Share Exchange Agreement, dated October 19, 2009

SHARE EXCHANGE AGREEMENT

 

by and between

 

ALBA MINERAL EXPLORATION, INC.

 

and

 

DIAMOND INFORMATION INSTITUTE, INC.

 

October 19, 2009

 

 

TABLE OF CONTENTS

 

Page

 

 

ARTICLE I DEFINITIONS  

Section 1.1

Definitions.

1

 

ARTICLE II SALE AND TRANSFER OF ASSETS

Section 2.1

Purchase and Sale of Assets; Assumption of Liabilities..

6

Section 2.2

Effective Time.

6

Section 2.3

Articles of Incorporation; By-laws; Directors and Officers

6

Section 2.4

Effects of the Asset Purchase.

7

Section 2.5

Closing.

7

 

ARTICLE III PURCHASE PRICE 

Section 3.1

Issuance of Purchase Shares.

8

Section 3.2

PurchaserCommon Stock.

8

 

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE MEMBERS 

Section 4.1

Organization.  .

8

Section 4.2

Authorization; Validity of Agreement.  .

8

Section 4.3

Consents and Approvals; No Violations.

9

Section 4.4

Financial Statements.

9

Section 4.5

No Undisclosed Liabilities.

10

Section 4.6

Litigation.

10

Section 4.7

No Default; Compliance with Applicable Laws.

10

Section 4.8

Broker’s and Finder’s Fees.

10

Section 4.9

Contracts.

10

Section 4.10

Tax Returns and Audits.

11

Section 4.11

Patents and Other Intangible Assets.

11

Section 4.12

Employee Benefit Plans; ERISA.

12

Section 4.13

Title to Property and Encumbrances.

12

Section 4.14

Condition of Properties..

13

Section 4.15

Insurance Coverage.  .

13

Section 4.16

Environmental Matters.

13

Section 4.17

Disclosure.

14

 

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER. 

Section 5.1

Organization.  .

14

Section 5.2

Authorization; Validity of Agreement.

14

Section 5.3

Consents and Approvals; No Violations.

15

Section 5.4

Litigation.  .

15

Section 5.5

No Default; Compliance with Applicable Laws.

15

Section 5.6

Broker’s and Finder’s Fees; Broker/Dealer Ownership.  .

15

Section 5.7

Capitalization of Purchaser.

15

Section 5.8

Validity of Shares.

16

Section 5.9

SEC Reporting and Compliance.

16

Section 5.10

No General Solicitation.

17

Section 5.11

Financial Statements.

17

Section 5.12

Absence of Undisclosed Liabilities.

17

Section 5.13

Changes.

17

Section 5.14

Tax Returns and Audits.

18

Section 5.15

Employee Benefit Plans; ERISA.

18

Section 5.16

Interested Party Transactions.  .

19

Section 5.17

Questionable Payments.  .

19

Section 5.18

Obligations to or by Stockholders.

20

Section 5.19

Schedule of Assets and Contracts.

20

Section 5.20

Environmental Matters.

20

Section 5.21

Employees.

21

Section 5.22

Title to Property and Encumbrances.

21

Section 5.23

Condition of Properties.

21

Section 5.24

Insurance Coverage.

22

Section 5.25

Disclosure.  .

22

Section 5.26

No Liabilities

22

 

ARTICLE VI CONDUCT OF BUSINESSES PENDING THE EFFECTIVE TIME 

Section 6.1

Conduct of Business by the Company Pending the Effective Time.

22

Section 6.2

Conduct of Business by Purchaser Pending the Effective Time.

22

 

ARTICLE VII ADDITIONAL AGREEMENTS 

Section 7.1

Access and Information

23

Section 7.2

Additional Agreements

23

Section 7.3

Publicity.

24

Section 7.4

Appointment of Directors

24

Section 7.5

Name Change.

25

 

ARTICLE VIII CONDITIONS OF PARTIES’ OBLIGATIONS 

Section 8.1

Company' Obligations.

25

Section 8.2

Purchaser Obligations.

26

 

ARTICLE IX INDEMNIFICATION AND RELATED MATTERS 

Section 9.1

Indemnification by Purchaser.

27

Section 9.2

Survival.

28

Section 9.3

Time Limitations.

28

Section 9.4

Limitation on Liability.

28

Section 9.5

Notice of Claims.

28

 

ARTICLE X TERMINATION PRIOR TO CLOSING 

Section 10.1

Termination of Agreement.

29

Section 10.2

Termination of Obligations.

29

 

ARTICLE XI MISCELLANEOUS 

Section 11.1

Amendments.

30

Section 11.2

Notices.

30

Section 11.3

Entire Agreement.

30

Section 11.4

Expenses.

30

Section 11.5

Severability.

30

Section 11.6

Successors and Assigns; Assignment.

31

Section 11.7

No Third Party Beneficiaries.

31

Section 11.8

Counterparts; Delivery by Facsimile.

31

Section 11.9

Waiver.

31

Section 11.10

No Constructive Waivers.

31

Section 11.11

Further Assurances.

32

Section 11.12

Recitals.

32

Section 11.13

Headings.

32

Section 11.14

Governing Law.

32

Section 11.15

Dispute Resolution.

32

Section 11.16

Interpretation.

32

 

Exhibit	Description
Exhibit A	Articles of Incorporation of Purchaser
Exhibit B	By-laws of Purchaser
Exhibit C	Directors of Purchaser Pre-Effective Time and Post-Effective Time

 

 

 

THIS SHARE EXCHANGE AGREEMENT is entered into as of October 19, 2009 by and between ALBA MINERAL EXPLORATION, INC., a Delaware corporation (“Purchaser”) and DIAMOND INFORMATION INSTITUTE, INC., a New Jersey Corporation (the “Company”).

 

W I T N E S S E T H:

 

WHEREAS, The Company desire to sell to Purchaser, and Purchaser desires to purchase from the Company, all of the Company’ assets for the consideration and on the terms set forth in this Agreement,

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, the parties hereto agree as follows:

 

 

Section 1.1 Definitions.  Capitalized terms used in this Agreement shall have the following meanings:

 

“Acquisition Proposal” shall have the meaning given to such term in Section 6.2 hereof.

 

“Action” shall mean any claim, action, suit, proceeding, investigation or order.

 

“Affiliate” shall mean, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with, such Person.  For the purposes of this definition, “control” (including, with correlative meaning, the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such Person through the ownership of voting securities, by contract or otherwise.

 

“Agreement” shall mean this Share Exchange Agreement, including  the exhibits attached hereto or referred to herein, as the same may be amended or modified from time to time in accordance with the provisions hereof.

 

“Applicable Contract” shall mean any Contract which relates directly or indirectly to the Assets or to services rendered to or by or to be rendered to or by any of the Company.

 

“Articles of Incorporation” shall have the meaning given to such term in Section 2.3(a) hereof.

 

“Assets” shall have the meaning given to such term in Section 2.1 hereof.

 

“Balance Sheet” shall have the meaning given to such term in Section 4.5 hereof.

 

“Balance Sheet Date” shall have the meaning given to such term in Section 4.4 hereof.

 

“By-laws” shall have the meaning given to such term in Section 2.3(b) hereof.

 

 

 

 

 

 

 “Closing” shall have the meaning given to such term in Section 2.5 hereof.

 

“Closing Date” shall have the meaning given to such term in Section 2.5 hereof.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended.

 

“Commission” shall mean the United States Securities and Exchange Commission.

 

“Company” shall have the meaning given to such term in the preamble to this Agreement.

 

“Company Material Adverse Effect” shall mean any change, effect or circumstance that is materially adverse or is reasonably likely to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or operations of the Company and its subsidiaries, taken as a whole, other than any such change, effect or circumstance relating to general economic, regulatory or political conditions, except to the extent such change, effect or circumstance disproportionately affects such Company and its subsidiaries, taken as a whole.

 

 “Contract” shall have the meaning given to such term in Section 4.3 hereof.

 

“Consents” shall mean any permits, filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the like of, to, with or by any Person.

 

“DGCL” shall mean the General Corporation Law of the State of Delaware.

 

“Effective Time” shall have the meaning given to such term in Section 2.2 hereof.

 

“Employee Benefit Plans” shall have the meaning assigned to it in Section 4.12 hereof.

 

“Environmental Law” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq. and comparable state statutes dealing with the registration, labeling and use of pesticides and herbicides; the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. §§ 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.; and the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq., as any of the above referenced statutes have been amended as of the date hereof, all rules, regulations and policies promulgated pursuant to any of the above referenced statutes, and any other foreign, federal, state or local law, statute, ordinance, rule, regulation or policy governing environmental matters, as the same have been amended as of the date hereof.

 

“ERISA” shall mean the Employee Retirement Income Securities Act of 1974, as amended, and the regulations issued thereunder.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations issued thereunder.

 

 

 

 

 

 

“Federal Securities Laws” means the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder.

 

“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the United States consistently applied.

 

“Hazardous Material” means any substance or material meeting any one or more of the following criteria:  (a) it is or contains a substance designated as or meeting the characteristics of a hazardous waste, hazardous substance, hazardous material, pollutant, chemical substance or mixture, contaminant or toxic substance under any Environmental Law; (b) its presence at some quantity requires investigation, notification or remediation under any Environmental Law; (c) it contains, without limiting the foregoing, asbestos, polychlorinated biphenyls, petroleum hydrocarbons, petroleum derived substances or waste, pesticides, herbicides, crude oil or any fraction thereof, nuclear fuel, natural gas or synthetic gas; or (d) mold.

 

 “Indebtedness” shall mean any obligation of the Company that under GAAP is required to be shown on the Balance Sheet of the Company as a Liability. Any obligation secured by a Lien on, or payable out of the proceeds of production from, property of the Company shall be deemed to be Indebtedness even though such obligation is not assumed by the Company.

