AGREEMENT AND PLAN OF MERGER

 

This Agreement and Plan of Merger (the "Agreement") is made as of this 13 day of January 2011 by and among TC POWER MANAGEMENT CORP. , a Nevada corporation (the "Company"),  AXIOM ACQUISITION CORP., a Mexican corporation ("Merger Sub"), AXIOM MINERALS DE MEXICO S.A. DE C.V. , a Mexican corporation ("Axiom Mexico"), and Mr. Barry Quiroz, (the “AXIOM ORIGINAL SHAREHOLDER”).

 

WHEREAS, the Company  is authorized to issue 100,000,000 shares of its common stock, par value $0.001 per share ("Authorized Common Stock"), of which 24,634,400 shares ("Issued Common  Shares") are issued and outstanding as of the date hereof and no shares of preferred stock exist, as of the date hereof; and

 

WHEREAS, Merger Sub is a wholly owned subsidiary of the Company and is authorized to issue 50,000 shares of common stock, par value MXP 1 per share (the "Merger Sub Shares"), all of which are issued and outstanding and owned by the Company as of the date hereof; and

 

WHEREAS, the respective Boards of Directors of the Company, Merger Sub and Axiom Mexico (the "Constituent Corporations") deem it advisable and in the best interests of the Constituent Corporations, and their respective stockholders, that Axiom Mexico be acquired by the Company under the terms and conditions hereinafter set forth (the "Merger") and the Merger be effected pursuant to the Nevada General Corporation Law (the "NGCL") and the laws of Chihuahua, Chihuahua (“MGCL”); and

 

WHEREAS, it is intended that the Merger each be treated as a tax free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and

 

NOW, THEREFORE, in consideration of the premises, covenants and conditions hereof, the parties hereto do mutually agree as follows:

 

SECTION 1.1

 

The Merger.  On the basis of the representations, warranties, covenants and agreements set forth in this Agreement and subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Effective Time (as defined below) and in accordance with the applicable provisions of the NGCL and MGCL:

 

(a)           The Company, through the Merger Sub, shall acquire all of the issued and outstanding shares of Axiom Mexico, by the issuance of 2,000,000 common shares of the Company (the “Merger Common Stock”) and such Merger Common Stock shall be issued to the Axiom Original Shareholder on a pro rata basis as to their ownership of Axiom Mexico.  Merger Sub shall be merged with and into Axiom Mexico and the separate corporate existence of Merger Sub shall thereupon cease.  Axiom Mexico, as the surviving corporation in the Merger and a wholly-owned subsidiary of the Company shall continue its existence under the name “Axiom Minerals de Mexico  S.A. de C.V." and shall conti nue to be governed by the MGCL.

 

(b)           The Articles of Incorporation and By-laws of Axiom Mexico, as in effect immediately prior to the Effective Time, shall thereafter be the articles of incorporation and by-laws of the surviving corporation in the Merger until duly amended or repealed.

 

(c)           The members of the Board of Directors of Axiom Mexico  immediately prior to the Effective Time shall thereafter be confirmed as members of the Board of Directors of Axiom Mexico as the surviving corporation in the Merger until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified in the manner provided in the articles of incorporation and by-laws of the surviving corporation in the Merger, or as otherwise provided by law.

 

(d)           The officers of Axiom Mexico immediately prior to the Effective Time shall be confirmed as the initial officers of Axiom Mexico as the surviving corporation in the Merger until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.

 

SECTION 1.2

 

Closing.  The closing of the transactions contemplated by this Agreement (the "Closing") will take place commencing at 9:00  Eastern time on the next business day after all the conditions set forth in this Agreement have been satisfied or waived, or such later date as agreed upon by the parties hereto (the "Closing Date").

 

SECTION 1.3

 

Filing of Articles of Merger.  Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, Merger Sub and Axiom Mexico shall cause Articles of Merger substantially in the form of Exhibit A attached hereto (the "Articles of Merger") and the Certificate of Merger substantially in the form of Exhibit B attached hereto (the "Certificate of Merger") or other appropriate documents, duly executed in accordance with the relevant provisions of the MGCL and to be filed and recorded as required by the MGCL and will take any other further actions in connection therewith as may be required by the MGCL to make th e Merger effective.  The Merger shall become effective at the later of the time the Articles of Merger are duly filed or at the effective time set forth in the Articles of Merger and the Certificate of Merger (the "Effective Time").

 

SECTION 1.4

 

Certain Effects of the Merger.

 

(a)           At the Effective Time, Merger Sub shall be merged with and into Axiom Mexico and the separate existence of Merger Sub shall cease.  Axiom Mexico, as the surviving corporation in the Merger, shall thereupon and thereafter possess all the rights, privileges, powers and franchises, of a public or of a private nature, and be subject to all restrictions, liabilities and duties of each of Axiom Mexico and Merger Sub and shall continue its existence as a Mexican corporation.

 

(b)           The parties to this Agreement intend that the Merger shall constitute a tax free "reorganization".  Each party to this Agreement hereby agrees to file all tax returns, reports, or other documents, and to act in all other respects, in a manner consistent therewith.

 

SECTION 1.5

 

Effect of Merger on Capital Stock.

 

(a)           Cancellation of Axiom Mexico Treasury Stock.  At the Effective Time, by virtue of the Merger and without any action on the part of the holders of capital stock of Axiom Mexico or of Merger Sub, each share of Axiom Mexico Common Stock issued and held in the treasury of Axiom Mexico immediately prior to the Effective Time shall cease to be outstanding, shall be canceled and retired without any conversion thereof and without payment of any consideration therefor and shall cease to exist.

 

(b)           Conversion of Axiom Mexico Common Stock.

 

(i)           At the Effective Time, by virtue of the Merger and without any action on the part of the holders of capital stock of Axiom Mexico or of Merger Sub, each share of Axiom Mexico Common Stock issued and outstanding immediately prior to the Effective Time (other than the shares of Axiom Mexico Common Stock being canceled pursuant to Section 1.5(a)), shall be converted into the right to receive, upon surrender of the certificate which immediately prior to the Effective Time represented such share in accordance with Section 1.7, forty (40) Merger Common Stock (the "Merger Ratio") for each share of Axiom Mexico Common Stock.

 

(ii)           Each share of Axiom Mexico Common Stock so converted at the Effective Time shall be canceled and retired and shall cease to exist, and each certificate which theretofore represented shares so converted and canceled shall thereafter cease to have any rights with respect to such shares except the right to receive the Merger Common Stock.

