Attached files
| file | filename |
|---|---|
| 8-K - COLOMBIA ENERGY RESOURCES, INC. | v184530_8k.htm |
| EX-10.2 - COLOMBIA ENERGY RESOURCES, INC. | v184530_ex10-2.htm |
SUBSCRIPTION
AGREEMENT
THIS
SUBSCRIPTION AGREEMENT (this “Agreement”) is dated as of
May 6, 2010, between Freedom Resources Enterprises, Inc., a Nevada
corporation (the “Company”), and Life Power and
Fuels LLC, a Delaware limited liability company (the “Investor”).
Recitals
The
Investor and the Company have agreed that the Investor will purchase, and the
Company will issue and sell, 47,700,000 shares of the Company’s common stock,
par value $0.001 per share (the “Shares”), on the terms stated
in this Agreement.
Agreement
In
consideration of the mutual covenants contained in this Agreement, and for other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company and the Investor agree as follows:
1. Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings below:
“1934 Act” means the
U.S. Securities Exchange Act of 1934, as amended.
“Business Day” means
any day except Saturday, Sunday and any day which is a federal legal holiday or
a day on which banking institutions in Utah are authorized or required by law or
other governmental action to close.
“Closing” means the
closing of the purchase and sale of the Shares pursuant to Section 2 of
this Agreement.
“Closing Date” means
the date on which all of the conditions set forth in Sections 6.1 and 6.2
hereof are satisfied, or such other date as the parties may agree.
“Commission” means the
U.S. Securities and Exchange Commission.
“Creditor” has the
meaning set forth in Section 5.5.
“Escrow Agreement”
means the Escrow Agreement set forth in Section 2.2.
“Material Adverse
Effect” means a material and adverse effect on the results of operations,
assets, business or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole.
“Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Purchase Price” has
the meaning set forth in Section 2.2.
“SEC Reports” has the
meaning set forth in Section 3.7.
“Securities Act” means
the U.S. Securities Act of 1933, as amended.
“Settlement
Agreements” has the meaning set forth in Section 5.5.
“Shares” has the
meaning set forth in the Recitals to this Agreement.
2. Purchase and
Sale.
2.1 Purchase
and Sale. Subject to the terms and conditions set forth in
this Agreement, the Company shall sell the Shares to the Investor, and the
Investor shall purchase the Shares from the Company.
2.2 Purchase
Price. The purchase price for the Shares is $100,000 (the
“Purchase
Price”). The Purchase Price shall be delivered to and held by
counsel for the Company to pay or settle all of the outstanding obligations of
the Company pursuant to the terms of the Escrow Agreement attached hereto as
Exhibit A.
2.3 Management
Changes. At the Closing the Board of Directors of the Company
shall increase the number of directors to two persons and shall appoint Edward
Mooney as a director to fill the vacancy created by the increase in the number
of directors. In addition, Neil Christiansen shall resign as an
officer of the Company and the Board of Directors shall appoint the following
persons to the offices set forth below:
|
Name
|
Office(s)
|
|
|
Edward
Mooney
|
President
& CEO
|
|
|
Daniel
Carlson
|
CFO,
Treasurer, &
Secretary
|
2.4 Closing
Deliverables. (a) At the Closing, the Company shall
deliver or cause to be delivered to the Investor the following:
(i) a
certificate evidencing the Shares registered in the name of the
Investor;
(ii) the
Escrow Agreement executed by the Company and Mr. Vance;
(iii) the
resignation of Neil Christiansen as sole officer of the Company;
and
(iv) the
Settlement Agreements signed by each of the Creditors and the
Company.
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(b) At
the Closing, the Investor shall deliver or cause to be delivered to the Company
the following:
(i) the
sum of $100,000 in immediately available funds, by wire transfer to the client
trust account of Ronald N. Vance, Attorney at Law, counsel for the Company to be
held and disbursed in accordance with the terms of the Escrow
Agreement;
(ii) the
Escrow Agreement executed by the Investor; and
(iii) the
written acceptances of Edward Mooney to serve as a director and officer of the
Company and of Daniel Carlson as an officer of the Company.
