Exhibit 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made as of July 31, 2013
by and among Guar Global Ltd., a Nevada corporation ("PUBCO") on the one hand,
and Pure Guar India Private Limited, a company organized under the laws of the
Republic of India (the "COMPANY") and Xx. Xxxx Xxxx, a shareholder of the
Company (the "SELLING SHAREHOLDER"), on the other hand.
BACKGROUND
A. The respective Boards of Directors of Pubco and the Company have
determined that an acquisition by Pubco of Nine Thousand Nine Hundred Ninety
Nine (9,999) shares of the Company's outstanding shares (the "SHARES") from the
Selling Shareholder (the "PURCHASE"), upon the terms and subject to the
conditions set forth in this Agreement, would be fair and in the best interests
of their respective shareholders, and such Boards of Directors, along with the
shareholders of the Company, have approved such Purchase, pursuant to which the
Shares will be sold to Pubco in exchange for $1,692.43 (the "CONSIDERATION").
B. Pubco, the Company, and the Selling Shareholder desire to make certain
representations, warranties, covenants and agreements in connection with the
Purchase and also to prescribe various conditions to the Purchase.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
SALE AND PURCHASE
1.01 STOCK PURCHASE. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the Nevada Revised Statutes ("NEVADA
STATUTES"), at the Closing (as hereinafter defined) the parties shall do the
following:
a. The Selling Shareholder will sell, convey, assign, and transfer the
Shares to Pubco by delivering to Pubco a stock certificate issued in the name of
Pubco evidencing the Shares (the "SHARE CERTIFICATE"). The Shares transferred to
Pubco at the Closing shall constitute Ninety Nine and 99/100 percent (99.99%) of
the issued and outstanding equity interests of the Company.
b. As consideration for the acquisition of the Shares, Pubco shall deliver
to the Selling Shareholder the Consideration.
1.02 CLOSING. Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Article
VI and subject to the satisfaction or waiver of the conditions set forth in
Article V, the closing of the Exchange (the "CLOSING") will take place at 10:00
a.m. U.S. Pacific Standard Time on the business day within four days of
satisfaction of the conditions set forth in Article V (or as soon as practicable
thereafter following satisfaction or waiver of the conditions set forth in
Article V) (the "CLOSING DATE"), at the offices of Xxxxxxxxx Traurig, LLP, 0000
X Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx, unless another date, time or place
is agreed to in writing by the parties hereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDER. Except as set forth in the disclosure schedule delivered by the
Company to Pubco at the time of execution of this Agreement (the "COMPANY
DISCLOSURE SCHEDULE"), the Company and the Selling Shareholder represent and
warrant to Pubco, on a joint and several basis, as follows:
a. Organization, Standing and Power. The Company is duly organized, validly
existing and in good standing under the laws of the Republic of India, and has
the requisite power and authority and all government licenses, authorizations,
permits, consents and approvals required to own, lease and operate its
properties and carry on its business as now being conducted. The Company is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) would not have a material adverse effect (as
defined in Section 8.02).
b. Subsidiaries. The Company does not own directly or indirectly, any
equity or other ownership interest in any company, corporation, partnership,
joint venture or otherwise.
c. Capital Structure. The number of shares and type of all authorized,
issued and outstanding capital stock of the Company, and all shares of capital
stock reserved for issuance under the Company's various option and incentive
plans are as set forth on Schedule 2.01(c). Except as previously disclosed in
writing to Pubco, no shares of capital stock or other equity securities of the
Company are issued, reserved for issuance or outstanding. All outstanding shares
of capital stock of the Company are duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights. There are no outstanding
bonds, debentures, notes or other indebtedness or other securities of the
Company having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters. Except as previously
disclosed in writing to Pubco, there are no outstanding securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which the Company is a party or by which it is bound obligating
the Company to issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock or other equity or voting securities of the
Company or obligating the Company to issue, grant, extend or enter into any such
security, option, warrant, call, right, commitment, agreement, arrangement or
undertaking. There are no outstanding contractual obligations, commitments,
understandings or arrangements of the Company to repurchase, redeem or otherwise
acquire or make any payment in respect of any shares of capital stock of the
Company. There are no agreements or arrangements pursuant to which the Company
is or could be required to register shares of Company common stock or other
securities under the Securities Act of 1933, as amended and the rules and
regulations promulgated thereunder (the "SECURITIES ACT") or other agreements or
arrangements with or among any security holders of the Company with respect to
securities of the Company.
d. Corporate Authority; Noncontravention. The Company and the Selling
Shareholder have all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by the Company and the Selling Shareholder and
the consummation by the Company and the Selling Shareholder of the transactions
contemplated hereby have been (or at Closing will have been) duly authorized by
all necessary action on the part of the Company and the Selling Shareholder.