 

(c)           Merger Sub Shares.  At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each Merger Sub Share issued and outstanding immediately prior to the Effective Time shall be converted into and become an issued and outstanding share of common stock of the surviving corporation in the Merger.

 

(d)           Securities Act Exemption.  The Merger Common Stock to be issued in the Merger is intended to be exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Section 4(2) of the Securities Act and/or Regulation S thereunder and from applicable state securities laws.  The Company will use reasonable efforts to facilitate each Axiom Mexico stockholder taking all reasonable actions and executing all necessary documents to qualify the issuance of Merger Common Stock for such exemptions.

 

SECTION 1.6

 

Delivery of New Certificates.  Promptly after the Effective Time, the Company shall send, by overnight courier, to each record holder of certificates formerly representing all of such holder’s shares of Axiom Mexico Common Stock (the "Old Certificates"), at the address set forth on books of Axiom Mexico, (i) a notice of the effectiveness of the Merger and (ii) a Letter of Transmittal.  Upon surrender to the Company of an Old Certificate, together with a Letter of Transmittal duly executed and completed in accordance with the instructions thereto, the holder of such Old Certificate (other than shares of Axiom Mexico Common Stock to be canceled pursuant to Section 1.5(a)) shall be entitled to receive in exchange therefore, certificates representing the shares of Merger Common Stock into which such holder’s shares of Axiom Mexico Common Stock were converted pursuant to the Merger (the "New Certificates") that such holder is entitled to receive pursuant to Section 1.5(b)(i), which shall be delivered by the Company in accordance with the instructions provided by such holder in the Letter of Transmittal executed by such holder.

 

SECTION 1.7

 

Share Certificates Issued in Different Names.  If the New Certificates to be delivered hereby are to be delivered in the name of a Person other than the Person in whose name the Old Certificate surrendered is registered, it shall be a condition of such delivery that the Old Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such delivery shall pay any transfer or other taxes required by reason of such delivery to a Person other than the registered holder of the Old Certificate, or that such Person shall establish to the satisfaction of the Company that such tax has been paid or is not applicable.  Except as provided in the preceding sentence, any duty, stamp or transfer tax require d to effect the exchange of certificates as contemplated by Section 1.7 shall be borne by the Company.

 

SECTION 1.8

 

No Further Ownership Rights in Axiom Mexico Common Stock.  All consideration paid upon the conversion of Axiom Mexico Common Stock and the surrender of Old Certificates in accordance with the terms of this Agreement shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Axiom Mexico Common Stock theretofore represented by such Old Certificates.  At the Effective Time, the stock transfer books of Axiom Mexico shall be closed, and there shall be no further registration of transfers on the stock transfer books of the surviving corporation in the Merger of the shares of Axiom Mexico Common Stock that were outstanding immediately prior to the Effective Time.  If, after the Effective Time, Old Certificates are presented to the  Company for any reason, they shall be canceled and exchanged as provided in this Agreement.

 

SECTION 1.9

 

No Liability.  Notwithstanding anything to the contrary contained herein, none of the Company, Merger Sub, or Axiom Mexico shall be liable to any holder of an Old Certificate or any other person or entity in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

 

 

Axiom Mexico  represents and warrants to the Company as follows, except to the extent set forth on the corresponding sections of the schedule of exceptions attached hereto and made a part hereof (the "Axiom Mexico  Schedule of Exceptions"):

 

SECTION 2.1

 

Organization; Standing and Power.  Axiom Mexico  is a corporation duly incorporated, validly existing and in good standing under the laws of Mexico and has all requisite corporate power and authority required to own, lease and operate its properties and to carry on its business as currently being conducted.  Copies of the Articles of Incorporation and By-laws, corporate minute books, stock certificate books and stock transfer books of Axiom Mexico have heretofore been delivered to the Company and are true, correct and complete.  Axiom Mexico is not required to be qualified or licensed as a foreign corporation in any other jurisdiction to conduct its business as currently conducted.

 

SECTION 2.2

 

Authorization.

 

(a)           Axiom Mexico has all requisite corporate power and authority to execute and deliver this Agreement and, subject to the approval by the stockholders of Axiom Mexico whose consent is required in accordance with the laws of Mexico, to consummate the transactions contemplated by this Agreement.

 

(b)           Except for the consent and approval of the stockholders of Axiom Mexico, the execution, delivery and performance of the Agreement by Axiom Mexico  and the consummation by Axiom Mexico of the transactions contemplated by the Agreement will not require on the part of Axiom Mexico any permit, approval, order or authorization of, or filing or registration with, or allowance by, or consent of or notification to any federal, state or local government or any court, administrative or regulatory agency or commission or other governmental agency or authority, domestic or foreign (a "Governmental Authority") or any individual, partnership, joint venture, corporation, limited liability company, trust, unin corporated organization or other entity (including a Governmental Authority) (a "Person").

 

SECTION 2.3

 

Binding Agreement.  This Agreement has been duly executed and delivered by Axiom Mexico , and assuming the due execution and delivery of this Agreement by the Company, it constitutes the valid and binding obligation of Axiom Mexico, enforceable against it in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, receivership and other similar laws affecting the enforcement of creditors' rights in general and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

SECTION 2.4

 

No Conflicts.  The execution, delivery and performance of the Agreement by Axiom Mexico  and the consummation by Axiom Mexico of the transactions contemplated by the Agreement will not, with or without the giving of notice or lapse of time, or both, violate, conflict with, result in a breach of, constitute a default under or accelerate the performance required by any of the terms, conditions or provisions of (i) the Articles of Incorporation or By-laws of Axiom Mexico or (ii) except for such violations, conflicts, breaches, defaults or accelerations that, individually or in the aggregate, have a material adverse effect on the business of Axiom Mexico, any contract, covenant, agreement or understanding, or any statute, rule, regulation, order, de cree, ruling, judgment, arbitration award, law, ordinance or stipulation to which Axiom Mexico is a party or to which it or any of its properties or assets is subject, or result in the creation of any liens, pledges, security interests, charges, equities, options, proxies, voting restrictions, rights of first refusal, encumbrances, restrictions (other than restrictions arising under applicable securities laws) and claims of every kind and character ("Encumbrances") on any of its properties or assets.

 

SECTION 2.5

 

Broker's or Finder's Fees.  No agent, broker, firm or other Person acting on behalf of Axiom Mexico is, or will be, entitled to any investment banking, commission, broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated by this Agreement.