 

“Indebtedness for Borrowed Money” shall mean (a) all Indebtedness in respect of money borrowed including, without limitation, Indebtedness which represents the unpaid amount of the purchase price of any property and is incurred in lieu of borrowing money or using available funds to pay such amounts and not constituting an account payable or expense accrual incurred or assumed in the ordinary course of business of the Company, (b) all Indebtedness evidenced by a promissory note, bond or similar written obligation to pay money, or (c) all such Indebtedness guaranteed by the Company or for which the Company are otherwise contingently liable.

 

“Intellectual Property” shall have the meaning given to such term in Section 4.11(b) hereof.

 

“Investment Company Act” shall mean the Investment Company Act of 1940, as amended.

 

“Liability” shall mean any and all liability, debt, obligation, deficiency, Tax, penalty, fine, claim, cause of action or other loss, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due and regardless of when asserted.

 

“Lien” shall mean 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 statute or other law.

 

 “NJSA” shall mean the New Jersey Statutes Annotated, as amended.

 

“Ordinary Course of Business” shall mean an action taken by a Person will be deemed to have been taken in the “Ordinary Course of Business” only if:

 

 

 

 

 

 

 

(i)           such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person;

 

(ii)           such action is not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority); and

 

(iii)           such action is similar in nature and magnitude to actions customarily taken, without any authorization by the board of directors (or any Person or group of Persons exercising similar authority), in the ordinary course of the normal day-to-day operations of other Persons that are in the same line of business as such Person.

 

“Person” shall mean any individual, corporation, limited liability company, partnership, joint venture, trust or other entity or organization, including any government or political subdivision or an agency or instrumentality thereof.

 

“Purchaser” shall have the meaning given to such term in the preamble to this Agreement.

 

“Purchaser Balance Sheet” shall have the meaning assigned to such term in Section 5.12 hereof.

 

“Purchaser Balance Sheet Date” shall have the meaning assigned to it in Section 5.12 hereof.

 

“Purchaser Common Stock” shall mean the common stock, par value $0.001 per share, of Purchaser.

 

“Purchaser Employee Benefit Plans” shall have the meaning assigned to such term in Section 5.16 hereof.

 

“Purchaser Financial Statements” shall have the meaning assigned to such term in Section 5.11hereof.

 

“Purchaser Material Adverse Effect” means any change, effect or circumstance that is materially adverse or is reasonably likely to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or operations of Purchaser and its subsidiaries, taken as a whole, other than any such change, effect or circumstance relating to general economic, regulatory or political conditions, except to the extent such change, effect or circumstance disproportionately affects Purchaser and its subsidiaries, taken as a whole.

 

“Purchaser SEC Documents” shall have the meaning assigned to such term in Section 5.9 hereof.

 

“Permitted Liens” shall mean (a) Liens for taxes and assessments or governmental charges or levies not at the time due or in respect of which the validity thereof shall currently be contested in good faith by appropriate proceedings; (b) Liens in respect of pledges or deposits under workmen’s compensation laws or similar legislation, carriers’, warehousemen’s, mechanics’, laborers’ and materialmens’ and similar Liens, if the obligations secured by such Liens are not then delinquent or are being contested in good faith by appropriate proceedings; and (c) Liens incidental to the conduct of the businesses of the Company that were not incurred in connection with the borrowing of money or the obtaining of advances or credits and which do not in the aggregate materially detract from the value of its property or materially impair the use made thereof by the Company in their businesses.

 

 

 

 

 

 

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations issued thereunder.

 

 “Tax” or “Taxes” shall mean (a) any and all taxes, assessments, customs, duties, levies, fees, tariffs, imposts, deficiencies and other governmental charges of any kind whatsoever (including, but not limited to, taxes on or with respect to net or gross income, franchise, profits, gross receipts, capital, sales, use, ad valorem, value added, transfer, real property transfer, transfer gains, transfer taxes, inventory, capital stock, license, payroll, employment, social security, unemployment, severance, occupation, real or personal property, estimated taxes, rent, excise, occupancy, recordation, bulk transfer, intangibles, alternative minimum, doing business, withholding and stamp), together with any interest thereon, penalties, fines, damages costs, fees, additions to tax or additional amounts with respect thereto, imposed by the United States (federal, state or local) or other applicable jurisdiction; (b) any liability for the payment of any amounts described in clause (a) as a result of being a member of an affiliated, consolidated, combined, unitary or similar group or as a result of transferor or successor liability, including, without limitation, by reason of Code Section 1.1502-6; and (c) any liability for the payments of any amounts as a result of being a party to any Tax Sharing Agreement or as a result of any express or implied obligation to indemnify any other Person with respect to the payment of any amounts of the type described in either clauses (a) or (b).

 

“Tax Return” shall include all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns (including Form 1099 and partnership returns filed on Form 1065)) required to be supplied to a Tax authority relating to Taxes.

 

“Tax Sharing Agreements” shall have the meaning given to such term in Section 4.10 hereof.

 

 

Section 2.1 Purchase and Sale of Assets; Assumption of Liabilities.  Upon the terms and subject to the conditions of this Agreement, at the Effective Time, the Company shall sell, assign, convey, transfer and deliver to Purchaser, and the Purchaser shall purchase and acquire from the Company, all right, title and interest in and to all of the assets of the Company, including but not limited to all of the following assets, wherever located (collectively, the “Assets”):

 

 

(i)all rights under Applicable Contracts;

 

 

(ii)all tangible personal property owned, used or leased by the Company, including any machinery, equipment, operating supplies and other similar property, wherever located;

 

 

(iii)all inventions, copyrights, patents, trademarks, trademark applications, trade names, trade secrets, logos , including any proprietary know-how and use and application know-how, manufacturing, engineering, drawings, design and engineering specifications, production standards, practices and promotional literature and advertising and any and all other intellectual property rights, including those derived, if any, from services previously rendered to customers and the right to sue for past infringements thereof;

 

 

(iv)all software in which the Company has an interest including source and object codes, computer applications and operating programs used in connection with the business of the Company; all causes of action, judgments, claims, and demands of any nature related to such software;

 

 

(v)all customer lists, supplier lists, sales and marketing records and materials, client files and records, and other business records;

 

 

(vi)all current assets, including all cash, prepaid expenses, and all trade and other accounts and notes receivable; and

 

 

(vii)all intangible property, including goodwill and covenants not to compete.

 

Subject to the terms and conditions of this Agreement, at the Effective Time the Purchaser will assume all of the Company’s duties, liabilities and obligations (collectively, the “Assumed Obligations”), with the sole exception of those duties and liabilities listed on Schedule 2.1 (the “Excluded Obligations”).  Notwithstanding anything to the contrary above, Purchaser will not assume any liabilities or obligations of the Company if the existence of such liabilities or obligations either are, or give rise to or result from, facts or circumstances that constitute a misrepresentation or breach of the representations and warranties made in this Agreement. The Assumed Obligations are the only liabilities and obligations of the Company that Purchaser will assume in connection with this Agreement.

 

Section 2.2 Effective Time.   This Agreement shall become effective upon its execution by all parties hereto, and such time is hereinafter referred to as the “Effective Time.”

 

Section 2.3 Articles of Incorporation; By-laws; Directors and Officers.

 

 

 

 

 

 

(a) With the exception of the name change as provided herein, the Articles of Incorporation of Purchaser as in effect immediately prior to the Effective Time, a copy of which is attached as Exhibit A hereto, shall continue to be the Articles of Incorporation of Purchaser (the “Articles of Incorporation”) from and after the Effective Time until thereafter changed or amended as provide therein or in accordance with applicable law.

 

(b) The by-laws of Purchaser as in effect immediately prior to the Effective Time, a copy of which is attached as Exhibit B hereto, shall continue to be the by-laws of the Purchaser (the “By-laws”) from and after the Effective Time until thereafter changed or amended as provided therein or in accordance with applicable law.

 

(c) One or more of the shareholders of the Company at the Effective Time shall be appointed the directors of the Purchaser and shall hold office from the Effective Time until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles of Incorporation and By-laws.  One or more of the shareholders of the Company immediately prior to the Effective Time shall be appointed the officers of the Purchaser and shall hold office from the Effective Time until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles of Incorporation and By-laws.

 

(d) At the Effective Time as contemplated by Section 2.2 hereof, the officers and directors of the Purchaser designated on Exhibit C hereto shall resign, to be replaced by the officers and directors designated on Exhibit C hereto, who shall immediately take such offices or who shall take such offices upon compliance with the Federal Securities Laws, as the case may be.  The appointment of new directors in accordance with the terms of this Section 2.3(d) shall be accomplished through the filling of vacancies in the Board of Directors of the Purchaser in compliance with the applicable provisions of the DGCL and the By-laws of the Purchaser and without the vote (by written consent or otherwise) of the shareholders of the Purchaser.

 

Section 2.4 Effects of the Asset Purchase.  At the Effective Time, except as otherwise provided herein, all of the property, rights, privileges, powers and franchises of the Company shall vest in the Purchaser, and all debts, liabilities and duties of the Company, with the exception of the Excluded Obligations, shall become the debts, liabilities and duties of the Purchaser. The Company acknowledges that, from and after the Effective Time, Purchaser shall have the absolute and unqualified right to deal with the former assets and business of the Company as its own property, without limitation on the disposition or use of such assets or the conduct of such business.

 

Section 2.5 Closing.  The consummation of the transactions contemplated by this Agreement (the “Closing”), shall take place: (a) at the offices of the Purchaser at 10:00 a.m. local time on the date on which all of the conditions to the Closing set forth in Article VIII hereof shall be fulfilled or waived in accordance with this Agreement (other than conditions that can be satisfied only at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing); or (b) at such other place, time and date as the Company and Purchaser may agree in writing (the “Closing Date”).