This Agreement has been duly executed and when delivered by the Company and the
Selling Shareholder shall constitute a valid and binding obligation of the
Company and the Selling Shareholder, enforceable against the Company, in
accordance with its terms, except as such enforcement may be limited by
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bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
hereof will not, conflict with, or result in any breach or violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of or "put" right with
respect to any obligation or to a loss of a material benefit under, or result in
the creation of any lien upon any of the properties or assets of the Company or
the Selling Shareholder under, (i) the certificates or articles of
incorporation, bylaws or other organizational or charter documents of the
Company, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license
applicable to the Company or the Selling Shareholder, their properties or
assets, or (iii) subject to the governmental filings and other matters referred
to in the following sentence, any judgment, order, decree, statute, law,
ordinance, rule, regulation or arbitration award applicable to the Company or
the Selling Shareholder, their properties or assets, other than, in the case of
clauses (ii) and (iii), any such conflicts, breaches, violations, defaults,
rights, losses or liens that individually or in the aggregate could not have a
material adverse effect with respect to the Company or the Selling Shareholder
or could not prevent, hinder or materially delay the ability of the Company or
the Selling Shareholder to consummate the transactions contemplated by this
Agreement.
e. Governmental Authorization. No consent, approval, order or authorization
of, or registration, declaration or filing with, or notice to, any United States
or India court, administrative agency or commission, or other federal, state or
local government or other governmental authority, agency, domestic or foreign (a
"GOVERNMENTAL ENTITY"), is required by or with respect to the Company or the
Selling Shareholder in connection with the execution and delivery of this
Agreement by the Company and the Selling Shareholder or the consummation by the
Company and the Selling Shareholder of the transactions contemplated hereby,
except, with respect to this Agreement, any filings under the Securities Act or
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "EXCHANGE ACT").
f. Financial Statements. Pubco has received a copy of the audited financial
statements of the Company for the period ending May 31, 2013 (the "COMPANY
FINANCIAL STATEMENTS"). The Company Financial Statements fairly present the
financial condition of the Company at the dates indicated and its results of
operations and cash flows for the periods then ended and, except as indicated
therein, reflect all claims against, debts and liabilities of the Company, fixed
or contingent, and of whatever nature
(1) Since May 31, 2013 (the "COMPANY BALANCE SHEET DATE"), there has been
no material adverse change in the assets or liabilities, or in the business or
condition, financial or otherwise, or in the results of operations or prospects,
of the Company, whether as a result of any legislative or regulatory change,
revocation of any license or rights to do business, fire, explosion, accident,
casualty, labor trouble, flood, drought, riot, storm, condemnation, act of God,
public force or otherwise and no material adverse change in the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operation or prospects, of the Company except in the ordinary course
of business.
(2) Since the Company Balance Sheet Date, the Company has not suffered any
damage, destruction or loss of physical property (whether or not covered by
insurance) affecting its condition (financial or otherwise) or operations
(present or prospective), nor has the Company, except as disclosed in writing to
Pubco, issued, sold or otherwise disposed of, or agreed to issue, sell or
otherwise dispose of, any capital stock or any other security of the Company and
has not granted or agreed to grant any option, warrant or other right to
subscribe for or to purchase any capital stock of any other security of the
Company or has incurred or agreed to incur any indebtedness for borrowed money.