 

SECTION 2.6

 

Capitalization.  The outstanding capitalization of Axiom Mexico is set forth on Schedule A annexed hereto.  There are issued and outstanding only the Issued Common  Shares, all of which are duly authorized and validly issued.  No securities of Axiom Mexico are entitled to preemptive or similar rights and no Person has any right of first refusal, right of participation, or any similar right to participate in the transactions contemplated hereby.  There are no outstanding options, warrants or other rights to acquire capital stock of Axiom Mexico, and there are no options, warrants, calls, rights, commitments agreements, understandings or arrangements to which Axiom Mexico is a party or by which Axiom Mexico is or may become bound to issue additional shares of capital stock of Axiom Mexico, or securities or rights convertible or exchangeable into shares of capital stock of Axiom Mexico prior to the Effective Time.

 

SECTION 2.7

 

Subsidiaries.  Axiom Mexico does not have any subsidiaries, nor does it own any direct or indirect interest in any other business entity.

 

SECTION 2.8

 

Financial Statements.  Axiom Mexico has furnished the Company with a true and complete copy of (i) the audited balance sheets of Axiom Mexico as of August 31, 2010, and the related audited statements of income and statements of cash flow of Axiom Mexico for the interim period ended August 31, 2010 (the "Financial Statements").  The Financial Statements fairly present in all material respects the financial position, results of operations and other information purported to be shown thereon of Axiom Mexico, at the dates and for the respective periods to which they apply, subject, in the case of the Financial Statements, to normal, immaterial year-end audit adjustments.  All such Financial Statements have been reviewed by Meyler and Co. and are accompanied by their report and were prepared in conformity with United States generally accepted accounting principles ("GAAP") consistently applied throughout the periods involved, and have been adjusted for all normal and recurring accruals.

 

SECTION 2.9

 

No Adverse Changes.  There has not been any material adverse change in the financial condition of Axiom Mexico from that set forth in the Financial Statements except for (i) transactions in the ordinary course of business since August 31, 2010 and (ii) transactions, including but not limited to the incurring of expenses and liabilities, relating to this Agreement.

 

SECTION 2.10

 

Liabilities; Claims.  There are no liabilities (including, but not limited to, tax liabilities) or claims against Axiom Mexico (whether such liabilities or claims are contingent or absolute, direct or indirect, and matured or unmatured) not appearing in the Financial Statements, other than (i) liabilities incurred in the ordinary course of business since August 31, 2010, (ii) taxes accrued on earnings since June 6, 2010 which are not yet due or payable or (iii) other liabilities which do not exceed $5,000 in the aggregate.

 

SECTION 2.11

 

Material Contracts.  All written agreements, contracts, letters of intent, arrangements, understandings and commitments to which Axiom Mexico is a party and which are material to Axiom Mexico  (collectively, " Axiom Mexico  Contracts") are in good standing, valid and effective in accordance with their respective terms, and neither Axiom Mexico nor any other party to a contract has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under the provisions of, any such contract.  Axiom Mexico is not a party to or bound by any contract which would prohibit or materially delay the consummation of transactions contemplated by this Agreement.

 

SECTION 2.12

 

Tax Matters.

 

(a)           All federal, state, county, local and foreign income, excise, property and other tax returns required to be filed by Axiom Mexico have been timely filed and all such duly filed tax returns are true and correct in all material respects.  All required taxes, fees or assessments have been paid or an adequate reserve therefore has been established (in accordance with GAAP) in the Financial Statements.  The federal income tax returns and state and foreign income tax returns of Axiom Mexico have not been audited by the  Servicio de Administración Tributaria (the "SAT") or any other taxing authority and Axiom Mexico has not received any notice of deficiency or assessment from any taxing authority with respect to liability for taxes which has not been fully paid or finally settled.  Neither the SAT nor any state, local, foreign or other taxing authority has proposed in writing any additional taxes, interest or penalties with respect to Axiom Mexico or any of its operations or businesses.  There are no pending, or to the knowledge of Axiom Mexico, threatened, tax claims or assessments, and there are no pending, or to the knowledge of Axiom Mexico, threatened, tax examinations by any taxing authorities.  Axiom Mexico has not given any waivers of rights (which are currently in effect) under applicable statutes of limitations with respect to taxes of Axiom Mexico for any taxable period.  There are no liens for taxes upon the assets of Axiom Mexico except for statutory liens for current taxes not yet due and payable or which may thereafter be paid without penalty or are being contested in good faith.  Axiom Mexico has not filed a reques t with the SAT for changes in accounting methods within the last three (3) years which change would affect the accounting for tax purposes, directly or indirectly, of its business.

 

(b)            Axiom Mexico does not have any liability for taxes of any person as a result of being a member of an affiliated, consolidated, combined or unitary group, nor is it bound by any obligation under any tax sharing agreement, tax indemnification agreement or similar contract or arrangement.

 

SECTION 2.13

 

Legal Proceedings.  There are no legal, administrative, arbitral or other proceedings, claims, suits, actions or governmental investigations of any nature pending, or to Axiom Mexico's knowledge, threatened, directly or indirectly involving Axiom Mexico or its officers, directors, employees or affiliates, which would reasonably be expected to have a material adverse effect on the business of Axiom Mexico or challenging the validity of the transactions contemplated by this Agreement.  Axiom Mexico is not a party to any order, judgment, injunction, rule or decree of any Governmental Authority or arbitrator which would reasonably be expected to have a material adverse effect on the business of Axiom Mexico.

 

SECTION 2.14

 

Permits; Compliance with Laws.  Axiom Mexico has all governmental licenses, authorizations, permits, consents and approvals ("Permits") required to own, lease and operate its properties and to carry on its business as currently conducted.  Axiom Mexico:  (i) is not in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by Axiom Mexico under), nor has Axiom Mexico received notice of a claim that it is in default under or that it is in violation of, any indenture, mortgage, deed of trust or other agreement, instrument or contract to which Axiom Mexico is a party or by which it or any of its assets or properties are bound (whether or not such default or violation has been waived), (ii) is not in violation of any order of any court, arbitrator or Governmental Authority, (iii) is not and has not been in violation of any law, order, rule, regulation, writ, injunction, judgment or decree of any Governmental Authority having jurisdiction over Axiom Mexico or any of its business or properties, including federal and state securities laws and regulations and (iv) is not in violation of any of its Permits, except where the failure to so comply did not have and would not reasonably be expected to have a material adverse effect on the business of Axiom Mexico.

 

SECTION 2.15

 

Intellectual Property.  Axiom Mexico has no patents, patent applications, trademarks, trademark registrations or applications therefore, service marks, service mark registrations or applications therefore, trade names, copyrights, copyright registrations or applications therefore or any other proprietary intellectual property and other rights relating to the foregoing.  Axiom Mexico has no knowledge of any infringements by Axiom Mexico of any third party's intellectual property.

