PLANAND AGREEMENT OF TRIANGULAR MERGER BETWEEN EGPIFIRECREEK, INC., ASIANVENTURES CORP., M3LIGHTING, INC., AND STRATEGICPARTNERS CONSULTING, LLC.

EGPI FIRECREEK, INC., a Nevada corporation (“EGPI”), ASIAN VENTURES CORP., a Nevada corporation (the “Subsidiary”), M3 LIGHTING, INC., a Georgia corporation (“M3”), and STRATEGIC PARTNERS CONSULTING, L.L.C., a Georgia limited liability company (“Strategic Partners”) hereby agree as follows:

 

WHEREAS, the Subsidiary is a wholly-owned subsidiary of EGPI; and

 

WHEREAS, M3 desires to merge (the “Merger”), subject to the approval of its stockholders (the “M3 Stockholders”) with and into the Subsidiary; and

 

WHEREAS, as a result of the Merger, the M3 Stockholders will receive shares of the common stock of EGPI, par value $0.001 per share (the “EGPI Common Stock”) in exchange for all of their shares of the common stock of M3, par value $0.01 per share (the “M3 Common Stock”);

 

NOW, THEREFORE, in consideration of the foregoing and the following mutual covenants and agreements, the parties agree as follows:

 

1.    Plan Adopted.  A plan of merger whereby M3 merges with and into the Subsidiary (this “Plan of Merger”), pursuant to the provisions of Chapter 92A of the Nevada Revised Statutes (the “NRS”), Title 14 of the Georgia Code (the “O.C.G.A.”), and Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended, is adopted as follows:

 

 

(b)    The Subsidiary shall be the surviving corporation (the “Surviving Corporation”) and its name shall be changed to M3 Lighting, Inc.  The Surviving Corporation will continue to be a wholly-owned subsidiary of EGPI.

 

(c)    When this Plan of Merger shall become effective, the separate existence of M3 shall cease and the Surviving Corporation shall succeed, without other transfer, to all the rights and properties of M3 and shall be subject to all the debts and liabilities of such corporation in the same manner as if the Surviving Corporation had itself incurred them.  All rights of creditors and all liens upon the property of each constituent entity shall be preserved unimpaired, limited in lien to the property affected by such liens immediately prior to the Merger.

 

(d)    The Surviving Corporation will be responsible for the payment of all fees and franchise taxes of the constituent entities payable to the States of Nevada and Georgia, if any.

 

(e)    The Surviving Corporation will carry on business with the assets of M3, as well as the assets of the Subsidiary.

 

(f) The Surviving Corporation will be responsible for the payment of the fair value of shares, if any, required under Chapter 92A of the NRS and Title 14 of the O.C.G.A.

 

(g)    The M3 Stockholders will surrender all of their shares of the M3 Common Stock in the manner hereinafter set forth.

 

 

(h)    In exchange for the shares of the M3 Common Stock surrendered by the M3 Stockholders, EGPI will issue and transfer to them on the basis hereinafter set forth, shares of the EGPI Common Stock.

 

(i)    A copy of this Plan of Merger will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of any constituent corporation.

 

(j)    The authorized capital stock of the Subsidiary is 10,000,000 shares of common stock, par value $0.001 per share (the “Subsidiary Common Stock”), of which one share is issued and outstanding.

 

(k)    The authorized capital stock of M3 is 100,000,000 shares of common stock, par value $0.01 per share, of which 10,200,000 shares are issued and outstanding held by seven M3 Stockholders, all of whom are “accredited investors” as defined in the Securities Act of 1933, as amended (the “Securities Act”).

 

2.    Effective Date.  The effective date of the Merger (the “Effective Date”) shall be the date of the filing of Articles of Merger for the Subsidiary and M3 in the States of Nevada and Georgia.

 

3.    Submission to Stockholders.  This Plan of Merger shall be submitted for approval separately to the M3 Stockholders and to EGPI, the sole stockholder of the Subsidiary, in the manner provided by the laws of the States of Nevada and Georgia.

 

4.    Manner of Exchange.  On the Effective Date, the M3 Stockholders shall surrender their stock certificates representing all of the issued and outstanding shares of the M3 Common Stock to the Subsidiary in exchange for certificates representing the shares of the EGPI Common Stock to which they are entitled.  In exchange, the Subsidiary shall receive all of the issued and outstanding shares of the M3 Common Stock held by the M3 Stockholders.  Following the receipt of the shares of the M3 Common Stock by the Subsidiary, the shares of the M3 Common Stock shall be cancelled.  The one share of the Subsidiary Common Stock shall remain issued and outstanding.

 

5.    Basis of Exchange.  The M3 Stockholders currently own 10,200,000 shares of the M3 Common Stock, which shares constitute all of the issued and outstanding shares of the capital stock of M3.  As a result of the Merger, subject to adjustment as described below, the M3 Stockholders shall be entitled to receive, in exchange for all of their M3 Common Stock, 11,934,007 shares of the EGPI Common Stock on the basis of 1.1700006 shares of the EGPI Common Stock for each share of the M3 Common Stock held by each of the M3 Stockholders.  Any fractional number of shares to be received shall be rounded up to the nearest whole number.  Following the Effective Date, EGPI shall have 23,868,015 shares of the EGPI Common Stock issued and outstanding, owned as follows: (a) 9,547,206 shares owned by the EGPI Stockholders; (b) 11,934,007 shares owned by the M3 Stockholders, subject to adjustment as described below; and (c) 2,386,802 shares owned by Strategic Partners as described below, subject to adjustment as described below.

 

Provided, however, notwithstanding anything herein contained to the contrary, the basis of the exchange described herein is based on a Liability Level of EGPI at the Effective Date (hereinafter defined) of no more than $290,000.  At the $290,000 Liability Level of EGPI at the Effective Date, the M3 Stockholders will receive 11,943,007 of the EGPI Common Stock.  If the Liability Level of EGPI at the Effective Date exceeds $290,000, the number of shares of the EGPI Common Stock to be received by the M3 Stockholders shall be equal to 11,934,007 divided by the quotient obtained by dividing $290,000 by the actual Liability Level of EGPI at the Effective Date.  For example, if the Liability Level of EGPI at the Effective Date is $635,000 rather than $290,000, the quotient obtained by dividing $290,000 by $635,000 is 0.46.  The 11,943,007 number of shares of the EGPI Common Stock will then be divided by 0.46 with a result of 25,943,493.  Thereafter, as described below, an additional 14,009,486 shares of the EGPI Common Stock will be issued to the M3 Stockholders, so that the M3 Stockholders will receive at total of 25,943,493 shares of the EGPI Common Stock as a result of the Merger rather than 11,934,007 shares of the EGPI Common Stock.

6. Restricted Shares.  All shares of the EGPI Common Stock and the EGPI Series C Preferred Stock (hereinafter defined) to be received by the M3 Stockholders and the shares of the EGPI Common Stock to be issued to Strategic Partners as hereinafter described shall be restricted in their resale as provided in the Securities Act, and shall contain a legend as required by Rule 144 promulgated under the Securities Act (“Rule 144”) which shall read as follows:

7.    Directors and Officers of the Surviving Corporation.

 

(a)    Following the Merger, Robert S. Miller, Jr., David H. Ray, Brandon D. Ray, Michael Kocan, and Dennis R. Alexander shall serve as the Board of Directors of the Surviving Corporation for a period of two years.  Thereafter, the number of directors of the Surviving Corporation shall be five members to be elected by the stockholders of the Surviving Corporation to serve until such time as their successors have been elected and qualified.

(b)    If a vacancy shall exist on the Board of Directors of the Surviving Corporation on the Effective Date, such vacancy may be filled by the Board of Directors of the Surviving Corporation as provided in the Bylaws of the Surviving Corporation.

