EXHIBIT 10.10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of June 23, 2008
is made and entered into by and among Image Worldwide, Inc., a Colorado
corporation with principal offices at 1165 North Clark Street, Suite 410,
Chicago, Illinois 60610 ("Seller"), and Invicta Group, Inc., a Nevada
corporation with principal offices at 2400 East Commercial Boulevard, Suite
618, Fort Lauderdale, Florida 33308 ("Purchaser"), and the following persons
as members of the review committee: William G. Forhan ("Forhan"), Richard
David Scott ("Scott"), and Mercedes Henze ("Henze") each with principal
offices at 2400 East Commercial Boulevard, Suite 618, Fort Lauderdale,
Florida 33308 (Forhan, Scott, and Henze are collectively hereinafter referred
to as the "Review Committee").
RECITALS:
A. Seller owns certain assets and business known as the City Book Savings
Assets (the "Purchased Assets") that it is willing to sell and transfer to
Purchaser in exchange for the Purchaser's issuance of certain shares of the
Purchaser's Series G Preferred Stock, and as more particularly set forth
below.
B. Seller desires to sell, and Purchaser desires to buy, the Purchased
Assets described herein as currently used in the Business.
C. The persons listed as the "Review Committee" are each officers and/or
directors of the Purchaser and each has participated in the management of the
Purchaser's affairs and the actions taken by the Purchaser in connection with
its compliance with state and federal securities laws.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants contained herein, the parties agree
as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, at the Closing (as defined in Section 3.1), Purchaser shall
purchase from Seller, and Seller shall sell and transfer to Purchaser, all of
Seller's right, title, and interest in the assets, properties or rights used
in operating the Business (the "Purchased Assets"). The Purchased Assets
consist of the following:
(a) all equipment, inventory, records, merchandise, customer and vendor
contact lists (regardless of format), computers, marketing lists, marketing
materials, business plans and strategies needed to conduct the business
activities of the City Book Savings business;
(b) all information, files, books and records, including customer and
supplier lists, regardless of format, relating to the Business;
(c) all supplies related to the Business, stock in trade, merchandise,
goods, supplies and other products owned by Seller or otherwise under the
control of Seller on the date of Closing;
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(d) all intellectual property rights, whether owned or leased, including,
without limitation, all patents, patent applications, trademarks, registered
trademarks, trademark applications, service marks, registered service marks,
service mark applications, tradenames, copyrights, registered copyrights,
copyright applications, trade secrets, confidential information and
proprietary know-how owned and/or used in connection with the Business; (all
of the intellectual property rights to be acquired shall be collectively
referred to as the "Intellectual Property");
(e) all accounts receivable related to the Business; and
(f) all such assets listed on Exhibit A attached hereto.
Purchaser reserves the right to exclude any of the above described assets
from the Purchased Assets. All of the Purchased Assets shall be transferred
to Purchaser free and clear of all liens, security interests and
encumbrances.
(a) 1.2 Assumed Liabilities; Limitation on Assumption. In connection
with the purchase and sale of the Purchased Assets pursuant to Section 1.1
and except for those liabilities as shown on Exhibit B, Purchaser shall
assume no liabilities and obligations of the Seller.
ARTICLE 2
CONSIDERATION
2.1 Purchase Price. In consideration for the transfer of the Purchased
Assets, at the Closing Purchaser shall (a) pay and deliver to Seller (or
Seller's assignee) the following:
(a) a duly issued stock certificate registered in the name of the Seller
and bearing a restricted securities legend and representing the sum of five
million (5,000,000) shares of the Purchaser's Series G Preferred Stock (the
"Purchase Price") each with such rights and privileges as set forth on
Exhibit C.
2.2 Closing. The closing of the purchase and sale of the Purchased Assets
pursuant to Section 1.1 (the "Closing") shall be held at the offices of
William M. Aul, 7676 Hazard Center Drive, Suite 500, San Diego, California
92108 at 11:00 a.m. (local time) on June 20, 2008 (the "Closing Date"), or at
such other place and time as Purchaser and Seller may mutually agree in
writing.
2.3 Deliveries at Closing. At the Closing, the parties shall make the
deliveries described below:
(a) Seller shall deliver, or cause to be delivered, to Purchaser a
Bill of Sale and Assignment in the form of Exhibit E hereto properly executed
by Seller;
(b) Seller shall deposit the sum of Fifty Thousand Dollars ($50,000)
(the "Special Payment") with via wire transfer to the Invicta Bank Account
(as instructed by Forhan) on or before Closing;
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(c) Purchaser shall deliver to Seller the following:
(i) the stock certificate for the Series G Preferred Stock and registered
in the name of the Seller (or its assignees);
(ii) a duly executed Action of the Board of Directors of the Purchaser,
adopting and approving the terms of this Asset Purchase Agreement and
authorizing and instructing the officers of the Purchaser to deliver a fully
executed copy of this Asset Purchase Agreement to the Seller as set forth in
Exhibit E;
(iii) a duly executed copy of the Certificate of Designation of Preferences
for the Series G Preferred Stock as set forth in Exhibit G;
(iv) a duly executed copy of the Forhan Consulting Agreement set forth as
Exhibit G as attached to this Agreement;
(v) a duly executed copy of the Scott Consulting Agreement set
forth as Exhibit H as attached to this Agreement;
(vi) a duly executed Action of the Board of Directors electing Paul Sorkin
as a director and chief executive officer of the Purchaser and accepting the
immediate resignation of the following persons as directors and officers of
the Purchaser: Mercedez Henze, Richard David Scott, and William G Forhan as
set forth in Exhibit I;
(vii) a good standing certificate regarding Purchaser issued by the Secretary
of State of Nevada;
(viii) a certificate properly executed by Purchaser confirming that
Purchaser's representations and warranties stated in this Agreement are true
and correct as of the date of this Agreement and as of the Closing and that
Purchaser has complied with and performed all of Purchaser's covenants and
obligations to be performed or complied with at or before Closing in
accordance with this Agreement as set forth in Exhibit J;
(ix) such other instruments and documents properly executed by Purchaser as
are reasonably necessary, in the opinion of Seller, to effect the
transactions described herein.
(x) a certificate, executed by a corporate officer of the
Purchaser, certifying that, at the time of Closing, the Purchaser has, in
good condition, at least forty (40) websites, no less than twenty-four
million (24,000,000) email addresses, servers, equipment, client lists,
vendor lists and all books, bank statements, and other assets as listed in
Exhibit J and that the same are in good condition.
2.4 Acknowledgements by Purchaser, Seller, and Review Committee. The
Purchaser, the Seller, and each member of the Review Committee each
acknowledge and agree that:
(i) Assumed Liabilities. At Closing, the Purchaser shall be solely liable
for the liabilities listed on Exhibit K which shall include an aggregate of
twelve thousand seven hundred eighty-five dollars ($12,785) of accrued and
unpaid liabilities and the obligations owed to Golden Gate Investors, both as
set forth and listed on Exhibit K.
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(ii) Outstanding Stock Options. At Closing, the Purchaser shall have
outstanding an aggregate of six million one hundred sixty thousand
(6,160,000) common stock purchase options (the "Insider Options") which were
issued and are currently held as follows: (1) four million (4,000,000)
Insider Options are held by Forhan; (2) two million (2,000,000) Insider
Options are held by Scott; and (3) One Hundred Sixty Thousand Insider Options
are held by Henze.
(iii) Conversion Outstanding Series C Preferred Stock. At Closing, all of
the Series C Preferred Stock issued to or issuable to William G. Forhan
and/or Richard David Scott shall be converted into an aggregate of five
million (5,000,000) common stock purchase warrants so that, as converted, the
Purchaser shall issue the following Common Stock Purchase Warrants: (1) a
Common Stock Purchase Warrant in the amount of two million four hundred
seventy-three thousand one hundred twenty (2,473,120) of said warrants shall
be issued to William G. Forhan; (2) a Common Stock Purchase Warrant in the
amount of one million four hundred fifty-one thousand six hundred twelve
(1,451,612) of said warrants shall be issued to Richard David Scott; and (3)
a Common Stocjk Purchase Warrant in the amount of one million seventy-five
thousand two hundred sixty-eight (1,075,268) of said warrants shall be
issued to Mercedes Henze. The terms and form of all said common stock
purchase options shall be as recited in Exhibit L.
(iv) Responsibility for Lease Obligations. At Closing, the Purchaser shall
continue to assume responsibility for the existing lease (and the obligations
therefore together with all rights to the security deposit under said lease)
for the existing offices maintained by the Purchaser at 2688 South Rainbow
Boulevard, Las Vegas, Nevada 89146 (the "Las Vegas Office") and all equipment
and personal property used at the Las Vegas Office shall remain the property
of the Purchaser, provided however, that Purchaser shall pay the sum of six
thousand dollars ($6,000) for past rent on the existing Florida office (as
included in the existing payables of $12,785 shown on Exhibit K attached
hereto). However, at Closing, William G. Forhan and Richard David Scott
shall assume all responsibility for the existing lease (and the obligations
therefore together with all rights to the security deposit under said lease)
for the existing office in Florida as currently operated by the Purchaser.
2.5 Exchange of Outstanding Series E Preferred Stock for New Series H
Preferred Stock. At Closing, all of the Series E Preferred Stock issued to or
issuable to William G. Forhan and/or Richard David Scott shall be exchanged
into an aggregate of Fifty-Three Thousand Three Hundred Thirty-Two (53,332)
shares of the Company's designated Series H Preferred Stock (the "Special
Preferred Shares") so that, as exchanged, William G. Forhan shall be issued
twenty-six thousand six hundred sixty-six (26,666) Special Preferred Shares
and Richard David Scott shall be issued twenty-six thousand six hundred
sixty-six (26,666) Special Preferred Shares . The issuances of the Special
Preferred Shares shall be subject to compliance with state and federal
securities laws and the parties agree that each shall cooperate and assist
the Purchaser by completing and executing customary investment agreements and
questionnaires as reasonably needed to further compliance with all such laws.