 

 

Insurance.  The Company has no casualty and liability policies and other insurance policies.

 

SECTION 2.17

 

Related Party Contracts  None of the officers, directors, or affiliates of Axiom Mexico is presently a party to any transaction with Axiom Mexico (other than for services as employees, officers and directors), including any loans, leases, agreements, arrangements or understandings outstanding between Axiom Mexico and any of its officers, directors, or affiliates or any person related to or affiliated with any such officers or directors.

 

SECTION 2.18

 

Benefit Plans.  Axiom Mexico does not have any pension, retirement, savings, profitsharing, stock-based, incentive compensation or other similar employee benefit plan.

 

SECTION 2.19

 

Trading With the Enemy Act; Patriot Act.  Neither sale of Axiom Mexico’s securities nor Axiom Mexico's use of the proceeds from such sale has violated the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Without limiting the foregoing, Axiom Mexico (i) is not a Person whose property or interests in property are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) and (ii) does not engage in any dealings or transactions, or is otherwise associated, with any such person.  Axiom Mexico is in compliance with the USA Patriot Act of

 

 

The Company and Merger Sub each jointly and severally represents and warrants to Axiom Mexico as follows with respect to Merger Sub:

 

SECTION 3.1

 

Organization; Capitalization.  Merger Sub is a duly organized and validly existing corporation in good standing under the laws of Chihuahua, Chihuahua, authorized to issue only the Merger Sub Shares.  On the Closing Date there will be 50,000 issued and outstanding Merger Sub Shares, all of which shall be fully paid and non-assessable and shall be owned solely by the Company.  There are no issued or outstanding options or warrants to purchase Merger Sub Shares or any issued or outstanding securities of any nature convertible into Merger Sub Shares, or any agreements or understandings to issue any Merger Sub Shares, options or warrants.

 

SECTION 3.2

 

Authorization.

 

(a)           Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement.

 

(b)           Except for the filing of the Articles of Merger and the Certificate of Merger, the execution, delivery and performance of the Agreement by Merger Sub and the consummation by Merger Sub of the transactions contemplated by the Agreement will not require on the part of Merger Sub any permit, approval, order or authorization of, or filing or registration with, or allowance by, or consent of or notification to any Person.

 

SECTION 3.3

 

Binding Agreement.  This Agreement has been duly executed and delivered by Merger Sub, and assuming the due execution and delivery of this Agreement by the Company and Axiom  Mexico, constitutes the valid and binding obligation of Merger Sub, enforceable against it in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, receivership and other similar laws affecting the enforcement of creditors' rights in general and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

SECTION 3.4

 

No Conflicts.  The execution, delivery and performance of the Agreement by Merger Sub and the consummation by Merger Sub of the transactions contemplated by the Agreement will not, with or without the giving of notice or lapse of time, or both, violate, conflict with, result in a breach of, constitute a default under or accelerate the performance required by any of the terms, conditions or provisions of (i) the Certificate of Incorporation or By-laws of Merger Sub or (ii) any statute, rule, regulation, order, decree, ruling, judgment, arbitration award, law, ordinance or stipulation to which Merger Sub or any of its properties or assets is subject, or result in the creation of any Encumbrances on any of its properties or assets.

 

SECTION 3.5

 

Broker's or Finder's Fees.  No agent, broker, firm or other Person acting on behalf of Merger Sub is, or will be, entitled to any investment banking, commission, broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated by this Agreement.

 

SECTION 3.6

 

Capitalization.  On the date hereof, the authorized capital stock of Merger Sub consists of 50,000 Merger Sub Shares.

 

SECTION 3.7

 

No Business Activity; Financial Condition.  Merger Sub has been organized solely for the purpose of consummating the Merger and, since its inception, has had no business activity of any nature other than those related to its organization or as contemplated by this Agreement.  Merger Sub has no contracts or commitments to which it is a party, except for this Agreement and other documents and instruments contemplated hereby in connection with the Merger.  Except for (i) the incurring of expenses of its organization, (ii) the issuance of the Merger Sub Shares to the Company, (iii) the incurring of expenses relating to this Agreement and the consummation of the transactions contemplated by this Agreement and (iv) the consummation of the Merger, Merger Sub has had no financial or other transactions of any nature whatsoever.  As of the date hereof, Merger Sub has no subsidiaries.

 

 

 

 

 

The Company hereby represents and warrants to Axiom Mexico as follows, except to the extent set forth on the corresponding sections of the schedule of exceptions attached hereto and made a part hereof:

 

SECTION 5.1

 

Organization; Standing and Power.  The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of  Nevada and has all requisite corporate power and authority required to own, lease and operate its properties and to carry on its business as currently being conducted.  Copies of the Certificate of Incorporation and By-laws, corporate minute books, stock certificate books and stock transfer books of the Company that have heretofore been delivered to Axiom Mexico are true, correct and complete.  The Company is not required to be qualified or licensed as a foreign corporation in any other jurisdiction to conduct its business as currently conducted.

 

SECTION 5.2

 

Authorization.

 

(a)           The Company has all requisite corporate power and authority to execute and deliver this Agreement and, subject to the approval by the stockholders of the Company whose consent is required in accordance with the laws of the State of Nevada to consummate the Reincorporation and the transactions related thereto, and to consummate the transactions contemplated by this Agreement.

 

(b)           The execution, delivery and performance of the Agreement by the Company and the consummation by the Company of the transactions contemplated by the Agreement will not require on the part of the Company any permit, approval, order or authorization of, or filing or registration with, or allowance by, or consent of or notification to any Person.

 

SECTION 5.3

 

Binding Agreement.  This Agreement has been duly executed and delivered by the Company, and constitutes the valid and binding obligation of the Company, enforceable against it in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, receivership and other similar laws affecting the enforcement of creditors' rights in general and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

SECTION 5.4

 

No Conflicts.  The execution, delivery and performance of the Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement will not, with or without the giving of notice or lapse of time, or both, violate, conflict with, result in a breach of, constitute a default under or accelerate the performance required by any of the terms, conditions or provisions of (i) the Certificate of Incorporation or By-laws of the Company or (ii) except for such violations, conflicts, breaches, defaults or accelerations that, individually or in the aggregate, have a material adverse effect on the business of the Company, any contract, covenant, agreement or understanding, or any statute, rule, regulation, order, decree, rulin g, judgment, arbitration award, law, ordinance or stipulation to which the Company is a party or to which it or any of its properties or assets is subject, or result in the creation of any Encumbrances on any of its properties or assets.