 

(c)    All persons who, on the Effective Date, are executive or administrative officers of M3 shall be the officers of the Surviving Corporation until the Board of Directors of the Surviving Corporation shall otherwise determine.  The Board of Directors of the Surviving Corporation may elect or appoint such additional officers as it may deem necessary or appropriate.

8.    Articles of Incorporation.  The Articles of Incorporation of the Subsidiary existing on the Effective Date, as amended to reflect the change of name to M3 Lighting, Inc., a copy of which is attached hereto as Attachment B shall continue in full force as the Articles of Incorporation of the Surviving Corporation until altered, amended, or repealed as provided therein or as provided by law.

9.    Bylaws.  The Bylaws of the Subsidiary existing on the Effective Date, as amended to reflect the change of name to M3 Lighting, Inc., a copy of which is attached hereto as Attachment C shall continue in full force as the Bylaws of the Surviving Corporation until altered, amended, or repealed as provided therein or as provided by law.

 

10.    Directors and Officers of EGPI.  On the Effective Date, Robert S. Miller, Jr., Michael Kocan, David H. Ray, and Brandon D. Ray, the present four members of the Board of Directors of M3, and Dennis R. Alexander, Larry W. Trapp, and Michael Trapp, three of the current members of the Board of Directors of EGPI, shall serve as the Board of Directors of EGPI for a period of two years.  Thereafter, the number of directors of EGPI shall be five members to be elected by the stockholders of EGPI to serve until such time as their successors have been elected and qualified.  Further, on the Effective Date, the Board of Directors of EGPI will elect Dennis R Alexander, Chief Executive Officer and Chief Financial Officer, Michael Kocan, President and Chief Operating Officer, Larry W. Trapp, Executive Vice President, Robert S. Miller, Jr., Executive Vice President, Brandon D. Ray, Executive Vice President of Finance, David H. Ray, Executive Vice President and Treasurer, and Melvena Alexander, Secretary and Controller, as the officers of EGPI, to serve until such time as their successors have been elected and qualified, and all of the other officers of EGPI other than such persons shall resign on the Effective Date.  Provided, however, it is understood that the Board of Directors of EGPI may elect any persons as officers of EGPI at such time as it may determine, and no person described in this paragraph shall have the right to continue as an officer of EGPI beyond the period stated by the Board of Directors of EGPI.

 

11.    Copies of the Plan of Merger.  A copy of this Plan of Merger is on file at 3400 Peachtree Road, Suite 111, Atlanta, Georgia 30326, the principal offices of M3, and at 6564 Smoke Tree Lane, Scottsdale, Arizona 85253, the principal offices of EGPI and the Subsidiary.  A copy of this Plan of Merger will be furnished to any stockholder of M3, EGPI, or the Subsidiary, on written request and without cost.

12.    Additional Consideration for the Merger.  As additional consideration for the Merger, the M3 Stockholders shall receive on the Effective Date 5,000 shares of the EGPI Series C Preferred Stock as described in Schedule 15(p) attached hereto.  It is understood, that the shares of the Series C Preferred Stock are non-convertible and each share of the EGPI Series C Preferred Stock has the voting rights of 21,200 shares of the EGPI Common Stock, which means that in addition to the voting rights conferred by their shares of the EGPI Common Stock, the M3 Stockholders will have additional voting rights of 106,000,000 shares of the EGPI Common Stock.  Further, in consideration for its services in connection with this Agreement, Strategic Partners shall receive 2,386,802 shares of the EGPI Common Stock on the Effective Date.

13.    Conditions Subsequent.  As soon as practicable following the Effective Date, the conditions specified in subparagraphs (a) to (d) shall have occurred, and within one year following the Effective Date, the condition specified in subparagraph (e) shall have occurred:

 

(a)    There shall be a reverse split of the outstanding shares of the EGPI Common Stock on a one for six basis.

 

(b)    Malibu Holding, Inc., a Nevada corporation (a wholly-owned subsidiary of EGPI) shall change its name to Energy Producers, Inc. (“Energy Producers”).  The Board of Directors of Energy Producers shall be Dennis R. Alexander, Larry W. Trapp, Michael Trapp, and David H. Ray.  Following the Effective Date all future energy opportunities presented to EGPI will be pursued through Energy Producers.

 

(c)    Energy Producers will be “spun off” (the “Spin Off”), pursuant to applicable securities laws to those persons who are the EGPI Stockholders immediately before the Effective Date the Merger.  It is anticipated that the Spin Off will occur within two years from the Effective Date, unless the Board of Directors of EGPI determines otherwise.  Before the Spin Off, all pursuits of Energy Producers will have to be approved by the Board of Directors of EGPI and funded by discretionary working capital or self funded on terms acceptable by EGPI and Energy Producers.  The existing staff of EGPI and Strategic Partners will be available to assist Energy Producers in the development and pursuit of these opportunities.

(d)    On the Effective Date, Strategic Partners shall execute an Administrative Services Agreement with EGPI to perform accounting/reporting and investor relations service, a copy of which is attached hereto as Attachment D, with the assistance of the existing staff of EGPI.  The time used in pursuit of Energy Producers opportunities will be accumulated and billed back upon successful closure at reasonable and mutually agreed upon rates.

 

(e)    If within one year of the Effective Date, EGPI and M3 on a consolidated basis (less the consolidated effects, if any, of Energy Producers) have not (i) generated at least $850,000 in revenues, or (ii) acquired an entity or entities with at least a combined $5,000,000 in revenues, the EGPI Stockholders on the day before the Effective Date shall be issued shares of the EGPI Common Stock, equal to five percent of the issued and outstanding shares of the EGPI Common Stock for every $100,000 or fraction thereof that EGPI and M3 on a consolidated basis (less the consolidated effects, if any, of Energy Producers) fail to (x) generate at least $850,000 in revenues or (y) acquire an entity or entities with at least a combined $5,000,000 in revenues.  For example, if after one year following the Effective Date, there are 30,000,000 shares of the EGPI Common Stock issued and outstanding and EGPI and M3 on a consolidated basis (less the consolidated effects, if any, of Energy Producers) have generated only $700,000 in revenues or acquired an entity or entities with only a combined $4,000,000 in revenues, the EGPI Stockholders on the day before the Effective Date shall receive 1,500,000 shares of the EGPI Common Stock.

 

14.    Representations and Warranties of M3.  Where a representation contained in this Agreement is qualified by the phrase “to the best knowledge of M3” (or words of similar import), such expression means that, after having conducted a due diligence review, M3 believes the statement to be true, accurate, and complete in all material respects.  Knowledge shall not be imputed nor shall it include any matters which such person should have known or should have been reasonably expected to have known.  M3 represents and warrants to EGPI and the Subsidiary as follows:

(a)    Power and Authority.  M3 has full power and authority to execute, deliver, and perform this Agreement and all other agreements, certificates or documents to be delivered in connection herewith, including, without limitation, the other agreements, certificates and documents contemplated hereby (collectively the “Other Agreements”).

 

(b)    Binding Effect.  Upon execution and delivery by M3, this Agreement and the Other Agreements shall be and constitute the valid, binding and legal obligations of M3, enforceable against M3 in accordance with the terms hereof and thereof, except as the enforceability hereof or thereof may be subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(c)    Effect.  Neither the execution and delivery of this Agreement or the Other Agreements nor full performance by M3 of its obligations hereunder or thereunder will violate or breach, or otherwise constitute or give rise to a default under, the terms or provisions of the Articles of Incorporation or Bylaws of M3 or, subject to obtaining any and all necessary consents, of any contract, commitment or other obligation of M3 or necessary for the operation of M3’s business (the “Business”) following the Merger or any other material contract, commitment, or other obligation to which M3 is a party, or create or result in the creation of any encumbrance on any of the property of M3.  Except as otherwise disclosed to EGPI before the date of this Agreement and disclosed on Schedule 14(c) attached hereto, M3 is not in violation of its Articles of Incorporation, its Bylaws, or of any indebtedness, mortgage, contract, lease, or other agreement or commitment.