The rights and privileges of the Special Preferred Shares are as set forth in
Exhibit N and as approved by the Board of Directors as set forth in Exhibit O
, both as attached hereto.
(vi) Assignment of Note by William G. Forhan. At Closing,
William G. Forhan agrees to assign that certain existing promissory note
issued by the Purchaser to him to a party designated by the Seller.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
3.1 Authorization of Transaction. Seller has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of
Seller, enforceable in accordance with its terms and conditions.
3.2 Broker's Fees. Neither Seller nor the Purchaser has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement.
3.3 Consents and Approvals. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with or
notice to, any governmental or regulatory body, agency or official. Neither
the execution, delivery and performance by Seller of this Agreement, nor the
consummation of the transactions contemplated hereby, will (with or without
notice or lapse of time) (a) violate, conflict with, or result in a breach of
any judgment, order, writ, injunction, decree or award of any court,
governmental or regulatory body, or (b) result in a default (or give rise to
any right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, franchise, permit, lease, agreement or other instrument or
obligation to which Seller is a party, or by which the Business or any of the
Purchased Assets may be bound.
3.4 Litigation. To the best knowledge of Seller, there are no actions,
suits, or proceedings pending or, to Seller's best knowledge, threatened
against Seller, or that otherwise relate to the Business or the Purchased
Assets, before any court, arbitrator or administrative, governmental or
regulatory authority or body and, to Seller's knowledge, no event has
occurred or circumstance exists that may give rise to or serve as the basis
for the commencement of any such action, suit or proceeding. Seller is not
subject to any order, judgment, writ, injunction or decree that relates to
the Business or the Purchased Assets.
3.5 Personal Property. Seller at Closing will have good and marketable
title to the Purchased Assets, free and clear of all liens and encumbrances,
and (b) all items of equipment, if any, constituting a part of the Purchased
Assets are in good operating condition and repair, ordinary wear and tear
excepted, and reasonably conform to all applicable laws, ordinances and
regulations.
3.6 Taxes. To the best knowledge of Seller, all tax reports and returns
required to be filed relating to the Business pursuant to any law, rule or
regulation have been filed in a timely manner (taking into account all
extensions of due dates), and all Taxes shown as due thereon have been paid
or accrued and reflected on the financial statements of the Business. No
deficiencies for any Taxes have been asserted in writing against Seller which
remain unpaid.
3.7 Employees. Seller has, with respect to the Business and all employees
now or previously employed in the Business, complied in all respects with all
laws, rules and regulations relating to employment, equal employment
opportunity, nondiscrimination, immigration, wages, hours, benefits,
occupational health and safety and plant closing.
3.8 Customer List. The list of customers of the Business listed in Exhibit
A attached to this Agreement is a complete list of all of the customers of
the Business. There are no customer prepayments or deposits.
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3.9 Accounts Receivable. The list of Accounts Receivable listed on Exhibit
A attached to this Agreement is a complete list of the Accounts Receivable.
3.10 Intellectual Property. To the best knowledge of Seller, Seller has no
patents, patent rights, licenses, trademarks, trademark rights, trade names,
trade name rights, service marks, service mark rights, copyrights, web sites
or Internet locations or similar rights, nor require any such rights in
connection with the conduct of the Business as presently conducted. To the
knowledge of Seller, neither Seller nor the Business is infringing or
otherwise acting adversely to the right of any other person under or in
respect to, any patent, license, trademark, trade name, service mark,
copyright or similar intangible right.
3.11 Labor Relations. To the best knowledge of Seller, Seller has complied
in all material respects with all federal and state laws, rules and
regulations relating to the employment of labor, including those related to
wages, hours and payment of withholding and unemployment taxes. Seller has
withheld all amounts required by law or agreement to be withheld from wages
or salaries of its employees and is not liable for any arrearage of wages or
any taxes or penalties for failure to comply with any of the foregoing.
3.12 Compliance. To the Best knowledge of Seller, Seller has conducted the
Business and maintained the Purchased Assets in compliance with, and not in
violation of, applicable laws, rules, regulations and orders of federal,
state and local governments and regulatory bodies (the "Applicable Laws").
Seller has not received any notice of any alleged violation of any Applicable
Laws, and Seller has all licenses, permits and consents required to be
obtained from federal, state, county or municipal authorities with respect to
the ownership or use of the Purchased Assets for the operation of the
Business. The Seller is not aware of any actions that it or the Business has
taken which could reasonably cause or result in any claims of any violation
of any federal, state, or local environmental laws in connection with the use
or operation of the Purchased Assets or the conduct of the Business.
3.13 Investment Representation.
(a) Seller represents that it is sophisticated and experienced in
investment, financial, and securities matters and that it has had a
sufficient opportunity to conduct a due diligence investigation into the
corporate affairs of the Purchaser. Seller acknowledges that the offering and
sale of the Series G Preferred Stock is intended to be exempt from
registration under the Securities Act by virtue of Section 4(2) of the
Securities Act of 1933, as amended, and that Purchaser's reliance on such
exemption is predicated on Seller's representations set forth herein.
(b) Seller fully understands and agrees that it must bear the economic risk
of its investment for an indefinite period of time because, among other
reasons, the Series G Preferred Stock has not been registered under the
Securities Act of 1933, as amended or under the securities laws of any states
and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless the transaction is or the Series G Preferred Stock is subsequently
registered under the Securities Act of 1933, as amended and under applicable
securities laws of relevant states or an exemption from such registration is
available. Seller understands that Purchaser is under no obligation to
register the Series G Preferred Stock on Seller's behalf, or to assist Seller
in complying with any exemption from such registration under the Securities
Act of 1933.
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(c) Seller has such knowledge and experience in financial and business
matters such that Seller is capable of evaluating the merits and risks of
Seller's investment in the Series G Preferred Stock and is able to bear such
risks, and has obtained, in Seller's judgment, sufficient information from
Purchaser or its authorized representatives to evaluate the merits and risks
of such investment. Seller has evaluated the risks of investing in the
Series G Preferred Stock and has determined that the Series G Preferred Stock
is a suitable investment for Seller. Seller can afford a complete loss of
the investment in the Stock, and can afford to hold the investment in the
Series G Preferred Stock for an indefinite period of time.
(d) Seller is acquiring the Stock subscribed for herein for its own
account, for investment purposes only and not with a view to, or for sale in
connection with, any distribution of the Series G Preferred Stock within the
meaning of the Securities Act of 1933, as amended, or any rule or regulation
under the Securities Act of 1933, as amended. The Series G Preferred Stock
is not being purchased for subdivision or fractionalization thereof, and
Seller has no contract, undertaking, agreement or arrangement with any person
or entity to sell, hypothecate, pledge, donate or otherwise transfer (with or
without consideration) to any such person or entity the Series G Preferred
Stock, and Seller has no present plans or intentions to enter into any such
contract, undertaking, agreement or arrangement.
(e) Seller understands and acknowledges that the Series G Preferred Stock
delivered pursuant to the terms of this Agreement shall bear the following
legend:
"The Shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and neither such Shares nor any interest therein may be offered, sold,
pledged, assigned or otherwise transferred absent registration under the Act
or the availability of an exemption therefrom."
Further, Seller understands and acknowledges that an appropriate stop-
transfer order shall be noted on the records of Purchaser's transfer agent
with respect to the Series G Preferred Stock issued pursuant to this
Agreement, which stop-transfer order shall remain in effect with respect to
the Series G Preferred Stock so long as the Series G Preferred Stock is
subject to the legending requirements set forth above.
3.14 Disclosure. No representation or warranty or other statement made by
Seller in this Agreement or in any certificates delivered in accordance with
this Agreement or otherwise in connection with the transactions contemplated
by this Agreement contains any untrue statement or omits to stating material
fact necessary to make any of them, in the light of the circumstances in
which it was made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND THE REVIEW COMMITTEE
Purchaser and the Review Committee jointly and severally represent and
warrant to Seller that, as of the date of this Agreement:
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4.1 Organization and Qualification. Purchaser (a) is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada; and (b) has the requisite corporate power to carry on its business
as now being conducted, to own or use the properties and assets that it
purports to own or use and to perform all of its obligations under this
Agreement.
4.2 Corporate Authorization. The execution, delivery and performance by
Purchaser of this Agreement and the transactions contemplated hereby are
within the corporate powers of Purchaser and have been duly authorized by all
necessary corporate action. This Agreement constitutes a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
4.3 Consents and Approvals. The execution, delivery and performance by
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, or
notice to any governmental or regulatory body, agency or official. Neither
the execution, delivery and performance by Purchaser of this Agreement, nor
the consummation by Purchaser of the transactions contemplated hereby, will
(with or without notice or lapse of time) (a) violate, conflict with, or
result in a breach of, any provision of the charters or bylaws of Purchaser
or any resolution adopted by the board of directors or shareholders of
Purchaser or any judgment, order, writ, injunction, decree or award of any
court, governmental or regulatory body applicable to Purchaser or (b) result
in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, franchise, permit, lease, agreement or
other instrument or obligation to which Purchaser is a party, or by which its
properties may be bound.
