Share Exchange Agreement

 

 

 

This Share Exchange Agreement, dated as of December 22, 2005, is made by and among Yarraman Winery, Inc., a Nevada corporation formerly named Dazzling Investments, Inc. (the “Acquiror Company”), each of the Persons listed on Exhibit A hereto (collectively, the “Acquiror Company Shareholders”, and individually an “Acquiror Company Shareholder”), each of the Persons listed on Exhibit B hereto (collectively, the “Shareholders”, and individually a “Shareholder”), Delta Dawn Pty Ltd., a company incorporated in Australia (the “Trustee”), as Trustee of the Yarraman Road Trust (the “Trust”), and Yarraman Estate Pty Ltd., a company incorporated in Australia (the “Company”).

 

WHEREAS, The Trust was created as an Australian unit trust by a declaration of trust by the Trustee contained in a deed poll dated September 26, 2002. The Trustee declared itself as trustee of the Trust and has at all times been, and continues to be, the sole trustee of the Trust. The Trust is a fixed trust in which the beneficial interest is divided into units. The holders of units are entitled to the benefit of the assets of the Trust in the proportion in which they are registered as holding units from time to time;

WHEREAS, the Shareholders constitute all of the holders of units in the Trust. The Shares are assets of the Trust;

 

WHEREAS, the Trustee has, with the consent of the Shareholders, agreed to transfer to the Acquiror Company, and the Acquiror Company has agreed to acquire from the Trustee, all of the Shares, which Shares constitute 100% of the issued and outstanding shares of the Company, in exchange for 15,000,000 shares of the Acquiror Company’s Common Stock to be issued on the Closing Date (the “Acquiror Company Shares”), which Acquiror Company Shares shall constitute 60% of the issued and outstanding shares of Acquiror Company’s Common Stock immediately after the closing of the transactions contemplated herein, in each case, on the terms and conditions as set forth herein; and

 

WHEREAS, the Acquiror Company has agreed to issue 1,250,000 Acquiror Company Shares to MillhouseIAG, as compensation for services provided in connection with the transactions contemplated in this Agreement, which Acquiror Company Shares shall constitute 5% of the issued and outstanding shares of Acquiror Company’s Common Stock, on the terms and conditions as set forth herein.

 

 

Unless the context otherwise requires, the terms defined in this Section 1 will have the meanings herein specified for all purposes of this Agreement, applicable to both the singular and plural forms of any of the terms herein defined.

 

 

1.1  “Accredited Investor” has the meaning set forth in Regulation D under the Securities Act and set forth on Exhibit C.

 

1.2  “Acquired Companies” means, collectively, the Company and the Company Subsidiaries.

 

1.3  “Acquiror Company Balance Sheet” means the Acquiror Company’s audited balance sheet at December 31, 2004.

 

1.4  “Acquiror Company Board” means the Board of Directors of the Acquiror Company.

 

1.5  “Acquiror Company Common Stock” means the Acquiror Company’s common stock, par value US $0.001 per share.

 

1.6  “Acquiror Company Shares” means the Acquiror Company Common Stock being issued to the Trustee pursuant hereto.

 

1.7  “Affiliate” means any Person that directly or indirectly controls, is controlled by or is under common control with the indicated Person.

 

1.8  “Agreement” means this Share Exchange Agreement, including all Schedules and Exhibits hereto, as this Share Exchange Agreement may be from time to time amended, modified or supplemented.

 

1.9  “Approved Plans” means a stock option or similar plan for the benefit of employees or others which has been approved by the stockholders of the Acquiror Company.

 

1.10  “Closing Acquiror Company Shares” means the aggregate number of Acquiror Company Shares issuable to the Trustee at the Closing Date.

 

1.11  “Closing Date” has the meaning set forth in Section 3.

 

1.12  “Code” means the Internal Revenue Code of 1986, as amended.

 

1.13  “Common Stock” means the Company’s common shares, US $0.001 nominal or par value per share.

 

1.14  “Commission” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act.

 

1.15  “Company Board” means the Board of Directors of the Company.

 

1.16  “Company Indemnified Party” has the meaning set forth in Section 9.1.

 

1.17  “Company Subsidiaries” means all of the direct and indirect Subsidiaries of the Company.

 

 

1.18  “Covered Persons” means all Persons, other than Acquiror Company, who are parties to indemnification and employment agreements with Acquiror Company existing on or before the Closing Date.

 

1.19  “Damages” has the meaning set forth in Section 10.3.

 

1.20  “Distributor” means any underwriter, dealer or other Person who participates, pursuant to a contractual arrangement, in the distribution of the securities offered or sold in reliance on Regulation S.

 

1.21  “Environmental Laws” means any Law or other requirement relating to the environment, natural resources, or public or employee health and safety.

 

1.22  “Environmental Permit” means all licenses, permits, authorizations, approvals, franchises and rights required under any applicable Environmental Law or Order.

 

1.23  “Equity Security” means any stock or similar security, including, without limitation, securities containing equity features and securities containing profit participation features, or any security convertible into or exchangeable for, with or without consideration, any stock or similar security, or any security carrying any warrant, right or option to subscribe to or purchase any shares of capital stock, or any such warrant or right.

 

1.24  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

1.25  “Exchange” has the meaning set forth in Section 2.1.

 

1.26  “Exchange Act” means the Securities Exchange Act of 1934 or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same will then be in effect.

 

1.27  “Exhibits” means the several exhibits referred to and identified in this Agreement.

 

1.28  “GAAP” means, with respect to any Person, United States generally accepted accounting principles applied on a consistent basis with such Person’s past practices.

 

1.29  “Governmental Authority” means any federal or national, state or provincial, municipal or local government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, political subdivision, commission, court, tribunal, official, arbitrator or arbitral body, in each case whether U.S. or non-U.S.

 

1.30  “Indebtedness” means any obligation, contingent or otherwise. Any obligation secured by a Lien on, or payable out of the proceeds of, or production from, property of the relevant party will be deemed to be Indebtedness.

 

1.31  “Indemnified Persons” has the meaning set forth in Section 7.1.1.

 

 

1.32  “Intellectual Property” means all industrial and intellectual property, including, without limitation, all U.S. and non-U.S. patents, patent applications, patent rights, trademarks, trademark applications, common law trademarks, Internet domain names, trade names, service marks, service mark applications, common law service marks, and the goodwill associated therewith, copyrights, in both published and unpublished works, whether registered or unregistered, copyright applications, franchises, licenses, know-how, trade secrets, technical data, designs, customer lists, confidential and proprietary information, processes and formulae, all computer software programs or applications, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above, including manuals, memoranda, and records, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.

 

1.33  “Laws” means, with respect to any Person, any U.S. or non-U.S. federal, national, state, provincial, local, municipal, international, multinational or other law (including common law), constitution, statute, code, ordinance, rule, regulation or treaty applicable to such Person.

 

1.34  “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction and including any lien or charge arising by Law.

 

1.35  “Material Acquiror Company Contract” means any and all agreements, contracts, arrangements, leases, commitments or otherwise, of the Acquiror Company, of the type and nature that the Acquiror Company is required to file with the Commission.

 

1.36  “Material Adverse Effect” means, when used with respect to the Acquiror Company or the Acquired Companies, as the case may be, any change, effect or circumstance which, individually or in the aggregate, would reasonably be expected to (a) have a material adverse effect on the business, assets, financial condition or results of operations of the Acquiror Company or the Acquired Companies, as the case may be, in each case taken as a whole or (b) materially impair the ability of the Acquiror Company or the Acquired Companies, as the case may be, to perform their obligations under this Agreement, excluding any change, effect or circumstance resulting from (i) the announcement, pendency or consummation of the transactions contemplated by this Agreement, (ii) changes in the United States securities markets generally, or (iii) changes in general economic, currency exchange rate, political or regulatory conditions in industries in which the Acquiror Company or the Acquired Companies, as the case may be, operate.

 

1.37  “Order” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any Governmental Authority.

 

1.38  “Organizational Documents” means (a) the articles or certificate of incorporation and the by-laws or code of regulations of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) the articles or certificate of formation and operating agreement of a limited liability company; (e) any other document performing a similar function to the documents specified in clauses (a), (b), (c) and (d) adopted or filed in connection with the creation, formation or organization of a Person; and (f) any and all amendments to any of the foregoing.

 

 

1.39  “Permitted Liens” means (a) Liens for Taxes not yet payable or in respect of which the validity thereof is being contested in good faith by appropriate proceedings and for the payment of which the relevant party has made adequate reserves; (b) Liens in respect of pledges or deposits under workmen’s compensation laws or similar legislation, carriers, warehousemen, mechanics, laborers and materialmen and similar Liens, if the obligations secured by such Liens are not then delinquent or are being contested in good faith by appropriate proceedings conducted and for the payment of which the relevant party has made adequate reserves; (c) statutory Liens incidental to the conduct of the business of the relevant party which were not incurred in connection with the borrowing of money or the obtaining of advances or credits and that do not in the aggregate materially detract from the value of its property or materially impair the use thereof in the operation of its business; and (d) Liens that would not have a Material Adverse Effect.

 

1.40  “Person” means all natural persons, corporations, business trusts, associations, companies, partnerships, limited liability companies, joint ventures and other entities, governments, agencies and political subdivisions.

 

1.41  “Proceeding” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority.

 

1.42  “Regulation S” means Regulation S under the Securities Act, as the same may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.

 

1.43  “Rule 144” means Rule 144 under the Securities Act, as the same may be amended from time to time, or any successor statute.

 

1.44  “Schedule 14(f) Filing” means an information statement filed by the Acquiror Company on Schedule 14f-1 under the Exchange Act.

 

1.45  “Schedules” means the several schedules referred to and identified herein, setting forth certain disclosures, exceptions and other information, data and documents referred to at various places throughout this Agreement.

 

1.46  “SEC Documents” has the meaning set forth in Section 6.26.

 

1.47  “Section 4(2)” means Section 4(2) under the Securities Act, as the same may be amended from time to time, or any successor statute.

 

1.48  “Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same will be in effect at the time.

 

 

1.49  “Shares” means the issued and outstanding ordinary shares of the Company.

 

1.50  “Subsidiary” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than 50% of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has the power to vote or to direct the voting of sufficient securities to elect a majority of the board of directors or similar governing body.