(d)    No Consents.  No consent, approval or authorization of, or registration, declaration or filing with any third party, including, but not limited to, any governmental department, agency, commission or other instrumentality, will, except such consents, if any, delivered or obtained on or prior to the Effective Date, be obtained or made by M3 prior to the Effective Date to authorize the execution, delivery and performance by M3 of this Agreement or the Other Agreements.

 

(e)    Capitalization.  M3 is authorized by its Articles of Incorporation to issue 100,000,000 shares of the M3 Common Stock.  There are no other shares of any class authorized or outstanding.  As of the date of this Agreement, there are 10,200,000 shares of the M3 Common Stock duly and validly issued and outstanding, fully paid, and non-assessable.  Other than as disclosed herein, there are no outstanding options, contracts, commitments, warrants, preemptive rights, agreements or any rights of any character affecting or relating in any manner to the issuance of the M3 Common Stock or other securities or entitling anyone to acquire the M3 Common Stock or other securities of M3.

(f)    Stock Ownership.  On the Effective Date, M3 will have seven stockholders, all of whom are “accredited investors” as defined in the Securities Act, who will have good, absolute, and marketable title to 10,200,000 shares of the M3 Common Stock as described herein, which constitute 100 percent of the issued and outstanding shares of the M3 Common Stock.  M3 has the complete and unrestricted right, power and authority to cause the Merger pursuant to this Agreement.  The delivery of the M3 Common Stock to the Subsidiary as herein contemplated will vest in the Subsidiary good, absolute and marketable title to the shares of the M3 Common Stock as described herein, free and clear of all liens, claims, encumbrances, and restrictions of every kind, except those restrictions imposed by applicable securities laws or this Agreement.

 

(g)    Organization and Standing of M3.  M3 is a duly organized and validly existing Georgia corporation in good standing, with all requisite corporate power and authority to carry on the Business as presently conducted in each of the jurisdictions where it is currently doing business.  M3 has qualified to do business in the states reflected on Schedule 14(g) attached hereto.

 

(h)    Employees.  M3 has no employees.

 

(i)    Financial Statement.  M3, within 50 days following the Effective Date, will furnish EGPI and the Subsidiary an audited consolidated balance sheet of M3 as of December 31, 2007 and December 31, 2008, and the related consolidated statement of income and retained earnings for the period covered thereby (the “Financial Statement”).  The Financial Statement (i) will be in accordance with the books and records of M3; (ii) fairly present the financial condition of M3 at such date and the results of its operations for the period therein specified; (iii) prepared in accordance with generally accepted accounting principles applied upon a basis consistent with prior accounting periods; and (iv) with respect to all contracts and commitments of M3, reflect adequate reserves for all reasonably anticipated losses and costs in excess of anticipated income.  Specifically, but not by way of limitation, the Financial Statement will disclose all of the debts, liabilities, and obligations of any nature (whether absolute, accrued, contingent, or otherwise and whether due or to become due) of M3 on the dates therein specified (except such debts, liabilities, and obligations as are not required to be reflected therein in accordance with generally accepted accounting principles).

(j)    Present Status.  Since the dates reflected on the Financial Statement, except as reflected on Schedule 14(j) attached hereto, M3 has not (i) incurred any material obligations or material liabilities, absolute, accrued, contingent, or otherwise, except current trade payables; (ii) discharged or satisfied any liens or encumbrances, or paid any obligations or liabilities, except current Financial Statement liabilities and current liabilities incurred since the dates reflected on the Financial Statement, in each case, in the ordinary course of business; (iii) declared or made any stockholder payment or distribution or purchased or redeemed any of its securities or agreed to do so; (iv) mortgaged, pledged, or subjected to lien, encumbrance, or charge any of its assets except as shall be removed prior to or at the Effective Date; (v) canceled any debt or claim; (vi) sold or transferred any assets of a material value except sales from inventory in the ordinary course of business; (vii) suffered any damage, destruction, or loss (whether or not covered by insurance) materially affecting its properties, business, or prospects; (viii) waived any rights of a material value; (ix) entered into any transaction other than in the ordinary course of business.  Further, since the date reflected on the Financial Statement, except as reflected on Schedule 14(k) attached hereto, there has not been any change in or any event or condition (financial or otherwise) affecting the property, assets, liabilities, operations, or prospects of M3, other than changes in the ordinary course of its business, none of which has (either when taken by itself or taken in conjunction with all other such changes) been materially adverse.

(k)    Tax Returns and Audits.  As of the date of this Agreement, except as reflected on Schedule 14(k) attached hereto, M3 has duly filed all federal, state, and local tax returns as required to be filed by it (including, but not limited to, all payroll or other employment related tax returns), and has paid all federal, state and local taxes, including, but not limited to all payroll and employment taxes, required to be paid with respect to the periods covered by such returns.  Except as reflected on Schedule 14(k) attached hereto, M3 has not been delinquent in the payment of any tax, assessment, or governmental charge, and has not had any tax deficiencies proposed or assessed against it and has not executed any waiver of the statute of limitations on the assessment or collection of any tax.

(l)    Litigation.  Other than as reflected on Schedule 14(l) attached hereto, M3 has disclosed all litigation, arbitrations, claims, governmental or other proceedings (formal or informal), or investigations pending, threatened, or in prospect (or any basis therefor known to M3) with respect to M3, or any of its business, properties, or assets prior to the execution of this Agreement.  Except as reflected on Schedule 14(l) attached hereto, M3 is not affected by any present or threatened strike or other labor disturbance or, to the best knowledge of M3, is any union attempting to represent any employee of M3 as collective bargaining agent.  M3 is not in material violation of, or in material default with respect to, any law, rule, regulation, order, judgment, or decree; nor is M3 required to take any action in order to avoid such a violation or default.

 

(m)    Compliance with Laws and Regulations.  Except as otherwise disclosed in Schedule 14(m) attached hereto, to the best knowledge of M3, M3 is in material compliance, with all laws, ordinances, codes, restrictions, regulations (environmental and otherwise) and other legal requirements applicable to the conduct of the Business, the noncompliance with which would be likely to have a material adverse effect on the Business; and there are no lawsuits or proceedings pending or, to its best knowledge, threatened with respect to the foregoing.

 

(n)    No Defaults.  Other than as reflected on Schedule 14(n) attached hereto, to the best knowledge of M3, M3 is not in default under any provision, of any lease, contract, commitment, obligation, note, bond, debenture, mortgage, indenture, security agreement, guaranty, or other instrument of indebtedness, and no existing condition exists which, with the giving of notice or the passage of time, or both, would constitute such a default, in either case, which default is or would be likely to have a material adverse effect on the Business.

 

(o)    Permits and Approvals.  Except as otherwise disclosed on Schedule 14(o) attached hereto, to the best knowledge of M3, M3 has all permits and approvals required for the conduct of the Business and is not in material default under any permit, approval or qualification, which default is likely to have a material adverse effect on M3 or the Business, nor is there any existing condition which, with the giving of notice or the passage of time, or both, would constitute such a material default; (ii) other than those items listed on Schedule 14(o) attached hereto, no permit, approval or qualification of any government or governmental unit, agency, board, body or instrumentality, whether federal, state or local, is necessary for the conduct of the Business as same has been and is being conducted; and (iii) there is no lawsuit or proceeding pending or threatened with respect to any of the foregoing.