4.4 Status of Filings & Securities Law Compliance.
Purchaser and Purchaser's officers and directors (collectively, as the
"Review Committee") have completed a review of the filings that Purchaser has
made with the Securities and Exchange Commission (the "Commission") pursuant
to Section 13 (the "Periodic Filings") of the Securities Exchange Act of 1934
(the "1934 Act") during the three (3) year period immediately preceding the
date of this Agreement and in that connection and to the best knowledge of
the Review Committee, the Review Committee is not aware of any letters,
inquiries, or correspondence from the Securities and Exchange Commission
relating to or involving the Periodic Filings of the Purchaser or any matters
which reasonably could form the basis of any claimed deficiencies or defects
in any of the Periodic Filings. Further and to the best knowledge of the
Review Committee, the Review Committee is not aware of any actions, suits, or
proceedings pending or threatened against the Purchaser by the Commission,
any state securities commission, or other governmental or regulatory
authority or body relating to: (i) the Periodic Filings; (ii) the Purchaser's
compliance with state or federal securities laws; and (ii) the actions of
Purchaser with respect to its public statements, announcements, or press
releases. Further to the Review Committee's best knowledge, no event has
occurred or circumstance exists that may give rise to or serve as the basis
for the commencement of any such action, suit or proceeding.
4.5 Series G Preferred Stock.. The Series G Preferred Stock, as and when
issued to Seller at Closing, will confer all of the rights and privileges set
forth in the Certificate of Designation of Preferences attached hereto as
Exhibit G and the same shall be deemed to be fully paid-for, validly issued,
and non-assessable shares of the Purchaser's capital stock with all rights
granted to stockholders in accordance with the Nevada General Corporation
Law.
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4.6 Absence of Liabilities. To the best knowledge of the Review Committee
and the Purchaser, and except for those liabilities listed on Exhibit K
attached to this Agreement, there are no liabilities, debts, obligations,
commitments, liens, charges, claims, whether accrued or contingent, to which
the Purchaser is or may become liable or serve as the basis for the
commencement of any action, suit or proceeding against Purchaser. Purchaser
is not subject to any order, judgment, writ, injunction or decree.
4.7 Stockholder List and Corporate Actions. To the best knowledge of
the Review Committee and the Purchaser, the Stockholder and Securities List
shown on Exhibit M attached to this Agreement is accurate and complete and
there are no outstanding warrants, rights or options or agreements,
understandings, or commitments for the issuance of any warrants, rights, or
options which could reasonably result in the issuance of the Purchaser's
capital stock (whether preferred or common) at any time on or after the
Closing. Further, to the best knowledge of the Review Committee and the
Purchaser, there are no outstanding convertible or exchangeable securities or
agreements, understandings, or commitments for the issuance of any
convertible or exchangeable securities which could reasonably result in the
issuance of the Purchaser's capital stock (whether preferred or common) at
any time on or after the Closing except as shown on Exhibit M.
4.8 Status of Lease for Las Vegas Office and Other Assets. To the best
knowledge of the Review Committee and the Purchaser, the Purchaser is not and
will not be, at closing, in default of any of its obligations to the landlord
for that certain lease of the real property located at 2688 South Rainbow
Boulevard, Las Vegas, Nevada 89146. Further, at Closing, the Purchaser shall
retain all of its assets, including, but not limited to, the following: (i)
sixty (60) websites; (ii) twenty-five million email addresses; (iii) servers,
equipment, client lists, vendor lists; and (iv) all books, bank statements,
state and federal income and property tax records and the same shall be in
good condition so as to enable the Purchaser and its management to continue
the operation of the Purchaser's business and continue to conduct its affairs
without interruption or extraordinary efforts. In particular, the Review
Committee agrees that it shall deliver to the Purchaser, at Closing, such
documents, transfers, and other instructions to the bank at which the
Purchaser maintains its bank accounts, so that all said accounts can be
maintained and controlled solely by the Purchaser from and after closing.
ARTICLE 5
COVENANTS
5.1 Operation of the Business. Except as may otherwise be consented to in
writing by Purchaser, during the period from the date of this Agreement to
the earlier of the Closing Date or the termination of this Agreement pursuant
to Article 8 below, Seller shall operate the Business in the ordinary course
consistent with past practice and maintain the Purchased Assets in customary
repair, order and condition, maintain all insurance with respect to such
assets in effect on the date of this Agreement and, in the event of casualty,
loss or damage to any of such assets or properties prior to the Closing Date,
either repair or replace such damaged property or, at Purchaser's option,
transfer the proceeds of such insurance to Purchaser after the Closing.
5.2 Access. From the date of this Agreement to the earlier of (a) the
Closing Date or (b) the termination of this Agreement pursuant to Article 8
below, Seller shall afford the officers, directors, employees, contractors,
consultants, agents and other authorized representatives of Purchaser
(collectively "Purchaser Agents") reasonable access at reasonable
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times to the Purchased Assets, and to the books, records and contracts of the
Business. Purchaser may, after notice to Seller, contact the customers and
suppliers of the Business.
5.3 Public Announcements. Seller and Purchaser shall consult with each
other before issuing any press release or otherwise making any public
statements with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to obtaining the approval of the other party, except as may
be required by law. Notwithstanding the foregoing, the Purchaser shall have
the right to file Form 8-K in connection with this Agreement and the
transactions described herein and to each party shall have the right to take
any other action relating to the disclosure of this Agreement and the subject
mater of this Agreement as it reasonably determines and each agrees to
cooperate with the other in all such matters.
5.4 Best Efforts. Each of Seller and Purchaser agrees to use its best
efforts to fulfill the conditions set forth in Article 7 to the other party's
obligation to close the transactions contemplated by this Agreement.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Conditions to Obligation of Purchaser. The obligation of Purchaser to
close the transactions contemplated hereby shall be subject to the
satisfaction or written waiver (by Purchaser), prior to or at the Closing, of
the following conditions:
(a) Representations and Covenants. The representations and warranties of
Seller contained in this Agreement shall be true and correct in all material
respects on and as of the date of Closing with the same force and effect as
though made on and as of the date of Closing. Seller shall have performed and
complied in all material respects with all covenants and agreements required
by this Agreement to be performed or complied with by it on or prior to the
date of Closing; and
(b) Deposit of Funds. Seller shall deposit the sum of Fifty Thousand
Dollars ($50,000) (the "Special Payment") to the Invicta Bank Account via
wire transfer (as instructed by Forhan) on or before Closing.
6.2 Conditions to Obligation of Seller. The obligation of Seller to close
the transactions contemplated hereby shall be subject to the satisfaction or
written waiver (by Seller), prior to or at the Closing, of the following
conditions:
(a) Representations and Covenants. The representations and warranties of
Purchaser contained in this Agreement shall be true and correct in all
material respects on and as of the date of Closing with the same force and
effect as though made on and as of the date of Closing. Purchaser shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by it
on or prior to the date of Closing;
(b) Forhan Consulting Agreement. Purchaser shall have caused William G
Forhan to enter into the Forhan Consulting Agreement set forth in Exhibit G
and the same shall be delivered to the Seller on or before Closing;
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(c) Scott Consulting Agreement. Purchaser shall have caused David Scott to
enter into the Scott Consulting Agreement set forth as Exhibit H and the same
shall be delivered to Seller on or before Closing;
(d) Purchaser shall cause all actions to be taken as listed in Section
3.2(b) hereof.
ARTICLE 7
TERMINATION
7.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) By mutual written consent of Purchaser and Seller.
(b) By Seller:
(i) if the Closing shall not have occurred on or before June 25, 2008,
other than as a result of a material breach by Seller of its representations,
warranties or other obligations hereunder; or
(ii) if, prior to the Closing Date, Purchaser fails to perform in any
material respect any of its obligations under this Agreement or Purchaser has
breached any material representation or warranty, and such failure or breach
has not been cured within five (5) days after receipt of notice of such
failure or breach from Seller.
(c) By Purchaser:
(i) if the Closing shall not have occurred on or before June 25, 2008,
other than as a result of a material breach by Purchaser of its
representations, warranties or other obligations hereunder; or
(ii) if, prior to the Closing Date, Seller fails to perform in any material
respect any of its obligations under this Agreement or Seller has breached
any material representation or warranty, and such failure or breach has not
been cured within five (5) days after receipt of notice of such failure or
breach from Purchaser.
7.2 Effect of Termination. In the event of termination of this Agreement
by Purchaser or Seller as provided in Section 8.1, all obligations of the
parties under this Agreement shall terminate without liability of any party
to any other party, except for a party's liability for breach of this
Agreement.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification.
(a) By Seller. Seller shall indemnify, defend and hold harmless Purchaser
and its directors, officers, employees and shareholders, from, against and in
respect of any and all claims, suits, actions, proceedings, damages, costs,
liabilities, losses, judgments, penalties, fines, expenses or other costs,
including reasonable attorneys' fees, (each a "Loss" and collectively,
"Losses") arising from or relating to: (i) the breach of any of Seller's
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representations, warranties or covenants set forth in this Agreement; (ii)
any product shipped or manufactured by, or services provided by, the Business
prior to the date of Closing; and (iii) any claim against Purchaser by any
person to whom Purchaser is liable for any liabilities arising from or
connected to the operation of the Business prior to the Closing Date, other
than the Assumed Liabilities.
(b) By Purchaser. Purchaser shall indemnify, defend and hold harmless
Seller, from, against and in respect of any and all Losses arising from or
relating to: (i) the Assumed Liabilities; (ii) the breach of any of
Purchaser's representations, warranties or covenants set forth in this
Agreement; or (iii) any products shipped or manufactured by, or services
provided by, the Business on or after the date of Closing.