 

1.51  “Survival Period” has the meaning set forth in Section 11.1.

 

1.52  “Taxes” means all foreign, federal, state or local taxes, charges, fees, levies, imposts, duties and other assessments, as applicable, including, but not limited to, any income, alternative minimum or add-on, estimated, gross income, gross receipts, sales, use, transfer, transactions, intangibles, ad valorem, value-added, franchise, registration, title, license, capital, paid-up capital, profits, withholding, payroll, employment, unemployment, excise, severance, stamp, occupation, premium, real property, recording, personal property, federal highway use, commercial rent, environmental (including, but not limited to, taxes under Section 59A of the Code) or windfall profit tax, custom, duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest, penalties or additions to tax with respect to any of the foregoing; and “Tax” means any of the foregoing Taxes.

 

1.53  “Tax Group” means any federal, state, local or foreign consolidated, affiliated, combined, unitary or other similar group of which the Acquiror Company is now or was formerly a member.

 

1.54  “Tax Return” means any return, declaration, report, claim for refund or credit, information return, statement or other similar document filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

1.55  “Transaction Documents” means, collectively, all agreements, instruments and other documents to be executed and delivered in connection with the transactions contemplated by this Agreement.

 

1.56  “Trust” means the Yarraman Road Trust.

 

1.57  “Trustee” means Delta Dawn Pty Ltd, as trustee of the Trust.

 

1.58  “U.S.” means the United States of America.

 

1.59  “U.S. Dollars” or “US $” means the currency of the United States of America.

 

1.60  “U.S. Person” has the meaning set forth in Regulation S under the Securities Act and set forth on Exhibit D hereto.

 

 

 

2.1  Share Exchange. At the Closing, the Trustee shall transfer 10,180,001 Shares, representing all of the issued and outstanding shares of the Company, and, in consideration therefor, subject to Section 2.2, Acquiror Company shall issue to the Trustee an aggregate of 15,000,000 fully paid and nonassessable shares of Acquiror Company Common Stock (the “Exchange”). The Shareholders are entitled to the benefit of such shares of the Acquiror Company Common Stock in the proportion in which they are registered as holding units in the Trust from time to time, which at the date of this Agreement is reflected on Exhibit B hereto.

 

2.2  Withholding. The Acquiror Company shall be entitled to deduct and withhold from the Acquiror Company Shares otherwise payable pursuant to this Agreement to the Trustee and any Shareholder such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, provincial or foreign tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Trustee or such Shareholder in respect of which such deduction and withholding was made.

 

2.3  Section 368 Reorganization. For U.S. federal income tax purposes, the Exchange is intended to constitute a “reorganization” within the meaning of Section 368(a)(1)(B) of the Code. The parties to this Agreement hereby adopt this Agreement as a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, the parties acknowledge and agree that no party is making any representation or warranty as to the qualification of the Exchange as a reorganization under Section 368 of the Code or as to the effect, if any, that any transaction consummated prior to the Closing Date has or may have on any such reorganization status. The parties acknowledge and agree that each (i) has had the opportunity to obtain independent legal and tax advice with respect to the transaction contemplated by this Agreement, and (ii) is responsible for paying its own Taxes, including without limitation, any adverse Tax consequences that may result if the transaction contemplated by this Agreement is not determined to qualify as a reorganization under Section 368 of the Code.

 

2.4  Directors of Acquiror Company at Closing Date. By the Closing Date the current directors of the Acquiror Company shall appoint William J. Stubbs, William Middleton and John Moroney, as members of the Acquiror Company Board. Simultaneously therewith, all current directors of the Acquiror Company shall resign as directors of the Acquiror Board.

 

2.5  Officers of Acquiror Company at Closing Date. By the Closing Date, Gloria Eck, Amy Hadley and Carole Brewer shall resign as officers of the Acquiror Company and Andrew Lyon shall be appointed to serve as Chief Executive Officer and President and John Laurence Wells shall be appointed to serve as Chief Financial Officer and Secretary.

 

2.6  Finders Fee. The Acquiror Company shall issue to MillhouseIAG Limited an aggregate of 1,250,000 shares of Acquiror Company Common Stock, as compensation for services provided in connection with the transactions contemplated herein. The shares shall be held in escrow by the Trustee pursuant to an escrow agreement and released only upon the sale of common stock of the Acquiror Company for aggregate gross proceeds of $2,000,000 pursuant to the terms set forth in the documents prepared in satisfaction of Section 10.9 herein.

 

 

 

3.1  Closing Date. The closing of the Exchange will occur upon execution of this Agreement on December 22, 2005 or at such later date as all of the closing conditions set forth in Sections 8 and 9 have been satisfied or waived (the “Closing Date”).

 

 

4.1  Generally. Each Shareholder and the Trustee, severally and not jointly, hereby represents and warrants to the Acquiror Company:

 

4.1.1  Authority. Such Shareholder and the Trustee has the right, power, authority and capacity to execute and deliver this Agreement and each of the Transaction Documents to which such Shareholder or the Trustee is a party, to consummate the transactions contemplated by this Agreement and each of the Transaction Documents to which such Shareholder and the Trustee is a party, and to perform such Shareholder’s or the Trustee’s obligations under this Agreement and each of the Transaction Documents to which such Shareholder or the Trustee is a party. This Agreement has been, and each of the Transaction Documents to which such Shareholder or the Trustee is a party will be, duly and validly authorized and approved, executed and delivered by such Shareholder or the Trustee. Assuming this Agreement and the Transaction Documents have been duly and validly authorized, executed and delivered by the parties thereto other than such Shareholder or the Trustee, this Agreement is, and each of the Transaction Documents to which such Shareholder or the Trustee is a party have been, duly authorized, executed and delivered by such Shareholder and the Trustee and constitutes the legal, valid and binding obligation of such Shareholder and the Trustee, enforceable against such Shareholder and the Trustee in accordance with their respective terms, except as such enforcement is limited by general equitable principles, or by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors rights generally.

 

4.1.2  No Conflict. Neither the execution or delivery by such Shareholder or the Trustee of this Agreement or any Transaction Document to which such Shareholder or the Trustee is a party, nor the consummation or performance by such Shareholder or the Trust of the transactions contemplated hereby or thereby will, directly or indirectly, (a) contravene, conflict with, or result in a violation of any provision of the Organizational Documents of the Trustee or with the deed poll establishing the Trust; (b) contravene, conflict with, constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, any agreement or instrument to which such Shareholder is a party or by which the properties or assets of such Shareholder or the Trustee are bound; or (c) contravene, conflict with, or result in a violation of, any Law or Order to which such Shareholder or the Trustee, or any of the properties or assets of such Shareholder or the Trustee, may be subject.

 

 

4.1.3  Ownership of Shares. Such Shareholder or the Trustee owns, of record and beneficially, and has good, valid and indefeasible title to and the right to transfer to the Acquiror Company pursuant to this Agreement, the Shares free and clear of any and all Liens. There are no options, rights, voting trusts, stockholder agreements or any other contracts or understandings to which such Shareholder or the Trustee is a party or by which such Shareholder or the Trustee or the Shares are bound with respect to the issuance, sale, transfer, voting or registration of such Shares. At the Closing Date, the Acquiror Company will acquire good, valid and marketable title to the Shares free and clear of any and all Liens.

 

4.1.4  Litigation. There is no pending Proceeding against such Shareholder or the Trustee that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement and, to the knowledge of such Shareholder and the Trustee, no such Proceeding has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such Proceeding.

 

4.1.5  No Brokers or Finders. Except as disclosed in Schedule 4.1.5, no Person has, or as a result of the transactions contemplated herein will have, any right or valid claim against such Shareholder or the Trustee for any commission, fee or other compensation as a finder or broker, or in any similar capacity, and such Shareholder or the Trustee will indemnify and hold the Acquiror Company harmless against any liability or expense arising out of, or in connection with, any such claim.

 

4.2  Investment Representations. Each Shareholder and the Trustee, severally and not jointly, hereby represents and warrants to the Acquiror Company:

 

4.2.1  Acknowledgment. Each Shareholder and the Trustee understands and agrees that the Acquiror Company Shares to be issued pursuant to this Agreement has not been registered under the Securities Act or the securities laws of any state of the U.S. and that the issuance of the Acquiror Company Shares is being effected in reliance upon an exemption from registration afforded either under Section 4(2) of the Securities Act for transactions by an issuer not involving a public offering or Regulation S for offers and sales of securities outside the U.S.

 

4.2.2  Status. By its execution of this Agreement, each Shareholder and the Trustee, severally and not jointly, represents and warrants to the Acquiror Company as indicated on its signature page to this Agreement, either that:

 

(a)  such Shareholder and the Trustee is an Accredited Investor; or

 

(b)  such Shareholder and the Trustee is not a U.S. Person.

 

Each Shareholder and the Trustee severally understands that the Acquiror Company Shares are being offered and sold to the Trustee in reliance upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Shareholder set forth in this Agreement, in order that the Acquiror Company may determine the applicability and availability of the exemptions from registration of the Acquiror Company Shares on which the Acquiror Company is relying.

 

 

4.2.3  Additional Representations and Warranties of Accredited Investors. Each Shareholder and the Trustee indicating that such Shareholder and the Trustee is an Accredited Investor on its signature page to this Agreement, severally and not jointly, further makes the representations and warranties to the Acquiror Company set forth on Exhibit E.

 

4.2.4  Additional Representations and Warranties of Non-U.S. Persons. Each Shareholder and the Trustee indicating that it is not a U.S. person on its signature page to this Agreement, severally and not jointly, further makes the representations and warranties to the Acquiror Company set forth on Exhibit F.

 

4.2.5  Stock Legends. Each Shareholder and the Trustee hereby agrees with the Acquiror Company as follows:

 

(a)  Securities Act Legend - Accredited Investors. The certificates evidencing the Acquiror Company Shares issued to those who are Accredited Investors, and each certificate issued in transfer thereof, will bear the following legend:

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.

 

(b)  Securities Act Legend - Non-U.S. Persons. The certificates evidencing the Acquiror Company Shares issued to those who are not U.S. Persons, and each certificate issued in transfer thereof, will bear the following legend:

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF REGULATION S HAVE BEEN SATISFIED (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (3) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.