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g. Absence of Certain Changes or Events. Except as set forth on Schedule
2.01(g), since the Company Balance Sheet Date, the Company has conducted its
business only in the ordinary course consistent with past practice, and there is
not and has not been any:
(1) material adverse change with respect to the Company;
(2) event which, if it had taken place following the execution of this
Agreement, would not have been permitted by Section 3.01 without prior consent
of Pubco;
(3) condition, event or occurrence which could reasonably be expected to
prevent, hinder or materially delay the ability of the Company to consummate the
transactions contemplated by this Agreement;
(4) incurrence, assumption or guarantee by the Company of any indebtedness
for borrowed money other than in the ordinary course and in amounts and on terms
consistent with past practices or as disclosed to Pubco in writing;
(5) creation or other incurrence by the Company of any lien on any asset
other than in the ordinary course consistent with past practices;
(6) transaction or commitment made, or any contract or agreement entered
into, by the Company relating to its assets or business (including the
acquisition or disposition of any assets) or any relinquishment by the Company
of any contract or other right, in either case, material to the Company, other
than transactions and commitments in the ordinary course consistent with past
practices and those contemplated by this Agreement;
(7) labor dispute, other than routine, individual grievances, or, to the
knowledge of the Company, any activity or proceeding by a labor union or
representative thereof to organize any employees of the Company or any lockouts,
strikes, slowdowns, work stoppages or threats by or with respect to such
employees;
(8) payment, prepayment or discharge of liability other than in the
ordinary course of business or any failure to pay any liability when due;
(9) write-offs or write-downs of any assets of the Company;
(10) creation, termination or amendment of, or waiver of any right under,
any material contract of the Company;
(11) damage, destruction or loss having, or reasonably expected to have, a
material adverse effect on the Company;
(12) other condition, event or occurrence which individually or in the
aggregate could reasonably be expected to have a material adverse effect or give
rise to a material adverse change with respect to the Company; or
(13) agreement or commitment to do any of the foregoing.
h. Certain Fees. No brokerage or finder's fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other person with respect to
the transactions contemplated by this Agreement.
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i. Litigation; Labor Matters; Compliance with Laws.
(1) There is no suit, action or proceeding or investigation pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
basis for any such suit, action, proceeding or investigation that, individually
or in the aggregate, could reasonably be expected to have a material adverse
effect with respect to the Company or prevent, hinder or materially delay the
ability of the Company to consummate the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against the Company having, or
which, insofar as reasonably could be foreseen by the Company, in the future
could have, any such effect.
(2) The Company is not a party to, or bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of any proceeding asserting that it
has committed an unfair labor practice or seeking to compel it to bargain with
any labor organization as to wages or conditions of employment nor is there any
strike, work stoppage or other labor dispute involving it pending or, to its
knowledge, threatened, any of which could have a material adverse effect with
respect to the Company.
(3) The conduct of the business of the Company complies with all statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees or arbitration
awards applicable thereto.
j. Benefit Plans. The Company is not a party to any Benefit Plan under
which the Company currently has an obligation to provide benefits to any current
or former employee, officer or director of the Company. As used herein, "BENEFIT
PLAN" shall mean any employee benefit plan, program, or arrangement of any kind,
including any defined benefit or defined contribution plan, stock ownership
plan, executive compensation program or arrangement, bonus plan, incentive
compensation plan or arrangement, profit sharing plan or arrangement, deferred
compensation plan, agreement or arrangement, supplemental retirement plan or
arrangement, vacation pay, sickness, disability, or death benefit plan (whether
provided through insurance, on a funded or unfunded basis, or otherwise),
medical or life insurance plan providing benefits to employees, retirees, or
former employees or any of their dependents, survivors, or beneficiaries,
severance pay, termination, salary continuation, or employee assistance plan.
k. Certain Employee Payments. The Company is not a party to any employment
agreement which could result in the payment to any current, former or future
director or employee of the Company of any money or other property or rights or
accelerate or provide any other rights or benefits to any such employee or
director as a result of the transactions contemplated by this Agreement, whether
or not (i) such payment, acceleration or provision would constitute a "parachute
payment" (within the meaning of Section 280G of the Code), or (ii) some other
subsequent action or event would be required to cause such payment, acceleration
or provision to be triggered.
l. Properties & Tangible Assets.