8.2 Procedure for Claims by Third Parties.
(a) Any party asserting a right of indemnification provided for under this
Agreement (the "Indemnified Party") in respect of, arising out of or
involving a claim or demand made by any unrelated person, firm, governmental
authority or corporation against the Indemnified Party (a "Third Party
Claim") shall notify the indemnifying party (the "Indemnifying Party") in
writing of the Third Party Claim within ten (10) business days after such
Indemnified Party becomes aware of such Third Party Claim. As part of such
notice, the Indemnified Party shall furnish the Indemnifying Party with
copies of any pleadings, correspondence or other documents relating thereto
that are in the Indemnified Party's possession. The Indemnified Party's
failure to notify the Indemnifying Party of any such matter within the time
frame specified above shall not release the Indemnifying Party, in whole or
in part, from its obligations under this Article 9 except to the extent that
the Indemnified Party's ability to defend against such claim is actually
prejudiced thereby. The Indemnifying Party agrees (and, at such time as the
Indemnifying Party acknowledges its liability under this Article 9 with
respect to such Third Party Claim, the Indemnifying Party shall have the sole
and exclusive right) to defend against, settle or compromise such Third Party
Claim at the expense of such Indemnifying Party; provided that no compromise
or settlement of such claims may be effected by the Indemnifying Party
without the Indemnified Party's consent unless the sole relief provided is
monetary damages that are paid in full by the Indemnifying Party. The
Indemnified Party shall have the right (but not the obligation) to
participate in the defense of such claim through counsel selected by it. If
the Indemnifying Party has not yet acknowledged its liability under this
Section 9.2 with respect to such Third Party Claim, then the Indemnifying
Party and the Indemnified Party shall cooperate in defending against such
Third Party Claim, and neither party shall have the right, without the
other's consent, to settle or compromise any such Third Party Claim.
(b) If any party becomes obligated to indemnify another party with respect
to any Third Party Claim and the amount of liability with respect thereto
shall have been finally determined, the Indemnifying Party shall pay such
amount to the Indemnified Party in immediately available funds within ten
(10) days following written demand by the Indemnified Party.
(c) Procedure for Claims Between the Parties. In the event that either
Seller or Purchaser desires to assert a claim for indemnification against the
other under this Article 9, such party shall assert such claim in writing,
stating the nature and basis of such claim. The party making such claim
shall, on request, provide all information and documentation reasonably
necessary to support and verify any Losses which such person believes gives
rise to a
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claim for indemnification and shall give the indemnifying party reasonable
access to its books, records and personnel for the purpose of investigating
and verifying any such claim.
8.3 Survival. All representations, warranties, covenants and obligations
in this Agreement shall survive the Closing and consummation of the
transactions contemplated by this Agreement. The rights to indemnification,
reimbursement or other remedy based upon such representations, warranties,
covenants and obligations shall not be affected by any investigation
conducted, or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the execution and delivery of this Agreement or
the Closing Date, with respect to the accuracy or inaccuracy of or compliance
with any such representation or warranty, or on the performance of or
compliance with any covenant or obligation, and will not affect the right to
indemnification, reimbursement or other remedy based upon such
representations, warranties, covenants or obligations.
8.4 Non-Exclusive Remedy. The indemnification provisions in this Article 9
are in addition to any and all other remedies of the parties hereto available
under applicable law with respect to the breach of any representation,
warranty, covenant or agreement of the other party hereto.
8.5 Set-Off. In the event of a material breach and if the same
results in a Material Adverse Effect (as provided by Section 9.1), Seller
shall have the right to set-off and reduce indemnification amounts due it
from the Purchaser pursuant to this Agreement against payments due to William
G. Forhan and/or Richard David Scott under this Agreement or any other
agreement between the Seller and any one or more of the Parties Seller shall
notify Purchaser and the Review Committee of any set-off and reduction to be
taken, and the amount and basis for the taking of such set-off and reduction,
as soon as Seller determines that it will exercise its right to set-off and
reduction. Any such set-off shall not limit Seller's rights under this
Article 8 to indemnification for all Losses.
8.6 Conversion of Amounts Owed to Forhan abd Scott. In the event that
Seller does not have the right to Set-Off (as provided by Section 8.5 of this
Agreement) and Purchaser fails to fulfill its financial obligations to Forhan
and/or to Scott (as provided by Exhibits G and H, respectively), then the
parties hereto agree that the amount of any deficiency in fulfilling said
financial obligations shall be deemed a breach of said financial obligations
and the amount of said deficiency shall, upon written notice to Forhan and to
Scott, be converted into shares of the Purchaser's common stock using the
average closing market price for the five (5) days immediately preceding the
date of said breach.
ARTICLE 9
GENERAL PROVISIONS
9.1 Material Adverse Effect. For purposes of this Agreement, a "Material
Adverse Effect" shall mean: (1) with respect to the Purchased Assets, a
material adverse effect on the Purchased Assets, the operations or financial
condition of the Business or on Seller's ability to consummate the
transactions contemplated by this Agreement; and (2) with respect to the
Purchaser, the financial condition of the Purchaser, Purchaser's ability to
consummate the transactions contemplated by this Agreement; and the existence
of any accrued or contingent liabilities not disclosed to the Seller in this
Agreement.
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(a) Seller's Knowledge. Where a representation or warranty is stated to be
based on or to the knowledge of the Seller, such phrase or words of similar
import shall refer solely to the actual knowledge, after due inquiry, of Paul
Sorkin, Seller's Chief Executive Officer, as of the date of this Agreement.
(b) Purchaser's Knowledge. Where a representation or warranty is stated to
be based on or to the knowledge of Purchaser, such phrase or words of similar
import shall refer solely to the actual knowledge, after due inquiry, of
William G. Forhan, Purchaser's Chief Executive Officer, as of the date of
this Agreement.
(d) Review Committee's Knowledge. Where a representation or warranty is
stated to be based on or to the knowledge of the Review Committee, such
phrase or words of similar import shall refer solely to the actual knowledge,
after due inquiry, of one or more of the following: William G. Forhan,
Richard David Scott, and Mercedes Henze.
(c) Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(d) Severability. If any provision of this Agreement, or the application
thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be illegal, invalid, unenforceable or void, then
such provision shall be enforced to the extent that it is not illegal,
invalid, unenforceable or void, and the remainder of this Agreement, as well
as such provision as applied to other persons, places or circumstances, shall
remain in full force and effect.
9.2 Waiver. With regard to any power, remedy or right provided in this
Agreement or otherwise available to any party, (a) no waiver or extension of
time shall be effective unless expressly contained in a writing signed by the
waiving party, (b) no alteration, modification or impairment shall be implied
by reason of any previous waiver, extension of time, delay or omission in
exercise or other indulgence, and (c) waiver by any party of the time for
performance of any act or condition hereunder does not constitute a waiver of
the act or condition itself.
9.3 Further Assurances. From time to time after the Closing, each party
hereto will execute and deliver to the other party such instruments of sale,
transfer, conveyance, assignment and delivery as may be reasonably requested
by the other party in order to cause Purchaser to be vested in all right,
title and interest of Seller in and to the Purchased Assets and otherwise in
order to carry out the purpose and intent of this Agreement.
9.4 Notices. All notices, demands, or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and shall be deemed to have duly given or delivered (a)
when delivered personally, (b) mailed by certified or registered mail, return
receipt requested and postage prepaid, (c) sent by telephone facsimile
transmission, or (d) sent via a nationally recognized overnight courier to
the recipient. Such notices, demands and other communications will be sent
to the addresses listed on the first page of this Agreement or to such other
address as any party may specify by notice given to the other party in
accordance with this Section.
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9.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal substantive laws of the State of Nevada without
giving effect to any choice or conflict of law provision or rule (whether of
the State of Nevada or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Nevada.
9.6 Entire Agreement. This Agreement (including the attached exhibits and
schedules) constitutes the entire agreement among the parties with respect to
the subject matter of this Agreement and supersedes any prior or
contemporaneous agreement or understanding, whether written or oral, among
the parties or between any of them with respect to the subject matter of this
Agreement. There are no representations, warranties, covenants, promises or
undertakings, other than those expressly set forth or referred to herein.
9.7 Amendment. This Agreement may be amended or modified only by a written
agreement duly executed by Seller and Purchaser.
9.8 Assignability. Neither this Agreement nor any of the rights or
obligations under this Agreement of any party hereto may be transferred,
conveyed, alienated, assigned or delegated without the other party's prior
written consent, which consent may be withheld in the other party's sole and
absolute discretion.
9.9 Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and, if
applicable, permitted assigns.
9.10 Third-Party Beneficiaries. Each party intends that this Agreement
shall not benefit or create any right or cause of action in any person other
than the parties or as specifically expressed in this Agreement.
9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but when taken
together shall constitute but one instrument.
9.12 Expenses; Brokerage Fee. Each party to this Agreement shall bear all
of its own expenses in connection with the execution, delivery and
performance of this Agreement and the transactions contemplated hereby,
including, without limitation, all fees and expenses of its agents,
representatives, counsel and accountants.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
PURCHASER:
INVICTA GROUP, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
SELLER:
IMAGE WORLDWIDE, INC.
_________________________________
Paul Sorkin, President
REVIEW COMMITTEE:
__________________________________
William G. Forhan
__________________________________
Richard David Scott
__________________________________
Mercedes Henze
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
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LIST OF ATTACHMENTS
EXHIBIT A - List of Purchased Assets
EXHIBIT B - List of Liabilities of Purchaser At Closing
EXHIBIT C - Certificate of Designation, Series G Preferred Stock
EXHIBIT D - Bill of Sale
EXHIBIT E - Action of the Board of Directors of Invicta Group, Inc.
(Authorization)
EXHIBIT F - Action of the Board of Directors of Invicta Group, Inc.
(Series G Preferred Stock)
EXHIBIT G - Forhan Consulting Agreement
EXHIBIT H - Scott Consulting Agreement
EXHIBIT I - Action of the Board of Directors of Invicta Group, Inc.