 

 

(c)  Other Legends. The certificates representing such Acquiror Company Shares, and each certificate issued in transfer thereof, will also bear any other legend required under any applicable Law, including, without limitation, any U.S. state corporate and state securities law, or contract.

 

(d)  Opinion. No Shareholder nor the Trustee will transfer any or all of the Acquiror Company Shares pursuant to Regulation S or absent an effective registration statement under the Securities Act and applicable state securities law covering the disposition of the Acquiror Company Shares, without first providing the Acquiror Company with an opinion of counsel (which counsel and opinion are reasonably satisfactory to the Acquiror Company) to the effect that such transfer will be made in compliance with Regulation S or will be exempt from the registration and the prospectus delivery requirements of the Securities Act and the registration or qualification requirements of any applicable U.S. state securities laws.

 

(e)  Consent. Each Shareholder and the Trustee understands and acknowledges that the Acquiror Company may refuse to transfer the Acquiror Company Shares, unless such Shareholder complies with this Section 4.2.5 and any other restrictions on transferability set forth in Exhibits E and F. Each Shareholder and the Trustee consents to the Acquiror Company making a notation on its records or giving instructions to any transfer agent of the Acquiror Company’s Common Stock in order to implement the restrictions on transfer of the Acquiror Company Shares.

 

 

The Company and the Trustee represent and warrant to the Acquiror Company as follows:

 

 

5.1  Organization and Qualification. The Company is duly incorporated and validly existing under the laws of Australia, has all requisite authority and power (corporate and other), governmental licenses, authorizations, consents and approvals to carry on its business as presently conducted and as contemplated to be conducted, to own, hold and operate its properties and assets as now owned, held and operated by it, to enter into this Agreement, to carry out the provisions hereof except where the failure to be so organized, existing and in good standing or to have such authority or power will not, in the aggregate, either (i) have a material adverse effect on the business, assets, financial condition, or prospects of the Company, or (ii) materially impair the ability of the Company, the Trustee and the Shareholders each to perform their material obligations under this Agreement (any of such effects or impairments, a “Material Adverse Effect”). The Company is duly qualified, licensed or domesticated as a foreign corporation in good standing in each jurisdiction wherein the nature of its activities or its properties owned or leased makes such qualification, licensing or domestication necessary, except where the failure to be so qualified, licensed or domesticated will not have a Material Adverse Effect. Set forth on Schedule 5.1 is a list of those jurisdictions in which the Company presently conducts its business, owns, holds and operates its properties and assets.

 

5.2  Subsidiaries. Except as set forth on Schedule 5.2, the Company does not own directly or indirectly, any equity or other ownership interest in any corporation, partnership, joint venture or other entity or enterprise.

 

5.3  Constitution. The Company is governed by a constitution in accordance with the Corporations Act. The Company is not in violation or breach of any of the provisions of the replaceable rules, except for such violations or breaches as, in the aggregate, will not have a Material Adverse Effect.

 

5.4  Authorization and Validity of this Agreement. The recording of the transfer of the Shares and the delivery of new certificates representing the Shares registered in the name of Acquiror Company are within the Company’s corporate powers, have been duly authorized by all necessary corporate action, do not require from the Board or the Trustee or Shareholders of the Company any consent or approval that has not been validly and lawfully obtained, require no authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality of government that has not been validly and lawfully obtained, filed or registered, as the case may be, except for those that, if not obtained or made would not have a Material Adverse Effect and with the exception that the Acquiror Company must have the share transfers stamped with the New South Wales revenue authorities, with the stamp duty payable on such transfers is estimated to be AU$51,200.

 

5.5  No Violation. None of the execution, delivery or performance by the Company of this Agreement or any Transaction Document to which the Company is a party, nor the consummation by the Company of the transactions contemplated hereby violates any provision of its Organizational Documents, or violates or conflicts with, or constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or result in the creation of imposition of any Lien under, any agreement or instrument to which the Company is a party or by which the Company is or will be bound or subject, or violate any laws.

 

 

5.6  Binding Obligations. Assuming this Agreement has been duly and validly authorized, executed and delivered by the Acquiror Company, the Acquiror Company Shareholders, the Trustee and the Shareholders of the Company, this Agreement is and all agreements or instruments contemplated hereby to which the Company is a party, have been duly authorized, executed and delivered by the Company and are the legal, valid and binding Agreement of the Company and is enforceable against the Company in accordance with its terms, except as such enforcement is limited by general equitable principles, or by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally.

 

5.7  Capitalization and Related Matters.

 

5.7.1  Capitalization. The issued capital stock of the Company consists of 10,180,001 ordinary fully paid shares held in the name of the Trustee on behalf of the Trust. The Trust is an Australian unit trust having 2,631 issued and outstanding units held by the Shareholders, in the amounts listed on Exhibit B hereto. Except as set forth in Schedule 5.7.1, there are no outstanding or authorized options, warrants, calls, subscriptions, rights (including any preemptive rights or rights of first refusal), agreements or commitments of any character obligating the Company to issue any ordinary shares or any other capital stock of the Company. All issued and outstanding shares of the Company’s capital stock are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of any preemptive or similar rights.

 

5.7.2  No Redemption Requirements. Except as set forth in Schedule 5.7.2, there are no outstanding contractual obligations (contingent or otherwise) of the Company to retire, repurchase, redeem or otherwise acquire any outstanding shares of capital stock of, or other ownership interests in, the Company or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity.

 

5.7.3  Duly Authorized. The exchange of the Shares has been duly authorized, and the Shares have been validly issued and are fully paid and nonassessable.

 

5.8  Shareholders. The Trustee is the only entity holding the Shares. Exhibit B contains a true and complete list of the names of the record and beneficial holders of all of the outstanding units of the Trust. Except as expressly provided in this Agreement, no holder of Shares or any other security of the Company or any other Person is entitled to any preemptive right, right of first refusal or similar right as a result of the issuance of the shares or otherwise. There is no voting trust, agreement or arrangement among any of the shareholders of any capital stock of the Company affecting the exercise of the voting rights of any such capital stock.

 

5.9  Compliance with Laws and Other Instruments. Except as would not have a Material Adverse Effect, the business and operations of the Company have been and are being conducted in accordance with all applicable foreign, federal, state and local laws, rules and regulations and all applicable orders, injunctions, decrees, writs, judgments, determinations and awards of all courts and governmental agencies and instrumentalities. Except as would not have a Material Adverse Effect, the Company is not, and is not alleged to be, in violation of, or (with or without notice or lapse of time or both) in default under, or in breach of, any term or provision of its Organizational Documents or of any indenture, loan or credit agreement, note, deed of trust, mortgage, security agreement or other material agreement, lease, license or other instrument, commitment, obligation or arrangement to which the Company is a party or by which any of the Company’s properties, assets or rights are bound or affected. To the knowledge of the Company, no other party to any material contract, agreement, lease, license, commitment, instrument or other obligation to which the Company is a party is (with or without notice or lapse of time or both) in default thereunder or in breach of any term thereof. The Company is not subject to any obligation or restriction of any kind or character, nor is there, to the knowledge of the Company, any event or circumstance relating to the Company that materially and adversely affects in any way its business, properties, assets or prospects or that would prevent or make burdensome its performance of or compliance with all or any part of this Agreement or the consummation of the transactions contemplated hereby or thereby.

 

 

5.10  Certain Proceedings. There is no pending Proceeding that has been commenced against the Company and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated in this Agreement. To the Company’s knowledge, no such Proceeding has been threatened.

 

5.11  No Brokers or Finders. Except as disclosed in Schedule 5.11, no person has, or as a result of the transactions contemplated herein will have, any right or valid claim against the Company for any commission, fee or other compensation as a finder or broker, or in any similar capacity, and the Company will indemnify and hold the Acquiror Company harmless against any liability or expense arising out of, or in connection with, any such claim.

 

5.12  Title to and Condition of Properties. Except as disclosed in Schedule 5.12. As of the Closing Date, the Company owns or holds under valid leases or other rights to use all real property, plants, machinery and equipment necessary for the conduct of the business of the Company as presently conducted, except where the failure to own or hold such property, plants, machinery and equipment would not have a Material Adverse Effect on the Company. The material buildings, plants, machinery and equipment necessary for the conduct of the business of the Company as presently conducted are structurally sound, are in good operating condition and repair and are adequate for the uses to which they are being put, in each case, taken as a whole, and none of such buildings, plants, machinery or equipment is in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost. 

 

5.13  Board Recommendation. The Board has, by unanimous written consent, determined that this Agreement and the transactions contemplated by this Agreement, are advisable and in the best interests of the Trust, the Trustee and the Shareholders.

 

 

The Acquiror Company and the Acquiror Company Shareholders, jointly and severally, represent and warrant to the Trustee, the Shareholders and the Company as follows:

 

 

6.1  Organization and Qualification. The Acquiror Company is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has all requisite authority and power (corporate and other), governmental licenses, authorizations, consents and approvals to carry on its business as presently conducted and to own, hold and operate its properties and assets as now owned, held and operated by it, except where the failure to be so organized, existing and in good standing, or to have such authority and power, governmental licenses, authorizations, consents or approvals would not have a Material Adverse Effect. The Acquiror Company is duly qualified, licensed or domesticated as a foreign corporation in good standing in each jurisdiction wherein the nature of its activities or its properties owned, held or operated makes such qualification, licensing or domestication necessary, except where the failure to be so duly qualified, licensed or domesticated and in good standing would not have a Material Adverse Effect. Schedule 6.1 sets forth a true, correct and complete list of the Acquiror Company’s jurisdiction of organization and each other jurisdiction in which the Acquiror Company presently conducts its business or owns, holds and operates its properties and assets.

 

6.2  Subsidiaries. Except as set forth on Schedule 6.2, the Acquiror Company does not own, directly or indirectly, any equity or other ownership interest in any corporation, partnership, joint venture or other entity or enterprise.

 

6.3  Organizational Documents. True, correct and complete copies of the Organizational Documents of the Acquiror Company have been delivered to the Company prior to the execution of this Agreement, and no action has been taken to amend or repeal such Organizational Documents. The Acquiror Company is not in violation or breach of any of the provisions of its Organizational Documents, except for such violations or breaches as would not have a Material Adverse Effect.

