AMENDED AGREEMENT
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AGREEMENT made and entered into this 22 day of August 2000 by and among
VIVA Gaming & Resorts Inc., a Florida corporation ("VIVA") and the shareholders
listed on Schedule A hereto (collectively the "Shareholders").
RECITALS:
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A. The Shareholders own an aggregate of 3,215,00 of the issued and
outstanding shares of the capital stock (the "Mexico Shares") of VIVA Gaming &
Resort de Mexico, S.A. de C.V., a variable capital corporation incorporated in
the Republic of Mexico ("Mexico"), such Mexico Shares comprising 84.3% of the
issued and outstanding shares of Mexico's capital stock.
B. VIVA desires to acquire the Mexico Shares, and, as consideration
therefore to issue 1,500,000 shares of its common stock, $.001 par value (the
"VIVA Shares") to the Shareholders, upon the terms and conditions hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1 Transfer of Mexico Shares. Upon execution of this Agreement,
the Shareholders hereby transfer all of their right, title and interest in and
to the Mexico Shares, to VIVA. To evidence such transfer, the Shareholders
hereby tender to VIVA, certificates evidencing the Mexico Shares, duly endorsed
for transfer to VIVA. This Agreement hag been approved and accepted an the
signature page hereof by a duly authorized officer of Mexico, such signature
evidencing Mexico's (a) consent to the transfer of the Mexico Shares to VIVA and
(b) agreement to reissue certificates evidencing the Mexico Shares registered in
the name of VIVA.
2 Issuance of VIVA shares. Subject to delivery of the Mexico
Shares, as contemplated by Section 1, above, upon execution of this Agreement,
VIVA hereby issues from its authorized but unissued shares, 1,500,000 shares of
the common stock of VIVA, registered to the Shareholders in the amounts set
forth on Schedule A. The VIVA Shares have not been registered under the
Securities Act of 1933, as amended, and the certificates evidencing the VIVA
Shares shall contain the following or substantially similar legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1833, AS AMENDED (THE "ACT") AND MAY NOT BE
SOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED ABSENT REGISTRATION UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
3 Representations and Warranties of Shareholders. Each of the
Shareholders hereby represent and warrant to VIVA am follows:
(a) Organization and Good Standing. Mexico is a corporation
duly organized, validly existing and in good standing under the laws of the
Republic of Mexico, and is entitled to own or lease its properties and to carry
on its business as and in the places where such properties are now owned,
leased, or operated and such business is now conducted. The authorized capital
stock of Mexico consists of 5,000,000 shares of common stock, of which 5,000,000
shares are presently issued and outstanding, and no shares of preferred stock.
(b) No Breach. The execution, delivery and performance of this
Agreement by the Shareholders and the consummation of the transactions
contemplated hereby will not (with the passage of time or otherwise):
(i) violate any provision of the Articles of
Incorporation or By-Laws
(ii) violate, conflict with or result in the breach
of any of the terns of, result in a material modification of, otherwise give any
other contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract or other
agreement to which Mexico or any Shareholder is a party or by or to which Mexico
or any Shareholder or any of their respective assets or properties may be bound
or subject; or
(iii) violate any law, rule or regulation to which
Mexico or any Shareholder is a party.
(c) Litigation. Neither Mexico nor any Shareholder is a party
to any legal proceeding, the outcome of which could (i) adversely affect
consummation of the transactions contemplated hereby or (ii) result in any
representation or warranty of the Shareholders contained herein becoming
inaccurate.
(d) Authority. This Agreement has been authorized by all
necessary action on the part of each Shareholder and contains the binding
obligations of each of the Shareholders, enforceable against each Shareholder in
accordance with the terms hereof.
(e) Ownership. Each Shareholder is the sole record and
beneficial owner of the Mexico Shares attributable to such Shareholder on
Schedule A hereto, and owns such Mexico Shares free and clear of all rights,
claims, (lens and encumbrances, and none
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of the Mexico Shares have been sold, pledged, assigned or otherwise transferred,
except pursuant to this Agreement there are no outstanding subscriptions,
rights, options, warrants or other agreements obligating either Mexico or the
Shareholders to issue, sell or transfer any stock or other securities of Mexico.
(f) Status of VIVA Shares. Each of the Shareholders has been
advised that (i) the VIVA Shares have not been registered under the Act in
reliance on an exemption for transactions by an issuer not involving a public
offering, and (ii) issuance of the VIVA Shares has not been passed upon or the
merits thereof endorsed or approved by the United States Securities and
Exchange Commission (the "SEC") or any state authorities.
(g) Available Information and Access to Information.