3. Representations
and Warranties of the Company. The Company
hereby makes the following representations and warranties to the
Investor:
3.1 Organization
and Qualification. The Company is
duly incorporated, validly existing and in good standing under the laws of the
State of Nevada, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. The Company is not in violation of any of the provisions
of its articles of incorporation or bylaws. The Company is duly
qualified to conduct its businesses and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may
be, could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
3.2 Authorization;
Enforceability. The Company has the requisite corporate power
and authority to enter into and to sell the Shares as contemplated by this
Agreement. The execution and delivery of this Agreement by the
Company and the sale of the Shares contemplated hereby have been duly authorized
by all necessary action on the part of the Company and no further action is
required by the Company in connection therewith. This Agreement has
been duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
3.3 No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Company’s articles of incorporation or bylaws, or
(ii) conflict with, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, or result in the imposition of any
restriction whatsoever upon any of the material properties or assets of the
Company pursuant to, any agreement, credit facility, debt or other instrument
(evidencing a Company debt or otherwise) or other understanding to which the
Company is a party or by which any property or asset of the Company is bound or
affected, except, such as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
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3.4 Capitalization. The
authorized equity securities of the Company consist of 100,000,000 shares of
common stock, of which 3,000,000 shares are issued and outstanding, and
5,000,000 shares of preferred stock, none of which are outstanding. All of the
outstanding common shares have been duly authorized and validly issued, and are
fully paid and non-assessable. There are no outstanding options, warrants,
calls, subscriptions, conversion or other rights, agreements or commitments
obligating the Company to issue any additional shares of capital stock or other
securities nor are there outstanding any securities convertible into,
exchangeable for, or evidencing the right to subscribe for any shares of common
stock or other securities of the Company.
3.5 Reports,
Consents and Approvals. The Company is not required to obtain
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby, other than (i) filings required by
state securities laws, (ii) the filing of a Notice of Sale of Securities on
Form D with the Commission under Regulation D of the Securities Act,
and (iii) those that have been made or obtained prior to the date of this
Agreement.
3.6 Issuance
of the Shares. The Shares have been duly authorized and, when
paid for in accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, free and clear of all of all encumbrances and
restrictions (other than those created by the Investor), except for restrictions
on transfer imposed by applicable securities laws.
3.7 SEC
Reports; Financial Statements. The Company has made available
to the Investor through the EDGAR system, true and complete copies of the
Company’s most recent Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 (the “10-K”), and all other reports
filed by the Company with the Commission since the filing of the 10-K and prior
to the date hereof (collectively, the “SEC Reports”). The
SEC Reports are the only filings required of the Company pursuant to the 1934
Act for such period. The SEC Reports and any other materials supplied
to the Investor by the Company did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with U.S. generally accepted accounting
principles (“GAAP”)
applied on a consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes thereto, and
fairly present in all material respects the financial position of the Company
and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit
adjustments. Except as otherwise disclosed in this Subscription
Agreement, there have been no material changes in the Company’s affairs not
disclosed in the SEC Reports.
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3.8 No
Material Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than trade payables, accrued expenses and other
liabilities incurred in the ordinary course of business consistent with past
practice, all of which are listed on Schedule 3.8, (iii) the Company has
not altered its method of accounting or the identity of its auditors,
(iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock, and
(v) the Company has not issued any equity securities to any officer,
director or affiliate, except pursuant to existing Company stock option plans
and except for the issuance of 200,000 shares of common stock to Neil
Christiansen in conversion of a promissory note in the principal amount of
$5,000.
3.9 Litigation. There
is no Action which adversely affects or challenges the legality, validity or
enforceability of this Agreement. For purposes of this Section 3.9,
“Action” means any action, suit, inquiry, notice of violation, proceeding
(including any partial proceeding such as a deposition) or investigation pending
or, to the knowledge of the Company, threatened in writing against the Company
or any of its properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign).
3.10 Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by this Agreement. The Investor shall
have no obligation with respect to any fees or with respect to any claims (other
than such fees or commissions, if any, owed by the Investor pursuant to written
agreements executed by such Investor which fees or commissions shall be the sole
responsibility of such Investor) made by or on behalf of other Persons for fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement. The Company shall pay,
and hold Investor harmless against, any liability, loss or expense (including,
without limitation, attorney’s fees and out-of-pocket expenses) arising in
connection with any claim for any such fees.
3.11 Private
Offering. Assuming the correctness of the representations and
warranties of the Investor set forth in this Agreement, the offer and sale of
the Shares hereunder is exempt from registration under the Securities
Act.
3.12 Use of
Proceeds. The net proceeds of this offering will be allocated
for the payment or settlement of all outstanding liabilities of the Company at
Closing as set forth in the Escrow Agreement. With the payment of the
funds pursuant to the Escrow Agreement, the Company shall have no outstanding
payables or other liabilities at Closing.