(Election of Sorkin and Resignation of Officers/Directors)
EXHIBIT J - Certificate of Purchaser
EXHIBIT K - List of Liabilities and Liabilities to Golden Gate
Investors
EXHIBIT L - (Form of) Common Stock Purchase Option (Forhan and Scott)
EXHIBIT M - Stockholder and Security List
EXHIBIT N - Certificate of Designation, Series H Preferred Stock and
Action of the Board of Directors
EXHIBIT O - Action of the Board of Directors (Authorization & Issuance,
Series H Preferred Stock)
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EXHIBIT A
LIST OF PURCHASED ASSETS
The following are the Purchased Assets acquired by the Purchaser
from the Seller:
City Book Savings Website www.CityBooksavings.com
Domain name - www.CityBooksavings.com
Database of clients
Future business
Goodwill
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EXHIBIT B
LIST OF LIABILITIES ACQUIRED BY PURCHASER FROM SELLER
Amount: $0.00
############
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EXHIBIT C
CERTIFICATE OF DESIGNATION, SERIES G PREFERRED STOCK
CERTIFICATE
OF
DESIGNATION, NUMBER, POWERS, PREFERENCES, AND RELATIVE,
PARTICIPATING, OPTIONAL, AND OTHER SPECIAL RIGHTS AND THE
QUALIFICATIONS, LIMITATIONS, RESTRICTIONS, AND OTHER DISTINGUISHING
CHARACTERISTICS OF SERIES "G" PREFERRED
STOCK OF
INVICTA GROUP, INC.
(Incorporated under the laws of the State of Nevada)
It is hereby certified that:
1. The name of the Corporation is Invicta Group, Inc. (herein called,
the "Corporation").
2. The Certificate of Incorporation of the Corporation authorizes the
issuance of up to fifty million (50,000,000) Shares of Preferred Stock of a
par value of $0.0001 each and expressly vests in the Board of Directors of
the Corporation the authority provided therein to issue any and all of said
Shares in one or more series and by resolution or resolutions, the
designation, number, full or limited voting powers, or the denial of voting
powers, preferences, and relative, participating, optional, and other special
rights and qualifications, limitations, restrictions, and other
distinguishing characteristics of each series to be issued.
3. The Board of Directors of the Corporation, pursuant to the
authority expressly vested in it aforesaid, has adopted the following
resolution creating a Series "G" issue of Preferred Stock:
RESOLVED: That in accordance with the General Corporation Law of
the State of Nevada, this Board of Directors hereby adopts the following
resolution: That Five Million (5,000,000) Shares of the preferred stock (par
value $0.0001) authorized to be issued by this corporation pursuant to
Article Fourth of its Articles of Incorporation be and hereby are authorized
and created a series of preferred stock, hereby designated as the Series G
Preferred Stock and shall have the voting powers, designations, preferences
and relative participating, optional, or other rights, if any, or the
qualifications, limitations, or restrictions, set forth in
Article Fourth of such Articles of Incorporation, and in addition thereto,
those following:
(a.) DESIGNATION. The preferred stock subject hereof shall be
designated Series G Preferred Stock.
(b.) DIVIDENDS. The Series G Preferred Stock shall be not entitled to
receive any cash dividends (only) from funds legally available therefore.
The Series G Preferred Stock shall be eligible to receive the Corporation's
Common Stock as a dividend.
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(c.) LIQUIDATION RIGHTS. In the event of any consolidation or merger
of the Corporation which is in the nature of the winding up of the
Corporation's business or sale of all or substantially all of the
Corporation's assets (a "Liquidation"), each share of Series G Preferred
Stock shall be entitled to be paid one thousand (1,000) shares of Common
Stock up to the date of such Liquidation (whether or not, to the extent
permitted by law, the Corporation shall have surplus or earnings available
for dividends), and no more.
(d.) CONVERSION. Shares of Series G Preferred Stock may be converted
at any time into one thousand (1,000) shares of the Corporation's Common
Stock at any time.
(e.) VOTING RIGHTS. Except as otherwise provided by law, each share of
the Series G Preferred Stock shall be entitled, on all matters on which any
of the shareholders are required or permitted to vote, to one thousand
(1,000) votes. And except as provided expressly herein or as required by
law, the holders of the Series G Preferred Stock shall vote together with the
Common Stock shareholders and not as a separate class. So long as any shares
of the Series G Preferred Stock remain outstanding, the Corporation shall
not, without first obtaining the approval (by vote or written consent) of the
holders of at least a majority of the total number of shares of the Series G
Preferred Stock then outstanding voting separately as a class, alter or
change, in any material respect, the rights, preferences or privileges or the
restrictions of the shares of the Series G Preferred Stock whether by
amendment of the Corporation's Certificate of Designation of Preferences or
otherwise. At any meeting at which the holders of the Series G Preferred
Stock are entitled to vote as a class pursuant to this provision, the holders
of a majority of all outstanding shares of Series G Preferred Stock, present
in person or represented by proxy, shall be necessary to constitute a quorum.
(f.) NOTICE. Except as otherwise provided herein, any notice required
to be given to the Corporation or holders of the Series G Preferred Stock
shall be given in person, transmitted by tele-copier, delivered by a
recognized national overnight express delivery service or sent by United
States mail (certified or registered air mail for addresses outside of the
continental United States), return receipt requested, postage prepaid and
addressed to the corporation at its principal office and to each holder of
record at his address as it appears on the books of the corporation. Except
as otherwise provided herein, any notice so given shall be deemed delivered
upon the earlier of (i) actual receipt; (ii) receipt by sender of a confirmed
receipt of telecopied notice; (iii) two business days after delivery of such
overnight express service; or (iv) five business days after deposit in the
United States mail.
Signed and attested to on this ____ day of June 2008.
______________________________
William G. Forhan
President
__________________________
Mercedes Henze,
Secretary
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EXHIBIT D
BILL OF SALE
This Agreement, dated June __, 2008, is between Image Worldwide, Inc., a
Colorado corporation ("Seller"), and Invicta Group, Inc., a Nevada
corporation (collectively "Buyer").
1. Assignment of Assets. Pursuant to the terms of the Asset
Purchase Agreement dated June ___, 2008 (the "Purchase Agreement"), Seller
hereby sells, transfers, assigns and conveys to Buyer all of Seller's right,
title and interest in and to the following:
(a) City Book Savings Website (www.CityBooksavings.com); (b) the domain name
used by seller (www.CityBooksavings.com); (c) Seller's database of clients;
(d) all rights to Seller's future business; and (e) all of Seller's customer
relationships and goodwill (the "Assets").
2. Warranty as to Assets. Seller hereby warrants that it has
good and marketable title to the Assets, free and clear of mortgages, liens,
reversions, restrictions, rights of purchase, encumbrances or other defects
of title, and sales, use and ad valorem taxes other than arising from the
consummation of the transfer of the Assets (such taxes being the
responsibility of Seller).
3. Further Assurances. The parties hereto agree to execute
and delivery such additional documents or other instruments or assurances
that may be necessary or desirable to vest, perfect or confirm, of record or
otherwise, title to the Assets or Contracts in Buyer, or to obtain any
consents, orders or approvals to consummate the transactions contemplated
hereby.
4. Miscellaneous. This Bill of Sale is governed by and
construed under the laws of the State of Nevada. The warranties and
representations given herein shall survive the delivery of this Bill of Sale
Executed this ____ day of June 2008
BUYER:
INVICTA GROUP, INC., a Nevada corporation
By: _______________________________
William G. Forhan
SELLER:
IMAGE WORLDWIDE, INC., A COLORADO COPRPORATION
By _______________________________
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EXHIBIT E
INVICTA GROUP, INC.
ACTION OF THE BOARD OF DIRECTORS WITHOUT A MEETING
BY UNANIMOUS WRITTEN CONSENT
JUNE ___, 2008
William G. Forhan and Richard David Scott, being the sole Directors of
Invicta Group, Inc., a Nevada corporation, hereby takes the following actions
pursuant to Nevada Revised Statutes Section 78.315(2) effective this ___ day
of June 2008:
Authorization for Asset Purchase Agreement
RESOLVED: This Board of Directors hereby authorizes and instructs the
Company's Chief Executive Officer, William G. Forhan, to execute and deliver
the Asset Purchase Agreement for the purchase of certain assets from Image
Worldwide, Inc. and submitted to this Board of Directors and to execute and
deliver such other certificates, documents, and to take all such other
actions as may be required to effectuate the purposes of said Agreement.
The above resolutions were duly adopted this ____ day of June 2008 by
unanimous written consent.
Dated: June __, 2008
_________________________ _________________________
William G. Forhan Richard David Scott
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EXHIBIT F
INVICTA GROUP, INC.
ACTION OF THE BOARD OF DIRECTORS WITHOUT A MEETING
BY UNANIMOUS WRITTEN CONSENT
JUNE ___, 2008
William G. Forhan and Richard David Scott, being the sole Directors of
Invicta Group, Inc., a Nevada corporation, hereby takes the following actions
pursuant to Nevada Revised Statutes Section 78.315(2) effective this ___ day
of June 2008:
Designation of Series G Preferred Stock
WHEREAS: This Board of Directors has reviewed the Certificate of
Designation for the Series G Preferred Stock as presented to this Board of
Directors.
RESOLVED: That in accordance with the General Corporation Law of
the State of Nevada, this Board of Directors hereby adopts the following
resolution: That Five Million (5,000,000) Shares of the preferred stock (par
value $0.0001) authorized to be issued by this corporation pursuant to
Article Fourth of its Articles of Incorporation be and hereby are authorized
and created a series of preferred stock, hereby designated as the Series G
Preferred Stock and shall have the voting powers, designations, preferences
and relative participating, optional, or other rights, if any, or the
qualifications, limitations, or restrictions, set forth in Article Fourth of
such Articles of Incorporation, and in addition thereto, those following:
(a.) DESIGNATION. The preferred stock subject hereof shall be
designated Series G Preferred Stock.