 

SECTION 5.5

 

Broker's or Finder's Fees.  No agent, broker, firm or other Person acting on behalf of the Company is, or will be, entitled to any investment banking, commission, broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated by this Agreement.

 

SECTION 5.6

 

Capitalization.

 

(a)           The authorized capital stock of the Company consists of 100,000,000 shares of Common Stock.  As of the date hereof, 24,634,400 shares of Common Stock are issued and outstanding. The Company declares that all such stock, as referred below, is the total amount of stock of the Company and there is no preferred stock or other different from such as above mentioned.  All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non assessable.  All of the issued and outstanding shares of capital stock of the Company have been offered, issued and sold by the Company in compliance with all applicable fed eral and state securities laws.  No securities of the Company are entitled to preemptive or similar rights, and no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated hereby.  There are no outstanding options, warrants or other rights to acquire capital stock of the Company and there are no securities, options, warrants, calls, rights, commitments, agreements, understandings or arrangements to which the Company is a party or by which the Company is or may become bound to issue additional shares of capital stock of the Company, or securities or rights convertible or exchangeable into shares of capital stock of the Company.

 

(b)           There are no outstanding obligations, contingent or otherwise, of the Company to redeem, purchase or otherwise acquire any capital stock or other securities of the Company.

 

(c)           There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which the Company is bound relating to the voting of any shares of the capital stock of the Company.

 

SECTION 5.7

 

Subsidiaries.  Other than the Merger Sub, the Company does not have any subsidiaries, nor does it own any direct or indirect interest in any other business entity.

 

SECTION 5.8

 

Investment Company/Investment Adviser.  The business of the Company does not require it to be registered as an investment company, as such term is defined under the Investment Company Act of 1940, as amended, nor does it require the Company to be registered as an investment adviser, as such term is defined under the Investment Advisers Act of 1940, as amended, or under applicable Nevada State laws.

 

SECTION 5.9

 

SEC Reports; Financial Statements.

 

(a)           The Company has filed all registration statements, prospectuses, reports, schedules, forms, statements and other documents required to be filed by it with the Securities and Exchange Commission (the "SEC") under the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof, since November 11, 2007 (the foregoing materials being collectively referred to herein as the "SEC Reports") on a timely basis.  As of their respective dates (and as of the date of any amendment to the respective SEC Report), the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Ac t and the rules and regulations of the SEC promulgated thereunder.  None of the SEC Reports, as of their respective dates (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  The financial statements of the Company included in the SEC Reports complied in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.  Such financial statements were prepared in accordance with GAAP consistently applied during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position, re sults of operations and other information purported to be shown thereon of the Company as of the dates and for the respective periods to which they apply, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

 

(b)           Since the last SEC Report and except as specifically disclosed in the SEC Reports:

 

(i)           there has not been any material adverse change in the business, financial condition or results of operations of the Company, its liabilities, assets or any damage, loss or other change in circumstances materially affecting the Company, its business or assets or the Company's right to carry on its business;

 

(ii)          the Company has not incurred, assumed, guaranteed or endorsed any liabilities (contingent or otherwise) or amended of any material term of any outstanding security;

 

(iii)         there has been no sale, assignment, disposal, transfer, mortgage, pledge, encumbrance or lease of any asset or property of the Company;

 

(iv)         there has been no change in accounting methods or practices or the identity of its auditors, nor any revaluation of any asset of the Company;

 

(v)          there has been no declaration or payment of a dividend, or any other declaration, payment or distribution of any type or nature to any stockholder of the Company in respect of its stock, whether in cash or property, and no purchase or redemption of any share of the capital stock of the Company;

 

(vi)         the Company has not issued any equity securities to any officer, director or affiliate of the Company;

 

(vii)        the Company has not made any loan, advance or capital contributions to or investment in any Person;

 

(viii)       the Company has not established, adopted or amended (except as required by applicable law) any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of the Company;

 

(ix)          the Company has not increased the compensation, bonus or other benefits payable or otherwise made available to any current or former director, officer or employee of the Company;

 

(x)           the Company has not granted any severance or termination pay to any current or former director, officer or employee of the Company, or increased the benefits payable under any existing severance or termination pay policies or employment agreements or entered into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of the Company;

 

(xi)          the Company has not made any tax election or any settlement or compromise of any tax liability, in either case that is material to the Company or entered into any transaction by the Company not in the ordinary course of business;

 

(xii)         there has been no release, compromise, waiver or cancellation of any debt to or claim by the Company, or waiver of any right of the Company;

 

(xiii)        there have been no capital expenditures by the Company;

 

(xiv)        there has been no material damage or destruction to, or loss of, physical property (whether or not covered by insurance) of the Company;

 

(xv)         there has been no guaranty by the Company of any indebtedness of any Person;

 

(xvi)        the Company has not entered into any transaction or commitment made, or any contract or agreement entered into, relating to its business or any of its assets (including the acquisition or disposition of, or creation of a lien on, any assets) or any relinquishment by the Company of any contract or other right;

 

(xvii)       the Company has not participated or engaged in any discussions or negotiations with any Person regarding, or entered into any transaction concerning, a merger, stock exchange or consolidation, other than with the other parties hereto, or liquidated or dissolved itself (or suffered any liquidation or dissolution) or conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of related transactions, all or a substantial part of its property, business, assets or capital stock or  securities convertible into equity, or made any material change in its current method of conducting business;

 

(xviii)      there has been no agreement or commitment by the Company to do any of the foregoing described in clauses (i) through (xviii); and

 

(xix)         there has been no other event or condition of any character that has had, or could reasonably be expected to have, a material adverse effect on the properties, business, operations, financial condition, assets or prospects of the Company.

 

SECTION 5.10

 

Assets; Liens.  The Company has not acquired any assets, including, without limitation, goodwill, assets, real property, tangible personal property, intangible personal property, rights and benefits under contracts and cash.  No Encumbrances exist on any of the Company's assets.

 

SECTION 5.11

 

Liabilities; Claims.  Except as set forth in the SEC Reports, there are no liabilities (including, but not limited to, tax liabilities) or claims against the Company (whether such liabilities or claims are contingent or absolute, direct or indirect, and matured or unmatured), and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability or claim.

 

SECTION 5.12

 

Material Contracts.  The Company has no "material contracts" (as defined in Item 601(b)(10) of Regulation S-B of the SEC) to which it is a party.  The Company is not a party to or bound by any contract which would prohibit or materially delay the consummation of the transactions contemplated by this Agreement.

 

SECTION 5.13

 

Tax Matters.