 

 

 

 

                                  ARTICLE III                                

 

Section 3.1 Issuance of Purchase Shares.  Immediately upon the Effective Time, the purchase price for the Assets will be paid in the form of shares of common stock from treasury, par value $0.001 per share, in the Purchaser (the “Purchase Shares”), to be issued in the proportions and amounts and to the Persons set forth on Schedule 3.1.  Each share of Company common stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be converted or exchanged into the right to receive .21884 shares of Purchaser common stock. The aggregate number of Purchase Shares of common stock to be issued to the Company pursuant to this Section 3.1 shall equal 2,585,175 shares and shall represent a Sixty Percent (60%) interest in Purchaser’s common stock issued and outstanding.  The issuance of Purchase Shares to the Company shall be authorized by Board Resolution of the Purchaser prior to the Closing.

 

Section 3.2 Purchaser Common Stock.  Purchaser shall reserve a sufficient number of shares of its common stock to complete the issuance of the Purchase Shares contemplated by Sections 3.1 hereof.  Purchaser covenants and agrees that immediately prior to the Effective Time there will be 5,033,450 shares of Purchaser common stock issued and outstanding, and that no other common or preferred stock or equity securities of the Purchaser, or any options, warrants, rights or other agreements or instruments convertible, exchangeable or exercisable into common or preferred stock or equity securities of the Purchaser, shall be issued or outstanding immediately prior to the Effective Time.  At the Closing, Purchaser shall provide a Board Resolution evidencing the authorization of all newly issued shares from treasury stock.

 

Section 3.3 Delivery of Stock Certificate.  A stock certificate reflecting the number of shares of common stock outstanding and issued to be used in the purchase of the Company pursuant to the terms of Section 3.1, will be delivered by the Purchaser to the Company at the time of Closing. Purchaser shall also provide any additional stock certificates reflecting the number of shares of common stock outstanding and issued to any party not listed in Schedule 3.1.

 

                                       

 

The Company hereby represents and warrants to Purchaser as follows:

 

Section 4.1 Organization.  The Company (i) is duly organized, validly existing and in good standing (or its equivalent) under the laws of the State of New Jersey, (ii) has all licenses, permits, authorizations and other consents necessary to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and (iii) has all requisite corporate or other applicable power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and presently proposed to be conducted, except where such failure would not have, or be reasonably likely to have, a Company Material Adverse Effect.  The Company is duly qualified or authorized to conduct business and is in good standing (or its equivalent) as a foreign corporation or other entity in all jurisdictions in which the ownership or use of its assets or nature of the business conducted by it makes such qualification or authorization necessary, except where the failure to be so duly qualified, authorized and in good standing would not have a Company Material Adverse Effect.

 

 

 

 

 

 

 

Section 4.2 Authorization; Validity of Agreement.  The Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby.  The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the board and shareholders of the Company and no other action on the part of any of the Company or any of their shareholders, or subsidiaries is necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.  This Agreement has been duly executed and delivered by the Company and (assuming due and valid authorization, execution and delivery hereof by Purchaser) is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

Section 4.3 Consents and Approvals; No Violations.  Neither the execution, delivery or performance of this Agreement by the Company nor the consummation of the transactions contemplated hereby will (i) violate any provision of the Company’s certificates of organization or operating agreements; (ii) violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, require the consent of or result in the creation of any encumbrance upon any of the properties of any of the Company or any of their subsidiaries under any material note, bond, mortgage, indenture, deed of trust, license, franchise, permit, lease, contract, agreement or other instrument (collectively, “Contract”) to which the Company or any their subsidiaries or any of their respective properties may be bound; (iii) require any Consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental entity by or with respect to the Company or any of their subsidiaries; or (iv) violate any order, writ, judgment, injunction, decree, law, statute, rule or regulation applicable to the Company or any of their subsidiaries or any of their respective properties or assets; except, in the cases of clauses (ii), (iii) and (iv), any such violations, conflicts, breaches, defaults or encumbrances, or any failure to receive any such consent, approval or authorization, or to make any such notice, declaration, filing or registration as will not result in, or could reasonably be expected to result in, a Company Material Adverse Effect.

 

Section 4.4 Financial Statements.  The Company has delivered or made available as of the date hereof or shall, prior to the Closing Date, deliver or make available to Purchaser the audited consolidated balance sheets of the Company for the fiscal year ended December 31, 2008  and an unaudited balance sheet, statement of operation, and cash flow analysis with footnotes, for the six month period ended June 30, 2009 (the “Balance Sheet Date”) and the related consolidated and consolidating statements of income, stockholders’ equity and cash flows of the Company for the fiscal years ended December 31, 2008 and 2007.  The foregoing financial statements (including any notes thereto) (i) have been prepared based upon the books and records of the Company, (ii) have been prepared in accordance with GAAP (except as otherwise noted therein), and (iii) present fairly, in all material respects, the financial position, results of operations and cash flows of the Company as at their respective dates and for the periods then ended.  To the knowledge of the Company, since the Balance Sheet Date, no fact or condition exists that has not been disclosed to Purchaser that has had or could reasonably be expected to have a Company Material Adverse Effect.

 

 

 

 

 

Section 4.5 No Undisclosed Liabilities.  As of the date hereof, except (a) for Liabilities reflected on the face of the balance sheet for the six month period ended June 30, 2009 (the “Balance Sheet”) and (b) Liabilities of the same type, magnitude and scope as those reflected on the Balance Sheet which have arisen since the Balance Sheet Date in the ordinary course of business, and which would not, in the aggregate, result in a Company Material Adverse Effect, the Company does not have any Liability.

 

Section 4.6 Litigation.  Neither the Company nor any of its subsidiaries is in default under any judgment, order or decree of any governmental entity applicable to their business, which default could reasonably be expected to have a Company Material Adverse Effect.

 

Section 4.7 No Default; Compliance with Applicable Laws The Company is not in default or violation of any material term, condition or provision of (i) its Certificate of Organization or Operating Agreement or (ii) any law applicable to the Company or its property and assets, and the Company has not received written notice of any violation of or Liability under any of the foregoing (whether material or not).

 

Section 4.8 Broker’s and Finder’s Fees.  To the knowledge of the Company, no Person has, or as a result of the transactions contemplated or described 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.

 

Section 4.9 Contracts.

 

(a) The Company is not in violation or breach of any material contract, except such violations that, in the aggregate, would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect.  There does not exist any event or condition that, after notice or lapse of time or both, would constitute an event of default or breach under any material Contract on the part of the Company or, to the knowledge of the Company, any other party thereto or would permit the modification, cancellation or termination of any material Contract or result in the creation of any lien upon, or any person  acquiring any right to acquire, any assets of any of the Company, other than any events or conditions that, in the aggregate would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect. The Company has not received in writing any claim or threat that the Company has breached any of the terms and conditions of any material Contract, other than any material Contracts the breach of which, in the aggregate, would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect.

 

(b) The  consent of, or the delivery of notice to or filing with, any party to a material Contract is not required for the execution and delivery by the Company of this Agreement or the consummation of the transactions contemplated under the Agreement.  The Company has made available to Purchaser true and complete copies of all Contracts and other documents requested by Purchaser.

 

 

   Section 4.10 Tax Returns and Audits.  All required federal, state and local Tax Returns of the Company have been accurately prepared and duly and timely filed, and all federal, state and local Taxes required to be paid with

Section 4.11 Patents and Other Intangible Assets.

 

(a) To the knowledge of the Company, the Company (i) owns or has the right to use, pursuant to a valid license, sublicense, agreement, or permission, free and clear of all Liens, all patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect to the foregoing used in or necessary for the conduct of their businesses as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any Person under or with respect to any of the foregoing.

 

(b) To the knowledge of the Company, the Company owns and has the right to use all trade secrets, if any, including know-how, negative know-how, application know-how, formulas, patterns, programs, devices, methods, techniques, inventions, designs, processes, computer programs, logos, manufacturing, engineering, drawings, engineering specifications, production standards, practices and promotional literature and advertising and technical data and all information that derives independent economic value, actual or potential, from not being generally known or known by competitors (collectively, “Intellectual Property”) required for or incident to the development, operation and sale of all products and services sold by the Company, free and clear of any right, Lien or claim of others.  All Intellectual Property can and will be transferred by the Company to the Purchaser as a result of this Agreement and without the consent of any Person other than the Company.

 

 

 

 

 

 

Section 4.12 Employee Benefit Plans; ERISA.

 

(a) All “employee benefit plans” (within the meaning of Section 3(3) of the ERISA) of the Company and other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs of every type, other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Company, whether written or unwritten and whether or not funded, are in material compliance with the applicable requirements of ERISA, the Code and any other applicable state, federal or foreign law.

 

(b) There are no pending claims or lawsuits that have been asserted or instituted against any Employee Benefit Plan, the assets of any of the trusts or funds under the Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Employee Benefit Plans or against any fiduciary of an Employee Benefit Plan with respect to the operation of such plan, nor does the Company have any knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to form the basis of any such claim or lawsuit.

 

(c) There is no pending or, to the knowledge of the Company, threatened investigation, or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Employee Benefit Plan and the Company has no knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to trigger such an investigation or enforcement action.

 

(d) No actual or, to the knowledge of the Company, contingent Liability exists with respect to the funding of any Employee Benefit Plan or for any other expense or obligation of any Employee Benefit Plan, except as disclosed on the Balance Sheet, and no contingent Liability exists under ERISA with respect to any “multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

 

(e) No events have occurred or are reasonably expected to occur with respect to any Employee Benefit Plan that would cause a material change in the costs of providing benefits under such Employee Benefit Plan or would cause a material change in the cost of providing such Employee Benefit Plan.