 

6.4  Authorization. The Acquiror Company has all requisite authority and power (corporate and other), governmental licenses, authorizations, consents and approvals to enter into this Agreement and each of the Transaction Documents to which the Acquiror Company is a party, to consummate the transactions contemplated by this Agreement and each of the Transaction Documents to which the Acquiror Company is a party and to perform its obligations under this Agreement and each of the Transaction Documents to which the Acquiror Company is a party. The execution, delivery and performance by the Acquiror Company of this Agreement and each of the Transaction Documents to which the Acquiror Company is a party have been duly authorized by all necessary corporate action and do not require from the Acquiror Company Board or the stockholders of the Acquiror Company any consent or approval that has not been validly and lawfully obtained. The execution, delivery and performance by the Acquiror Company of this Agreement and each of the Transaction Documents to which the Acquiror Company is a party requires no authorization, consent, approval, license, exemption of or filing or registration with any Governmental Authority or other Person other than (a) the Schedule 14(f) Filing, and (b) such other customary filings with the Commission for transactions of the type contemplated by this Agreement.

 

 

6.5  No Violation. Neither the execution nor the delivery by the Acquiror Company of this Agreement or any Transaction Document to which the Acquiror Company is a party, nor the consummation or performance by the Acquiror Company of the transactions contemplated hereby or thereby will, directly or indirectly, (a) contravene, conflict with, or result in a violation of any provision of the Organizational Documents of the Acquiror Company; (b) contravene, conflict with, constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or result in the imposition or creation of any Lien under, any agreement or instrument to which the Acquiror Company is a party or by which the properties or assets of the Acquiror Company are bound; (c) contravene, conflict with, or result in a violation of, any Law or Order to which the Acquiror Company, or any of the properties or assets owned or used by the Acquiror Company, may be subject; or (d) contravene, conflict with, or result in a violation of, the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any licenses, permits, authorizations, approvals, franchises or other rights held by the Acquiror Company or that otherwise relate to the business of, or any of the properties or assets owned or used by, the Acquiror Company, except, in the case of clause (b), (c), or (d), for any such contraventions, conflicts, violations, or other occurrences as would not have a Material Adverse Effect.

 

6.6  Binding Obligations. Assuming this Agreement and the Transaction Documents have been duly and validly authorized, executed and delivered by the parties thereto other than the Acquiror Company, this Agreement and each of the Transaction Documents to which the Acquiror Company is a party are duly authorized, executed and delivered by the Acquiror Company and constitutes the legal, valid and binding obligations of the Acquiror Company, enforceable against the Acquiror Company in accordance with their respective terms, except as such enforcement is limited by general equitable principles, or by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors rights generally.

 

6.7  Securities Laws. Assuming the accuracy of the representations and warranties of the Trustee and the Shareholders, as applicable, contained in Section 4 and Exhibits E and F, the issuance of the Acquiror Company Shares pursuant to this Agreement are (a) exempt from the registration and prospectus delivery requirements of the Securities Act, (b) have been registered or qualified (or are exempt from registration and qualification) under the registration permit or qualification requirements of all applicable state securities laws, and (c) accomplished in conformity with all other applicable federal and state securities laws.

 

6.8  Capitalization and Related Matters.

 

6.8.1  Capitalization. The authorized capital stock of the Acquiror Company consists of 25,000,000 shares of the Acquiror Company’s Common Stock, of which 3,496,500 shares are issued and outstanding. All issued and outstanding shares of the Acquiror Company’s Common Stock are duly authorized, validly issued, fully paid and nonassessable, and have not been issued in violation of any preemptive or similar rights. At the Closing Date, the Acquiror Company will have sufficient authorized and unissued Acquiror Company’s Common Stock to consummate the transactions contemplated hereby. There are no outstanding options, warrants, purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require the Acquiror Company to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of capital stock. There are no outstanding stockholders’ agreements, voting trusts or arrangements, registration rights agreements, rights of first refusal or other contracts pertaining to the capital stock of the Acquiror Company. The issuance of all of the shares of Acquiror Company’s Common Stock described in this Section 6.8.1 have been in compliance with U.S. federal and state securities laws.

 

 

6.8.2  No Redemption Requirements. Except as set forth in the SEC Documents, there are no outstanding contractual obligations (contingent or otherwise) of the Acquiror Company to retire, repurchase, redeem or otherwise acquire any outstanding shares of capital stock of, or other ownership interests in, the Acquiror Company or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person.

 

6.8.3  Duly Authorized. The issuance of the Acquiror Company Shares has been duly authorized and, upon delivery to the Trustee of certificates therefor in accordance with the terms of this Agreement, the Acquiror Company Shares will have been validly issued and fully paid, and will be non-assessable, have the rights, preferences and privileges specified, will be free of preemptive rights and will be free and clear of all Liens and restrictions, other than Liens created by the Trustee and restrictions on transfer imposed by this Agreement and the Securities Act.

 

6.9  Compliance with Laws. Except as would not have a Material Adverse Effect, the business and operations of the Acquiror Company have been and are being conducted in accordance with all applicable Laws and Orders. Except as would not have a Material Adverse Effect, the Acquiror Company has not received notice of any violation (or any Proceeding involving an allegation of any violation) of any applicable Law or Order by or affecting the Acquiror Company and, to the knowledge of the Acquiror Company, no Proceeding involving an allegation of violation of any applicable Law or Order is threatened or contemplated. Except as would not have a Material Adverse Effect, the Acquiror Company is not subject to any obligation or restriction of any kind or character, nor is there, to the knowledge of the Acquiror Company, any event or circumstance relating to the Acquiror Company that materially and adversely affects in any way its business, properties, assets or prospects or that prohibits the Acquiror Company from entering into this Agreement or would prevent or make burdensome its performance of or compliance with all or any part of this Agreement or the consummation of the transactions contemplated hereby.

 

6.10  Certain Proceedings. There is no pending Proceeding that has been commenced against the Acquiror Company and that challenges, or may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement. To the knowledge of the Acquiror Company, no such Proceeding has been threatened.

 

6.11  No Brokers or Finders. Except as disclosed on Schedule 6.11, no Person has, or as a result of the transactions contemplated herein will have, any right or valid claim against the Acquiror Company for any commission, fee or other compensation as a finder or broker, or in any similar capacity, and the Acquiror Company will indemnify and hold the Company harmless against any liability or expense arising out of, or in connection with, any such claim.

 

 

6.12  Absence of Undisclosed Liabilities. Except as set forth on Schedule 6.12 or in the SEC Documents, the Acquiror Company has no debt, obligation or liability (whether accrued, absolute, contingent, liquidated or otherwise, whether due or to become due, whether or not known to the Acquiror Company) arising out of any transaction entered into at or prior to the Closing Date or any act or omission at or prior to the Closing Date, except to the extent set forth on or reserved against on the Acquiror Company Balance Sheet. All debts, obligations or liabilities with respect to directors and officers of the Acquiror Company will be cancelled prior to the Closing. The Acquiror Company has not incurred any liabilities or obligations under agreements entered into, in the usual and ordinary course of business since January 1, 2005.

 

6.13  Changes. Except as set forth in the SEC Documents, the Acquiror Company has, since January 1, 2005:

 

6.13.1  Ordinary Course of Business. Conducted its business or entered into any transaction other than in the usual and ordinary course of business, except for this Agreement.

 

6.13.2  Adverse Changes. Suffered or experienced any change in, or affecting, its condition (financial or otherwise), properties, assets, liabilities, business, operations, results of operations or prospects other than changes, events or conditions in the usual and ordinary course of its business, none of which would have a Material Adverse Effect;

 

6.13.3  Loans. Made any loans or advances to any Person other than travel advances and reimbursement of expenses made to employees, officers and directors in the ordinary course of business;

 

6.13.4  Liens. Created or permitted to exist any Lien on any material property or asset of the Acquiror Company, other than Permitted Liens;

 

6.13.5  Capital Stock. Issued, sold, disposed of or encumbered, or authorized the issuance, sale, disposition or encumbrance of, or granted or issued any option to acquire any shares of its capital stock or any other of its securities or any Equity Security, or altered the term of any of its outstanding securities or made any change in its outstanding shares of capital stock or its capitalization, whether by reason of reclassification, recapitalization, stock split, combination, exchange or readjustment of shares, stock dividend or otherwise;

 

6.13.6  Dividends. Declared, set aside, made or paid any dividend or other distribution to any of its stockholders;

 

6.13.7  Material Acquiror Company Contracts. Terminated or modified any Material Acquiror Company Contract, except for termination upon expiration in accordance with the terms thereof;

 

6.13.8  Claims. Released, waived or cancelled any claims or rights relating to or affecting the Acquiror Company in excess of US $10,000 in the aggregate or instituted or settled any Proceeding involving in excess of US $10,000 in the aggregate;

 

 

6.13.9  Discharged Liabilities. Paid, discharged or satisfied any claim, obligation or liability in excess of US $10,000 in the aggregate, except for liabilities incurred prior to the date of this Agreement in the ordinary course of business;

 

6.13.10  Indebtedness. Created, incurred, assumed or otherwise become liable for any Indebtedness in excess of US $10,000 in the aggregate, other than professional fees;

 

6.13.11  Guarantees. Guaranteed or endorsed in a material amount any obligation or net worth of any Person;

 

6.13.12  Acquisitions. Acquired the capital stock or other securities or any ownership interest in, or substantially all of the assets of, any other Person;

 

6.13.13  Accounting. Changed its method of accounting or the accounting principles or practices utilized in the preparation of its financial statements, other than as required by GAAP;

 

6.13.14  Agreements. Except as set forth in the SEC Documents, entered into any agreement, or otherwise obligated itself, to do any of the foregoing.

 

6.14  Material Acquiror Company Contracts. Except to the extent filed with the SEC Documents, the Acquiror Company has made available to the Company, prior to the date of this Agreement, true, correct and complete copies of each written Material Acquiror Company Contract, including each amendment, supplement and modification thereto.