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4. Representations
and Warranties of the Investor. The Investor hereby represents
and warrants to the Company as follows:
4.1 Investment
Intent. The Investor is acquiring the Shares as principal for
its own account for investment purposes only and not with a view to or for
distributing or reselling the Shares, without prejudice, however, to the
Investor’s right at all times to sell or otherwise dispose of all or any part of
the Shares in compliance with applicable federal and state securities
laws. The Investor does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Shares.
4.2 Restricted
Securities. The Investor understands that the Shares have not
been registered pursuant to the Securities Act, or any state securities act, and
thus are “restricted securities” as defined in Rule 144 promulgated by the
Commission and are subject to the provisions of Rule 144(i) as a shell
company. Therefore, under current interpretations and applicable
rules, the Investor will probably have to retain the Shares for an indefinite
period until compliance with the provisions of Rule 144(i) and at the expiration
of such period its sales may be confined to brokerage transactions of limited
amounts requiring certain notification filings with the Commission and such
disposition may be available only if the Company is current in its filings with
the Commission under the 1934 Act, or other public disclosure
requirements.
4.3 Limitations
on Resale. The Investor acknowledges that it will not sell,
assign, hypothecate, or otherwise transfer any rights to, or any interest in,
the Shares except (i) pursuant to an effective registration statement under the
Securities Act, or (ii) in any other transaction which, in the opinion of
counsel acceptable to the Company, is exempt from registration under the
Securities Act, or the rules and regulations of the Commission
thereunder.
4.4 Information. The
Investor has been furnished (i) with all requested materials relating to the
business, finances, and operations of the Company; (ii) with information deemed
material to making an informed investment decision; and (iii) with additional
requested information necessary to verify the accuracy of any documents
furnished to the undersigned by the Company. A designated
representative of the Investor has been afforded the opportunity to ask
questions of the Company and its management and to receive answers concerning
the terms and conditions of this offering.
4.5 Documents. The
Investor has received copies of the SEC Reports, including the exhibits
thereto. The Investor has relied upon the information contained
therein and has not been furnished any other documents, literature, memorandum,
or prospectus.
4.6 Knowledge
and Experience in Business and Financial Matters. The
individual representing the Investor has such knowledge and experience in
business and financial matters that he is capable of evaluating the risks of the
prospective investment.
4.7 No
Advertisements. The Investor is not entering into this
Subscription Agreement and did not receive an offer to purchase the Shares as a
result of or subsequent to any advertisement, article, notice, or other
communication published in any newspaper, magazine, or similar media or
broadcast on television or radio, or presented at any seminar or
meeting.
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4.8 Relationship
to Company. The Investor, through its representative(s), has a
preexisting personal or business relationship with the Company or one of its
officers, directors, or controlling persons.
5. Other Agreements of the
Parties.
5.1 Legends. Certificates
evidencing the Shares to be delivered at the Closing will contain the following
legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
5.2 Filing of
Form 8-K Report. Promptly following the Closing, the Company
shall enter into a transaction or shall commence business operations sufficient
that the Company shall cease to be a “shell company” as defined in Rule 12b-2
under the 1934 Act. The Company shall file with the Commission a
report on Form 8-K which complies with the requirements of Item 2.01(f) or Item
5.06 of Form 8-K within four days following the date on which it ceases to be a
shell company. The provisions of this Section 5.2, including any
rights or remedies provided in this Agreement, are enforceable by any
shareholder of the Company.
5.3 Rule
144. With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
restricted shares of Company’s common stock (the “Restricted Shares”) to the
public without registration by the holders of restricted shares at the Closing
(the “Restricted
Shareholders”), the Company shall use its commercially reasonable best
efforts for a period of not less than two years from the Closing Date
to:
(a) Make
and keep public information available, as those terms are understood and defined
in Rule 144;
(b) File
with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the 1934 Act;
(c) Furnish
to each Restricted Shareholder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144
pursuant to paragraph (c) thereof and such other information, reports and
documents so filed by the Company as such holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing such holder to
sell any Restricted Shares without registration; and
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(d) Issue
a customary 144 legal opinion of counsel for the Company upon request of a
Restricted Shareholder, for which the Company may charge a reasonable fee, which
request can be made not earlier than one year from the filing of the report on
Form 8-K pursuant to Section 5.2 hereof,.