 

Section 4.13 Title to Property and Encumbrances.  The Company has good and valid title to all properties and assets used in the conduct of its business (except for property held under valid and subsisting leases which are in full force and effect and which are not in default) free of all Liens except Permitted Liens and such ordinary and customary imperfections of title, restrictions and encumbrances as do not in the aggregate constitute a Company Material Adverse Effect.

 

Section 4.14 Condition of Properties.  All facilities, machinery, equipment, fixtures and other properties owned, leased or used by the Company are in operating condition, subject to ordinary wear and tear, and are adequate and sufficient for the Company’s existing business.

 

Section 4.15 Insurance Coverage.  There is in full force and effect one or more policies of insurance issued by insurers of recognized responsibility insuring the Company and its properties, products and business against such losses and risks, and in such amounts, as are customary for corporations of established reputation engaged in the same or similar business and similarly situated.  The Company has not been refused any insurance coverage sought or applied for, and the Company has no reason to believe that it will be unable to renew its existing insurance coverage as and when the same shall expire upon terms at least as favorable to those currently in effect, other than possible increases in premiums that do not result from any act or omission of the Company.  No suit, proceeding or action or, to the knowledge of the Company, threat of suit, proceeding or action has been asserted or made against the Company due to alleged bodily injury, disease, medical condition, death or property damage arising out of the function or malfunction of a product, procedure or service designed, manufactured, sold or distributed by the Company.

 

 

 

Section 4.16 Environmental Matters.

 

(a) To the knowledge of the Company, the Company has never generated, used, handled, treated, released, stored or disposed of any Hazardous Materials on any real property on which they now have or previously had any leasehold or ownership interest, except in compliance with all applicable Environmental Laws.

 

(b) To the knowledge of the Company, the historical and present operations of the business of the Company are in compliance with all applicable Environmental Laws, except where any non-compliance has not had and would not reasonably be expected to have a Company Material Adverse Effect.

 

(c) There are no material pending or, to the knowledge of the Company, threatened, demands, claims, information requests or notices of noncompliance or violation against or to the Company relating to any Environmental Law; and, to the knowledge of the Company, there are no conditions or occurrences on any of the real property used by the Company in connection with its business that would reasonably be expected to lead to any such demands, claims or notices against or to the Company, except such as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

 

(d) To the knowledge of the Company, (i) the Company has not sent or disposed of, otherwise had taken or transported, arranged for the taking or disposal of (on behalf of itself, a customer or any other party) or in any other manner participated or been involved in the taking of or disposal or release of a Hazardous Material to or at a site that is contaminated by any Hazardous Material or that, pursuant to any Environmental Law, (A) has been placed on the “National Priorities List”, the “CERCLIS” list, or any similar state or federal list, or (B) is subject to or the source of a claim, an administrative order or other request to take “removal”, “remedial”, “corrective” or any other “response” action, as defined in any Environmental Law, or to pay for the costs of any such action at the site; (ii) the Company is not involved in (and has no basis to reasonably expect to be involved in) any suit or proceeding and has not received (and has no basis to reasonably expect to receive) any written notice, request for information or other communication from any governmental authority or other third party with respect to a release or threatened release of any Hazardous Material or a violation or alleged violation of any Environmental Law, and has not received (and has no basis to reasonably expect to receive) written notice of any claims from any Person relating to property damage, natural resource damage or to personal injuries from exposure to any Hazardous Material; and (iii) the Company has timely filed every report required to be filed, acquired all necessary certificates, approvals and permits, and generated and maintained all required data, documentation and records under all Environmental Laws, in all such instances except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

 

 

 

 

Section 4.17 Disclosure.  There is no fact relating to the Company that the Company has not disclosed to Purchaser in writing that has had or is currently having a Company Material Adverse Effect.  No representation or warranty by the Company herein and no information disclosed in the exhibits hereto by the Company contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

 

ARTICLE V                      

 

Purchaser hereby represents and warrants to the Company as follows:

 

Section 5.1 Organization.  Purchaser (i) is duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has all licenses, permits, authorizations and other Consents necessary to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and (iii) has all requisite corporate or other applicable power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and presently proposed to be conducted, in each case except where such failures would not have, or be reasonably likely to have, a Purchaser Material Adverse Effect.  Purchaser is duly qualified or authorized to conduct business and is in good standing (or its equivalent) as a foreign corporation or other entity in all jurisdictions in which the ownership or use of its assets or nature of the business conducted by it makes such qualification or authorization necessary, except where the failure to be so duly qualified, authorized and in good standing would not have a Purchaser Material Adverse Effect.

 

Section 5.2 Authorization; Validity of Agreement.  Purchaser has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby.  The execution, delivery and performance by Purchaser of this Agreement and all other agreements and instruments to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by the Board of Directors of Purchaser and no other action on the part Purchaser is necessary to authorize the execution and delivery of this Agreement and all other agreements and instruments to be executed pursuant to this Agreement and the consummation by Purchaser of the transactions contemplated hereby and thereby.  This Agreement has been duly executed and delivered by the Purchaser and (assuming due and valid authorization, execution and delivery hereof by the Company) is a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

 

 

 

 

Section 5.3 Consents and Approvals; No Violations.  Neither the execution, delivery or performance of this Agreement by Purchaser nor the consummation of the transactions contemplated hereby will (i) violate any provision of the certificate of incorporation or by-laws of Purchaser; (ii) violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, require the consent of or result in the creation of any Lien upon any of the properties of Purchaser under any Contract to which Purchaser or any of its properties may be bound; (iii) require any Consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental entity by or with respect to Purchaser or any subsidiary of Purchaser, or (iv) violate any order, writ, judgment, injunction, decree, law, statute, rule or regulation applicable to Purchaser or any of its properties or assets; except, in the cases of clauses (ii), (iii) and (iv), any such violations, conflicts, breaches, defaults or encumbrances, or any failure to receive any such Consent, approval or authorization, or to make any such notice, declaration, filing or registration as will not result in, or could reasonably be expected to result in, a Purchaser Material Adverse Effect.

 

Section 5.4 Litigation.  There is no Action pending or, to the knowledge of the Purchaser, threatened, involving Purchaser or any subsidiary of Purchaser or affecting the officers, directors or employees of Purchaser or any subsidiary of Purchaser with respect to Purchaser’s businesses by or before any governmental entity or by any third party and Purchaser has not received written notice that any such Action is threatened.  Purchaser is not in default under any judgment, order or decree of any governmental entity applicable to its business which could reasonably be expected to have a Purchaser Material Adverse Effect.

 

Section 5.5 No Default; Compliance with Applicable Laws.  Neither Purchaser nor any of Purchaser’s subsidiaries is in default or violation of any material term, condition or provision of (i) their respective articles of incorporation, by-laws or similar organizational documents or (ii) any law applicable to Purchaser or any of Purchaser’s subsidiaries or its property and assets and neither Purchaser nor any of Purchaser’s subsidiaries has received written notice of any violation of or Liability under any of the foregoing (whether material or not).

 

Section 5.6 Broker’s and Finder’s Fees; Broker/Dealer Ownership.  No person(s), firm, corporation or other entity is entitled by reason of any act or omission of Purchaser to any broker’s or finder’s fees, commission or other similar compensation, nor, with respect to the execution, delivery and performance of this Agreement or with respect to the consummation of the transactions contemplated hereby will any such person have any right or valid claim against the Company or Purchaser to any such payment.

 

Section 5.7 Capitalization of Purchaser.  As of the date hereof, the authorized capital stock of Purchaser consists of 65,000,000 shares of common stock and 10,000,000 shares of preferred stock.  As of the date hereof and immediately prior to the Effective Time, there are 5,033,450 shares of common stock, par value $0.001, issued and outstanding and no shares of preferred stock issued and outstanding.  Other than as provided in Article III of this Agreement in connection with securities to be issued or to become issuable in connection with or as a result of this Agreement, Purchaser has no outstanding options, warrants, rights or commitments to issue shares of common stock or any capital stock or other securities of Purchaser, and there are no outstanding securities convertible or exercisable into or exchangeable for shares of Purchaser’s common stock or any capital stock or other securities of Purchaser.  There is no voting trust, agreement or arrangement among any of the beneficial holders of Purchaser’s common stock affecting the nomination or election of directors or the exercise of the voting rights of Purchaser’s common stock.  There are no registration rights or similar rights applicable to any shares of Purchaser’s common stock or any capital stock or other securities of Purchaser.  All outstanding shares of the capital stock of Purchaser are validly issued and outstanding, fully paid and non-assessable, and none of such shares have been issued in violation of the preemptive rights of any person.  All of the shares of Purchaser’s common stock issued and outstanding immediately prior to the Effective Time have been issued in compliance with the Securities Act and applicable state securities laws and (i) pursuant to effective registration statements filed with the Securities and Exchange Commission and/or (ii) in reliance on valid exemptions from registration or qualification thereunder.

 

 

 

 

 

Section 5.8 Validity of Shares.  The shares of Purchaser’s common stock to be issued in accordance with Article III hereof, when issued and delivered in accordance with the terms hereof, shall be duly authorized, validly issued, fully paid and non-assessable.

 

Section 5.9 SEC Reporting and Compliance.

 

(a) Purchaser filed a registration statement on Form S-1 under the Securities Act which became effective on May 7, 2008.  Since that date, Purchaser has timely filed with the Commission all registration statements, proxy statements, information statements and reports required to be filed by Purchaser pursuant to the Exchange Act (collectively, the “Purchaser SEC Documents”).  Purchaser has not filed with the Commission a certificate on Form 15 pursuant to the Exchange Act.