 

6.14.1  No Defaults. Each Material Acquiror Company Contract is a valid and binding agreement of the Acquiror Company that is party thereto, and is in full force and effect. Except as would not have a Material Adverse Effect, the Acquiror Company is not in breach or default of any Material Acquiror Company Contract to which it is a party and, to the knowledge of the Acquiror Company, no other party to any Material Acquiror Company Contract is in breach or default thereof. Except as would not have a Material Adverse Effect, no event has occurred or circumstance exists that (with or without notice or lapse of time) would (a) contravene, conflict with or result in a violation or breach of, or become a default or event of default under, any provision of any Material Acquiror Company Contract or (b) permit the Acquiror Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify any Material Acquiror Company Contract. The Acquiror Company has not received notice of the pending or threatened cancellation, revocation or termination of any Material Acquiror Company Contract to which it is a party. There are no renegotiations of, or attempts to renegotiate, or outstanding rights to renegotiate any material terms of any Material Acquiror Company Contract.

 

6.15  Employees.

 

6.15.1  The Acquiror Company has no employees, independent contractors or other Persons providing research or other services to them. Except as would not have a Material Adverse Effect, the Acquiror Company is in full compliance with all Laws regarding employment, wages, hours, benefits, equal opportunity, collective bargaining, the payment of Social Security and other taxes, occupational safety and health and plant closing. The Acquiror Company is not liable for the payment of any compensation, damages, taxes, fines, penalties or other amounts, however designated, for failure to comply with any of the foregoing Laws.

 

 

6.15.2  No director, officer or employee of the Acquiror Company is a party to, or is otherwise bound by, any contract (including any confidentiality, non-competition or proprietary rights agreement) with any other Person that in any way adversely affects or will materially affect (a) the performance of his or her duties as a director, officer or employee of the Acquiror Company or (b) the ability of the Acquiror Company to conduct its business. Except as set forth in the SEC Documents, each employee of the Acquiror Company is employed on an at-will basis and the Acquiror Company has no contract with any of its employees which would interfere with the Acquiror Company’s ability to discharge its employees.

 

6.16  Tax Returns and Audits.

 

6.16.1  Tax Returns. The Acquiror Company has filed all material Tax Returns required to be filed by or on behalf of the Acquiror Company and have paid all material Taxes of the Acquiror Company required to have been paid (whether or not reflected on any Tax Return). Except as set forth in the SEC Documents, (a) no Governmental Authority in any jurisdiction has made a claim, assertion or threat to the Acquiror Company that the Acquiror Company is or may be subject to taxation by such jurisdiction; (b) there are no Liens with respect to Taxes on the Acquiror Company’s property or assets other than Permitted Liens; and (c) there are no Tax rulings, requests for rulings, or closing agreements relating to the Acquiror Company for any period (or portion of a period) that would affect any period after the date hereof.

 

6.16.2  No Adjustments, Changes. The Acquiror Company nor any other Person on behalf of the Acquiror Company (a) has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law; or (b) has agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or foreign law.

 

6.16.3  No Disputes. There is no pending audit, examination, investigation, dispute, proceeding or claim with respect to any Taxes of the Acquiror Company, nor is any such claim or dispute pending or contemplated. The Acquiror Company has delivered to the Company true, correct and complete copies of all Tax Returns, if any, examination reports and statements of deficiencies assessed or asserted against or agreed to by the Acquiror Company since their inception and any and all correspondence with respect to the foregoing.

 

6.16.4  Not a U.S. Real Property Holding Corporation. The Acquiror Company is not and has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

 

6.16.5  No Tax Allocation, Sharing. The Acquiror Company is not a party to any Tax allocation or sharing agreement. Other than with respect to the Tax Group of which the Acquiror Company is the common parent, the Acquiror Company (a) has been a member of a Tax Group filing a consolidated income Tax Return under Section 1501 of the Code (or any similar provision of state, local or foreign law), and (b) has any liability for Taxes for any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor, by contract or otherwise.

 

 

6.16.6  No Other Arrangements. The Acquiror Company is not a party to any agreement, contract or arrangement for services that would result, individually or in the aggregate, in the payment of any amount that would not be deductible by reason of Section 162(m), 280G or 404 of the Code. The Acquiror Company is not a “consenting corporation” within the meaning of Section 341(f) of the Code. The Acquiror Company does not have any “tax-exempt bond financed property” or “tax-exempt use property” within the meaning of Section 168(g) or (h), respectively of the Code. The Acquiror Company does not have any outstanding closing agreement, ruling request, request for consent to change a method of accounting, subpoena or request for information to or from a Governmental Authority in connection with any Tax matter. During the last two years, the Acquiror Company has not engaged in any exchange with a related party (within the meaning of Section 1031(f) of the Code) under which gain realized was not recognized by reason of Section 1031 of the Code. The Company is not a party to any reportable transaction within the meaning of Treasury Regulation Section 1.6011-4.

 

6.17  Material Assets. The financial statements of the Acquiror Company set forth in the SEC Documents reflect the material properties and assets (real and personal) owned or leased by the Acquiror Company.

 

6.18  Insurance Coverage. The Acquiror Company has made available to the Company, prior to the date of this Agreement, true, correct and complete copies of any insurance policies maintained by the Acquiror Company on its properties and assets. Except as would not have a Material Adverse Effect, all of such policies (a) taken together, provide adequate insurance coverage for the properties, assets and operations of each Acquiror Company for all risks normally insured against by a Person carrying on the same business as such Acquiror Company, and (b) are sufficient for compliance with all applicable Laws and Material Acquiror Company Contracts. Except as would not have a Material Adverse Effect, all of such policies are valid, outstanding and in full force and effect and, by their express terms, will continue in full force and effect following the consummation of the transactions contemplated by this Agreement. Except as set forth in the SEC Documents, the Acquiror Company has not received (a) any refusal of coverage or any notice that a defense will be afforded with reservation of rights, or (b) any notice of cancellation or any other indication that any insurance policy is no longer in full force or effect or will not be renewed or that the issuer of any policy is not willing or able to perform its obligations thereunder. All premiums due on such insurance policies on or prior to the date hereof have been paid. There are no pending claims with respect to the Acquiror Company or its properties or assets under any such insurance policies, and there are no claims as to which the insurers have notified the Acquiror Company that they intend to deny liability. There is no existing default under any such insurance policies.

 

6.19  Litigation; Orders. Except as set forth on Schedule 6.19, there is no Proceeding (whether federal, state, local or foreign) pending or, to the knowledge of the Acquiror Company, threatened against or affecting the Acquiror Company or the Acquiror Company’s properties, assets, business or employees. To the knowledge of the Acquiror Company, there is no fact that might result in or form the basis for any such Proceeding. The Acquiror Company is not subject to any Orders.

 

 

6.20  Licenses. Except as would not have a Material Adverse Effect, the Acquiror Company possesses from the appropriate Governmental Authority all licenses, permits, authorizations, approvals, franchises and rights that are necessary for the Acquiror Company to engage in its business as currently conducted and to permit the Acquiror Company to own and use its properties and assets in the manner in which it currently owns and uses such properties and assets (collectively, “Acquiror Company Permits”). The Acquiror Company has not received notice from any Governmental Authority or other Person that there is lacking any license, permit, authorization, approval, franchise or right necessary for the Acquiror Company to engage in its business as currently conducted and to permit the Acquiror Company to own and use its properties and assets in the manner in which it currently owns and uses such properties and assets. Except as would not have a Material Adverse Effect, the Acquiror Company Permits are valid and in full force and effect. Except as would not have a Material Adverse Effect, no event has occurred or circumstance exists that may (with or without notice or lapse of time): (a) constitute or result, directly or indirectly, in a violation of or a failure to comply with any Acquiror Company Permit; or (b) result, directly or indirectly, in the revocation, withdrawal, suspension, cancellation or termination of, or any modification to, any Acquiror Company Permit. The Acquiror Company has not received notice from any Governmental Authority or any other Person regarding: (a) any actual, alleged, possible or potential contravention of any Acquiror Company Permit; or (b) any actual, proposed, possible or potential revocation, withdrawal, suspension, cancellation, termination of, or modification to, any Acquiror Company Permit. All applications required to have been filed for the renewal of such Company Permits have been duly filed on a timely basis with the appropriate Persons, and all other filings required to have been made with respect to such Acquiror Company Permits have been duly made on a timely basis with the appropriate Persons. All Acquiror Company Permits are renewable by their terms or in the ordinary course of business without the need to comply with any special qualification procedures or to pay any amounts other than routine fees or similar charges, all of which have, to the extent due, been duly paid.

 

6.21  Interested Party Transactions. Except as disclosed on Schedule 6.21, no officer, director or stockholder of the Acquiror Company or any Affiliate or “associate” (as such term is defined in Rule 405 of the Commission under the Securities Act) of any such Person, has or has had, either directly or indirectly, (1) an interest in any Person which (a) furnishes or sells services or products which are furnished or sold or are proposed to be furnished or sold by the Acquiror Company, or (b) purchases from or sells or furnishes to, or proposes to purchase from, sell to or furnish any Acquiror Company any goods or services; or (2) a beneficial interest in any contract or agreement to which the Acquiror Company is a party or by which it may be bound or affected.

 

6.22  Governmental Inquiries. The Acquiror Company has provided to the Company a copy of each material written inspection report, questionnaire, inquiry, demand or request for information received by the Acquiror Company from any Governmental Authority, and the Acquiror Company’s response thereto, and each material written statement, report or other document filed by the Acquiror Company with any Governmental Authority.

 

 

6.23  Bank Accounts and Safe Deposit Boxes. Schedule 6.23 discloses the title and number of each bank or other deposit or financial account, and each lock box and safety deposit box used by the Acquiror Company, the financial institution at which that account or box is maintained and the names of the persons authorized to draw against the account or otherwise have access to the account or box, as the case may be.

 

6.24  Intellectual Property. The Acquiror Company does not own, use or license any Intellectual Property in its business as presently conducted, except as set forth in the SEC Documents.

 

6.25  Title to and Condition of Properties. Except as would not have a Material Adverse Effect, the Acquiror Company owns (with good and marketable title in the case of real property) or holds under valid leases or other rights to use all real property, plants, machinery, equipment and other personal property necessary for the conduct of its business as presently conducted, free and clear of all Liens, except Permitted Liens. The material buildings, plants, machinery and equipment necessary for the conduct of the business of the Acquiror Company as presently conducted are structurally sound, are in good operating condition and repair and are adequate for the uses to which they are being put, and none of such buildings, plants, machinery or equipment is in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost.

