purchaser’s expense, procure or assist in procuring in a timely manner any and all legal opinion letters required by the Transfer Agent for the issuance of one or more new stock certificates evidencing the Sellers’ Shares, registered in accordance with Purchaser’s instructions. From and after the Closing, the post-Closing board of directors and management of the Company will be entitled to possession of all documents, books, records (including tax records and bank statements), agreements, and financial data of any sort relating to the Company.
(a)
Litigation Support. In the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing involving the Company, the other Parties will cooperate with him or it and his or its counsel in the contest or defense, make available their personnel, and provide such testimony and access to their books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless and to the extent that the contesting or defending Party is entitled to indemnification therefor under Section 9).
9.
Remedies for Breaches of This Agreement.
(b)
Survival of Representations and Warranties. All of the representations and warranties of the Parties shall survive the Closing (even if a Party knew or had reason to know of any misrepresentation or breach of a representation or warranty by another Party at the time of Closing) and continue in full force and effect until expiration of the applicable statute of limitations.
(c)
Indemnification Provisions for Benefit of Purchaser
(i)
In the event Sellers breaches (or any third party alleges facts that, if true, would mean Sellers has breached) any of Sellers’ representations, warranties or covenants contained herein, Sellers shall indemnify Purchaser and the Company and hold them harmless from and against the entirety of any Adverse Consequences (as defined below) Purchaser or the Company may suffer resulting from, arising out of, relating to, in the nature of, or caused by the breach (or the alleged breach). For purposes of this Agreement, “Adverse Consequences” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, Liens, losses, lost value, expenses, and fees, including court costs and attorneys' fees and expenses.
(ii)
Sellers shall indemnify Purchaser and the Company and hold him harmless from and against the entirety of any Adverse Consequences Purchaser or the Company may suffer resulting from, arising out of, relating to, in the nature of, or caused by any liability of the Company (whether or not accrued or otherwise disclosed) (x) for any taxes of the Company with respect to any tax year or portion thereof ending on or before the Closing (or for any tax year beginning before and ending after the Closing to the extent allocable to the portion of such period beginning before and ending on the Closing) and (y) for the unpaid taxes of any person (other than the Company) under Section 1.1502-6 of the Treasury Regulations adopted under the Internal Revenue Code (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(iii)
Sellers shall indemnify Purchaser and the Company and hold them harmless from and against the entirety of any liabilities arising out of the ownership of the Sellers’ Shares or operation of the Company prior to the Closing.
(iv)
Sellers shall indemnify Purchaser and the Company and hold them harmless from and against the entirety of any Adverse Consequences Purchaser or the Company may suffer resulting from, arising out of, relating to, in the nature of, or caused by any indebtedness or other liabilities of the Company existing as of the Closing.
(d)
Indemnification Provisions for Benefit of Sellers. In the event Purchaser breaches (or any third party alleges facts that, if true, would mean Purchaser has breached) any of Purchaser’s representations, warranties or covenants contained herein, then Purchaser shall indemnify Sellers and hold him harmless from and against the entirety of any Adverse Consequences Sellers may suffer arising out of, relating to, in the nature of, or caused by such breach (or such alleged breach).
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(e)
Matters Involving Third Parties.
(i)
If any third party shall notify any Party (such notified Party, the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification against any other Party (the “Indemnifying Party”) under this Section 9, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii)
Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within ten days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.
(iii)
So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 9(d)(ii), (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably).
(iv)
In the event any of the conditions in Section 9(d)(ii) is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the Indemnifying Party will
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remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Section 9.
4.
Miscellaneous.
(a)
Fax or Email Execution and Delivery. Execution and delivery of this Agreement by facsimile transmission or PDF electronic mail transmission are legal, valid and binding execution and delivery for all purposes; provided however that each Party shall immediately provide the other Party with an originally executed copy via courier.
(b)
Confidentiality; Public Announcements. Except as and to the extent required by law, no Party will disclose or use, and each Party will direct its representatives not to disclose or use, any information with respect to the transactions which are the subject of this Agreement, without the consent of the other Parties; provided, however, that the foregoing shall not restrict the Company from making any public disclosure it believes in good faith is required by applicable law, any listing or trading agreement, or FINRA or OTCBB rules.