 

(b) None of the Purchaser SEC Documents, as of their respective dates, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein not misleading.  Each of the Purchaser SEC Documents complied, and each Purchaser SEC Document to be filed with the Commission prior to the Effective Date shall comply, in all material respects, with the applicable requirements of the Securities Act and the Securities Exchange, as the case may be.  Each of the financial statements (including, in each case, any related notes), contained in the Purchaser SEC Documents, including any Purchaser SEC Documents filed after the date of this Agreement until the Closing, complied, as of its respective filing date, in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission with respect thereto.

 

(c) Purchaser has not filed, and nothing has occurred with respect to which Purchaser would be required to file, any report on Form 8-K prior to the date hereof.  Prior to and until the Closing, Purchaser will provide to the Company copies of any and all amendments or supplements to the Purchaser SEC Documents filed with the Commission and all subsequent registration statements and reports filed by Purchaser subsequent to the filing of the Purchaser SEC Documents with the Commission and any and all subsequent information statements, proxy statements, reports or notices filed by the Purchaser with the Commission or delivered to the stockholders of Purchaser.

 

(d) Purchaser is not an “investment company” within the meaning of Section 3 of the Investment Company Act.

 

 

 

 

 

 

 

(e) The Purchaser Common Stock is presently eligible for quotation and trading on the NASD Over-the-Counter Bulletin Board.

 

(f) Between the date hereof and the Closing Date, Purchaser shall continue to satisfy any applicable filing requirements of the Exchange Act or the Securities Act, as the case may be, and all other requirements of applicable securities laws.  Immediately upon the Effective Date of this Agreement, Purchaser shall satisfy all applicable filing requirements of the Exchange Act, the Securities Act, and the Commission, disclosing the terms of this Agreement.

 

(g) To the knowledge of Purchaser, Purchaser has complied with the Securities Act, Exchange Act and all other applicable federal and state securities laws.

 

Section 5.10 No General Solicitation.  In issuing common stock in payment of the purchase price hereunder, neither Purchaser nor anyone acting on its behalf has offered to sell Purchaser’s common stock by any form of general solicitation or advertising.

 

Section 5.11 Financial Statements.  The balance sheets, and statements of income, stockholders’ equity and cash flows (including any notes thereto) contained in the Purchaser SEC Documents (the “Purchaser Financial Statements”) (i) have been prepared in accordance with GAAP, (ii) are in accordance with the books and records of the Purchaser, and (iii) present fairly in all material respects the financial condition of the Purchaser at the dates therein specified and the results of its operations and changes in financial position for the periods therein specified.

 

Section 5.12 Absence of Undisclosed Liabilities.  Purchaser has no Liability at or prior to the Closing, except (a) as disclosed in the Purchaser SEC Documents, (b) to the extent set forth on or reserved against in the balance sheet of Purchaser as of June 30, 2009 (the “Purchaser Balance Sheet”) or the notes to the Purchaser Financial Statements, (c) current Liabilities incurred and obligations under agreements entered into in the usual and ordinary course of business, consistent with past practice, since June 30, 2009 (the “Purchaser Balance Sheet Date”), none of which, individually or in the aggregate, constitutes a Purchaser Material Adverse Effect, (d) attorney’s fees and accounting fees incurred by the Purchaser since the Purchaser Balance Sheet Date, including those related to this Agreement and all of the transactions related thereto and contemplated thereby, including but not limited to preparation and filing of disclosures with the SEC, and (e) by the specific terms of any written agreement, document or arrangement attached as an exhibit to the Purchaser SEC Documents.

 

Section 5.13 Changes.  Since the Purchaser Balance Sheet Date, except as disclosed in the Purchaser SEC Documents, Purchaser has not (a) incurred any debts, obligations or Liabilities, absolute, accrued or, to the Purchaser’s knowledge, contingent, whether due or to become due, except for current Liabilities incurred in the usual and ordinary course of business, (b) discharged or satisfied any Liens other than those securing, or paid any obligation or Liability other than, current liabilities shown on the Purchaser Balance Sheet and current Liabilities incurred since the Purchaser Balance Sheet Date, in each case in the usual and ordinary course of business, (c) mortgaged, pledged or subjected to Lien any of its assets, tangible or intangible, other than in the usual and ordinary course of business, (d) sold, transferred or leased any of its assets, except in the usual and ordinary course of business, (e) cancelled or compromised any debt or claim, or waived or released any right of material value, (f) suffered any physical damage, destruction or loss (whether or not covered by insurance) that could reasonably be expected to have a Purchaser Material Adverse Effect, (g) entered into any transaction other than in the usual and ordinary course of business, (h) encountered any labor union difficulties, (i) made or granted any wage or salary increase or made any increase in the amounts payable under any profit sharing, bonus, deferred compensation, severance pay, insurance, pension, retirement or other employee benefit plan, agreement or arrangement, other than in the ordinary course of business consistent with past practice, or entered into any employment agreement, (j) issued or sold any shares of capital stock, bonds, notes, debentures or other securities or granted any options (including employee stock options), warrants or other rights with respect thereto, (k) declared or paid any dividends on or made any other distributions with respect to, or purchased or redeemed, any of its outstanding capital stock, (l) suffered or experienced any change in, or condition affecting, the financial condition of the Purchaser other than changes, events or conditions in the usual and ordinary course of its business, none of which (either by itself or in conjunction with all such other changes, events and conditions) could reasonably be expected to have a Purchaser Material Adverse Effect, (m) made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted, (n) made or permitted any amendment or termination of any material Contract, agreement or license to which it is a party, (o) suffered any material loss not reflected in the Purchaser Balance Sheet or its statement of income for the year ended on the Purchaser Balance Sheet Date, (p) paid, or made any accrual or arrangement for payment of, bonuses or special compensation of any kind or any severance or termination pay to any present or former officer, director, employee, stockholder or consultant, (q) made or agreed to make any charitable contributions or incurred any non-business expenses in excess of $1,000 in the aggregate, or (r) entered into any Contract, agreement or license, or otherwise obligated itself, to do any of the foregoing.

 

 

 

 

 

Section 5.14 Tax Returns and Audits.  All required federal, state and local Tax Returns of the Purchaser have been accurately prepared in all material respects and duly and timely filed, and all federal, state and local Taxes required to be paid with respect to the periods covered by such returns have been paid to the extent that the same are material and have become due, except where the failure so to file or pay could not reasonably be expected to have a Purchaser Material Adverse Effect.  The Purchaser is not and has not been delinquent in the payment of any Tax.  The Purchaser has not had a Tax deficiency assessed against it.  None of the Purchaser’s federal income Tax Returns nor any state or local income or franchise Tax Returns has been audited by governmental authorities.  The reserves for Taxes reflected on the Purchaser Balance Sheet are sufficient for the payment of all unpaid Taxes payable by the Purchaser with respect to the period ended on the Purchaser Balance Sheet Date.  There are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns of the Purchaser now pending, and the Purchaser has not received any notice of any proposed audits, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns.

 

Section 5.15 Employee Benefit Plans; ERISA.

 

(a) Except as disclosed in the Purchaser SEC Documents, there are no “employee benefit plans” (within the meaning of Section 3(3) of ERISA) nor any other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Purchaser, whether written or unwritten and whether or not funded.  Any plans listed in the Purchaser SEC Documents are hereinafter referred to as the “Purchaser Employee Benefit Plans.”

 

 

 

 

 

(b) Any current and prior material documents, including all amendments thereto, with respect to each Purchaser Employee Benefit Plan have been made available to the Company.

 

(c) All Purchaser Employee Benefit Plans are in material compliance with the applicable requirements of ERISA, the Code and any other applicable state, federal or foreign law.

 

(d) There are no pending, or to the knowledge of the Purchaser, threatened, claims or lawsuits that have been asserted or instituted against any Purchaser Employee Benefit Plan, the assets of any of the trusts or funds under the Purchaser Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Purchaser Employee Benefit Plans or against any fiduciary of a Purchaser Employee Benefit Plan with respect to the operation of such plan.

 

(e) There is no pending, or to the knowledge of the Purchaser, threatened, investigation or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Purchaser Employee Benefit Plan and Purchaser has no knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to trigger such an investigation or enforcement action.

 

(f) No actual or, to the knowledge of Purchaser, contingent Liability exists with respect to the funding of any Purchaser Employee Benefit Plan or for any other expense or obligation of any Purchaser Employee Benefit Plan, except as disclosed on the Purchaser Financial Statements or the Purchaser SEC Documents, and to the knowledge of the Purchaser, no contingent Liability exists under ERISA with respect to any “multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

 

Section 5.16 Interested Party Transactions.  Except as disclosed in the Purchaser SEC Documents, no officer, director or stockholder of the Purchaser or any Affiliate of any such Person or the Purchaser has or has had, either directly or indirectly, (a) an interest in any Person that (i) furnishes or sells services or products that are furnished or sold or are proposed to be furnished or sold by the Purchaser or (ii) purchases from or sells or furnishes to the Purchaser any goods or services, or (b) a beneficial interest in any Contract to which the Purchaser is a party or by which it may be bound or affected.

 

Section 5.17 Questionable Payments.  Neither the Purchaser, nor to the knowledge of the Purchaser, any director, officer, agent, employee or other Person associated with or acting on behalf of the Purchaser, has used any corporate funds for (a) unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any direct or indirect unlawful payments to government officials or employees from corporate funds, (c) established or maintained any unlawful or unrecorded fund of corporate monies or other assets, (d) made any false or fictitious entries on the books of record of any such corporations, or (e) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

 

 

 

 

 

Section 5.18 Obligations to or by Stockholders.  Except as disclosed in the Purchaser SEC Documents, the Purchaser has no Liability or obligation or commitment to any stockholder of Purchaser or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any stockholder of Purchaser, nor does any stockholder of Purchaser or any such Affiliate or associate have any Liability, obligation or commitment to the Purchaser.