 

6.26  SEC Documents; Financial Statements. Except as set forth on Schedule 6.26, the Acquiror Company has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the three (3) years preceding the date hereof (or such shorter period as the Acquiror Company was required by law to file such material) (the foregoing materials being collectively referred to herein as the “SEC Documents”) and, while not having filed all such SEC Documents prior to the expiration of any extension(s), is nevertheless current with respect to its Exchange Act filing requirements. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Documents, when filed, 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 statement therein, in light of the circumstances under which they were made, not misleading. All material agreements to which the Acquiror Company is a party or to which the property or assets of the Acquiror Company are subject have been appropriately filed as exhibits to the SEC Documents as and to the extent required under the Exchange Act. The financial statements of the Acquiror Company included in the SEC Documents comply in all material respects with applicable accounting requirement and the rules and regulations of the Commission with respect thereto as in effect at the time of filing, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto, or, in the case of unaudited statements as permitted by Form 10-Q or Form 10-QSB, as the case may be, of the Commission), and fairly present in all material respects (subject in the case of unaudited statements, to normal, recurring audit adjustments) the financial position of the Acquiror Company as at the dates thereof and the results of its operations and cash flows for the periods then ended.

 

6.27  Stock Option Plans; Employee Benefits.

 

 

6.27.1  The Acquiror Company has no stock option plans providing for the grant by the Acquiror Company of stock options to directors, officers or employees.

 

6.27.2  The Acquiror Company has no employee benefit plans or arrangements covering their present and former employees or providing benefits to such persons in respect of services provided the Acquiror Company.

 

6.27.3  Neither the consummation of the transactions contemplated hereby alone, nor in combination with another event, with respect to each director, officer, employee and consultant of the Acquiror Company, will result in (a) any payment (including, without limitation, severance, unemployment compensation or bonus payments) becoming due from the Acquiror Company, (b) any increase in the amount of compensation or benefits payable to any such individual or (c) any acceleration of the vesting or timing of payment of compensation payable to any such individual. No agreement, arrangement or other contract of the Acquiror Company provides benefits or payments contingent upon, triggered by, or increased as a result of a change in the ownership or effective control of the Acquiror Company.

 

6.28  Environmental and Safety Matters. Except as set forth on Schedule 6.28 or in the SEC Documents and except as would not have a Material Adverse Effect:

 

6.28.1  The Acquiror Company has at all time been and is in compliance with all Environmental Laws applicable to the Acquiror Company.

 

6.28.2  There are no Proceedings pending or threatened against the Acquiror Company alleging the violation of any Environmental Law or Environmental Permit applicable to the Acquiror Company or alleging that the Acquiror Company is a potentially responsible party for any environmental site contamination.

 

6.28.3  Neither this Agreement nor the consummation of the transactions contemplated by this Agreement shall impose any obligations to notify or obtain the consent of any Governmental Authority or third Persons under any Environmental Laws applicable to the Acquiror Company.

 

6.29  Money Laundering Laws. The operations of the Acquiror Company is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all U.S. and non-U.S. jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Money Laundering Laws”) and no Proceeding involving the Acquiror Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Acquiror Company, threatened.

 

6.30  Board Recommendation. The Acquiror Company Board, at a meeting duly called and held, has determined that this Agreement and the transactions contemplated by this Agreement are advisable and in the best interests of the Acquiror Company’s stockholders and has duly authorized this Agreement and the transactions contemplated by this Agreement.

 

 

 

7.1  Indemnification and Insurance.

 

7.1.1  The Acquiror Company shall to the fullest extent permitted under applicable Law or its Organizational Documents, indemnify and hold harmless, each present and former director, officer or employee of the Acquiror Company (collectively, the “Indemnified Parties”) against any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Proceeding (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Closing Date (“Damages”), to the same extent as provided in the Acquiror Company’s Organizational Documents or any applicable contract or agreement as in effect on the date hereof, in each case for a period of two years after the Closing Date. In the event of any such Proceeding (whether arising before or after the Closing Date), (i) any counsel retained by the Indemnified Parties for any period after the Closing Date shall be reasonably satisfactory to the Acquiror Company, (ii) after the Closing Date, the Acquiror Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received, provided that the Indemnified Parties shall be required to reimburse the Acquiror Company for such payments in the circumstances and to the extent required by the Acquiror Company’s Organizational Documents, any applicable contract or agreement or applicable Law, and (iii) the Acquiror Company will cooperate in the defense of any such matter; provided, however, that the Acquiror Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that, in the event that any claim or claims for indemnification are asserted or made within such one (1) year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which case each Indemnified Person with respect to whom such a conflict exists (or group of such Indemnified Persons who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.

 

7.1.2  This Section 7.1 shall survive the consummation of the transactions contemplated by this Agreement upon execution, is intended to benefit the Indemnified Parties and the Covered Persons, shall be binding on all successors and assigns of the Acquiror Company and shall be enforceable by the Indemnified Parties and the Covered Persons.

 

7.2  Rule 144 Reporting. Subject to the Acquiror Company Shareholders not being in material breach of the warranties and representations in Section 6, with a view to making available to the Acquiror Company’s stockholders the benefit of certain rules and regulations of the Commission which may permit the sale of the Acquiror Company Common Stock to the public without registration, from and after the Closing Date, the Acquiror Company agrees to:

 

7.2.1  Make and keep public information available, as those terms are understood and defined in Rule 144; and

 

 

7.2.2  File with the Commission, in a timely manner, all reports and other documents required of the Acquiror Company under the Exchange Act.

 

7.3  SEC Documents. From and after the Closing Date, in the event the Commission notifies the Acquiror Company of its intent to review any SEC Document filed prior to the Closing Date or the Acquiror Company receives any oral or written comments from the Commission with respect to any SEC Document filed prior to the Closing Date, the Acquiror Company shall promptly notify the Acquiror Company Shareholders and the Acquiror Company Shareholders shall fully cooperate with the Acquiror Company.

 

7.4  Scrip for Scrip Rollover. Acquiror Company and the Trustee jointly choose a scrip for scrip rollover for Australian tax purposes in accordance with subdivision 124-M of the Income Tax Assessment Act in respect of this Agreement and Acquiror Company and the Trustee must execute all documents required to effect this. This clause does not merge on Closing.

 

 

The Acquiror Company’s obligation to acquire the Shares and to take the other actions required to be taken by the Acquiror Company at the Closing Date is subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions (any of which may be waived by the Acquiror Company, in whole or in part):

 

8.1  Accuracy of Representations. The representations and warranties of the Company, the Trustee and the Shareholders set forth in this Agreement or in any Schedule or certificate delivered pursuant hereto that are not qualified as to materiality shall be true and correct in all material respects as of the date of this Agreement except to the extent a representation or warranty is expressly limited by its terms to another date and without giving effect to any supplemental Schedule. The representations and warranties of the Company, the Trustee and the Shareholders set forth in this Agreement or in any Schedule or certificate delivered pursuant hereto that are qualified as to materiality shall be true and correct in all respects as of the date of this Agreement, except to the extent a representation or warranty is expressly limited by its terms to another date and without giving effect to any supplemental Schedule.

 

8.2  Performance by the Company and Shareholders.

 

8.2.1  All of the covenants and obligations that the Company, the Trustee and the Shareholders are required to perform or to comply with pursuant to this Agreement (considered collectively), and each of these covenants and obligations (considered individually), must have been duly performed and complied with in all material respects.

 

8.2.2  Each document required to be delivered by the Company, the Trustee and the Shareholders pursuant to this Agreement must have been delivered.

 

 

8.3  No Force Majeure Event. There shall not have been any delay, error, failure or interruption in the conduct of the business of any Acquired Company, or any loss, injury, delay, damage, distress, or other casualty, due to force majeure including but not limited to (a) acts of God; (b) fire or explosion; (c) war, acts of terrorism or other civil unrest; or (d) national emergency.

 

8.4  Certificate of Officer. The Company will have delivered to the Acquiror Company a certificate executed by an officer of the Company, certifying the satisfaction of the conditions specified in Sections 8.1, 8.2, and 8.3.

 

8.5  Certificate of Trustee. Trustee will have delivered to the Acquiror Company a certificate executed by an authorized officer of the Trustee, if an entity, certifying the satisfaction of the conditions specified in Sections 8.1 and 8.2.

 

8.6  Consents.

 

8.6.1  All material consents, waivers, approvals, authorizations or orders required to be obtained, and all filings required to be made, by the Company and/or the Trustee and/or the Shareholders for the authorization, execution and delivery of this Agreement and the consummation by them of the transactions contemplated by this Agreement, shall have been obtained and made by the Company or the Trustee or the Shareholders, as the case may be, except where the failure to receive such consents, waivers, approvals, authorizations or orders or to make such filings would not have a Material Adverse Effect on the Company or the Acquiror Company.

 

8.6.2  Without limiting the foregoing, the Schedule 14(f) Filing shall have been mailed to the stockholders of the Acquiror Company not less than ten (10) days prior to the Closing Date. No Proceeding occasioned by the Section 14(f) Filing shall have been initiated or threatened by the Commission (which Proceeding remains unresolved as of the Closing Date).

 

8.7  Documents. The Company and the Trustee must deliver to the Acquiror Company at the Closing (i) share certificates evidencing the number of Shares held by the Trustee (as set forth in Exhibit A), along with executed share transfer forms transferring such Shares to the Acquiror Company together with a certified copy of a board resolution of the Company approving the registration of the transfer of such shares to Acquiror Company (subject to Closing and payment of stamp duty), (ii) each of the Transaction Documents to which the Company and/or the Trustee and/or the Shareholders is a party, duly executed, (iii) and such other documents as the Acquiror Company may reasonably request for the purpose of (A) evidencing the accuracy of any of the representations and warranties of the Company, the Trustee and the Shareholders pursuant to Section 8.1, (B) evidencing the performance of, or compliance by the Company, the Trustee and the Shareholders with, any covenant or obligation required to be performed or complied with by the Company or the Trustee or the Shareholders, as the case may be, (C) evidencing the satisfaction of any condition referred to in this Section, or (D) otherwise facilitating the consummation or performance of any of the transactions contemplated by this Agreement.