 

(a)           All federal, state, county, local and foreign income, excise, property and other tax returns required to be filed by the Company have been timely filed and all such duly filed tax returns are true and correct in all material respects.  All required taxes, fees or assessments have been paid or an adequate reserve therefor has been established (in accordance with GAAP) in the financial statements of the Company included in the SEC Reports.  The federal income tax returns and state and foreign income tax returns of the Company and its subsidiaries have not been audited by the IRS or any other taxing authority and the Company or its subsidiaries have not received any notice of deficiency or assessment from any taxing authority with respect to liability for taxes which has not been fully paid or finally settled.  Neither the IRS nor any state, local, foreign or other taxing authority has proposed in writing any additional taxes, interest or penalties with respect to the Company or its subsidiaries or any of their operations or businesses.  There are no pending, or to the knowledge of the Company, threatened, tax claims or assessments, and there are no pending, or to the knowledge of the Company, threatened, tax examinations by any taxing authorities.  Neither the Company nor its subsidiaries have given any waivers of rights (which are currently in effect) under applicable statutes of limitations with respect to the federal income tax returns of the Company or its subsidiaries for any taxable period.  There are no liens for taxes upon the assets of the Company or its subsidiaries except for statutory liens for current taxes not yet due and payable or whi ch may thereafter be paid without penalty or are being contested in good faith.  The Company or its subsidiaries has not filed a request with the IRS for changes in accounting methods within the last three (3) years which change would affect the accounting for tax purposes, directly or indirectly, of its business.

 

(b)           The Company does not have any liability for taxes of any person as a result of being a member of an affiliated, consolidated, combined or unitary group under Treasury Regulation Section 1.1502-6 (or any comparable provision of state, local or foreign law), nor is it bound by any obligation under any tax sharing agreement, tax indemnification agreement or similar contract or arrangement.

 

SECTION 5.14

 

Legal Proceedings.  There are no legal, administrative, arbitral or other proceedings, claims, suits, actions or governmental investigations of any nature pending, or to the Company's knowledge threatened, directly or indirectly involving the Company or its officers, directors or affiliates, including, but not limited to any stockholder claims or derivative actions, or challenging the validity or propriety of the transactions contemplated by this Agreement.  The Company is not subject to any order, judgment, injunction, rule or decree of any Governmental Authority or arbitrator.

 

SECTION 5.15

 

Insurance.  The Company has no casualty and liability policies and other insurance policies.

 

SECTION 5.16

 

Intellectual Property.  The Company has no patents, patent applications, trademarks, trademark registrations or applications therefore, service marks, service mark registrations or applications therefore, trade names, copyrights, copyright registrations or applications therefore or any other proprietary intellectual property and other rights relating to the foregoing.  The Company has no knowledge of any infringements by the Company of any third party's intellectual property.

 

SECTION 5.17

 

Permits; Compliance with Laws.  The Company has all Permits required to own, lease and operate its properties and to carry on its business as currently conducted.  The Company:  (i) is not in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company under), nor has the Company received notice of a claim that it is in default under or that it is in violation of, any indenture, mortgage, deed of trust or other agreement, instrument or contract to which the Company is a party or by which it or any of its assets or properties are bound (whether or not such default or violation has been waived), (ii) is not in violation of any ord er of any court, arbitrator or governmental body, (iii) is not and has not been in violation of any law, order, rule, regulation, writ, injunction, judgment or decree of any Governmental Authority having jurisdiction over the Company or any of its business or properties, including federal and state securities laws and regulations and (iv) is not in violation of any of its Permits.

 

SECTION 5.18

 

Related Party Contracts.  Except as set forth in the SEC Reports, none of the officers, directors, or affiliates of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors), including any loans, leases, agreements, arrangements or understandings outstanding between the Company and any of its officers, directors, or affiliates or any person related to or affiliated with any such officers or directors.

 

SECTION 5.19

 

Employee Matters; Benefit Plans.  The Company has no employees and there are no labor disputes, grievances or requests for arbitration.  Except for the Stock Award to Steven A Sanders, the Company has no pension, retirement, savings, profit sharing, stock-based, incentive compensation or other similar employee benefit plan.

 

SECTION 5.20

 

Trading With the Enemy Act; Patriot Act.  No sale of the Company's securities or the Company's use of the proceeds from such sale has violated the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Without limiting the foregoing, the Company (i) is not a person whose property or interests in property are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) and (ii) does not engage in any dealings or transactions, or be otherwise associated, with any such person.  The Company is in compliance with the USA Patriot Act of 2001.

 

SECTION 5.21

 

No Disagreements with Accountants and Lawyers.  There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers.

 

SECTION 5.22

 

Environmental Matters.  The Company has complied with all applicable environmental laws.  There is no pending or threatened civil or criminal litigation, written notice of violation, formal administrative proceeding or investigation, inquiry or information request by any Governmental Authority or other entity relating to any environmental law involving the Company.

 

SECTION 5.23

 

Listing on the OTCBB.  The Company Common Stock has been approved for listing on the Over-The-Counter Bulletin Board (the "OTCBB") and the Company has and continues to satisfy all of the requirements of the OTCBB for such listing and for the trading of Company Common Stock thereunder.

 

SECTION 5.24

 

Disclosure.  The Company confirms that neither it nor any other Person acting on its behalf has provided Axiom Mexico or its agents or counsel with any information that constitutes or might constitute material, nonpublic information concerning the Company.  The Company understands and confirms that Axiom Mexico will rely on the foregoing representations in effecting transactions in securities of the Company.  All disclosure provided to Axiom Mexico regarding the Company, its business and the transactions contemplated hereby furnished by or on behalf of the Company with respect to the representations and warranties made herein are true and correct with respect to such representations and warranties and do not contain any untrue statement of a mat erial fact or omit to state any material fact necessary in order to make the statements made therein not misleading.  The Company acknowledges and agrees that Axiom Mexico has not made, nor is Axiom Mexico making, any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth herein.

 

 

SECTION 6.1                                

 

None of the representations, covenants and warranties contained in this Agreement (including, but not limited to, all statements contained in any certificate or other instrument delivered by or on behalf of the Company, Merger Sub, or Axiom Mexico pursuant hereto or in connection with the transactions contemplated hereby) shall survive the Effective Time, except for the covenants and agreements that by their terms apply or are to be performed in whole or in part after the Effective Time.