 

Section 5.19 Schedule of Assets and Contracts.  Except as expressly set forth in this Agreement, the Purchaser Balance Sheet or the notes thereto, the Purchaser is not a party to any Contract not made in the ordinary course of business that is material to the Purchaser.  Purchaser does not own any real property.  Purchaser is not a party to any Contract (a) with any labor union, (b) for the purchase of fixed assets or for the purchase of materials, supplies or equipment in excess of normal operating requirements, (c) for the employment of any officer, individual employee or other Person on a full-time basis or any contract with any Person for consulting services, (d) with respect to bonus, pension, profit sharing, retirement, stock purchase, stock option, deferred compensation, medical, hospitalization or life insurance or similar plan, contract or understanding with any or all of the employees of Purchaser or any other Person, (e) relating to or evidencing Indebtedness for Borrowed Money or subjecting any asset or property of Purchaser to any Lien or evidencing any Indebtedness, (f) guaranteeing of any Indebtedness, (g) under which Purchaser is lessee of or holds or operates any property, real or personal, owned by any other Person, (h) under which Purchaser is lessor or permits any Person to hold or operate any property, real or personal, owned or controlled by Purchaser, (i) granting any preemptive right, right of first refusal or similar right to any Person, (j) with any Affiliate of Purchaser or any present or former officer, director or stockholder of Purchaser, (k) obligating Purchaser to pay any royalty or similar charge for the use or exploitation of any tangible or intangible property, (1) containing a covenant not to compete or other restriction on the Purchaser’s ability to conduct a business or engage in any other activity, (m) with respect to any distributor, dealer, manufacturer’s representative, sales agency, franchise or advertising contract or commitment, (n) regarding the registration of securities under the Securities Act, (o) characterized as a collective bargaining agreement, or (p) with any Person continuing for a period of more than three months from the Closing Date that involves an expenditure or receipt by Purchaser in excess of $1,000.  The Purchaser maintains no insurance policies and insurance coverage of any kind with respect to Purchaser, its business, premises, properties, assets, employees and agents.  Purchaser has furnished to the Company true and complete copies of all agreements and other documents requested by the Company.

 

Section 5.20 Environmental Matters.

 

(a) The Purchaser has never generated, used, handled, treated, released, stored or disposed of any Hazardous Materials on any real property on which it now has or previously had any leasehold or ownership interest, except in compliance with all applicable Environmental Laws.

 

(b) The historical and present operations of the business of the Purchaser compliance with all applicable Environmental Laws, except where any non-compliance has not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.

 

 

 

 

(c) (i) The Purchaser has not, sent or disposed of, otherwise had taken or transported, arranged for the taking or disposal of (on behalf of itself, a customer or any other party) or in any other manner participated or been involved in the taking of or disposal or release of a Hazardous Material to or at a site that is contaminated by any Hazardous Material or that, pursuant to any Environmental Law, (A) has been placed on the “National Priorities List”, the “CERCLIS” list, or any similar state or federal list, or (B) is subject to or the source of a claim, an administrative order or other request to take “removal”, “remedial”, “corrective” or any other “response” action, as defined in any Environmental Law, or to pay for the costs of any such action at the site; (ii) the Purchasers not involved in (and has no basis to reasonably expect to be involved in) any suit or proceeding and has not received (and has no basis to reasonably expect to receive) any written notice, request for information or other communication from any governmental authority or other third party with respect to a release or threatened release of any Hazardous Material or a violation or alleged violation of any Environmental Law, and has not received (and has no basis to reasonably expect to receive) written notice of any claims from any Person relating to property damage, natural resource damage or to personal injuries from exposure to any Hazardous Material; and (iii) the Purchaser has timely filed every report required to be filed, acquired all necessary certificates, approvals and permits, and generated and maintained all required data, documentation and records under all Environmental Laws, in all such instances except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

 

(d) There are no material pending or, to the knowledge of Purchaser, threatened, demands, claims, information requests or notices of noncompliance or violation against or to the Purchaser relating to any Environmental Law; and, to the knowledge of Purchaser, there are no conditions or occurrences on any of the real property used by Purchaser in connection with its business that would reasonably be expected to lead to any such demands, claims or notices against or to Purchaser, except such as have not had, and would not reasonably be expected to have, a Purchaser Material Adverse Effect.

 

Section 5.21 Employees.  Other than pursuant to ordinary arrangements of employment compensation, Purchaser is not under any obligation or liability to any officer, director, employee or Affiliate of Purchaser.

 

Section 5.22  Title to Property and Encumbrances.  Purchaser has good and valid title to all properties and assets used in the conduct of its business (except for property held under valid and subsisting leases which are in full force and effect and which are not in default) free of all Liens except Permitted Liens and such ordinary and customary imperfections of title, restrictions and encumbrances as do not, individually or in the aggregate constitute a Purchaser Material Adverse Effect.

 

Section 5.23 Condition of Properties.  All facilities, machinery, equipment, fixtures and other properties owned, leased or used by Purchaser are in operating condition, subject to ordinary wear and tear, and are adequate and sufficient for the Purchaser’s existing business.

 

Section 5.24 Insurance Coverage.  There is in full force and effect one or more policies of insurance issued by insurers of recognized responsibility insuring Purchaser and its properties, products and business against such losses and risks, and in such amounts, as are customary for corporations of established reputation engaged in the same or similar business and similarly situated.  Purchaser has not been refused any insurance coverage sought or applied for, and Purchaser has no reason to believe that it will be unable to renew its existing insurance coverage as and when the same shall expire upon terms at least as favorable to those currently in effect, other than possible increases in premiums that do not result from any act or omission of Purchaser.  No suit, proceeding or action or, to the best current actual knowledge of Purchaser, threat of suit, proceeding or action has been asserted or made against Purchaser due to alleged bodily injury, disease, medical condition, death or property damage arising out of the function or malfunction of a product, procedure or service designed, manufactured, sold or distributed by Purchaser.

 

 

 

 

Section 5.25 Disclosure.  There is no fact relating to Purchaser that Purchaser has not disclosed to the Company in writing that has had, is having or is reasonably likely to have a Purchaser Material Adverse Effect.  No representation or warranty by Purchaser herein and no information disclosed in the exhibits hereto by Purchaser contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

 

Section 5.26 No Liabilities. As of the Closing Date, there are no Liabilities or Indebtedness of the Purchaser of any kind whatsoever, whether recorded on the Balance Sheet of Purchaser or not, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such Liability or Indebtedness.  The Purchaser is not a guarantor of any Indebtedness of any other person, firm or corporation.

 

ARTICLE VI                                

 

Section 6.1 Conduct of Business by the Company Pending the Effective Time.  Prior to the Effective Time, unless Purchaser shall otherwise agree in writing or as otherwise contemplated by this Agreement:

 

(i) the business of the Company shall be conducted only in the ordinary course consistent with the past practice; and

 

(ii) the Company shall use its reasonable best efforts to preserve intact the business of the Company, to keep available the service of their present officers and key employees, and to preserve the good will of those having business relationships with them.

 

Section 6.2 Conduct of Business by Purchaser Pending the Effective Time.  Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:

 

(i) the current business of Purchaser including all mineral claims and other property shall, in a separate transaction, be disposed of, assigned or sold;

 

(ii) Purchaser shall not (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock;

 

 

 

 

 

(iii) Purchaser shall not, except as provided in this Section 6.2(i), (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.

 

(iv) Purchaser will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below).  Purchaser will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof.  As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Purchaser or for the acquisition of a substantial equity interest in either of it or any material assets of it other than as contemplated by this Agreement.  Purchaser will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

 

(v) Purchaser will not enter into any new employment agreements with any of their officers or employees or grant any increases in the compensation or benefits of their officers and employees.

 

                                  ARTICLE VII                                

 

Section 7.1 Access and Information.  The Company and Purchaser shall each afford to the other and to the other’s accountants, counsel and other representatives reasonable access during normal business hours throughout the period prior to the Effective Time of all of their properties, books, contracts, commitments and records (including but not limited to Tax Returns) and during such period, each shall furnish promptly to the other all information concerning its business, properties and personnel as such other party may reasonably request, provided that no investigation pursuant to this Section 7.1 shall affect any representations or warranties made herein.  Each party shall hold, and shall cause its employees and agents to hold, in confidence all such information (other than such information that (i) becomes generally available to the public other than as a result of a disclosure by such party or its directors, officers, managers, employees, agents or advisors, or (ii) becomes available to such party on a non-confidential basis from a source other than a party hereto or its advisors, provided that such source is not known by such party to be bound by a confidentiality agreement with or other obligation of secrecy to a party hereto or another party until such time as such information is otherwise publicly available); provided, however, that:  (A) any such information may be disclosed to such party’s directors, officers, employees and representatives of such party’s advisors who need to know such information for the purpose of evaluating the transactions contemplated hereby (it being understood that such directors, officers, employees and representatives shall be informed by such party of the confidential nature of such information); (B) any disclosure of such information may be made as to which the party hereto furnishing such information has consented in writing; and (C) any such information may be disclosed pursuant to a judicial, administrative or governmental order or request provided, that the requested party will promptly so notify the other party so that the other party may seek a protective order or appropriate remedy and/or waive compliance with this Agreement and if such protective order or other remedy is not obtained or the other party waives compliance with this provision, the requested party will furnish only that portion of such information which is legally required and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the information furnished.  If this Agreement is terminated, each party will deliver to the other all documents and other materials (including copies) obtained by such party or on its behalf from the other party as a result of this Agreement or in connection herewith, whether so obtained before or after the execution hereof.