 

(p)    Properties.  Except as reflected on Schedule 14(p) attached hereto, M3 has good and marketable title in fee simple absolute to all real properties and good title to all other properties and assets used in its business or owned by it (except real and other properties and assets as are held pursuant to leases or licenses), free and clear of all liens, mortgages, security interests, pledges, charges, and encumbrances, other than as shown on the Financial Statement, including, but not limited to a tax lien for unpaid real estate taxes.  Moreover:

(i)    No real property owned, leased, licensed, or used by M3 lies in an area which is, or to the best knowledge of M3 will be, subject to zoning, use, or building code restrictions which would prohibit, and no state of facts relating to the actions or inaction of another person or entity or their ownership, leasing, licensing, or use of that real property in the business in which M3 is now engaged or the business in which it contemplates engaging.

 

(ii)    The real and other properties and assets owned, leased, or licensed by M3 constitute all such properties and assets which are necessary to the business of M3 as presently conducted or as it contemplates conducting.

 

(q)    Patents and Trademarks.  Except as reflected on Schedule 14(q) attached hereto, to the best of the best knowledge of M3, M3 owns, possesses and has good title to all of the copyrights, trademarks, trademark rights, patents, patent rights, and licenses necessary in the conduct of the Business.  Except as reflected on Schedule 14(q) attached hereto, to the best knowledge of M3, M3 is not infringing upon or otherwise acting adversely to the rights of any person, under, or in respect to, any copyrights, trademarks, trademark rights, patents, patent rights, or licenses owned by any person or entity, and there is no claim or pending or threatened action with respect thereto.  M3 has the unrestricted right to use (free and clear of any rights or claims of others) all trade secrets, customer lists, manufacturing and other processes incident to the manufacture, use or sale of any and all products presently sold by it.

(r)    Compliance with Environmental Laws.  Except as otherwise disclosed on Schedule 14(r) attached hereto, to the best knowledge of M3, M3 has not violated and is not in violation of the Federal Clean Air Act (42 U.S.C. 7401, et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.), the Federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et seq.), the Federal Comprehensive Environmental Responsibility, Clean Up and Liability Act of 1980 (42 U.S.C. 9601, et seq.), the Federal Toxic Substance Control Act of 1976 (15 U.S.C. 2601, et seq.) or any state or local laws or ordinances regulating the subjects covered by the federal statutes identified above, including rules and regulations thereunder.  Prior to the Effective Date, M3 either directed, participated in and/or authorized that studies of the environmental status of M3’s properties and operations of the Business be prepared, which studies are listed or otherwise described in Schedule 14(r) hereto (collectively the “Studies”).  The Studies, as well as those other matters, correspondence, reports and the like disclosed in Schedule 14(r) hereto, have been delivered to EGPI and the counsel for EGPI and environmental consultants and are incorporated herein by reference as though set out herein.

 

(s)    Absence of Certain Changes or Events.  Except as otherwise disclosed on Schedule 14(s) attached hereto, since December 31, 2008, there has not been any change in or any event or condition (financial or otherwise) affecting the property, assets (including cash and all accounts receivable), liabilities, operations, or prospects of M3, other than changes in the ordinary course of its business, none of which has (either when taken by itself or taken in conjunction with all other such changes) been materially adverse.

 

(t)    Purchase and Outstanding Bids.  No purchase commitments of M3 are in excess of normal, ordinary, and usual requirements of its business, or were made at any price in excess of the then current market price or contained terms and conditions more onerous than those usual and customary in the industry.

 

(u)    Insurance Policies.  There are in full force all policies of fire, liability, and other forms of insurance pertaining to the properties and assets of M3.  Such policies are in an amount and against such losses and risks as are generally maintained by comparable businesses, copies of which have been delivered to EGPI upon the execution of this Agreement.

 

(v)    Employment Contracts.  Except as disclosed in Schedule 14(v) hereto, M3 has no employment contract, written or otherwise, with any employee or former employee.

 

(w)    Compliance with Laws and Regulations.  To the best knowledge of M3, M3 is in material compliance, with all laws, ordinances, codes, restrictions, regulations and other legal requirements applicable to the conduct of the Business, the noncompliance with which would be likely to have a material adverse effect on the Business; and there are no lawsuits or proceedings pending or, to its knowledge, threatened with respect to the foregoing.

(x)    No Defaults.  To the best knowledge of M3, M3 is not in default under any provision, of any lease, contract, commitment, obligation, note, bond, debenture, mortgage, indenture, security agreement, guaranty, or other instrument of indebtedness, and no existing condition exists which, with the giving of notice or the passage of time, or both, would constitute such a default, in either case, which default is or would be likely to have a material adverse effect on the Business.

 

(y)    Authority to Merge.  M3 has all requisite power and authority to execute, deliver, and perform this Agreement.  All necessary corporate proceedings of M3 have been duly taken to authorize the execution, delivery, and performance of this Agreement by M3.  This Agreement has been duly authorized, executed and delivered by M3; is the legal, valid, and binding obligation of M3; and is enforceable as to it in accordance with its terms subject to any laws relating to bankruptcy or any other similar laws.

(z)    Records.  The books of account and minute books of M3 are complete and correct, and reflect all those transactions involving its business which properly should have been set forth in such books.

 

(aa)   SEC Filings.  M3 has had the opportunity to review and has reviewed all of the filings of EGPI with the SEC (the “SEC Filings”).

 

(bb)   Representations and Warranties True and Complete.  All representations and warranties of M3 in this Agreement and the Other Agreements are true, accurate and complete in all material respects as of the Effective Date.

 

(cc)   No Knowledge of Default.  M3 has no knowledge that any representations and warranties of EGPI or the Subsidiary contained in this Agreement or the Other Agreements are untrue, inaccurate or incomplete or that EGPI or the Subsidiary is in default under any term or provision of this Agreement or the Other Agreements.

 

(dd)   No Untrue Statements.  No representation or warranty by M3 in this Agreement or in any writing furnished or to be furnished pursuant hereto, contains or will contain any untrue statement of a material fact, or omits, or will omit to state any material fact required to make the statements herein or therein contained not misleading.

 

(ee)   Reliance.  The foregoing representations and warranties are made by M3 with the knowledge and expectation that EGPI and the Subsidiary are placing complete reliance thereon.

 

15.    Representations and Warranties of EGPI and the Subsidiary.  Where a representation contained in this Agreement is qualified by the phrase “to the best knowledge of EGPI or the Subsidiary” (or words of similar import), such expression means that, after having conducted a due diligence review, EGPI and the Subsidiary believe the statement to be true, accurate, and complete in all material respects.  Knowledge shall not be imputed nor shall it include any matters which such person should have known or should have been reasonably expected to have known.  EGPI and the Subsidiary hereby represent and warrant to M3 as follows:

 

(a)    Power and Authority.  EGPI and the Subsidiary have full power and authority to execute, deliver and perform this Agreement and the Other Agreements.

 

(b)    Authorization.  The execution, delivery and performance of this Agreement and the Other Agreements by EGPI and the Subsidiary have been duly authorized by all requisite corporate action.

 

(c)    Binding Effect.  Upon execution and delivery by EGPI and the Subsidiary, this Agreement and the Other Agreements shall be and constitute the valid, binding and legal obligations of EGPI and the Subsidiary enforceable against them in accordance with the terms hereof or thereof, except as the enforceability hereof and thereof may be subject to the effect of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(d)    Effect.  Neither the execution and delivery of this Agreement or the Other Agreements nor full performance by EGPI and the Subsidiary of their obligations hereunder or thereunder will violate or breach, or otherwise constitute or give rise to a default under, the terms or provisions of the Articles of Incorporation or Bylaws of EGPI or the Subsidiary or, subject to obtaining any and all necessary consents, of any contract, commitment or other obligation of EGPI or the Subsidiary or necessary for the operation of the business of EGPI or the Subsidiary following the Effective Date or any other material contract, commitment, or other obligation to which EGPI or the Subsidiary is a party, or create or result in the creation of any encumbrance on any of the assets of EGPI or the Subsidiary.