The provisions of this Section 5.3,
including any rights or remedies provided in this Agreement, are enforceable by
any Restricted Shareholder.
5.4 Piggyback
Registration Rights.
(a) If
at any time or times the Company shall determine to register any of its common
stock or securities convertible into or exchangeable for the Company’s common
stock under the Securities Act, whether in connection with a public offering of
securities by the Company, a public offering thereof by stockholders of the
Company (the “Other
Stockholders”), or both, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with the
Company’s equity compensation plan or other employee benefit plans, the Company
will promptly give written notice thereof to the shareholders of the Company who
immediately prior to Closing owned of record not less than 10,000 shares of the
Company (the “Pre-Closing
Shareholders”) and to the holder or holders of the pre-Closing restricted
shares at the time of such registration (the “Restricted Shareholders”), and
will use its commercially reasonable efforts, in good faith, except as herein
otherwise provided, to effect the registration under the Securities Act all such
shares (the “Registrable
Shares”) at the Company’s expense which such shareholders may request in
a writing delivered to the Company within fifteen (15) days after the notice
given by the Company. The Company shall be required to provide such
registration rights to the Pre-Closing Shareholders and the Restricted
Shareholders and to maintain the effectiveness of such registration statement
for a period of not less than one year or until all the Registrable Shares
included in the registration statement have been sold or been deposited with a
brokerage firm for resale under Rule 144. The provisions of this
Section 5.4, including any rights or remedies provided in this Agreement, are
enforceable by any Pre-Closing Shareholder or Restricted Shareholder owning
Registrable Shares. The term “Registerable Shares” shall not include
any shares of the Company that at such time may be resold by the holder through
a registered broker without undue expense and without volume limitations
pursuant to Rule 144.
(b) Notwithstanding
anything to the contrary contained in this Section 5.4, if the Company receives
comments (“Commission
Comments”) from the Commission relating to the number of shares of common
stock included in any registration statement filed pursuant to Section 5.4(a),
and following discussions with and responses to the Commission in which the
Company uses its reasonable best efforts and time to cause as many shares owned
by Other Stockholders (“Other
Shares”) and Registrable Shares as possible to be included in such
registration statement without characterizing any holder of Other Shares or
Registrable Shares as an underwriter, the Company is unable to cause the
inclusion of all Other Shares and Registrable Shares, then the Company may (i)
remove from such registration statement such number of Registrable Shares (the
“Cut Back Shares”)
and/or (ii) agree to such restrictions and limitations on the registration and
resale of the Registrable Shares, in each case as the Commission may require in
order for the Commission to allow such registration statement to become
effective; provided, that in no event may the Company name any holder of
Registrable Shares as an underwriter without such holder’s prior written consent
(collectively, the “SEC
Restrictions”). Unless the SEC Restrictions otherwise require,
any cut-back imposed pursuant to this Section 5.4(b) shall be allocated first
among Pre-closing Shareholders on a pro rata basis and then among the Restricted
Shareholders on a pro rata basis. At such time as the Company is able
to effect the registration of the Cut Back Shares in accordance with any SEC
Restrictions (such date, the “Restriction Termination Date”)
all provisions of this Section 5.4 shall again be applicable to the Cut Back
Shares (which, for avoidance of doubt, retain their character as “Registrable
Shares”).
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5.5 Settlement
Agreements. The Company has obligations to repay cash advances
made by Neil Christiansen, 1st Orion
Corporation, Sparrow, Inc., and Lorikeet, Inc. in the aggregate amount of
$119,500 (the “Creditors”). Contemporaneous
with Closing, the Company shall deliver settlement agreements from each of the
Creditors agreeing to reduce the amount for repayment which in the aggregate
shall represent the amount of the Purchase Price less the other payables of the
Company at Closing (the “Settlement
Agreements”). The form of the Settlement Agreement is set
forth in Exhibit B.
6. Conditions Precedent to
Closing.
6.1 Conditions
Precedent to the Obligations of the Investor to Purchase
Shares. The obligation of the Investor to acquire the Shares
at the Closing is subject to the satisfaction or waiver by the Investor, at or
before the Closing, of each of the following conditions:
(a) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of the
date when made and as of the Closing Date and shall be certified to by the
President at Closing;
(b) Performance. The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by it at or prior to the
Closing;
(c) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by this
Agreement; and
(d) Company
Deliverables. The Company shall have delivered the stock
certificate and other documents provided in Section 2.4(a).