 

 

 

Section 7.2 Additional Agreements.  Subject to the terms and conditions herein provided, each of the parties hereto agrees to use its commercially reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including using its commercially reasonable best efforts to satisfy the conditions precedent to the obligations of any of the parties hereto to obtain all necessary waivers, and to lift any injunction or other legal bar to this Agreement (and, in such case, to proceed with this Agreement as expeditiously as possible).  In order to obtain any necessary governmental or regulatory action or non-action, waiver, Consent, extension or approval, Purchaser and the Company agree to take all reasonable actions and to enter into all reasonable agreements as may be necessary to obtain timely governmental or regulatory approvals and to take such further action in connection therewith as may be necessary.  In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and/or directors of Purchaser and the Company shall take all such necessary action.

 

Section 7.3 Publicity.  No party shall issue any press release or public announcement pertaining to this Agreement that has not been agreed upon in advance by Purchaser and the Company, except as Purchaser reasonably determines to be necessary in order to comply with the rules of the Commission; provided that in such case Purchaser will use its best efforts to allow the Company to review and reasonably approve any of the same prior to its release.

 

Section 7.4 Appointment of Directors.  Immediately upon the Effective Time, Purchaser shall, in accordance with Section 2.3(d), accept the resignations and cause the appointments of those officers and directors of Company identified in Exhibit C hereto, subject to any notice and waiting period requirements of federal law.  At the first annual meeting of Purchaser’s stockholders and thereafter, the election of the new members of Purchaser’s Board of Directors shall be accomplished in accordance with the by-laws of Purchaser.

 

Section 7.5 Name Change.  As soon as practicable on or after the Effective Time, Purchaser shall take all required legal actions to change Purchaser’s corporate name to “Bergio International, Inc.” (the “Name Change”).

 

Section 7.6 Stock Purchase Agreement.  As soon as practicable on or after the Effective Time, Purchaser shall enter into a Stock Purchase Agreement with certain shareholders of Purchaser to retire 3,310,000 shares of Purchaser common stock in exchange for the shares in Alba Mineral Exploration, Inc., an Alberta corporation.

 

Section 7.7 Forward Split.  As soon as practicable after the Effective Time, Purchaser shall forward split its outstanding shares on the basis of 12 shares for every share issued and outstanding.

 

                              ARTICLE VIII                                

 

Section 8.1 Company Obligations.  The obligations of Purchaser under this Agreement are subject to the fulfillment at or prior to the Closing of the following conditions, any of which may be waived in whole or in part by Purchaser.

 

(a) No Errors, etc. The representations and warranties of the Company and the Members under this Agreement shall be deemed to have been made again on the Closing Date and shall then be true and correct in all material respects.

 

(b) Compliance with Agreement.  The Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by them on or before the Closing Date.

 

(c) No Company Material Adverse Effect.  Since the date hereof, there shall not have been any event or circumstance that has resulted in a Company Material Adverse Effect, and no event has occurred or circumstance exists that would reasonably be expected to result in a Company Material Adverse Effect.

 

(d) Certificate of Officers.  The Company shall have delivered to Purchaser a certificate dated the Closing Date, executed on its behalf by the Manager(s) of the Company, certifying the satisfaction of the conditions specified in paragraphs (a), (b) and (c) of this Section 8.1.

 

(e) No Restraining Action.  No Action or proceeding before any court, governmental body or agency shall have been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the carrying out of the transactions contemplated by this Agreement.

 

(f) Supporting Documents.  Purchaser shall have received the following:

 

(1) Copies of resolutions of the board and shareholders of the Company authorizing and approving this Agreement and the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered pursuant hereto and thereto.

 

(2) A certificate of incumbency executed by the Secretary of the Company certifying the names, titles and signatures of the officers authorized to execute any documents referred to in this Agreement and further certifying that the articles of organization and operating agreements of the Company delivered to Purchaser at the time of the execution of this Agreement have been validly adopted and have not been amended or modified since the date hereof.

 

 

 

 

(3) Evidence as of a recent date of the good standing and corporate existence of each the Company issued by the Secretary of State of the State of New Jersey.

 

Section 8.2 Purchaser Obligations.  The obligations of the Company under this Agreement are subject to the fulfillment at or prior to the Closing of the following conditions any of which may be waived in whole or in part by the Company:

 

(a) No Errors, etc.  The representations and warranties of Purchaser under this Agreement shall be deemed to have been made again on the Closing Date and shall then be true and correct in all material respects.

 

(b) Compliance with Agreement.  Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by them on or before the Closing Date.

 

(c) No Purchaser Material Adverse Effect.  Since the date hereof, there shall not have been any event or circumstance that has resulted in a Purchaser Material Adverse Effect and no event has occurred or circumstance exists that would be reasonably expected to result in such a Purchaser Material Adverse Effect.

 

(d) Certificate of Officers.  Purchaser shall have delivered to the Company a certificate dated the Closing Date, executed on its behalf by its President, certifying the satisfaction of the conditions specified in paragraphs (a), (b), and (c) of this Section 8.2.

 

(e) Assignment.  Purchaser shall have completed, if necessary, an assignment of all assets and liabilities of the Purchaser immediately prior to the Effective Time in a transaction satisfactory to the Company, as contemplated in Section 6.2(i).

 

(f) Supporting Documents.  The Company shall have received the following:

 

(1) Copies of resolutions of Purchaser’s board of directors and, certified by its Secretary, authorizing and approving this Agreement and the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by them pursuant hereto.

 

(2) A certificate of incumbency executed by the Secretary of Purchaser certifying the names, titles and signatures of the officers authorized to execute the documents referred to in paragraph (1) above and further certifying that the certificate of incorporation and by-laws of Purchaser appended thereto have not been amended or modified.

 

(3) A certificate, dated the Closing Date, executed by the Secretary of the Purchaser, certifying that:  (i) all consents, authorizations, orders and approvals of, and filings and registrations with, any court, governmental body or instrumentality that are required to be obtained by Purchaser for the execution, delivery, and consummation of this Agreement shall have been duly made or obtained; and (ii) no action or proceeding before any court, governmental body or agency has been threatened, asserted or instituted against Purchaser to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the carrying out of the transactions contemplated by this Agreement.

 

 

 

 

(4) A certificate of Purchaser’s transfer agent and registrar, certifying as of the business day prior to the Closing Date, a true and complete list of the names and addresses of the record owners of all of the outstanding shares of Purchaser Common Stock, together with the number of shares of Purchaser Common Stock held by each record owner.

 

(5) The executed resignations of all directors and officers of Purchaser, with the director resignations to take effect following the notice period required by federal law, and (ii) executed releases from each such director and officer in the form and substance acceptable to the Company in their sole discretion.

 

(6) Evidence as of a recent date of the good standing and corporate existence of each of the Purchaser issued by the Secretary of State of the State of Delaware.

 

(7) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as the Company may reasonably request.

 

                                ARTICLE IX                                

 

Section 9.1 Indemnification by Purchaser.  Purchaser shall indemnify and hold harmless the Company (the “Company Indemnified Parties”), and shall reimburse the Company Indemnified Parties for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys’ fees) or diminution of value (collectively, “Damages”) arising from or in connection with (a) any inaccuracy, in any material respect, in any of the representations and warranties of Purchaser in this Agreement or in any certificate delivered by Purchaser to the Company pursuant to this Agreement, or any actions, omissions or statements of fact inconsistent with any such representation or warranty, (b) any failure by Purchaser to perform or comply in any material respect with any covenant or agreement in this Agreement, (c) any claim for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such party with Purchaser in connection with any of the transactions contemplated by this Agreement, (d) Taxes attributable to any transaction or event occurring on or prior to the Closing, (e) any claim relating to or arising out of any Liabilities of either Purchaser on or prior to Closing or with respect to accounting fees arising thereafter, or (f) any litigation, action, claim, proceeding or investigation by any third party relating to or arising out of the business or operations of Purchaser, or the actions of Purchaser or any holder of Purchaser capital stock prior to the Effective Time.

 

 

 

 

 

 

 

Section 9.2 Survival.  All representations, warranties, covenants and agreements of Purchaser contained in this Agreement or in any instrument delivered pursuant to this Agreement shall survive until twelve (12) months after the Effective Date.  The representations and warranties of the Company and the Members contained in this Agreement or in any instrument delivered pursuant to this Agreement will terminate at, and have no further force and effect after, the Effective Time.

 

Section 9.3 Time Limitations.  Purchaser shall not have any liability (for indemnification or otherwise) with respect to any representation or warranty, or covenant or agreement to be performed and complied with prior to the Effective Time, unless on or before the twelve month anniversary of the Effective Time (the “Claims Deadline”), Purchaser is given notice of a claim with respect thereto, in accordance with Section 9.5, specifying the factual basis therefore in reasonable detail to the extent then known by the Company Indemnified Parties.

 

Section 9.4 Limitation on Liability.  The obligations of Purchaser to the Company Indemnified Parties set forth in Section 9.1 shall be subject to the following limitations:

 

(a) The aggregate liability of Purchaser to the Company Indemnified Parties shall not exceed $15,000.

 

(b) Other than claims based on fraud or for specific performance, injunctive or other equitable relief, the Company Indemnified Parties’ sole and exclusive remedy for any and all claims for Damages pursuant to Section 9.1 hereof shall be the indemnification provided under the terms and subject to the conditions of this Article IX.

 

Section 9.5 Notice of Claims.

 

(a) If, at any time on or prior to the Claims Deadline, the Company Indemnified Parties shall assert a claim for indemnification pursuant to Section 9.1, such Company Indemnified Parties shall submit to Purchaser written claim stating:  (i) that a Company Indemnified Party incurred or reasonably believes it may incur Damages and the amount or reasonable estimate thereof of any such Damages; and (ii) in reasonable detail, the facts alleged as the basis for such claim and the section or sections of this Agreement alleged as the basis or bases for the claim.