 

 

The obligation of Merger Sub and the Company to consummate the Merger and other transactions contemplated hereby is subject to the satisfaction or waiver of the following conditions prior to the Closing Date:

 

SECTION 7.1

 

Compliance with Representations, Warranties and Covenants.  Each of the representations and warranties of Axiom Mexico set forth in this Agreement should be true and correct as the date hereof and as the Closing Date as though made on and as of the Closing Date and Axiom Mexico shall be in compliance with its covenants contained herein in all material respects, and Merger Sub and the Company each shall receive from Axiom Mexico certificates to such effect from an officer of Axiom Mexico as of the Closing Date.

 

SECTION 7.2

 

No Material Adverse Change.  Except as disclosed in this Agreement or in the Axiom Mexico Schedule of Exceptions, no material adverse change in the aggregate shall have occurred in the financial condition, business, properties, assets, liabilities or results of operations of Axiom Mexico since the last SEC Report .

 

SECTION 7.3

 

Filings and Approvals.  All applicable filings and regulatory approvals, as well as any other third party approvals, required to be made or obtained by Axiom Mexico shall have been made or obtained.

 

SECTION 7.4

 

Stockholder Approvals.  This Agreement and the transactions contemplated hereby shall have been approved by appropriate action of the stockholders of Axiom Mexico and resolutions to that effect shall have been delivered to the Company.

 

SECTION 7.5

 

No Claims.  No claim, suit, action or other proceeding shall be pending or threatened in writing before or by any court or Governmental Authority against Axiom Mexico that could materially and adversely affect the ability of Axiom Mexico to consummate the transactions contemplated by this Agreement.

 

SECTION 7.6

 

No Injunctions, Restraints or Pending Governmental Actions; Illegality.  No applicable laws shall have been adopted, promulgated or enforced by any Governmental Authority, and no temporary restraining order, preliminary or permanent injunction or other order issued by a court or other Governmental Authority of competent jurisdiction (an "Injunction") shall be in effect, having the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger.  No proceeding initiated by any Governmental Authority seeking, and which is reasonably likely to result in the granting of, an Injunction shall be pending.

 

 

 

The obligations of Axiom Mexico to consummate the Merger are subject to the following conditions prior to the Closing Date:

 

SECTION 8.1

 

Compliance with Representations, Warranties and Covenants.  Each of the representations and warranties of Merger Sub and the Company set forth in this Agreement (other than those representations and warranties which are made as of a specified date herein) shall be true and correct as of the date hereof and as of Closing Date as though made on and as of the Closing Date and Merger Sub and the Company shall be in compliance with their respective covenants contained herein in all material respects, and Axiom Mexico shall have received from each of Merger Sub and the Company a certificate to such effect from an officer of Merger Sub and the Company, as the case may be, as of the Closing Date.

 

SECTION 8.2

 

No Material Transactions.  Except as disclosed in this Agreement or pursuant to the Reincorporation, no material transactions shall have been entered into by Merger Sub or the Company, other than transactions in the ordinary course of business, since the most recent SEC Report, except as referred to in this Agreement or in connection herewith, with the prior written consent of Axiom Mexico.

 

SECTION 8.3

 

No Material Adverse Change.  Except as disclosed in this Agreement or pursuant to the Reincorporation, no material adverse change shall have occurred in the financial condition, business, properties, assets, liabilities or results of operations of Merger Sub or the Company since the most recent SEC Report.

 

SECTION 8.4

 

No Claims.  No claim, suit, action or other proceeding shall be pending or threatened in writing before or by any court or Governmental Authority against the Company or Merger Sub that could materially and adversely affect the ability of the Company or Merger Sub to consummate the transaction contemplated by this Agreement.

 

SECTION 8.5

 

No Injunctions, Restraints or Pending Governmental Actions; Illegality.  No applicable laws shall have been adopted, promulgated or enforced by any Governmental Authority, and no Injunction shall be in effect, having the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger.  No proceeding initiated by any Governmental Authority seeking, and which is reasonably likely to result in the granting of, an Injunction shall be pending.

 

SECTION 8.6

 

Super 8-K Information.  The Company will have prepared and able to file a current report on Form 8-K reporting the merger that is compliant with, and provides the information required under, Items 1.01, 3.02, 5.01, 5.06, 9.01 and any other applicable Item of Form 8-K (the “Super 8-K”) including the necessary financial information and Axiom Mexico will have signed off on the Super 8-K to be filed with 4 days of the Effective Date.

 

ARTICLE IX Other Covenants

 

SECTION 9.1

 

Public Announcements.  No press release or announcement concerning this Agreement or the transactions related hereto will be issued by any party without the prior consent of the other parties, except as such release or announcement may be required by law, in which case the party required to make the release or announcement will, to the extent practicable, allow the other party reasonable time to comment on such release or announcement in advance of such issuance.

 

SECTION 9.2

 

Further Instruments and Actions.  Each party shall deliver such further instruments and take such further action as may be reasonably requested by any other party hereto in order to carry out the intent and purposes of this Agreement.

 

SECTION 9.3

 

Issuance of Stock.  Following the Closing, the Company shall issue the Merger Common Stock to the Original Axiom Mexico Shareholders.

 

SECTION 9.4

 

Company Actions Prior to Closing.  Except as otherwise contemplated by this Agreement, from the date hereof through the Closing, the Company shall not, other than in the ordinary course of business consistent with past practice, without the prior written consent of Axiom Mexico:

 

(a)          sell, lease, assign, transfer or otherwise dispose of any material assets;

 

(b)          agree to assume or assume, guarantee, endorse or otherwise in any way be, or become responsible or liable for, directly or indirectly, any material contingent obligation;

 

(c)          participate or engage in any discussions or negotiations with any Person regarding, or enter into any transaction concerning, a merger, stock exchange or consolidation, other than with the other parties hereto, or liquidate or dissolve itself (or suffer any liquidation or dissolution) or convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or a substantial part of its property, business, assets or capital stock or  securities convertible into equity, or make any material change in its present method of conducting business;

 

(d)          make any amendment to its certificate of incorporation or bylaws;

 

(e)          incur any liabilities (including, but not limited to. tax liabilities) or claims against the Company (whether such liabilities or claims are contingent or absolute, direct or indirect, and matured or unmatured);

 

(f)          create, incur, assume or suffer to exist, any mortgage, pledge, lien, charge, security interest or encumbrance of any kind upon any of its property, assets, income or profits, whether now owned or hereafter acquired;

 

(g)          declare or authorize any dividends or distributions on any shares of its capital stock;

 

(h)          make any tax election, change any annual tax accounting period, amend any tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund or consent to any extension or waiver of the limitations period applicable to any tax claim or assessment; or

 

(i)          make any commitment, agreement or understanding with respect to any of the foregoing.