 

(e)    No Consents.  No consent, approval or authorization of, or registration, declaration or filing with any third party, including, but not limited to, any governmental department, agency, commission or other instrumentality, will, except such consents, if any, delivered or obtained on or prior to the Effective Date, be obtained or made by EGPI and the Subsidiary prior to the Effective Date to authorize the execution, delivery and performance by EGPI and the Subsidiary of this Agreement or the Other Agreements.

 

(f)    Access to Records.  EGPI and the Subsidiary shall afford M3 and its attorneys, accountants, investment bankers and other representatives access, during normal business, to all of its business operations, properties, books, files, and records, and will cooperate in their examination thereof.  No such examination, however, shall constitute a waiver or relinquishment by M3 of its right to rely upon covenants, representations, and warranties of EGPI and the Subsidiary made herein or pursuant hereto.  Until the Effective Date or the termination of this Agreement, whichever shall occur first, and after the termination of this Agreement in the event this Agreement does not close, M3 will hold in confidence all information so obtained by M3 as a result of such examination.

 

(g)    Exchange Act Status.  EGPI is a fully reporting company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the EGPI Common Stock is registered under Section 12(g) of the Exchange Act.  At the Effective Date, EGPI shall be current in all of its SEC Filings as required by the Exchange Act.

(h)    Financial Statement.  EGPI has furnished M3 by means of the SEC Edgar web site containing the SEC Filings of EGPI an audited consolidated balance sheet of EGPI as of December 31, 2008, and the related consolidated statement of income and retained earnings for the period covered thereby (the “EGPI Financial Statement”).  The EGPI Financial Statement (i) is in accordance with the books and records of EGPI; (ii) fairly presents the financial condition of EGPI at such date and the results of its operations for the period therein specified; (iii) was prepared in accordance with generally accepted accounting principles applied upon a basis consistent with prior accounting periods; and (iv) with respect to all contracts and commitments of EGPI, reflects adequate reserves for all reasonably anticipated losses and costs in excess of anticipated income.  Specifically, but not by way of limitation, the EGPI Financial Statement discloses all of the debts, liabilities, and obligations of any nature (whether absolute, accrued, contingent, or otherwise and whether due or to become due) of EGPI on the dates therein specified (except such debts, liabilities, and obligations as are not required to be reflected therein in accordance with generally accepted accounting principles).

The Liability Level of EGPI at the Effective Date as disclosed on Schedule 15(h) attached hereto shall be paid in the manner specified on Schedule 15(h).

 

(i)    Litigation.  Other than as reflected on the SEC Edgar web site containing the SEC Filings of EGPI, to the best of its belief and understanding, EGPI has disclosed all litigation, arbitrations, claims, governmental or other proceedings (formal or informal), or investigations pending, threatened, or in prospect (or any basis therefor known to EGPI) with respect to EGPI, or any of its business, properties, or assets prior to the execution of this Agreement.  Except as reflected on the SEC Edgar web site containing the SEC Filings of EGPI, EGPI is not affected by any present or threatened strike or other labor disturbance or, to the best knowledge of EGPI, is any union attempting to represent any employee of EGPI as collective bargaining agent.  To the best of its belief and understanding, EGPI is not in material violation of, or in material default with respect to, any law, rule, regulation, order, judgment, or decree; nor is EGPI required to take any action in order to avoid such a violation or default.

(j)    Compliance with Laws and Regulations.  Except as otherwise disclosed on the SEC Edgar web site containing the SEC Filings of EGPI, to the best knowledge of EGPI, EGPI is in material compliance, with all laws, ordinances, codes, restrictions, regulations (environmental and otherwise) and other legal requirements applicable to the conduct of its business, the noncompliance with which would be likely to have a material adverse effect on its business; and there are no lawsuits or proceedings pending or, to its best knowledge, threatened with respect to the foregoing.

 

(k)    Absence of Certain Changes or Events.  Except as otherwise disclosed on the SEC Edgar web site containing the SEC Filings of EGPI, since December 31, 2008, there has not been any change in or any event or condition (financial or otherwise) affecting the property, assets (including cash and all accounts receivable), liabilities, operations, or prospects of EGPI, other than changes in the ordinary course of its business, none of which has (either when taken by itself or taken in conjunction with all other such changes) been materially adverse.

 

(l)    No Disputes with Auditors.  As of the date of this Agreement, neither EGPI nor the Subsidiary has had any disputes with its auditors.

 

(m)    Tax Returns and Audits.  As of the date of this Agreement, EGPI and the Subsidiary have duly filed all federal, state, and local tax returns as required to be filed by them (including, but not limited to, all payroll or other employment related tax returns), and have paid all federal, state and local taxes, including, but not limited to all payroll and employment taxes, required to be paid with respect to the periods covered by such returns.  EGPI and the Subsidiary have not been delinquent in the payment of any tax, assessment, or governmental charge, and have not had any tax deficiencies proposed or assessed against them and have not executed any waiver of the statute of limitations on the assessment or collection of any tax.  EGPI has delivered to M3 all tax returns of EGPI and the Subsidiary for the last five years.

 

(n)    Organization and Standing of EGPI.  EGPI is a duly organized and validly existing Nevada corporation in good standing, with all requisite corporate power and authority to carry on its business as presently conducted.  EGPI has not qualified to do business in any other state other than the State of Arizona.

 

(o)    Subsidiaries.  EGPI has two subsidiaries, namely, the Subsidiary, which is a duly organized and validly existing Nevada corporation in good standing, with all requisite corporate power and authority to carry on its business as presently conducted, and Malibu Holding, Inc., a Nevada corporation (“Malibu Holding”), neither of which is qualified to do business in any other state.

(p)    Capitalization of EGPI.  EGPI is authorized by its Articles of Incorporation to issue 1,300,000,000 shares of the EGPI Common Stock of which 9,547,206 shares duly and validly issued and outstanding, fully paid, and non-assessable as of the Effective Date, 20,000,000 shares of non-voting common stock, par value $0.001 per share, none of which are issued or outstanding, and 60,000,000 shares of preferred stock, par value $0.001 per share, none of which are issued or outstanding (herein referred to as the EGPI Preferred Stock, which includes the EGPI Series C Preferred Stock, and which have the preferences and limitations as disclosed on Schedule 15(p) attached hereto).  Other than as disclosed herein, or in its filings on the SEC web site, there are no outstanding options, contracts, commitments, warrants, preemptive rights, agreements or any rights of any character affecting or relating in any manner to the issuance of the EGPI Common Stock or other securities or entitling anyone to acquire the EGPI Common Stock or other securities of EGPI.  It is understood, that the shares of the Series C Preferred Stock described in Schedule 15(p) and to be issued to the M3 Stockholders hereunder are non-convertible and each share of the Series C Preferred Stock has the voting rights of 21,200 shares of the EGPI Common Stock.

 

(q)    Capitalization of the Subsidiary.  The Subsidiary is authorized by its Articles of Incorporation to issue 10,000,000 shares of the Subsidiary Common Stock, one share of which will be duly and validly issued and outstanding, fully paid, and non-assessable as of the Effective Date.  Other than as disclosed herein, or in its filings on the SEC web site there are no outstanding options, contracts, commitments, warrants, preemptive rights, agreements or any rights of any character affecting or relating in any manner to the issuance of the Subsidiary Common Stock or other securities or entitling anyone to acquire the Subsidiary Common Stock or other securities of the Subsidiary.