 

(b) In the event that any action, suit or proceeding is brought against any Company Indemnified Party with respect to which Purchaser may have liability under this Article IX, the Purchaser shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Company Indemnified Party; provided, however, that a Company Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by Purchaser, if representation of the Company Indemnified Party by counsel retained by Purchaser would be inappropriate because of actual or potential differing interests between Purchaser and the Company Indemnified Party.  In connection with any action, suit or proceeding subject to this Article IX, Purchaser and each Company Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding.  Purchaser shall not, without the prior written consent of the applicable Company Indemnified Parties, which consent shall not be unreasonably withheld or delayed, settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Company Indemnified Parties for any liability arising out of such claim or demand.

 

 

 

 

 

                      ARTICLE X                      

 

Section 10.1 Termination of Agreement.  This Agreement may be terminated at any time prior to the Closing:

 

(a) by the mutual written consent of the Company and Purchaser;

 

(b) by the Company, if Purchaser (i) fails to perform in any material respect any of its agreements contained herein required to be performed by it on or prior to the Effective Time, (ii) materially breaches any of its representations, warranties or covenants contained herein, which failure or breach is not cured within thirty (30) days after the Company have notified Purchaser of its intent to terminate this Agreement pursuant to this paragraph (b);

 

(c) by Purchaser, if the Company (i) fail to perform in any material respect any of their agreements contained herein required to be performed by them on or prior to the Closing Date, (ii) materially breaches any of their representations, warranties or covenants contained herein, which failure or breach is not cured within thirty (30) days after Purchaser has notified the Company of its intent to terminate this Agreement pursuant to this paragraph (c);

 

(d) by either the Company, on the one hand, or Purchaser, on the other hand, if there shall be any order, writ, injunction or decree of any court or governmental or regulatory agency binding on Purchaser or the Company, which prohibits or materially restrains any of them from consummating the transactions contemplated hereby; provided that the parties hereto shall have used their best efforts to have any such order, writ, injunction or decree lifted and the same shall not have been lifted within ninety (90) days after entry, by any such court or governmental or regulatory agency;

 

(e) by either the Company, on the one hand, or Purchaser, on the other hand, if the Closing has not occurred on or prior to December 31, 2009, for any reason other than delay or nonperformance of the party seeking such termination;

 

Section 10.2 Termination of Obligations.  Termination of this Agreement pursuant to Section 10.1 hereof shall terminate all obligations of the parties hereunder, except for the obligations under Article IX, Article X, and Sections 11.4, 11.7, 11.14, 11.15 and 11.16 hereof; provided, however, that termination pursuant to paragraphs (b) or (c) of Section 10.1 shall not relieve the defaulting or breaching party or parties from any liability to the other parties hereto.

 

 

    Section 11.1 Amendments.  Subject to applicable law, this Agreement may be amended or modified by the parties hereto by written agreement executed by each party to be bound thereby and delivered by duly authorized officers of the parties hereto at any time prior to the Effective Time.

 

 

 

 

Section 11.2 Notices.  Any notice, request, instruction, other document or communications to be given hereunder by any party hereto to any other party hereto shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) upon confirmation of delivery if by electronic mail, (c) upon receipt of a transmission confirmation (with a confirming copy delivered personally or sent by overnight courier) if sent by facsimile or like transmission, or (d) on the next business day when sent by Federal Express, United Parcel Service, U.S. Express Mail or other reputable overnight courier for guaranteed next day delivery, as follows:

 

If to Purchaser, to:	Alba Mineral Exploration, Inc. Attention:  Owen Gibson, CEO 2 Mic Mac Place, Lethbridge Alberta, Canada T1K 5H6
If to the Company, to:	Diamond Information Institute, Inc. Attention:  Berge Abajian 12 Daniel Road East Fairfield, New Jersey 07004

or to such other persons or addresses as may be designated in writing by the party to receive such notice.  Nothing in this Section 11.2 shall be deemed to constitute consent to the manner and address for service of process in connection with any legal proceeding (including arbitration arising in connection with this Agreement), which service shall be effected as required by applicable law.

 

Section 11.3 Entire Agreement.  This Agreement and the exhibits attached hereto or referred to herein constitute the entire agreement of the parties hereto, and supersede all prior agreements and undertakings, both written and oral, among the parties hereto, with respect to the subject matter hereof and thereof.

 

Section 11.4 Expenses.  Except as otherwise expressly provided herein, whether or not the Closing occurs, all expenses and fees incurred by Purchaser on one hand, and the Company on the other, shall be borne solely and entirely by the party that has incurred the same.

 

Section 11.5 Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to amend or modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

 

 

 

 

 

Section 11.6 Successors and Assigns; Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties hereto without, in the case of Purchaser, the prior written approval of the Company and, in the case of the Company, the prior written approval of Purchaser.

 

Section 11.7 No Third Party Beneficiaries.  Except as set forth in Section 9.1 and Section 11.6, nothing herein expressed or implied shall be construed to give any person other than the parties hereto (and their successors and assigns as permitted herein) any legal or equitable rights hereunder.

 

Section 11.8 Counterparts; Delivery by Facsimile.  This Agreement may be executed in multiple counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement.  This Agreement and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties.  No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.

 

Section 11.9 Waiver.  At any time prior to the Effective Time, any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto; (b) waive any inaccuracies in the representations and breaches of the warranties of the other party contained herein or in any document delivered pursuant hereto; and (c) waive compliance by the other party with any of the agreements or conditions contained herein.  Any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby.

 

Section 11.10 No Constructive Waivers.  No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, agreement or covenant herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.  No waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

Section 11.11 Further Assurances.  The parties hereto shall use their commercially reasonable efforts to do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments or documents as any other party hereto may reasonably request in order to carry out fully the intent and purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

 

 

 

 

 

Section 11.12 Recitals.  The recitals set forth above are incorporated herein and, by this reference, are made part of this Agreement as if fully set forth herein.

 

Section 11.13 Headings.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

Section 11.14 Governing Law.  This Agreement and the agreements, instruments and documents contemplated hereby shall be governed by and construed and enforced in accordance with the laws of the State of New Jersey without regard to its conflicts of law principles.

 

Section 11.15 Dispute Resolution.  The parties hereto shall initially attempt to resolve all claims, disputes or controversies arising under, out of or in connection with this Agreement by conducting good faith negotiations amongst themselves.  If the parties hereto are unable to resolve the matter following good faith negotiations, the matter shall thereafter be resolved by binding arbitration and each party hereto hereby waives any right it may otherwise have to the resolution of such matter by any means other than binding arbitration pursuant to this Section 11.15.  Whenever a party shall decide to institute arbitration proceedings, it shall provide written notice to that effect to the other parties hereto.  The party giving such notice shall, however, refrain from instituting the arbitration proceedings for a period of sixty (60) days following such notice.  During this period, the parties shall make good faith efforts to amicably resolve the claim, dispute or controversy without arbitration.  Any arbitration hereunder shall be conducted in the English language under the commercial arbitration rules of the American Arbitration Association.  Any such arbitration shall be conducted in New Jersey by a panel of three arbitrators:  one arbitrator shall be appointed by each of Purchaser and the Company; and the third shall be appointed by the American Arbitration Association.  The panel of arbitrators shall have the authority to grant specific performance.  Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based on the claim, dispute or controversy in question would be barred under this Agreement or by the applicable statute of limitations.  The prevailing party in any arbitration in accordance with this Section 11.15 shall be entitled to recover from the other party, in addition to any other remedies specified in the award, all reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party to arbitrate the claim, dispute or controversy.

 

Section 11.16 Interpretation.

 

(a) When a reference is made in this Agreement to a section or article, such reference shall be to a section or article of this Agreement unless otherwise clearly indicated to the contrary.

 

(b) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

 

(c) The words “hereof”, “hereby”, “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified.

 

 

 

 

(d) The words “knowledge,” or “known to,” or similar terms, when used in this Agreement to qualify any representation or warranty, refer to the knowledge or awareness of certain specific facts or circumstances related to such representation or warranty of the persons in the Applicable Knowledge Group (as defined herein) which a prudent business person would have obtained after reasonable investigation or due diligence on the part of any such person.  For the purposes hereof, the “Applicable Knowledge Group” with respect to the Company shall be John K. Harris.  For the purposes hereof, the “Applicable Knowledge Group” with respect to Purchaser shall be Anusha Kumar.

 

(e) The word “subsidiary” shall mean any entity of which at least a majority of the outstanding shares or other equity interests having ordinary voting power for the election of directors or comparable managers of such entity is owned, directly or indirectly by another entity or person.

 

(f) For purposes of this Agreement, “ordinary course of business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).

 

(g) The plural of any defined term shall have a meaning correlative to such defined term, and words denoting any gender shall include all genders.  Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.

 

(h) A reference to any legislation or to any provision of any legislation shall include any modification or re-enactment thereof, any legislative provision substituted therefore and all regulations and statutory instruments issued thereunder or pursuant thereto, unless the context requires otherwise.

 

(i) The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written by their respective officers thereunto duly authorized.

 

COMPANY:
DIAMOND INFORMATION INSTITUTE, INC.
By:		/s/Berge Abajian
Name:		Berge Abajian
Title:		President and CEO
PURCHASER:
ALBA MINERAL EXPLORATION, INC.
By:	/s/Own Gibson
Name:	Owen Gibson
Title:	President and CEO

None

 

See attached.

See attached.

Officers and Directors of Purchaser

— Pre-Effective Time and Post-Effective Time—

Pre-Effective Time: Owen Gibson, President, Secretary/ Treasurer, CEO, CFO and sole Director

Following Notice Filings:

The following persons shall be appointed as Officers and Directors of Purchaser:

Name	Office(s)
Berge Abajian	President, CEO, and Director