 

 

8.8  No Proceedings. There must not have been commenced or threatened against the Acquiror Company, the Company, the Trust, the Trustee or any Shareholder, or against any Affiliate thereof, any Proceeding (which Proceeding remains unresolved as of the Closing Date) (a) involving any challenge to, or seeking damages or other relief in connection with, any of the transactions contemplated by this Agreement, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the transactions contemplated by this Agreement.

 

8.9  No Claim Regarding Stock Ownership or Consideration. There must not have been made or threatened by any Person any claim asserting that such Person (a) is the holder of, or has the right to acquire or to obtain beneficial ownership of the Shares or any other stock, voting, equity, or ownership interest in, the Company, or (b) is entitled to all or any portion of the Acquiror Company Shares.

 

 

9.1  Indemnification and Insurance.

 

9.1.1  The Company and the Trustee shall to the fullest extent permitted under applicable Law or its Organizational Documents, indemnify and hold harmless, each present and former director, officer or employee of the Company (collectively, the “Company Indemnified Parties”) against any costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Proceeding (x) arising out of or pertaining to the transactions contemplated by this Agreement or (y) otherwise with respect to any acts or omissions occurring at or prior to the Closing Date (“Company Damages”), to the same extent as provided in the Company’s Organizational Documents or any applicable contract or agreement as in effect on the date hereof, in each case for a period of two years after the Closing Date. In the event of any such Proceeding (whether arising before or after the Closing Date), (i) any counsel retained by the Company Indemnified Parties for any period after the Closing Date shall be reasonably satisfactory to the Company, (ii) after the Closing Date, the Company shall pay the reasonable fees and expenses of such counsel, promptly after statements therefor are received, provided that the Company Indemnified Parties shall be required to reimburse the Company for such payments in the circumstances and to the extent required by the Company’s Organizational Documents, any applicable contract or agreement or applicable Law, and (iii) the Company will cooperate in the defense of any such matter; provided, however, that the Company shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld); and provided, further, that, in the event that any claim or claims for indemnification are asserted or made within such one (1) year period, all rights to indemnification in respect of any such claim or claims shall continue until the disposition of any and all such claims. The Company Indemnified Parties as a group may retain only one law firm to represent them in each applicable jurisdiction with respect to any single action unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the positions of any two or more Company Indemnified Parties, in which case each Company Indemnified Person with respect to whom such a conflict exists (or group of such Company Indemnified Persons who among them have no such conflict) may retain one separate law firm in each applicable jurisdiction.

 

 

9.1.2  This Section 9.1 shall survive the consummation of the transactions contemplated by this Agreement upon execution, is intended to benefit the Company Indemnified Parties and the Covered Persons, shall be binding on all successors and assigns of the Company and shall be enforceable by the Company Indemnified Parties and the Covered Persons.

 

 

The Trustee’s obligation to transfer the Shares and the obligations of the Company to take the other actions required to be taken by the Company in advance of or at the Closing Date are subject to the satisfaction, at or prior to the Closing Date, of each of the following conditions (any of which may be waived by the Company and the Trustee jointly, in whole or in part):

 

10.1  Accuracy of Representations. The representations and warranties of the Acquiror Company and Acquiror Company Shareholders set forth in this Agreement or in any Schedule or certificate delivered pursuant hereto that are not qualified as to materiality shall be true and correct in all material respects as of the date of this Agreement except to the extent a representation or warranty is expressly limited by its terms to another date and without giving effect to any supplemental Schedule. The representations and warranties of the Acquiror Company and Acquiror Company Shareholders set forth in this Agreement or in any Schedule or certificate delivered pursuant hereto that are qualified as to materiality shall be true and correct in all respects as of the date of this Agreement, except to the extent a representation or warranty is expressly limited by its terms to another date and without giving effect to any supplemental Schedule.

 

10.2  Performance by the Acquiror Company.

 

10.2.1  All of the covenants and obligations that the Acquiror Company and Acquiror Company Shareholders are required to perform or to comply with pursuant to this Agreement (considered collectively), and each of these covenants and obligations (considered individually), must have been performed and complied with in all respects.

 

10.2.2  Each document required to be delivered by the Acquiror Company and Acquiror Company Shareholders pursuant to this Agreement must have been delivered.

 

10.3  No Force Majeure Event. There shall not have been any delay, error, failure or interruption in the conduct of the business of the Acquiror Company, or any loss, injury, delay, damage, distress, or other casualty, due to force majeure including but not limited to (a) acts of God; (b) fire or explosion; (c) war, acts of terrorism or other civil unrest; or (d) national emergency.

 

 

10.4  Certificate of Officer. The Acquiror Company will have delivered to the Company a certificate, dated the Closing Date, executed by an officer of the Acquiror Company, certifying the satisfaction of the conditions specified in Sections 10.1, 10.2, and 10.3.

 

10.5  Certificate of Acquiror Company Shareholders. The Acquiror Company Shareholders will have delivered to the Company a certificate, dated the Closing Date, executed by such Acquiror Company Shareholder, if a natural person or an authorized officer of the Acquiror Company Shareholder, if an entity, certifying the satisfaction of the conditions specified in Sections 10.1 and 10.2.

 

10.6  Consents.

 

10.6.1  All material consents, waivers, approvals, authorizations or orders required to be obtained, and all filings required to be made, by the Acquiror Company for the authorization, execution and delivery of this Agreement and the consummation by it of the transactions contemplated by this Agreement, shall have been obtained and made by the Acquiror Company, except where the failure to receive such consents, waivers, approvals, authorizations or orders or to make such filings would not have a Material Adverse Effect on the Company or the Acquiror Company.

 

10.6.2  Without limiting the foregoing, the Schedule 14(f) Filing shall have been mailed to the stockholders of the Acquiror Company not less than ten (10) days prior to the Closing Date. No Proceeding occasioned by the Section 14(f) Filing shall have been initiated or threatened by the Commission (which Proceeding remains unresolved as of the Closing Date).

 

10.7  Documents. The Acquiror Company must have caused the following documents to be delivered to the Company and/or the Trustee:

 

10.7.1  share certificates evidencing the Trustee’s Ownership of the Closing Acquiror Company Shares;

 

10.7.2  a Secretary’s Certificate, dated the Closing Date certifying attached copies of (A) the Organizational Documents of the Acquiror Company, (B) the resolutions of the Acquiror Company Board approving this Agreement and the transactions contemplated hereby; and (C) the incumbency of each authorized officer of the Acquiror Company signing this Agreement and any other agreement or instrument contemplated hereby to which the Acquiror Company is a party;

 

10.7.3  a Certificate of Good Standing of the Acquiror Company;

 

10.7.4  each of the Transaction Documents to which the Acquiror Company is a party, duly executed; and

 

10.7.5  such other documents as the Company may reasonably request for the purpose of (i) evidencing the accuracy of any representation or warranty of the Acquiror Company pursuant to Section 10.1, (ii) evidencing the performance by the Acquiror Company of, or the compliance by the Acquiror Company with, any covenant or obligation required to be performed or complied with by the Acquiror Company, (iii) evidencing the satisfaction of any condition referred to in this Section 10, or (iv) otherwise facilitating the consummation of any of the transactions contemplated by this Agreement.

 

 

10.8  No Proceedings. Since the date of this Agreement, there must not have been commenced or threatened against the Acquiror Company, the Company or the Trustee, or against any Affiliate thereof, any Proceeding (which Proceeding remains unresolved as of the date of this Agreement) (a) involving any challenge to, or seeking damages or other relief in connection with, any of the transactions contemplated hereby, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the transactions contemplated hereby.

 

10.9  Consummation of Offering. Prior to the Closing Date, the Acquiror Company shall have prepared definitive documentation with respect to the sale of an aggregate of  5,253,500 shares of Acquiror Company Common Stock for aggregate gross proceeds of $2,000,000 and shall have submitted such documentation to Company’s legal counsel for review and approval, such approval shall not be unreasonably withheld.

 

10.10  No Claim Regarding Stock Ownership or Consideration. There must not have been made or threatened by any Person any claim asserting that such Person is the holder of, or has the right to acquire or to obtain beneficial ownership of the Acquiror Company Common Stock or any other stock, voting, equity, or ownership interest in, the Acquiror Company.

 

 

11.1  Survival. All representations, warranties, covenants, and obligations in this Agreement shall expire on the first (1st) anniversary of the date this Agreement is executed (the “Survival Period”). The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants, and obligations.

 

11.2  Indemnification by the Acquiror Company Shareholders. From and after the execution of this Agreement until the expiration of the Survival Period, each of Gloria Eck, Amy Hadley and Carole Anne Brewer (together, the “Principal Acquiror Company Shareholders”) shall indemnify and hold harmless the Acquiror Company, Company, the Trustee and the Shareholders (collectively, the “Company Indemnified Parties”), from and against any Damages arising, directly or indirectly, from or in connection with:

 

(a)  any breach of any representation or warranty made by the Acquiror Company or the Acquiror Company Shareholders in this Agreement or in any certificate delivered by the Acquiror Company pursuant to this Agreement;

 

 

(b)  any breach by the Acquiror Company or the Acquiror Company Shareholders of any covenant or obligation of the Acquiror Company in this Agreement required to be performed by the Acquiror Company or the Acquiror Company Shareholders on or prior to the Closing Date; or

 

(c)  any and all losses, claims, damages, or liabilities against the Acquiror Company or the Acquiror Company Shareholders, occurring on or prior to the Closing Date.

 

11.3  Limitations on Amount - the Acquiror Company. No Company Indemnified Party shall be entitled to indemnification, unless and until the aggregate amount of Damages to all Company Indemnified Parties with respect to such matters under Section 11.4 exceeds US$100,000, at which time, the Company Indemnified Parties shall be entitled to indemnification for the total amount of such Damages in excess of US$100,000.

 

11.4  Determining Damages. Materiality qualifications to the representations and warranties of the Company and the Acquiror Company shall not be taken into account in determining the amount of Damages occasioned by a breach of any such representation and warranty for purposes of determining whether the baskets set forth in Section 11.3 has been met.

 

11.5  Breach by the Trustee or the Shareholders. Nothing in this Section 11 shall limit the Acquiror Company’s right to pursue any appropriate legal or equitable remedy against the Trustee or any Shareholder with respect to any Damages arising, directly or indirectly, from or in connection with: (a) any breach by the Trustee or such Shareholder of any representation or warranty made by the Trustee or such Shareholder in this Agreement or in any certificate delivered by the Trustee or such Shareholder pursuant to this Agreement or (b) any breach by the Trustee or such Shareholder of its covenants or obligations in this Agreement. All claims of the Acquiror Company pursuant to this Section 11.1 shall be brought by the Acquiror Company Shareholders on behalf of the Acquiror Company and those Persons who were stockholders of the Acquiror Company immediately prior to the Closing Date.