(b.) DIVIDENDS. The Series G Preferred Stock shall be not entitled to
receive any cash dividends (only) from funds legally available therefore.
The Series G Preferred Stock shall be eligible to receive the Corporation's
Common Stock as a dividend.
(c.) LIQUIDATION RIGHTS. In the event of any consolidation or merger
of the Corporation which is in the nature of the winding up of the
Corporation's business or sale of all or substantially all of the
Corporation's assets (a "Liquidation"), each share of Series G Preferred
Stock shall be entitled to be paid one thousand (1,000) shares of Common
Stock up to the date of such Liquidation (whether or not, to the extent
permitted by law, the Corporation shall have surplus or earnings available
for dividends), and no more.
(d.) CONVERSION. Shares of Series G Preferred Stock may be converted
at any time into one thousand (1,000) shares of the Corporation's Common
Stock.
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(e.) VOTING RIGHTS. Except as otherwise provided by law, each share of
the Series G Preferred Stock shall be entitled, on all matters on which any
of the shareholders are required or permitted to vote, to one thousand
(1,000) votes. And except as provided expressly herein or as required by
law, the holders of the Series G Preferred Stock shall vote together with the
Common Stock shareholders and not as a separate class. So long as any shares
of the Series G Preferred Stock remain outstanding, the Corporation shall
not, without first obtaining the approval (by vote or written consent) of the
holders of at least a majority of the total number of shares of the Series G
Preferred Stock then outstanding voting separately as a class, alter or
change, in any material respect, the rights, preferences or privileges or the
restrictions of the shares of the Series G Preferred Stock whether by
amendment of the Corporation's Certificate of Designation of Preferences or
otherwise. At any meeting at which the holders of the Series G Preferred
Stock are entitled to vote as a class pursuant to this provision, the holders
of a majority of all outstanding shares of Series G Preferred Stock, present
in person or represented by proxy, shall be necessary to constitute a quorum.
(f.) NOTICE. Except as otherwise provided herein, any notice required
to be given to the Corporation or holders of the Series G Preferred Stock
shall be given in person, transmitted by tele-copier, delivered by a
recognized national overnight express delivery service or sent by United
States mail (certified or registered air mail for addresses outside of the
continental United States), return receipt requested, postage prepaid and
addressed to the corporation at its principal office and to each holder of
record at his address as it appears on the books of the corporation. Except
as otherwise provided herein, any notice so given shall be deemed delivered
upon the earlier of (i) actual receipt; (ii) receipt by sender of a confirmed
receipt of telecopied notice; (iii) two business days after delivery of such
overnight express service; or (iv) five business days after deposit in the
United States mail.
RESOLVED: This Board of Directors hereby authorizes the corporation's
officers to file the Certificate of Designation for the Series G Preferred
Stock with the Nevada Secretary of State and to pay all fees as required to
complete the filing of the Certificate.
Issuance of Series G Preferred Stock & Securities Act of 1933
RESOLVED: This Board of Directors hereby approves the issuance of
5,000,000 shares of this Company's Series G Preferred Stock to Image
Worldwide, Inc. (or its assignees) in consideration of the Company's purchase
of the Purchase Assets as set forth in the Asset Purchase Agreement with all
said shares of the Series G Preferred Stock to be issued with a restricted
securities legend in conformity with the requirements of Section 4(2) of the
Securities Act of 1933 and applicable state securities laws.
RESOLVED: This Board of Directors shall obtain from Image Worldwide,
Inc. (or its assignee), a completed investment agreement containing such
representations and assurances as deemed necessary or appropriate to ensure
that the corporation's claim of exemption under Section 4(2) of the
Securities Act of 1933 and applicable state securities laws can be perfected.
RESOLVED: The officers of the corporation are hereby authorized and
instructed to complete such other filings and pay required filing fees as may
be necessary under the Securities Act of 1933 and applicable state securities
laws required in connection with the issuance of the Series G Preferred
Stock.
Filing Obligations & Securities Exchange Act of 1934
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RESOLVED: This Board of Directors hereby authorizes and instructs the
corporation's officers to complete the timely filing of the Form 8-K with the
U.S. Securities and Exchange Commission in connection with the acquisition,
by this corporation, of the assets acquired from Image World, Inc. and the
transactions described and set forth in the Asset Purchase Agreement.
RESOLVED: This Board of Directors hereby authorizes the corporation's
officers to assist the corporations current and former officers in meeting
their obligations under Section 16 of the Securities Exchange Act of 1934
Dated: June __, 2008
_________________________ _________________________
William G. Forhan Richard David Scott
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EXHIBIT G
FORHAN CONSULTING AGREEMENT
THIS FORHAN CONSULTING AGREEMENT (the "Agreement") is entered into and
is effective as of the _____ day of June 2008 BY AND BETWEEN Invicta Group,
Inc., a Nevada corporation (the "Company") and William G. Forhan
(Consultant").
WHEREAS:
A. The Company and Consultant are parties to that certain Asset Purchase
Agreement involving the purchase of certain assets from Image Worldwide,
Inc., a Colorado corporation (the "Asset Purchase Agreement").
B. The Company seeks Consultant's assistance in connection with the
evaluation of certain business and financial matters.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.0. Description of Consulting Services. Consultant agrees to provide the
following consulting services:
1.0.1. Be reasonably available to provide advice to the Company, as
reasonably requested on a limited basis as Consultant deems appropriate and
for a period of at least nine (9) months from the date of the Closing of the
Asset Purchase Agreement.
2.0. Fee to be Paid Consultant. In consideration for the services to be
rendered by Consultant, the Company shall pay Consultant the following
amounts:
2.0.1 The sum of Fifty Thousand Dollars ($50,000) at the Closing
(as described in the Asset Purchase Agreement (the "Closing").
2.0.2. The sum of Twenty-Five Thousand Dollars ($25,000)
thirty (30) days after the Closing;
2.0.3. An amount equal to twelve and one-half percent
(12.50%) of the net proceeds received by the Company (after the bridge loans)
from future efforts to raise capital until the sum of Sixty-Two Thousand Five
Hundred Dollars ($62,500) is paid to Consultant but in no event later than
fifteen (15) months from the date of the Closing.
3.0. Miscellaneous.
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3.0.1. Successors. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors of each of the
parties to this Agreement.
3.0.2. Independent Counsel. Each of the parties to this Agreement
acknowledges and agrees that it has had an opportunity to be represented by
independent counsel of its own choice throughout all negotiations which
preceded the execution of this Agreement and the transactions referred to in
this Agreement, and each has executed this Agreement with the consent and
upon the advice of said independent counsel. Each party represents that he
or it fully understands the provisions of this Agreement, has consulted with
counsel concerning its terms and executes this Agreement of his or its own
free choice without reference to any representations, promises or
expectations not set forth herein.
3.0.3. Integration. This Agreement and the Asset Purchase Agreement, after
full execution, acknowledgment and delivery, memorializes and constitutes the
entire agreement and understanding between the parties and supersedes and
replaces all prior negotiations and agreements of the parties, whether
written or unwritten, or related thereto. Each of the parties to this
Agreement acknowledges that no other party, nor any agent or attorney of any
other party has made any promises, representations, or warranty whatsoever,
express or implied, which is not expressly contained in this Agreement; and
each party further acknowledges that he or it has not executed this Agreement
in reliance upon any belief as to any fact not expressly recited hereinabove.
3.0.4. Attorneys Fees. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the
prevailing party in such dispute, whether by legal proceedings or otherwise,
shall be reimbursed immediately for the reasonably incurred attorneys' fees
and other costs and expenses by the other parties to the dispute.
3.0.5. Interpretation. Wherever the context so requires: the singular
number shall include the plural; the plural shall include the singular; and
the masculine gender shall include the feminine and neuter genders.
3.0.6. Captions. The captions by which the sections and subsections of this
Agreement are identified are for convenience only, and shall have no effect
whatsoever upon its interpretation.
3.0.7. Amendments. No amendment to this Agreement shall be effective unless
the same shall be in writing executed by the party against whom enforcement
is sought.
3.0.8. Severance. If any provision of this Agreement is held to be illegal
or invalid by a court of competent jurisdiction, such provision shall be
deemed to be severed and deleted; and neither such provision, nor its
severance and deletion, shall affect the validity of the remaining
provisions.
3.0.9. Counterparts. This Agreement may be executed in any number of
counterparts.
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3.0.10. Expenses Associated With This Agreement. Each of the parties hereto
agrees to bear its own costs, attorneys fees and related expenses associated
with this Agreement.
3.0.11. Arbitration. Any dispute or claim arising to or in any way related
to this Agreement shall be settled by arbitration in Chicago, Illinois. All
arbitration shall be conducted in accordance with the rules and regulations
of the American Arbitration Association ("AAA"). AAA shall designate an
arbitrator from an approved list of arbitrators following both parties'
review and deletion of those arbitrators on the approved list having a
conflict of interest with either party. Each party shall pay its own
expenses associated with such arbitration (except as set forth in Section
3.0.4. Above). A demand for arbitration shall be made within a reasonable
time after the claim, dispute or other matter has arisen and in no event
shall such demand be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statutes of limitations. The
decision of the arbitrators shall be rendered within 60 days of submission of
any claim or dispute, shall be in writing and mailed to all the parties
included in the arbitration. The decision of the arbitrator shall be binding
upon the parties and judgment in accordance with that decision may be entered
in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
FOR THE COMPANY:
By: _____________________________
Paul Sorkin
FOR CONSULTANT:
By: ____________________________
William G. Forhan
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EXHIBIT H
SCOTT CONSULTING AGREEMENT
THIS SCOTT CONSULTING AGREEMENT (the "Agreement") is entered into and
is effective as of the _____ day of June 2008 BY AND BETWEEN Invicta Group,
Inc., a Nevada corporation (the "Company") and Richard David Scott
(Consultant").
