APPENDIX 1
AGREEMENT
AGREEMENT made and entered into this 4th day of May 2001 by and among
VIVA Gaming & Resorts Inc., a Florida corporation ("VIVA") and the shareholders
listed on Schedule A hereto (collectively the "Shareholders").
RECITALS:
A. WHEREAS, the Shareholders own an aggregate of 1,785,000 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 ("Viva
Mexico"), such Mexico Shares comprising 35.7% of the issued and
outstanding shares of Viva Mexico's capital stock;
B. WHEREAS, VIVA desires to acquire the Mexico Shares, and, as
consideration therefore, to issue 2,550,000 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 agree to transfer all of their rights, title and interest in
and to the Mexico Shares, to VIVA. To evidence such transfer, the Shareholders
hereby agree to forthwith tender to VIVA, certificates evidencing the Mexico
Shares, duly endorsed for transfer to VIVA. This Agreement has been approved and
accepted on the signature page hereof by a duly authorized officer of Viva
Mexico, such signature evidencing Viva 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. Upon execution of this Agreement and
subject to delivery of the Mexico Shares, as contemplated by Section 1 hereof,
VIVA hereby agrees to issue from its authorized but unissued capital stock,
2,550,000 restricted shares of the common stock of VIVA, registered to the
Shareholders in the amounts set forth on Schedule A attached hereto. 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 1933, 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 the Shareholders. Each of the
Shareholders hereby represents and warrants to VIVA as follows:
(a) Organization and Good Standing. Viva 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 Viva 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 each of the Shareholders and the consummation of the transactions
contemplated herein will not (with the passage of time or otherwise):
(i) violate any provision of the Articles of
Incorporation or By-Laws of Viva Mexico;
(ii) violate, conflict with or result in the
breach 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 Mexico or any Shareholder is a
party or by or to which Viva 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
Viva Mexico or any Shareholder is a party.
(c) Litigation. Neither Viva Mexico nor any Shareholder is a
party to any legal proceeding, the outcome of which could (i) adversely affect
consummation of the transactions contemplated herein 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 Shareholders on
Schedule A hereto, and owns such Mexico Shares free and clear of all rights,
claims, liens and encumbrances, and none 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 Viva Mexico or the Shareholders to issue, sell or
transfer any stock or other securities of Viva 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.
2
(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.freeedgar.com;
(ii) copies of the following reports have been
furnished to each of the Shareholders prior to the 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;
(C) Quarterly Report on Form 10-QSB for
the quarter ended June 30, 2000,
filed August 14, 2000;.
(D) Quarterly Report on Form 10-QSB for
the quarter ended September 30,
2000, filed December 18, 2000; and
(E) Annual Report on Form 10-KSB for
the fiscal year ended December 31,
2000, filed April 17, 2001.
(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 expense, necessary to verify the
accuracy of the information furnished; and has availed itself of such
opportunity to the extent it considers appropriate to evaluate the merits and
risks of an investment in VIVA.
4. 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 of VIVA
consists of 100,000,0000 shares of common stock, of which 8,707,400 shares are
presently issued and outstanding, and 10,000,000 shares of preferred stock, none
of which shares are outstanding.
3
(b) No Breach. The execution, delivery and performance of this
Agreement by VIVA and the consummation of the transactions contemplated herein
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
breach 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 agreements 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 herein 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, fully paid and non-assessable securities of VIVA.
5. 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
herein.
6. 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 send 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 send 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 New York, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
4
(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 constitute but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
VIVA GAMING & RESORTS INC.
By: /s/ Robert C. Sim
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Robert C. Sim, Chairman & Director
VIVA GAMING & RESORT de MEXICO, S.A. de C.V.
By: /s/ Rosemarie Sim
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Rosemarie Sim, Director
By: /s/ Bernardo Ramon Rafael Terrazas Salgado
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Bernardo Ramon Rafael Terrazas Salgado, Director
SCHEDULE A
THE SHAREHOLDERS OF:
VIVA GAMING & RESORT de MEXICO. VIVA MEXICO SHARES VIVA "PUBCO" SHARES
("VIVA MEXICO") TO BE EXCHANGED TO BE RECEIVED
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By: /s/ Tomas Caparroso Franco 717,500 888,000
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Tomas Caparroso Franco
By: /s/ Mauricio Yucundo Marquez Garcia 717,500 888,000
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Mauricio Yucundo Marquez Garcia
By: /s/ Bernardo Ramon Rafael Terrazas Salgado 100,000 250,000
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Bernardo Ramon Rafael Terrazas Salgado
By: /s/ Manuel Cruz Limon 250,000 200,000
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Manuel Cruz Limon
By: /s/ Javier Hernandez Fernandez --0-- 125,000
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Javier Hernandez Fernandez
By: /s/ Gonzalo Ramon Granados Limon --0-- 125,000
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Gonzalo Ramon Granados Limon
By: /s/ Mauricio Vazquez Vilchis --0-- 55,000
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Mauricio Vazquez Vilchis
.
By: /s/ Juan Enrique Soto Fernandez --0-- 9,000
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Juan Enrique Soto Fernandez
By: /s/ Patricia Curiel Martinez --0-- 10,000
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Patricia Curiel Martinez
TOTALS: 1,785,000 2,550,000
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