 

 

12.1  Expenses. Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the transactions contemplated by this Agreement, including all fees and expenses of agents, representatives, counsel, and accountants. In the event of termination of this Agreement, the obligation of each party to pay its own expenses will be subject to any rights of such party arising from a breach of this Agreement by another party.

 

12.2  Public Announcements. The Acquiror Company shall promptly, but no later than three (3) days following the effective date of this Agreement, issue a press release disclosing the transactions contemplated hereby. Prior to the Closing Date, the Company and the Acquiror Company shall consult with each other in issuing any other press releases or otherwise making public statements or filings and other communications with the Commission or any regulatory agency or stock market or trading facility with respect to the transactions contemplated hereby and neither party shall issue any such press release or otherwise make any such public statement, filings or other communications without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that no prior consent shall be required if such disclosure is required by law, in which case the disclosing party shall provide the other party with prior notice of such public statement, filing or other communication and shall incorporate into such public statement, filing or other communication the reasonable comments of the other party.

 

 

12.3  Confidentiality.

 

12.3.1  Subsequent to the date of this Agreement, the Acquiror Company, the Acquiror Company Shareholders, the Trustee, the Shareholders and the Company will maintain in confidence, and will cause their respective directors, officers, employees, agents, and advisors to maintain in confidence, any written, oral, or other information obtained in confidence from another party in connection with this Agreement or the transactions contemplated by this Agreement, unless (a) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (b) the use of such information is necessary or appropriate in making any required filing with the Commission, or obtaining any consent or approval required for the consummation of the transactions contemplated by this Agreement, or (c) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings.

 

12.3.2  In the event that any party is required to disclose any information of another party pursuant to clause (b) or (c) of Section 12.3.1, the party requested or required to make the disclosure (the “disclosing party”) shall provide the party that provided such information (the “providing party”) with prompt notice of any such requirement so that the providing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Section 12.3. If, in the absence of a protective order or other remedy or the receipt of a waiver by the providing party, the disclosing party is nonetheless, in the opinion of counsel, legally compelled to disclose the information of the providing party, the disclosing party may, without liability hereunder, disclose only that portion of the providing party’s information which such counsel advises is legally required to be disclosed, provided that the disclosing party exercises its reasonable efforts to preserve the confidentiality of the providing party’s information, including, without limitation, by cooperating with the providing party to obtain an appropriate protective order or other relief assurance that confidential treatment will be accorded the providing party’s information.

 

12.3.3  If the transactions contemplated by this Agreement are not consummated, each party will return or destroy as much of such written information as the other party may reasonably request.

 

12.4  Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by written notice to the other parties):

 

 

If to Acquiror Company: 6767 W. Tropicana Avenue, Suite 207 Las Vegas, Nevada 89103 Attention: Gloria Eck	with a copy to Loeb & Loeb LLP 345 Park Avenue New York, New York 10154
	Attention: Mitchell S. Nussbaum, Esq. Telephone No.: 212 ###-###-#### Facsimile No.: 212 ###-###-####
	with an additional copy during the Survival Period only to: 1880 Century Park East, Suite 300 Los Angeles, California 90067
	Attention: Ronald J. Stauber Telephone No.: 310 ###-###-#### Facsimile No.: 310 ###-###-####
If to the Company: 700 Yarraman Road Wybong, Upper Hunter Valley, NSW 2333 Australia Attention: Andy Lyon, Chief Executive Officer Telephone No.: 61 2 6547 8118 Facsimile No.: 61 2 6547 8039	with a copy to: Aitken McLachlan Thorpe Lawyers Level 21, 1 Castlereagh Street Sydney, NSW, Australia Attention: Peter McLachlan Telephone No.: 61 2 9231 3000 Facsimile No.: 61 2 9231 3031

 

12.5  Arbitration. Any dispute or controversy under this Agreement shall be settled exclusively by arbitration in the City of New York, County of New York in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitration award in any court having jurisdiction.

 

12.6  Further Assurances. The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

 

12.7  Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

 

 

12.8  Entire Agreement and Modification. This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the party against whom the enforcement of such amendment is sought.

 

12.9  Assignments, Successors, and No Third-Party Rights. No party may assign any of its rights under this Agreement without the prior consent of the other parties. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties. Except as set forth in Section 7.1, 9.1 and Section 11.3, nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and assigns.

 

12.10  Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

 

12.11  Section Headings, Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.

 

12.12  Governing Law. This Agreement will be governed by the laws of the State of New York without regard to conflicts of laws principles.

 

12.13  Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

 

12.14  Costs.The parties acknowledge that Global Corporate Consultants Ltd. is responsible for all costs, expenses, fees and charges of Acquiror Company in relation to this Agreement.

 

 

 

IN WITNESS WHEREOF, the parties have executed and delivered this Share Exchange Agreement as of the date first written above.

 

Acquiror Company:   Yarraman Winery, Inc.     Signed: /s/ Gloria Eck Printed name: Gloria Eck Title: President	Acquiror Company Shareholder:         Signed: /s/ Gloria Eck Printed name: Gloria Eck
Company:   Yarraman Estate Pty Ltd     Signed: /s/ Michael Fraser Printed name:  Michael Fraser Title: Director	Acquiror Company Shareholder:         Signed: /s/ Amy Hadley Printed name: Amy Hadley
Trustee:   Delta Dawn Pty Ltd     Signed: /s/ Richard P. Lazar Printed name:  Richard P. Lazar Title:  Managing Director	Acquiror Company Shareholder:         Signed: /s/ Carole Anne Brewer Printed name: Carole Anne Brewer

 

 

 

Mallfame Pty Ltd ATF The Lingerie Trust   Signed: /s/ Ian Kellaway Printed name:  Ian Kellaway Title: Director

Whinners Pty Ltd   Signed: /s/ Geoff B. White Printed name: Geoff B. White Title: Director

Menala Pty Ltd ATF The Lazar Family Trust   Signed: /s/ Richard P. Lazar Printed name: Richard P. Lazar Title: Director

Saxana Pty Ltd ATF The Clapham Family Trust   Signed: /s/ Leigh Brian Clapham Printed name: Leigh Brian Clapham Title: Director

RH Nominees Australia Pty Ltd. ATF Halmarick No. 1 Family Trust   Signed: /s/ Richard Halmarick Printed name: Richard Halmarick Title: Director

 

Saudchem Pty Ltd ATF The Edney Marketing Trust   Signed: _______________________________ Printed name: __________________________   Title: _________________________________

Timstac Pty Ltd ATF The Starr Family Trust   Signed: /s/ Frank M. Starr Printed name: Frank M. Starr Title: Director

Stephen Kulmar   Signed: /s/ Stephen Kulmar

Floxim Pty Ltd ATF Fraser Family Trust   Signed: /s/ Michael Frazer Printed name:  Michael Frazer Title: Director

Charles Rickard   Signed: /s/ Charles Rickard

Farmarg Pty Ltd. ATF Farrell Family Trust   Signed: /s/ Robert Farrell Printed name:  Robert Farrell Title: Director

 

 

 

IN WITNESS WHEREOF, the parties have executed and delivered this Share Exchange Agreement as of the date first written above.

 

	ENTITY NAME:
	By:
		Name:
		Title:

 

OFFSHORE DELIVERY INSTRUCTIONS:

 

 

_________________________________

PRINT EXACT NAME IN WHICH YOU WANT

THE SECURITIES TO BE REGISTERED

 

Attn:                ___________________________

 

Address:         ___________________________

 

                         ___________________________

 

Phone No.      ___________________________

 

Facsimile No. ___________________________

 

 

 

 

IN WITNESS WHEREOF, the parties have executed and delivered this Share Exchange Agreement as of the date first written above.

 

Circle the category under which you are an “accredited investor” pursuant to Exhibit C:

 

1

2

3

4

5

6

7

8

 

 

 

Name and Address of Acquiror Company Shareholder	Number of Shares held by Acquiror Company Shareholder (1)
Gloria Eck 1750 Avocado Road Oceanside, CA 92054	2,775,000
Amy Hadley 5553 Adobe Falls Road, #5 San Diego, CA 92120	3,300,000
Carole Anne Brewer 10014 Paseo Montril, #125 San Diego, CA 92129	1,942,500

 

(1) In connection with the transactions contemplated in the Share Exchange Agreement, each shareholder have agreed to cancel all of their shares of Yarraman Common Stock immediately prior to the Closing. As a result, at Closing, the listed officers and directors will each hold zero shares or zero percent beneficial interest in Yarraman.

 

 

 

 

 

The term “accredited investor” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Each of the Shareholders or the Trustee indicating that it is an Accredited Investor, severally and not jointly, further represents and warrants to the Acquiror Company as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Each Shareholder and the Trustee indicating that it is not a U.S. person, severally and not jointly, further represents and warrants to the Acquiror Company as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 4.1.5	Shareholder Brokers or Finders
Schedule 5.1	Company Jurisdiction
Schedule 5.2	Company Subsidiaries
Schedule 5.7.1	Capitalization of the Company
Schedule 5.7.2	Company Redemption Requirements
Schedule 5.11	Company Brokers or Finders
Schedule 5.12	Company Title to Property
Schedule 6.1	Acquiror Company Jurisdiction
Schedule 6.2	Acquiror Company Subsidiaries
Schedule 6.11	Acquiror Company Brokers or Finders
Schedule 6.12	Undisclosed Liabilities
Schedule 6.19	Litigation
Schedule 6.21	Interested Party Transactions
Schedule 6.23	Bank Accounts
Schedule 6.26	SEC Documents
Schedule 6.28	Environmental and Safety Matters

 

 

 

MillhouseIAG Limited

 

 

 

New South Wales, Australia.

Schedule 5.2  

 

 

None.

 

 

 

None.

 

 

 

None.

 

 

 

 

None.

 

 

 

 

None.

 

 

None.

 

None.

 

None.

 

None.

 

None.

 

None.

None.

 

 

 

None.