(r)    Effect of the Transaction.  Following the Effective Date and all of the transactions described herein, the M3 Stockholders will own 11,934,007shares of the EGPI Common Stock, which will represent approximately 50 percent of the issued and outstanding shares of the EGPI Common Stock.  Following the Effective Date and all of the transactions described herein, EGPI shall have 23,868,015 shares of the EGPI Common Stock issued and outstanding, owned as follows: (a) 9,547,206 shares owned by the EGPI Stockholders; (b) 11,934,007 shares owned by the M3 Stockholders; and (c) 2,386,802 shares owned by Strategic Partners.  In addition, the M3 Stockholders will own 5,000 shares of the EGPI Preferred Stock.

 

(s)    Employees.  As of the Effective Date, EGPI will have no employees and the Subsidiary will have no employees.  However, Energy Producers will have three persons engaged under month to month service agreements.

 

(t)    No Employment Contracts.  Other than indicated in Paragraph 15(s) with respect to Energy Producers, EGPI and the Subsidiary, as of the Effective Date, shall have no employment contracts or agreements with any of its officers, directors, or with any consultants, employees or other parties, other than as disclosed in EDGAR filings for EGPI through the first quarter of 2009 ended March 31, 2009.

 

(u)    No Benefit Plans.  EGPI and the Subsidiary have no insurance or employee benefit plans whatsoever.

 

(v)    No Powers of Attorney.  EGPI and the Subsidiary have no outstanding powers or attorney and no obligations concerning its performance hereunder.

 

(w)    Compliance.  EGPI shall cause EGPI and the Subsidiary and their officers and employees to comply with all applicable provisions of this Agreement.

 

(x)    Representations and Warranties of True and Complete.  All representations and warranties of EGPI and the Subsidiary in this Agreement and the Other Agreements are true, accurate and complete in all material respects as of the Effective Date.

 

(y)    No Knowledge of Default.  EGPI and the Subsidiary have no knowledge that any of the representations and warranties of M3 contained in this Agreement or the Other Agreements are untrue, inaccurate or incomplete in any respect or that M3 are in default under any term or provision of this Agreement or the Other Agreements.

 

(z)    No Untrue Statements.  No representation or warranty by EGPI and the Subsidiary in this Agreement or in any writing furnished or to be furnished pursuant hereto, contains or will contain any untrue statement of a material fact, or omits, or will omit to state any material fact required to make the statements herein or therein contained not misleading.

 

(aa)    Reliance.  The foregoing representations and warranties are made by EGPI and the Subsidiary with the knowledge and expectation that M3 is placing complete reliance thereon.

 

16.    Conditions Precedent to Obligations of EGPI and the Subsidiary.  All obligations of EGPI and the Subsidiary under this Agreement are subject to the fulfillment, prior to or at the Effective Date, of the following conditions:

 

(a)    Representations and Warranties True at the Effective Date.  The representations and warranties of M3 herein shall be deemed to have been made again as of the Effective Date, and then be true and correct, subject to any changes contemplated by this Agreement.  M3 shall have performed all of the obligations to be performed by it hereunder on or prior to the Effective Date.

 

(b)    Proof of Authority.  The counsel for EGPI shall have received evidence reasonably sufficient to such counsel that M3 has all requisite authorizations necessary for consummation by M3 of the transactions contemplated hereby, and there has not been issued, and there is not in effect, any injunction or similar legal order prohibiting or restraining consummation of any of the transactions herein contemplated, and no legal or governmental action, proceeding or investigation which might reasonably be expected to result in any such injunction or order is pending.

(c)    No Orders.  There has not been issued, and there is not in effect, any injunction or similar legal order prohibiting or restraining consummation of any of the transactions herein contemplated, and no legal or governmental action, proceeding or investigation which might reasonably be expected to result in any such injunction or order is pending.

 

(d)    Deliveries at the Effective Date.  M3 shall have delivered to EGPI and the Subsidiary at the Effective Date all of the documents required to be delivered hereunder.

 

(e)    Certificates of Good Standing.  M3 shall have delivered to EGPI certificates or telegrams issued by appropriate governmental authorities evidencing the good standing of M3 as of a date not more than 1 days prior to the Effective Date, in the State of Nevada and in each state where M3 is qualified to do business.

 

(f)    Opinion of Counsel.  M3 shall have delivered at the Effective Date to EGPI an opinion of its counsel dated as of date of the Effective Date in form and substance reasonably satisfactory to EGPI and its counsel, to the effect that (i) M3 is a duly and validly organized and existing corporation in good standing under the laws of the State of Nevada, and in each state where M3 may be qualified as a foreign corporation, with full corporate power to carry on the business in which it is engaged; (ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of or cause a default under the Articles of Incorporation or Bylaws of M3 or, to M3’s said counsel best knowledge and belief any order, rule, or regulation of any court, governmental agency or body having jurisdiction over M3, or any of its activities, properties, any statute, indenture, mortgage, deed of trust, lease, loan agreement, security agreement, or other agreement or instrument known to said counsel, to which M3 is a party or by which it is bound or to which any of its property is subject; (iii) no provision of the Articles of Incorporation, Bylaws, minutes or share certificates of M3 or, to M3’s said counsel’s best knowledge and belief, any contract to which M3 is a party or otherwise bound or affected, prevents the M3 Stockholders from delivering good, absolute, and marketable title to the M3 Common Stock to EGPI as contemplated by this Agreement; (iv) M3 is authorized by its Articles of Incorporation to issue 100,000,000 shares of the M3 Common Stock; (v) that as of the date of this Agreement, there were 10,200,000 shares of the M3 Common Stock duly and validly issued and outstanding, fully paid, and non-assessable; (vi) as of the Effective Date, all shares of the M3 Common Stock were held by seven M3 Stockholders all of whom are “accredited investors” as defined in the Securities Act, and subject to the terms of the Merger as of the Effective Date; (vii) to the best knowledge and belief of such counsel the issuance and sale of the M3 Common Stock did not violate the Securities Act, or the rules and regulations of the SEC thereunder, or applicable state securities or Blue Sky Laws, and that M3 has no other authorized or outstanding series or class of capital stock or other securities; and (viii) such counsel has no knowledge of any litigation, proceeding, or governmental investigation or labor dispute pending or threatened against or relating to M3, its properties or businesses, except as set forth herein or in said opinion.

(g)    Resolutions.  The counsel for EGPI shall have received certified resolutions of a meeting of the Board of Directors of M3 and the M3 Stockholders pursuant to which this Agreement and the transactions contemplated hereby were duly and validly approved, adopted and ratified by the Board of Directors of M3 and the M3 Stockholders, all in form and content satisfactory to such counsel, authorizing (i) the execution, delivery and performance of this Agreement, (ii) such other documents and instruments as shall be necessary to consummate the transactions contemplated hereby and thereby, and (iii) all actions to be taken by M3 hereunder.

 

(h)    Certification.  M3 shall have delivered to EGPI at the Effective Date a certificate dated as of the Effective Date, executed by M3, certifying that the conditions specified in this Paragraph 16 have been fulfilled.

 

(i)    Other Matters.  All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transaction shall be satisfactory in form and substance to EGPI and the Subsidiary and their counsel, whose approval shall not be unreasonably withheld.

17.    Conditions Precedent to Obligations of M3.  All obligations of M3 under this Agreement are subject to the fulfillment, prior to or at the Effective Date, of the following conditions:

 

(a)    Representations and Warranties True at Effective Date.  The representations and warranties of EGPI and the Subsidiary herein shall be deemed to have been made again at the Effective Date, and then be true and correct, subject to any changes contemplated by this Agreement.  EGPI and the Subsidiary shall have performed all of the obligations to be performed by EGPI and the Subsidiary hereunder on or prior to the Effective Date.