WHEREAS:
A. The Company and Consultant are parties to that certain Asset Purchase
Agreement involving the purchase of certain assets from Image Worldwide,
Inc., a Colorado corporation (the "Asset Purchase Agreement").
B. The Company seeks Consultant's assistance in connection with the
evaluation of certain business and financial matters.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.0. Description of Consulting Services. Consultant agrees to provide the
following consulting services:
1.0.1. Be reasonably available to provide advice to the Company, as
reasonably requested, on a limited basis as Consultant deems appropriate and
for a period of at least nine (9) months from the date of the Closing of the
Asset Purchase Agreement.
2.0. Fee to be Paid Consultant. In consideration for the services to be
rendered by Consultant, the Company shall pay Consultant the following
amounts:
2.0.1 The sum of Fifty Thousand Dollars ($50,000) at the Closing
(as described in the Asset Purchase Agreement (the "Closing").
2.0.2. The sum of Twenty-Five Thousand Dollars ($25,000)
thirty (30) days after the Closing;
2.0.3. An amount equal to twelve and one-half percent
(12.50%) of the net proceeds received by the Company (after the bridge loans)
from future efforts to raise capital until the sum of Sixty-Two Thousand Five
Hundred Dollars ($62,500) is paid to Consultant but in no event later than
fifteen (15) months from the date of the Closing.
3.0. Miscellaneous.
3.0.1. Successors. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors of each of the
parties to this Agreement.
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3.0.2. Independent Counsel. Each of the parties to this Agreement
acknowledges and agrees that it has had an opportunity to be represented by
independent counsel of its own choice throughout all negotiations which
preceded the execution of this Agreement and the transactions referred to in
this Agreement, and each has executed this Agreement with the consent and
upon the advice of said independent counsel. Each party represents that he
or it fully understands the provisions of this Agreement, has consulted with
counsel concerning its terms and executes this Agreement of his or its own
free choice without reference to any representations, promises or
expectations not set forth herein.
3.0.3. Integration. This Agreement and the Asset Purchase Agreement, after
full execution, acknowledgment and delivery, memorializes and constitutes the
entire agreement and understanding between the parties and supersedes and
replaces all prior negotiations and agreements of the parties, whether
written or unwritten, or related thereto. Each of the parties to this
Agreement acknowledges that no other party, nor any agent or attorney of any
other party has made any promises, representations, or warranty whatsoever,
express or implied, which is not expressly contained in this Agreement; and
each party further acknowledges that he or it has not executed this Agreement
in reliance upon any belief as to any fact not expressly recited hereinabove.
3.0.4. Attorneys Fees. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the
prevailing party in such dispute, whether by legal proceedings or otherwise,
shall be reimbursed immediately for the reasonably incurred attorneys' fees
and other costs and expenses by the other parties to the dispute.
3.0.5. Interpretation. Wherever the context so requires: the singular
number shall include the plural; the plural shall include the singular; and
the masculine gender shall include the feminine and neuter genders.
3.0.6. Captions. The captions by which the sections and subsections of this
Agreement are identified are for convenience only, and shall have no effect
whatsoever upon its interpretation.
3.0.7. Amendments. No amendment to this Agreement shall be effective unless
the same shall be in writing executed by the party against whom enforcement
is sought.
3.0.8. Severance. If any provision of this Agreement is held to be illegal
or invalid by a court of competent jurisdiction, such provision shall be
deemed to be severed and deleted; and neither such provision, nor its
severance and deletion, shall affect the validity of the remaining
provisions.
3.0.9. Counterparts. This Agreement may be executed in any number of
counterparts.
3.0.10. Expenses Associated With This Agreement. Each of the parties hereto
agrees to bear its own costs, attorneys' fees and related expenses associated
with this Agreement.
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3.0.11. Arbitration. Any dispute or claim arising to or in any way related
to this Agreement shall be settled by arbitration in Chicago, Illinois. All
arbitration shall be conducted in accordance with the rules and regulations
of the American Arbitration Association ("AAA"). AAA shall designate an
arbitrator from an approved list of arbitrators following both parties'
review and deletion of those arbitrators on the approved list having a
conflict of interest with either party. Each party shall pay its own
expenses associated with such arbitration (except as set forth in Section
3.0.4. Above). A demand for arbitration shall be made within a reasonable
time after the claim, dispute or other matter has arisen and in no event
shall such demand be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statutes of limitations. The
decision of the arbitrators shall be rendered within 60 days of submission of
any claim or dispute, shall be in writing and mailed to all the parties
included in the arbitration. The decision of the arbitrator shall be binding
upon the parties and judgment in accordance with that decision may be entered
in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
FOR THE COMPANY:
By: _____________________________
Paul Sorkin
FOR CONSULTANT:
By: ____________________________
Richard David Scott
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EXHIBIT I
INVICTA GROUP, INC.
ACTION OF THE BOARD OF DIRECTORS WITHOUT A MEETING
BY UNANIMOUS WRITTEN CONSENT
JUNE ___, 2008
William G. Forhan and Richard David Scott, being the sole Directors of
Invicta Group, Inc., a Nevada corporation, hereby takes the following actions
pursuant to Nevada Revised Statutes Section 78.315(2) effective this ___ day
of June 2008:
Resignation of Officers and Directors
RESOLVED: This Board of Directors hereby accepts the resignation of
the following persons as officers and directors of this Company effective
upon the closing of the Asset Purchase Agreement:
William G. Forhan
Richard David Scott
Mercedes Henze
Election of Paul Sorkin
RESOLVED: This Board of Directors hereby elects Paul Sorkin as the
Company's President and Chief Executive Officer and as Chairman of this Board
of Directors effective upon the closing of the Asset Purchase Agreement:
The above resolutions were duly adopted this ____ day of June 2008 by
unanimous written consent.
Dated: June __, 2008
_________________________ _________________________
William G. Forhan Richard David Scott
Attest: _______________________
Mercedes Henze
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MEMORANDUM
DATE: June ___, 2008
TO: The Board of Directors
Invicta Group, Inc.
FROM: William G. Forhan
RE: Resignation
Please allow this Memorandum to serve as my irrevocable resignation in
every capacity and as an officer and director of Invicta Group, Inc., a
Nevada corporation.
Signed: _________________________ Date: ______________________
MEMORANDUM
DATE: June ___, 2008
TO: The Board of Directors
Invicta Group, Inc.
FROM: Richard David Scott
RE: Resignation
Please allow this Memorandum to serve as my irrevocable resignation in
every capacity and as an officer and director of Invicta Group, Inc., a
Nevada corporation.
Signed: _________________________ Date: ______________________
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MEMORANDUM
DATE: June ___, 2008
TO: The Board of Directors
Invicta Group, Inc.
FROM: Mercedes Henze
RE: Resignation
Please allow this Memorandum to serve as my irrevocable resignation in
every capacity and as an officer and director of Invicta Group, Inc., a
Nevada corporation.
Signed: _________________________ Date: ______________________
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EXHIBIT J
CERTIFICATE OF PURCHASER
I, William G. Forhan, do hereby warrant and represent that I am a duly
elected officer and director of Invicta Group, Inc., a Nevada corporation
(the "Purchaser") and I hereby deliver this Certificate of Purchaser (the
"Certificate") to Image Worldwide, Inc., a Colorado corporation (the
"Seller").
I further warrant and represent that I have completed a review of the
Purchaser's corporate and financial affairs and books and records and filings
with the Securities and Exchange Commission.
In that connection and on behalf of the Purchaser and to my best
knowledge, I warrant and represent that all of the statements and
representations regarding the Purchaser (as recited in the Asset Purchase
Agreement to which this Certificate is attached) are accurate and complete.
______________________
William G. Forhan
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EXHIBIT K
LIST OF LIABILITIES AND LIABILITIES TO GOLDEN GATE INVESTORS
At Closing, the following are the sole liabilities of Invicta Group,
Inc., a Nevada corporation (the "Purchaser") as of the Closing of the Asset
Purchase Agreement for the purchase of certain assets by the Purchaser and
the sale of said assets by Image Worldwide, Inc., a Colorado corporation (the
"Seller"):
(1) Aggregate of $12,785.00 in existing payables as follows:
(a) Amount owed to FDN Telephone $ 1,225.00
(b) Amount owed to Florida Atlantic Stock Transfer $ 500.00
(c) Rent owed for Las Vegas Office $ 1,500.00
(d) XO Communications Server, Phone $ 1,300.00
(e) Rent owed FLL ` $ 6,000.00
(f) THL Sales $ 500.00
(g) Amounted to owed to Graphic Artist $ 500.00
(h) Amount owed to Robo Mail $ 1,200.00
and
(2) All accrued and unpaid liabilities owed to Golden Gate Investors.
###########
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EXHIBIT L
COMMON STOCK PURCHASE WARRANT
(FORM)
(See Attached.)
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EXHIBIT M
STOCKHOLDER AND SECURITY HOLDER LIST
(As attached)
Attached is a current list of the Common Stockholders of the Purchaser,
as provided by the Purchaser's stock transfer agent as of or prior to the
Closing.
Also attached is a list of the holders and the amounts of securities of
the Purchaser held by all other persons who hold one or more of the following
securities as of the date of Closing:
(1) Common Stock Purchase Options (all said options arise out of deferred
compensation with a total of six million one hundred thousand (6,160,000)
options exercisable at $0.004 per option and each exercisable for the
purchase of one share for a period of three (3) years from the date of this
Agreement;
(2) Rights to Purchase the Purchaser's Common Stock;
(3) Common Stock Purchase Warrants;
(4) Preferred Stock as follows:
(a) Series E Preferred Stock converts into fifty-three
million three hundred thirty-three thousand three hundred thirty-three shares
of the Purchaser's common stock.; and
(b)Series C Preferred Stock is being converted into five
million (5,000,000) common stock purchase options each exercisable for the
purchase of the Purchaser's Common Stock at $0.05 per share for a period of
three (3) years from the date of this Agreement.
