Exhibit 10.4
ASSIGNMENT
THIS ASSIGNMENT, dated June 20, 2008, by and among KIG Investors II,
LLC, a Delaware limited liability company ("Assignor"), Kevin R. Keating
("Assignee"), and Forex365, Inc. f/k/a Solar Group, Inc., a Nevada corporation
(the "Company").
W I T N E S S E T H:
WHEREAS, Assignor is a party to that certain Securities Purchase
Agreement dated November 14, 2007 (the "Purchase Agreement"), by and between
Assignor and the Company.
WHEREAS, the Company and Assignor entered into that certain First
Amendment to Securities Purchase Agreement, dated as of June 19, 2008 (the
"Amendment").
WHEREAS, pursuant to the Purchase Agreement, as amended by the
Amendment, Assignor has agreed to purchase from the Company, and the Company has
agreed to sell to Assignor, 21,000,000 shares of the Company's common stock,
$0.01 par value (the "Shares"), for a purchase price of $210,000, or $0.01 per
share, and on such other terms and conditions set forth in the Purchase
Agreement, as amended.
WHEREAS, Assignor wishes to assign to Assignee, and Assignee wishes to
accept from Assignor, an assignment of Assignor's right under the Purchase
Agreement to purchase 16,000,000 shares of the Company's common stock from the
Company (the "Assigned Shares").
WHEREAS, the Company is willing to consent to the foregoing
assignment.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Assignor. Assignor hereby assigns and transfers to Assignee all
right, title and interest of Assignor in and to the right to acquire the
Assigned Shares from the Company under the Purchase Agreement, as amended.
2. Assignee. Assignee hereby accepts the assignment of the right to
acquire the Assigned Shares from the Company under the Purchase Agreement, as
amended. Assignee hereby assumes and agrees to perform the agreements and
covenants of Assignor under the Purchase Agreement, as amended, but only with
respect to the purchase of the Assigned Shares. The warranties and
representations of Assignor under the Purchase Agreement shall not be deemed to
be the representations and warranties of Assignee, and the only warranties and
representations of Assignee with respect to the purchase of the Assigned Shares
shall be those set forth in this Assignment.
3. Consent and Acknowledgements by the Company. The Company hereby
consents to the foregoing assignment as set forth in Sections 1 and 2 above. The
Company acknowledges and agrees that Assignor shall, upon the execution and
delivery of this Assignment by all of the parties hereto, shall have no further
liabilities or obligations under the Purchase Agreement, as amended. The Company
further acknowledges and agrees that nothing contained in this Assignment shall
modify, change or amend the representations, warranties, covenants or agreements
of the Company under the Purchase Agreement, as amended, except to the extent
specifically modified, changed or amended by this Assignment.
4. Representations and Warranties. Assignee hereby represents and
warrants to the Company that, in connection with the Assignee's purchase of the
Assigned Shares from the Company:
4.1 Assignee has full power and authority to: (i) execute, deliver and
perform this Assignment, and each ancillary document which Assignee has executed
or delivered or is to execute or deliver pursuant to its purchase of the
Assigned Shares, and (ii) carry out Assignee's obligations under this Assignment
and the Purchase Agreement, as amended, and, to consummate the transactions
contemplated hereby (including the purchase of the Assigned Shares). This
Assignment has been duly and validly executed and delivered by Assignee and,
assuming the due authorization, execution and delivery thereof by Assignor and
the Company, constitutes the legal and binding obligation of Assignee,
enforceable against Assignee in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and public policy.
4.2 The execution and delivery of this Assignment by Assignee does
not, and the performance of its obligations hereunder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity, except for applicable requirements, if any, of the
federal or state securities laws and the rules and regulations thereunder.
4.3 Assignee has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders' fees or agent's commissions
or any similar charges in connection with this Assignment or the purchase of the
Assigned Shares.
4.4 Assignee is an "accredited investor," as such term is defined in
Section 2(15) of the Securities Act of 1933, as amended ("Securities Act"), and
Rule 501 of Regulation D promulgated thereunder, Assignee is purchasing the
Assigned Shares for Assignee's own account, solely for investment purposes, and
not with a view to, or for resale in connection with, any distribution thereof
or with any present intention of distributing or selling any of the Assigned
Shares, except as allowed by the Securities Act, or any rules and regulations
promulgated thereunder. Assignee understands and agrees that the Assigned Shares
being acquired pursuant to this Assignment have not been registered under the
Securities Act or under any applicable state securities laws and may not be
sold, pledged, assigned, hypothecated or otherwise transferred ("Transfer"),
except pursuant to an effective registration statement under the Securities Act
or pursuant to an exemption from registration under the Securities Act, the
availability of which shall be established to the satisfaction of the Company at
or prior to the time of Transfer. Assignee acknowledges that it may have to bear
the economic risk of its investment in the Assigned Shares for an indefinite
period of time since the Assigned Shares have not been registered under the
Securities Act and therefore cannot be sold unless the Assigned Shares are
subsequently registered or an exemption from registration is available. Assignee
has received and reviewed such information concerning the Company as it deems
necessary to evaluate the risks and merits of its investment in the Company.
Assignee has such knowledge and experience in financial matters as to be capable
of evaluating the merits and risks of an investment in the Assigned Shares. The
sale of the Assigned Shares to Assignee is being made without any public
solicitation or advertisements.
4.5 Assignee has not, during the past five years, been subject to or
suffered any of the following:
(i) a petition under the Federal bankruptcy laws or any other
insolvency or moratorium law or has a receiver, fiscal agent or similar officer
been appointed by a court for such person, or any partnership in which such
person was a general partner at or within two years before the time of such
filing, or any corporation or business association of which such person was an
executive officer at or within two years before the time of such filing;
(ii) a conviction in a criminal proceeding or a named subject of
a pending criminal proceeding (excluding traffic violations which do not relate
to driving while intoxicated or driving under the influence);
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(iii) 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 such person's
involvement in any type of business, securities or banking activities; or
(iv) been found guilty by a court of competent jurisdiction in a
civil action or by the U.S. Securities and Exchange Commission ("SEC"), the
Commodity Futures Trading Commission ("CFTC") or state securities regulators and
commissions to have violated any federal or state securities or commodities law,
regulation or decree and the judgment in such civil action or finding by the
SEC, CFTC or state securities regulators or commissions has not been
subsequently reversed, suspended or vacated.
4.6 The representations and warranties of Assignee included in this
Assignment and any list, statement, document or information set forth in, or
attached to, any schedule or certificate provided pursuant to this Assignment or
the purchase of the Assigned Shares or delivered hereunder, are true and
complete in all material respects and do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading, under the
circumstance under which they were made.
5. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
6. Applicable Law. This Assignment shall be governed by and construed
in accordance with the internal substantive laws of the State of Nevada, without
giving effect to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the date first above written.
ASSIGNOR
KIG Investors II, LLC
By: /s/ Timothy J. Keating
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Timothy J. Keating, Manager
ASSIGNEE
/s/ Kevin R. Keating
-----------------------------------
Kevin R. Keating
COMPANY
Forex365, Inc.
By: /s/ Kevin R. Keating
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Kevin R. Keating, President
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