 

(b)    Proof of Authority.  The counsel for M3 shall have received evidence reasonably sufficient to such counsel that EGPI and the Subsidiary have all requisite authorizations necessary for consummation by EGPI and the Subsidiary of the transactions contemplated hereby, and there has not been issued, and there is not in effect, any injunction or similar legal order prohibiting or restraining consummation of any of the transactions herein contemplated, and no legal or governmental action, proceeding or investigation that might reasonably be expected to result in any such injunction or order is pending.

(c)    SEC Filings.  EGPI shall be current in all of the SEC Filings as of the Effective Date.

 

(d)    No Disputes with Auditors.  As of the Effective Date, neither EGPI nor the Subsidiary shall have had any disputes with its auditors.

 

(e)    Proof of Election of and Resignations.  On the Effective Date, EGPI shall deliver proof of the election of the persons selected by M3 to the Board of Directors of EGPI and as officers of EGPI, as well as the resignations of all of those persons who were the officers and directors of EGPI before the Effective Date and following the election of the persons selected by M3 as described herein.

 

(f)    Opinion of Counsel.  EGPI and the Subsidiary shall have delivered at the Effective Date to M3 an opinion of their counsel dated as of date of the Effective Date in form and substance reasonably satisfactory to M3 and its counsel, to the effect that (i) each of EGPI and the Subsidiary is a duly and validly organized and existing corporation in good standing under the laws of the state of its organization, with full corporate power to carry on the business in which it is engaged; (ii) the performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach or violation of any terms or provisions of or cause a default under the Articles of Incorporation, as amended, or Bylaws, as amended, of EGPI or the Subsidiary or to said counsel’s knowledge and belief, any order, rule, or regulation of any court, governmental agency or body having jurisdiction over EGPI or the Subsidiary or any of their activities, properties, any statute, indenture, mortgage, deed of trust, lease, loan agreement, security agreement, or other agreement or instrument known to said counsel, to which they are a party or by which they are bound or to which any of their property is subject; and (iii) no provision of the Articles of Incorporation, as amended, Bylaws, as amended, minutes or share certificates of EGPI or the Subsidiary or, to their said counsel’s knowledge and belief, any contract to which either EGPI or the Subsidiary is a party or otherwise bound or affected, prevents EGPI and the Subsidiary from performing their obligations as contemplated by this Agreement.

(g)    No Orders.  There has not been issued, and there is not in effect, any injunction or similar legal order prohibiting or restraining consummation of any of the transactions herein contemplated, and no legal or governmental action, proceeding or investigation which might reasonably be expected to result in any such injunction or order is pending.

 

(h)    Deliveries at the Effective Date.  EGPI and the Subsidiary shall have delivered to M3 at the Effective Date all of the documents required to be delivered hereunder.

 

(i)    Certificates of Good Standing.  EGPI and the Subsidiary shall have delivered to M3 certificates or telegrams issued by appropriate governmental authorities evidencing the good standing of EGPI and the Subsidiary as of a date not more than 10 days prior to the Effective Date, in the State of Nevada and in each state where EGPI and the Subsidiary are qualified to do business.

(j)    Resolutions.  The counsel for M3 shall have received certified resolutions of a meeting of the Board of Directors of EGPI and the Subsidiary and the stockholder of the Subsidiary pursuant to which this Agreement and the transactions contemplated hereby were duly and validly approved, adopted and ratified by the Board of Directors of EGPI and the Subsidiary and the stockholder of the Subsidiary, all in form and content satisfactory to such counsel, authorizing (i) the execution, delivery and performance of this Agreement, (ii) such other documents and instruments as shall be necessary to consummate the transactions contemplated hereby and thereby, and (iii) all actions to be taken by EGPI and the Subsidiary hereunder.

(k)    Certification.  EGPI and the Subsidiary shall have delivered to M3 at the Effective Date a certificate dated as of the Effective Date, executed by EGPI and the Subsidiary, certifying that the conditions specified in this Paragraph 17 have been fulfilled.

(l)    Other Matters.  All corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transaction shall be satisfactory in form and substance to M3 and its counsel, whose approval shall not be unreasonably withheld.

18.    The Nature and Survival of Representations, Covenants and Warranties.  All statements and facts contained in any memorandum, certificate, instrument, or other document delivered by or on behalf of the parties hereto for information or reliance pursuant to this Agreement, shall be deemed representations, covenants and warranties by the parties hereto under this Agreement.  All representations, covenants and warranties of the parties shall survive the Effective Date and all inspections, examinations, or audits on behalf of the parties, shall expire 18 months after the Effective Date.

 

19.    Records of M3.  For a period of five years following the Effective Date, the books of account and records of M3 pertaining to all periods prior to the Effective Date shall be available for inspection by the M3 Stockholders for use in connection with tax audits.

 

20.    Destruction of Property.  If, on or before the Effective Date, any substantial portion of the fixed assets of any of the parties hereto shall suffer a loss of fire, flood, tornado, hurricane, riot, accident or other calamity, whether or not insured, to such an extent that in the opinion of EGPI there will be such a delay in repairing or replacing said assets so as to materially affect the future operations of any such party, then the other parties hereto may, at their sole option, terminate this Agreement without cost, expense, or liability to any party.

21.    Default by EGPI or the Subsidiary.  If M3 does not default hereunder and either of EGPI or the Subsidiary defaults hereunder, M3 may elect to terminate this Agreement as well as any other agreement executed by M3 in connection with the transactions contemplated by this Agreement, including but not limited to any independent nondisclosure agreement or any other independent agreements, whereupon no party shall be liable to the others hereunder, or M3 may assert any remedy, including specific performance, which M3 may have by reason of any such default.  From and after the Effective Date, subject to the terms and provisions hereof, in the event of a breach by any party of the terms of this Agreement or any obligation of a party which survives the Effective Date, the non-defaulting party may assert any remedy, either at law or in equity to which such non-defaulting party may be entitled.

22.    Default by M3.  If EGPI and the Subsidiary do not default hereunder and M3 defaults hereunder, EGPI may elect to terminate this Agreement as well as any other agreement executed by EGPI and the Subsidiary in connection with the transactions contemplated by this Agreement, including but not limited to any independent nondisclosure agreement or any other independent agreements, whereupon no party shall be liable to the others hereunder, or EGPI and the Subsidiary may assert any remedy, including specific performance, which EGPI and the Subsidiary may have by reason of any such default of M3.  From and after the Effective Date, subject to the terms and provisions hereof, in the event of a breach by any party of the terms of this Agreement or any obligation of a party which survives the Effective Date, the non-defaulting party may assert any remedy, either at law or in equity, to which such non-defaulting party may be entitled.

23.    Termination.  In the event of the termination of this Agreement prior to the Effective Date, no party shall have any obligation to any other in connection herewith or in connection with any other documents which may have been executed by any party with respect to the transactions contemplated by this Agreement whether or not such documents are described herein.

24.    Cooperation.  The parties hereto will each cooperate with the other, at the other’s request and any then mutually agreed expense, in furnishing information, testimony, and other assistance in connection with any actions, proceedings, arrangements, disputes with other persons or governmental inquiries or investigations involving the parties hereto or the transactions contemplated hereby.

 

25.    Further Conveyances and Assurances.  After the Effective Date, each of the parties hereto will, without further cost or expense to, or consideration of any nature from any other party hereto, execute and deliver, or cause to be executed and delivered, to the other parties, such additional documentation and instruments of transfer and conveyance, and will take such other and further actions, as the other parties may reasonably request as more completely to consummate the transactions contemplated hereby.