 

SECTION 9.5

 

Axiom Mexico Actions Prior to Closing.  Except as otherwise contemplated by this Agreement, from the date hereof through the Closing, Axiom Mexico shall not, other than in the ordinary course of business consistent with past practice, without the prior written consent of the Company:

 

(a)          sell, lease, assign, transfer or otherwise dispose of any material assets;

 

(b)          agree to assume or assume, guarantee, endorse or otherwise in any way be, or become responsible or liable for, directly or indirectly, any material contingent obligation;

 

(c)          participate or engage in any discussions or negotiations with any Person regarding, or enter into any transaction concerning, a merger, stock exchange or consolidation, other than with the other parties hereto, or liquidate or dissolve itself (or suffer any liquidation or dissolution) or convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or a substantial part of its property, business, assets or capital stock or  securities convertible into equity, or make any material change in its present method of conducting business;

 

(d)          make any amendment to its certificate of incorporation or bylaws;

 

(e)          enter into or amend any employment agreements or increase the salary or bonus of any existing employee or with any person to become an officer of Axiom Mexico;

 

(f)          create, incur, assume or suffer to exist, any mortgage, pledge, lien, charge, security interest or encumbrance of any kind upon any of its property, assets, income or profits, whether now owned or hereafter acquired;

 

(g)          declare or authorize any dividends or distributions on any shares of its capital stock;

 

(h)          make any tax election, change any annual tax accounting period, amend any tax return, enter into any closing agreement, settle any tax claim or assessment, surrender any right to claim a tax refund or consent to any extension or waiver of the limitations period applicable to any tax claim or assessment; or

 

(i)          make any commitment, agreement or understanding with respect to any of the foregoing.

 

 

 

SECTION 10.1

 

Termination or Abandonment.  This Agreement may be terminated and may be abandoned by mutual agreement or by either the Company or Axiom Mexico, by written notice to the other parties hereto, at any time in the event of the failure of any condition in favor of such entity as to which the consummation of the Acquisition is subject.  In the event of termination of this Agreement, the same shall become wholly void and of no effect, and there shall be no further liability or obligation hereunder on the part of any of the Constituent Corporations, their respective Boards of Directors or any other party to this Agreement.

 

 

 

SECTION 11.1

 

Notices.  All notices, requests and other communications to any party hereunder shall be in writing and either delivered personally, telecopied or sent by certified or registered mail, postage prepaid,

 

If to the Company:

Steven A Sanders, President

501 Madison Ave, 14th Floor

New York, New York  10022

Facsimile:   ###-###-####

***@***

 

If to Merger Sub:

Steven A. Sanders, President

501 Madison Ave, 14th Floor

New York, New York  10022

Facsimile:   ###-###-####

***@***

 

If to Axiom Mexico :

Francisco Quiroz, President

Avenida 10  No. 76 entre calles 2 y 3

Colonia Bugambilia

Hermosillo, Sonora

Mexico, C.P. 83140

***@***

or such other address or fax number as such party may hereafter specify for the purpose by notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date delivered personally or by overnight delivery service or telecopied or, if mailed, five (5) business days after the date of mailing.

 

SECTION 11.2

 

Amendments; No Waivers.

 

(a)           Any provision of this Agreement with respect to transactions contemplated hereby may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by the Company and Axiom Mexico; or in the case of a waiver, by the party against whom the waiver is to be effective.

 

(b)           No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

SECTION 11.3

 

Fees and Expenses.  Except as otherwise provided in this Agreement, all costs and expenses incident to negotiation, preparation and performance of this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, including, without limitation, fees, expenses and disbursements of their respective financial advisors, accountants and counsel.

 

SECTION 11.4

 

Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, but any such transfer or assignment will not relieve the appropriate party of its obligations hereunder.

 

SECTION 11.5

 

Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to the principles of conflicts of law thereof.

 

SECTION 11.6

 

Jurisdiction.  Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in any federal or state court located in the City of Las Vegas, Nevada, and each of the parties hereto consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.  ; Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.1 shall be deemed effective service of process on such party.  Each party hereto (including its affiliates, agents, officers, directors and employees) irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

SECTION 11.7

 

Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when each party hereto has received counterparts hereof signed by all of the other parties.  No provision of this Agreement is intended to confer upon any Person other than the parties hereto any rights or remedies under this Agreement.

 

SECTION 11.8

 

Entire Agreement.  This Agreement and the attached Exhibits and Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.

 

SECTION 11.9

 

Consent.  Whenever consent is required to be given by any party to any other party hereunder in connection with any matter contemplated hereby, such consent shall not be unreasonably withheld, delayed or conditioned.

 

SECTION 11.10

 

Captions.  The captions are included for convenience of reference only and shall be ignored in the construction or interpretation of this Agreement.

 

SECTION 11.11

 

Joint Drafting.  This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no inference or interpretation against any party shall be made solely by virtue of such party allegedly having been the draftsperson of this Agreement.

 

SECTION 11.12

 

Public Announcements.  All parties hereto agree that any public announcement, press release or other public disclosure of the signing of this Agreement shall be made jointly and only after all parties hereto have reviewed and approved the language and timing of such disclosure.

 

SECTION 11.13

 

Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any parties.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consum mated as originally contemplated to the fullest extent possible.

 

SECTION 11.14

 

Specific Performance.  The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the its terms and that the parties shall be entitled to specific performance of the terms of this Agreement in addition to any other remedy to which they are entitled at law or in equity.

 

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IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written.

 

 

TC POWER MANAGEMENT

 

By:  /s/ Stecen A. Sanders                   

Name:          Steven A. Sanders

Title:             President

 

AXIOM ACQUISITION CORP.

 

By:  /s/ Francisco Quiroz                    

Name:           Francisco Quiroz

Title:             President

 

AXIOM MINERALS DE MEXICO SA DE CV

 

By:  /s/ Francisco Quiroz                    

Name:           Francsico Quiroz

Title:             President

 

 

 

Authorized Shares of Common Stock:			50,000
Authorized Shares of Preferred Stock:			0
Outstanding Shares of Common Stock:			50,000
Shares of Common Stock Issuable Upon Exercise of Outstanding Options/Warrants:			0
Fully-Diluted Common Shares Outstanding:			50,000

SCHEDULE OF EXCEPTIONS

TC POWER MANAGEMENT CORP.

Section 5.9 (b)(vi) and (vii) –

Stock Award to Steven A Sanders, 150,000 common shares, issued on November 15, 2010.  Future Stock Award to Steven A Sanders 150,000 common shares due October 1, 2011 and 150,000 common shares due October 1, 2012.

Stock Option Award to Frank Lamendola, 12,500 options issued on October 15, 2010.