6.2 Conditions
Precedent to the Obligations of the Company to Sell the Shares. The obligation of
the Company to sell the Shares at the Closing is subject to the satisfaction or
waiver by the Company, at or before the Closing, of each of the following
conditions:
(a) Representations and
Warranties. The representations and warranties of the Investor
contained herein shall be true and correct in all material respects as of the
date when made and as of the Closing Date as though made on and as of such
date;
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(b) Performance. The
Investor shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Investor at or prior to the
Closing;
(c) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by this
Agreement; and
(d) Investor
Deliverables. The Investor shall have delivered its purchase
price in accordance with Section 2.4(b).
7. Miscellaneous.
7.1 Fees and
Expenses. Each party shall pay all fees and expenses incurred
by such party, including, but not limited to fees and expenses of its advisers,
counsel, accountants and other experts, if any, incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the sale of the Shares.
7.2 Entire
Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersede all prior
agreements, understandings, discussions and representations, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents and exhibits.
7.3 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice
or communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section prior to 5:00 p.m. (Utah time) on a
Business Day, (b) the next Business Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than
5:00 p.m. (Utah time) on any Business Day, (c) the Business Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications
shall be as follows (or such other address as may be designated in writing
hereafter, in the same manner, by such Person):
If to the Company prior to the
Closing:
Freedom
Resources Enterprises, Inc.
901 East
7800 South
Midvale,
UT 84047
Telecopier
No.: (801) 566-5931
Attention:
Neil Christiansen, President
10
If to the
Company subsequent to the Closing:
Freedom
Resources Enterprises, Inc.
4265 San
Felipe Street
Suite
1100
Houston,
TX 77027
Telecopier
No.: (832) 327-7420
Attention: Edward
Mooney, President
If to the
Investor:
Life
Power and Fuels LLC
4265 San
Felipe Street
Suite
1100
Houston,
TX 77027
Telecopier
No.: (832) 327-7420
Attention: Edward
Mooney, Managing Member
7.4 Amendments;
Waivers; No Additional Consideration. No provision of this
Agreement may be waived or amended except in a written instrument signed by the
Company and by the Investor. No waiver of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
7.5 Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. 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 provisions of this Agreement.
7.6 Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and permitted
assigns. Neither party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other
party.
7.7 Third-Party
Beneficiaries. Except as specifically provided in Sections
5.2, 5.3, and 5.4, this Agreement does not confer any enforceable rights or
remedies on any other person other than the parties hereto.
11
7.8 Governing
Law and Venue. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the Utah,
without regard to the principles of conflicts of law thereof. The
parties hereto irrevocably submit to the jurisdiction of the Courts of the State
of Utah located in Salt Lake County and the United States District Court of Utah
in any action arising out of or relating to this Agreement, and hereby
irrevocably agree that all claims in respect of such action may be heard and
determined in such state or federal court. The parties hereto
irrevocably waive, to the fullest extent they may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or
proceeding. The parties further agree, to the extent permitted by
law, that final and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
7.9 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by email, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or email signature
page were an original thereof.
7.10 Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
7.11 Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Investor and the Company will be
entitled to specific performance under this Agreement. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance of
any such obligation the defense that a remedy at law would be
adequate.
7.12 Authorization. By
signing below on behalf of the respective entities, each individual executing
this Agreement represents and warrants to the party to this Agreement that (i)
the represented entity is duly authorized to enter into this Agreement; (ii) he
or she is duly authorized to represent the entity in this offering; and (iii) he
or she is duly authorized to execute this Agreement on behalf of such
entity.
7.13 Exhibits. Each
of the exhibits referenced in this Agreement is annexed hereto and is
incorporated herein by this reference and expressly made a part
hereof.
12
IN
WITNESS WHEREOF, each of the undersigned has executed this Agreement on
respective the day and year set forth below. The effective date of
the Agreement shall be the date first written above.
|
FREEDOM
RESOURCES ENTERPRISES, INC.
|
|||
|
Date: May
6, 2010
|
By:
|
/s/ Neil
Christiansen
|
|
| Name: Neil Christiansen | |||
| Title: President | |||
|
LIFE
POWER AND FUELS LLC
|
|||
|
Date: May
6, 2010
|
By:
|
/s/ Edward Mooney
|
|
| Name: Edward Mooney | |||
| Title: Managing Member | |||
13
SCHEDULE
3.8
Accounts
payable have increased by $8,689.19 from March 31, 2010, through
Closing.
14