Each of the Shareholders acknowledges and understands that:
(i) VIVA files periodic reports and other
documents with the SEC, a review of those reports and documents would provide
the Shareholders with information that is meaningful and significant in
evaluating the risks and merits of acquiring the VIVA Shares, those reports and
documents are available for review and downloading at the SEC's Web site at
www.sec.gov;
(ii) copies of the following reports have been
furnished to each of the Shareholders prior to execution of this Agreement;
(A) Registration Statement on
Form 10-SB filed April 10, 2000;
(B) Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2000,
filed May 15, 2000; and
(C) draft Quarterly Report on Form
10-QSB for the quarter ended June
30, 20017, not yet filed with the
SEC.
(iii) an investment in the VIVA Shares is
speculative and involves a high degree of risk; and
(iv) it has been afforded the opportunity to
ask questions of, and receive answers from the officers and/or directors of VIVA
concerning the terms and conditions of this transaction and to obtain any
additional information, to the extent that VIVA possesses such information or
can acquire it without unreasonable effort or expenses, necessary to verify the
accuracy of the information furnished; and has availed itself of
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such opportunity to the extent it considers appropriate to evaluate the merits
and risks of an investment in VIVA.
g Representations and Warranties of VIVA. VIVA hereby
represents and warrants to each of the Shareholders, as follows:
(a) Organization and Good Standing. VIVA is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida, and is entitled to own or lease Its properties and to carry on
its business as and in the places where such properties are now owned, leased,
or operated and such business is now conducted. The authorized capital stock of
VIVA consists of 100,000,000 shares of common stock, of which 7,157,400 shares
are presently issued and outstanding, and 10,000,000 shares of preferred stock,
none of which shares are outstanding.
(b) No Breach. The execution, delivery and performance of
this, Agreement by VIVA and the consummation of the transactions contemplated
hereby will not (with the passage of time or otherwise):
(i) violate any provision of the Articles of
Incorporation or By-laws of VIVA;
(ii) violate, conflict with or result in the
breech of any of the terms of, result in
a material modification of, otherwise
give any other contracting party the
right to terminate, or constitute (or
with notice or lapse of time or both
constitute) a default under, any
contract or other agreement to which
VIVA is a party or by or to which VIVA
or any of its assets or properties may
be bound or subject; or
(iii) violate any law, rule or regulation to
which VIVA is a party.
(c) Litigation. VIVA is not a party to any legal
proceeding, the outcome of which could (i) adversely affect consummation of the
transactions contemplated hereby or (ii) result in any representation or
warranty of VIVA contained herein becoming inaccurate.
(d) Authority. This Agreement has been authorized by all
necessary corporate action on the part of VIVA and contains the binding
obligations of VIVA, enforceable against it in accordance with the terms hereof.
(e) Validity of VIVA Shares. The VIVA shares have been
duly authorized and, upon payment of the prescribed consideration therefore,
will be validly issued, fullypaid and non-assessable securities of VIVA.
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1 Further Assurances. The parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
2 Miscellaneous.
(a) Amendment. This Agreement may be amended
or modified only by an instrument in writing, signed by each of the parties or
their duly authorized representatives.
(b) Assignment. No party may assign its rights or
delegate its responsibilities under this Agreement, without the written consent
of the other parties.
(c) Notices. Any notice required or permitted under
this Agreement to be sent shall be sent by registered or certified mail, return
receipt requested, courier service; charges pre-paid, or by facsimile
transmission with the sender retaining electronic evidence of successful
transmission, to the address or facsimile number specified in writing, or to
such other address or facsimile number as the party may specify in a notice duly
given to the sender as provided herein.
(d) Governing Law. This Agreement shall be
construed, and the legal relations be the parties determined, in accordance
with the laws of the State of Florida, thereby precluding any choice of law
rules which may direct the application of the laws of any other jurisdiction.
(e) Entire Agreement. This Agreement contains the
entire agreement among the parties with respect to the transactions described
herein, and supersedes all prior agreements, written or oral, with respect
thereto.
(f) Execution and Counterparts. This Agreement may
be executed, including by facsimile signatures, in any number of counterparts,
each of which when so executed, shall constitute an original copy hereof, but
all of which together shall consider but one and the same document.
1N WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
VIVA:
VIVA GAMING & RESORTS INC.
BY: /s/ Martin Gross
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NAME: Martin Gross
TITLE: President & CEO
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THE SHAREHOLDERS:
VIVA GAMING & RESORT de MEXICO S.A. de C.V.
BY: /s/ Robert Sim
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NAME: Robert C. Sim
TITLE: President
/s/ Robert Sim
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Robert Sim
/s/ Rosemarie Sim
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Rosemarie Sim
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Schedule A
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(Amended 9/26/00)
I. Name of Mexico
Shareholder Shares to be
----------- Exchanged
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Viva Gaming & Resort de Mexico 1,500,000
Robert C. Sim 857,500
Rosemarie Sim 857,500
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Total 3,215,000
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II. Name of VIVA USA
Shareholder(s) "Pubco" Shares
------------- To be Received
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(I) High Rock Investments Ltd. 500,000
(II) Robert C. Sim 500,000
(III) Rosemarie Sim 500,000
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Total 1,500,000