(c)
Third-Party Beneficiaries. The Company is an intended third-party beneficiary of Sellers’ representations, warranties and obligations under this Agreement. Except as stated in the preceding sentence, this Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.
(d)
Entire Agreement. This Agreement (including the documents referred to herein, except the Separate Agreements) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes and cancels any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they related in any way to the subject matter hereof.
(e)
Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign this Agreement or any of such Party’s rights, interests or obligations hereunder without the prior written approval of the other Parties; provided, however, that Purchaser may (i) assign any or all of Purchaser’s rights and interests hereunder to one or more of Purchaser’s Affiliates (as defined below), and (ii) designate one or more of Purchaser’s Affiliates to perform Purchaser’s obligations hereunder, but no such assignment shall operate to release Purchaser or a successor from any obligation hereunder, unless and only to the extent that Sellers agrees in writing. For purposes of this Agreement, an “Affiliate” of a specified person is a person who directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, the specified person.
(f)
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
(g)
Headings. The Section headings in this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
(h)
Notices. All notices, requests, demands, claims, and other communications hereunder (any of the foregoing, a “Notice”) must be in writing. Any Notice shall be deemed duly given if (and then three business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:
If to Sellers’ Agent:
Ron Brewer
4012 W. Utica St.
Broken Arrow, OK 74011
If to Purchaser:
RJD Green, Inc.
4 Robert Speck Parkway
Suite 1500
Mississauga ONT L4Z 1S1
Any Party may send any Notice to the intended recipient at the address set forth above using any other means (including personal delivery, courier, messenger, fax, ordinary mail, or electronic mail), but no such Notice shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any Party may change the address to which Notices are to be delivered to such Party by giving the other Parties notification of such change in the manner herein set forth.
(i)
Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision that would cause the application of the laws of any jurisdiction other than the State of Nevada.
(j)
Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless it is in writing and signed by Purchaser and Sellers. No waiver by any Party of any default, misrepresentation, or breach of a representation, warranty or covenant hereunder, intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach hereunder or affect in any way any rights arising by virtue of any such prior or subsequent occurrence.
(k)
Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
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(l)
Expenses. Each Party will bear such Party’s own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. On behalf of Sellers, Sellers ‘Agent agrees that the Company has not borne and will not bear any of Sellers’ costs and expenses (including any of Sellers’ legal fees and expenses) in connection with this Agreement or any of the transactions contemplated hereby.
(m)
Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant. Nothing in any disclosure schedules attached hereto shall be deemed adequate to disclose an exception to a representation or warranty made herein, however, unless such schedule identifies the exception with particularity and describes the relevant facts in detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item in a disclosure schedule (if any), shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document or other item itself).
(n)
Incorporation of Schedules and Exhibits. Schedule A and any other schedules and exhibits identified in this Agreement are incorporated herein by reference and made a part hereof.
(o)
Specific Performance. Each of the Parties acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each Party shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Parties and the matter (subject to the provisions of Section 10(p)), without the need to prove irreparable harm or inadequacy of money damages and without the need to post a bond, in addition to any other remedy to which such Party may be entitled, at law or in equity.
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(p)
Submission to Jurisdiction. Each of the Parties submits to the jurisdiction of any state or federal court in Tulsa County, Oklahoma, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each of the Parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other Party with respect thereto.
[signature pages to follow]
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[Sellers’ Signature Page]
IN WITNESS WHEREOF, the undersigned Sellers’ Agent has duly executed this Agreement as of the date first above written.
Sellers’ Agent
By: Ron Brewer
As agent and attorney in fact for those sellers
Listed on Schedule A hereto1
____________
1Sellers’ Agent represents and warrants to Purchaser, that Sellers’ Agent has been duly appointed as agent and attorney-in-fact for each of the Sellers listed on Schedule A hereto, and such appointment is in full force and effect with respect to each Seller and such appointment has not revoked nor has any action been taken by any Seller to revoke such appointment.
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