(5) Convertible Preferred Stock
(6) Debt Instruments (of any form or type) as follows: Convertible
Debenture issued to Golden Gate Investors with current approximate principal
balance due of Three Hundred Fifty-Nine Thousand Dollars ($359,000) and
accrued and unpaid Interest due of approximately thirty-five thousand four
dollars ($35,004) as of May 1, 2008.
(7) Exchangeable Securities (exchangeable for the purchase of the
Purchaser's capital stock); and
(8) All other notes, instruments, investment contracts, agreements,
commitments, understandings relating to or which could reasonably result in
the issuance of the Purchaser's capital stock.
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EXHIBIT N
CERTIFICATE OF DESIGNATION, SERIES H PREFERRED STOCK
CERTIFICATE
OF
DESIGNATION, NUMBER, POWERS, PREFERENCES, AND RELATIVE,
PARTICIPATING, OPTIONAL, AND OTHER SPECIAL RIGHTS AND THE
QUALIFICATIONS, LIMITATIONS, RESTRICTIONS, AND OTHER DISTINGUISHING
CHARACTERISTICS OF SERIES "H" PREFERRED
STOCK OF
INVICTA GROUP, INC.
(Incorporated under the laws of the State of Nevada)
It is hereby certified that:
1. The name of the Corporation is Invicta Group, Inc. (herein called,
the "Corporation").
2. The Certificate of Incorporation of the Corporation authorizes the
issuance of up to fifty million (50,000,000) Shares of Preferred Stock of a
par value of $0.0001 each and expressly vests in the Board of Directors of
the Corporation the authority provided therein to issue any and all of said
Shares in one or more series and by resolution or resolutions, the
designation, number, full or limited voting powers, or the denial of voting
powers, preferences, and relative, participating, optional, and other special
rights and qualifications, limitations, restrictions, and other
distinguishing characteristics of each series to be issued.
3. The Board of Directors of the Corporation, pursuant to the
authority expressly vested in it aforesaid, has adopted the following
resolution creating a Series "H" issue of Preferred Stock:
RESOLVED: That in accordance with the General Corporation Law of
the State of Nevada, this Board of Directors hereby adopts the following
resolution: That Fifty Three Thousand Three Hundred Thirty-Two (53,332)
Shares of the preferred stock (par value $0.0001) authorized to be issued by
this corporation pursuant to Article Fourth of its Articles of Incorporation
be and hereby are authorized and created a series of preferred stock, hereby
designated as the Series H Preferred Stock and shall have the voting powers,
designations, preferences and relative participating, optional, or other
rights, if any, or the qualifications, limitations, or restrictions, set
forth in Article Fourth of such Articles of Incorporation, and in addition
thereto, those following:
(a.) DESIGNATION. The preferred stock subject hereof shall be
designated Series H Preferred Stock.
(b.) DIVIDENDS. The Series H Preferred Stock shall be not entitled to
receive any dividends from funds legally available therefore.
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(c.) LIQUIDATION RIGHTS. In the event of any consolidation or merger
of the Corporation which is in the nature of the winding up of the
Corporation's business or sale of all or substantially all of the
Corporation's assets (a "Liquidation"), each share of Series H Preferred
Stock shall be entitled to be paid one thousand (1,000) shares of Common
Stock up to the date of such Liquidation (whether or not, to the extent
permitted by law, the Corporation shall have surplus or earnings available
for dividends), and no more.
(d.) CONVERSION. Shares of Series H Preferred Stock may be converted
at any time into one thousand (1,000) shares of the Corporation's Common
Stock at any time.
(e.) VOTING RIGHTS. Except as otherwise provided by law, each share of
the Series H Preferred Stock shall be not be entitled to vote.
(f.) NOTICE. Except as otherwise provided herein, any notice required
to be given to the Corporation or holders of the Series H Preferred Stock
shall be given in person, transmitted by tele-copier, delivered by a
recognized national overnight express delivery service or sent by United
States mail (certified or registered air mail for addresses outside of the
continental United States), return receipt requested, postage prepaid and
addressed to the corporation at its principal office and to each holder of
record at his address as it appears on the books of the corporation. Except
as otherwise provided herein, any notice so given shall be deemed delivered
upon the earlier of (i) actual receipt; (ii) receipt by sender of a confirmed
receipt of telecopied notice; (iii) two business days after delivery of such
overnight express service; or (iv) five business days after deposit in the
United States mail.
Signed and attested to on this ____ day of June 2008.
______________________________
William G. Forhan
President
___________________________
Mercedes Henze,
Secretary
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EXHIBIT O
INVICTA GROUP, INC.
ACTION OF THE BOARD OF DIRECTORS WITHOUT A MEETING
BY UNANIMOUS WRITTEN CONSENT
JUNE ___, 2008
William G. Forhan and Richard David Scott, being the sole Directors of
Invicta Group, Inc., a Nevada corporation, hereby takes the following actions
pursuant to Nevada Revised Statutes Section 78.315(2) effective this ___ day
of June 2008:
Designation of Series H Preferred Stock
WHEREAS: This Board of Directors has reviewed the Certificate of
Designation for the Series H Preferred Stock as presented to this Board of
Directors.
RESOLVED: That in accordance with the General Corporation Law of
the State of Nevada, this Board of Directors hereby adopts the following
resolution: That Fifty Three Thousand Three Hundred Thirty-Two (53,332)
Shares of the preferred stock (par value $0.0001) authorized to be issued by
this corporation pursuant to Article Fourth of its Articles of Incorporation
be and hereby are authorized and created a series of preferred stock, hereby
designated as the Series H Preferred Stock and shall have the voting powers,
designations, preferences and relative participating, optional, or other
rights, if any, or the qualifications, limitations, or restrictions, set
forth in Article Fourth of such Articles of Incorporation, and in addition
thereto, those following:
(a.) DESIGNATION. The preferred stock subject hereof shall be
designated Series H Preferred Stock.
(b.) DIVIDENDS. The Series H Preferred Stock shall be not entitled to
receive any dividends from funds legally available therefore.
(c.) LIQUIDATION RIGHTS. In the event of any consolidation or merger
of the Corporation which is in the nature of the winding up of the
Corporation's business or sale of all or substantially all of the
Corporation's assets (a "Liquidation"), each share of Series H Preferred
Stock shall be entitled to be paid one thousand (1,000) shares of Common
Stock up to the date of such Liquidation (whether or not, to the extent
permitted by law, the Corporation shall have surplus or earnings available
for dividends), and no more.
(d.) CONVERSION. Shares of Series H Preferred Stock may be converted
at any time into one thousand (1,000) shares of the Corporation's Common
Stock at any time.
(e.) VOTING RIGHTS. Except as otherwise provided by law, each share of
the Series H Preferred Stock shall be not be entitled to vote.
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(f.) NOTICE. Except as otherwise provided herein, any notice required
to be given to the Corporation or holders of the Series H Preferred Stock
shall be given in person, transmitted by tele-copier, delivered by a
recognized national overnight express delivery service or sent by United
States mail (certified or registered air mail for addresses outside of the
continental United States), return receipt requested, postage prepaid and
addressed to the corporation at its principal office and to each holder of
record at his address as it appears on the books of the corporation. Except
as otherwise provided herein, any notice so given shall be deemed delivered
upon the earlier of (i) actual receipt; (ii) receipt by sender of a confirmed
receipt of telecopied notice; (iii) two business days after delivery of such
overnight express service; or (iv) five business days after deposit in the
United States mail.
RESOLVED: This Board of Directors hereby authorizes the corporation's
officers to file the Certificate of Designation for the Series H Preferred
Stock with the Nevada Secretary of State and to pay all fees as required to
complete the filing of the Certificate.
Issuance of Series H Preferred Stock & Securities Act of 1933
WHEREAS: This corporation previously issued and/or made commitments
to issue certain shares of its Series E Preferred Stock to William G. Forhan
and Richard David Scott.
WHEREAS: This corporation has received assurances from William G.
Forhan and from Richjard David Scott that each of them are willing to
irrevocably relinquish all rights that each of them have or may to said
Series E Preferred Stock and that each of them have not transferred or
assigned any rights to said Series E Preferred Stock to any third parties.
RESOLVED: This Board of Directors hereby approves the issuance of
53,332 shares of this Company's Series H Preferred Stock as follows:
Name of Stockholder Number of Shares Series H Preferred Stock
William G. Forhan 26,666 Shares
Richard David Scott 26,666 Shares
in accordance with the terms of the Asset Purchase Agreement with all said
shares of the Series H Preferred Stock to be issued with a restricted
securities legend in conformity with the requirements of Section 4(2) of the
Securities Act of 1933 and applicable state securities laws.
RESOLVED: This Board of Directors shall obtain from each person who
acquires the Series H Preferred Stock (or its assignee), a completed
investment agreement containing such representations and assurances as deemed
necessary or appropriate to ensure that the corporation's claim of exemption
under Section 4(2) of the Securities Act of 1933 and applicable state
securities laws can be perfected.
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RESOLVED: The officers of the corporation are hereby authorized and
instructed to complete such other filings and pay required filing fees as may
be necessary under the Securities Act of 1933 and applicable state securities
laws required in connection with the issuance of the Series H Preferred
Stock.
Dated: June __, 2008
_________________________ _________________________
William G. Forhan Richard David Scott
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