 

26.    Closing.  The closing of this Agreement (the “Closing”) shall be on or before May 20, 2009, subject to acceleration or postponement from time to time as the parties hereto may mutually agree (the “Closing Date”).  The Closing of this Agreement shall be conducted by electronic communications at 12:00 noon Pacific time on the Closing Date, unless another hour or place is mutually agreed upon by the parties hereto.  Following the Closing Date, Articles of Merger for the Subsidiary and M3 shall be filed with the State of Nevada as described herein.

 

27.    Deliveries on the Effective Date by M3.  Following the filing of Articles of Merger for the Subsidiary and M3 as described herein, on the Effective Date or thereafter as agreed by the parties, M3 shall deliver all documents and certifications required to be delivered hereunder.

 

All documents reflecting any actions taken, received or delivered pursuant to this Paragraph 27 shall be reasonably satisfactory in form and substance to EGPI and the Subsidiary and their counsel.

 

28.    Deliveries on the Effective Date by EGPI and the Subsidiary.  Following the filing of Articles of Merger for the Subsidiary and M3 as described herein, on the Effective Date or thereafter as agreed by the parties, EGPI and the Subsidiary shall deliver shall deliver all documents and certifications required to be delivered hereunder.

 

All documents reflecting any actions taken, received or delivered pursuant to this Paragraph 28 shall be reasonably satisfactory in form and substance to M3 and its counsel.

 

29.    No Assignment.  This Agreement shall not be assignable by any party without the prior written consent of the other parties, which consent shall be subject to such party’s sole, absolute and unfettered discretion.

 

30.    Mediation and Arbitration.  All disputes arising or related to this Agreement must exclusively be resolved first by mediation with a mediator selected by the parties, with such mediation to be held in Atlanta, Georgia.  If such mediation fails, then any such dispute shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time the arbitration proceeding commences, except that (a) Nevada law and the Federal Arbitration Act must govern construction and effect, (b) the locale of any arbitration must be in Atlanta, Georgia, and (c) the arbitrator must with the award provide written findings of fact and conclusions of law.  Any party may seek from a court of competent jurisdiction any provisional remedy that may be necessary to protect its rights or assets pending the selection of the arbitrator or the arbitrator’s determination of the merits of the controversy.  The exercise of such arbitration rights by any party will not preclude the exercise of any self-help remedies (including without limitation, setoff rights) or the exercise of any non-judicial foreclosure rights.  An arbitration award may be entered in any court having jurisdiction.

31.    Attorneys’ Fees.  In the event that it should become necessary for any party entitled hereunder to bring suit against any other party to this Agreement for a breach of this Agreement, the parties hereby covenant and agree that the party who is found to be in breach of this Agreement shall also be liable for all reasonable attorneys’ fees and costs of court incurred by the other parties.  Provided, however, in the event that there has been no breach of this Agreement, whether or not the transactions contemplated hereby are consummated, each party shall bear its own costs and expenses (including any fees or disbursements of its counsel, accountants, brokers, investment bankers, and finders fees).

32.    Benefit.  All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto, and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.

 

33.    Notices.  All notices, requests, demands, and other communications hereunder shall be in writing and delivered personally or sent by registered or certified United States mail, return receipt requested with postage prepaid, or by telecopy or e-mail, if to EGPI and the Subsidiary, addressed to Mr. Dennis R. Alexander, at 6564 Smoke Tree Lane, Scottsdale, Arizona 85253, telephone ###-###-####, telecopier ###-###-####, and e-mail ***@***, and ***@***; and if to M3, addressed to Mr. Robert S. Miller, Jr. at 3400 Peachtree Road, Suite 111, Atlanta, Georgia 30326, telephone ###-###-####, telecopier (____) ______, and email ***@***; and if to Strategic Partners, addressed to Mr. David H. Ray at 1000 Holcomb Woods Parkway, Suite 130, Roswell, Georgia 30076l telephone (___) ____, telecopier (___) ____, and email ***@***.  Any party hereto may change its address upon 10 days’ written notice to any other party hereto.

34.    Construction.  Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.

 

35.    Waiver.  No course of dealing on the part of any party hereto or its agents, or any failure or delay by any such party with respect to exercising any right, power or privilege of such party under this Agreement or any instrument referred to herein shall operate as a waiver thereof, and any single or partial exercise of any such right, power or privilege shall not preclude any later exercise thereof or any exercise of any other right, power or privilege hereunder or thereunder.

 

36.    Cumulative Rights.  The rights and remedies of any party under this Agreement and the instruments executed or to be executed in connection herewith, or any of them, shall be cumulative and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other right or remedy.

 

37.    Invalidity.  In the event any one or more of the provisions contained in this Agreement or in any instrument referred to herein or executed in connection herewith shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement or any such other instrument.

 

38.    Headings.  The headings used in this Agreement are for convenience and reference only and in no way define, limit, amplify or describe the scope or intent of this Agreement, and do not affect or constitute a part of this Agreement.

 

39.    Excusable Delay.  The parties shall not be obligated to perform and shall not be deemed to be in default hereunder, if the performance of a non-monetary obligation required hereunder is prevented by the occurrence of any of the following, other than as the result of the financial inability of the party obligated to perform: acts of God, strikes, lock-outs, other industrial disturbances, acts of a public enemy, war or war-like action (whether actual, impending or expected and whether de jure or de facto), acts of terrorists, arrest or other restraint of government (civil or military), blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, sink holes, civil disturbances, explosions, breakage or accident to equipment or machinery, confiscation or seizure by any government or public authority, nuclear reaction or radiation, radioactive contamination or other causes, whether of the kind herein enumerated or otherwise, that are not reasonably within the control of the party claiming the right to delay performance on account of such occurrence.

 

40.    No Third-Party Beneficiary.  Any agreement to pay an amount and any assumption of liability contained in this Agreement, express or implied, shall be only for the benefit of the undersigned parties and their respective successors and assigns (as herein expressly permitted), and such agreements and assumptions shall not inure to the benefit of the obligees or any other party, whomsoever, it being the intention of the parties hereto that no one shall be or be deemed to be a third-party beneficiary of this Agreement.

 

42.    Incorporation by Reference.  The Attachments and Schedules to this Agreement referred to or included herein constitute integral parts to this Agreement and are incorporated into this Agreement by this reference.

 

43.    Press Releases and Public Announcements.  No party shall issue any press release or make any public announcement relating to the subject matter of this Agreement prior to the Effective Date without the prior written approval of the other parties; provided, however, that any party may make any public disclosure it believes in good faith is required by applicable law or any listing or trading agreement concerning its publicly-traded securities (in which case the disclosing party will use its efforts to advise the other parties prior to making the disclosure).

 

44.    Multiple Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  A facsimile transmission or PDF copy of this signed Agreement shall be legal and binding on all parties hereto.

 

45.    Controlling Agreement.  In the event of any conflict between the terms of this Agreement or any of the Other Agreements or exhibits referred to herein, the terms of this Agreement shall control.

 

46.    Law Governing; Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to any conflicts of laws provisions thereof.  Each party hereby irrevocably submits to the personal jurisdiction of the United States District Court located in Fulton County, Georgia, as well as of the Courts of the State of Georgia in Fulton County, Georgia over any suit, action or proceeding arising out of or relating to this Agreement.  Each party hereby 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 mediation, arbitration, suit, action or proceeding brought in any such county and any claim that any such mediation, arbitration, suit, action or proceeding brought in such county has been brought in an inconvenient forum.

 

47.    Entire Agreement.  This instrument and the attachments hereto contain the entire understanding of the parties and may not be changed orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.

 

IN WITNESS WHEREOF, the parties have executed this Plan of Merger as of May __, 2009.