(1) The Company has valid land use rights for all real property that is
material to its business and good, clear and marketable title to all the
tangible properties and tangible assets reflected in the latest balance sheet as
being owned by the Company or acquired after the date thereof which are,
individually or in the aggregate, material to the Company's business (except
properties sold or otherwise disposed of since the date thereof in the ordinary
course of business), free and clear of all material liens, encumbrances, claims,
security interest, options and restrictions of any nature whatsoever. Any real
property and facilities held under lease by the Company is held by it under
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valid, subsisting and enforceable leases of which the Company is in compliance,
except as could not, individually or in the aggregate, have or reasonably be
expected to result in a material adverse effect.
(2) The Company has good and marketable title to, or in the case of leased
property, a valid leasehold interest in, the office space, computers, equipment
and other material tangible assets which are material to its business. Each such
tangible asset is in all material respects in good operating condition and
repair (subject to normal wear and tear), is suitable for the purposes for which
it presently is used, and, except as to leased assets, free and clear of any and
all security interests. The Company does not have any knowledge of any dispute
or claim made by any other person concerning such right, title and interest in
such tangible assets.
m. Intellectual Property.
(1) As used in this Agreement, the term "TRADEMARKS" means trademarks,
service marks, trade names, internet domain names, designs, slogans, and general
intangibles of like nature; the term "TRADE SECRETS" means technology; trade
secrets and other confidential information, know-how, proprietary processes,
formulae, algorithms, models, and methodologies; the term "INTELLECTUAL
PROPERTY" means patents, copyrights, Trademarks, applications for any of the
foregoing, and Trade Secrets; and the term "COMPANY LICENSE AGREEMENTS" means
any license agreements granting any right to use or practice any rights under
any Intellectual Property (except for such agreements for off-the-shelf products
that are generally available for less than $25,000), and any written settlements
relating to any Intellectual Property, to which the Company is a party or
otherwise bound.
(2) The Company owns or has valid rights to use the Trademarks, copyrights,
patents, logos, licenses and computer software programs (including, without
limitation, the source codes thereto) that are necessary for the conduct of its
respective businesses as now being conducted. None of the Company's Intellectual
Property or Company License Agreements infringe upon the rights of any third
party that may give rise to a cause of action or claim against the Company or
its successors.
n. Undisclosed Liabilities. The Company has no liabilities or obligations
of any nature (whether fixed or unfixed, secured or unsecured, known or unknown
and whether absolute, accrued, contingent, or otherwise) except for liabilities
or obligations disclosed in writing to the Company incurred in the ordinary
course of business or such liabilities or obligations disclosed in Schedule
2.01(g).
o. Board Recommendation. The Board of Directors of the Company has
unanimously determined that the terms of the Purchase are fair to and in the
best interests of the shareholders of the Company and recommended that the
shareholders of the Company approve the Purchase.
p. Intentionally Omitted.
q. Material Agreements.
(1) Schedule 2.01(q) lists the following contracts and other agreements
("MATERIAL AGREEMENTS") to which the Company is a party: (a) any agreement (or
group of related agreements) for the lease of real or personal property,
including capital leases, to or from any person providing for annual lease
payments in excess of $25,000; (b) any licensing agreement, or any agreement
forming a partnership, strategic alliances, profit sharing or joint venture; (c)
any agreement (or group of related agreements) under which it has created,
incurred, assumed, or guaranteed any indebtedness for borrowed money in excess
of $25,000, or under which a security interest has been imposed on any of its
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assets, tangible or intangible; (d) any profit sharing, stock option, stock
purchase, stock appreciation, deferred compensation, severance, or other
material plan or arrangement for the benefit of its current or former officers
and managers or any of the Company's employees; (e) any employment or
independent contractor agreement providing annual compensation in excess of
$50,000 or providing post-termination or severance payments or benefits or that
cannot be cancelled without more than 30 days' notice; (f) any agreement with
any current or former officer, director, shareholder or affiliate of the
Company; (g) any agreements relating to the acquisition (by merger, purchase of
stock or assets or otherwise) by the Company of any operating business or
material assets or the capital stock of any other person; (h) any agreements for
the sale of any of the assets of the Company, other than in the ordinary course
of business; (i) any outstanding agreements of guaranty, surety or
indemnification, direct or indirect, by the Company; (j) any royalty agreements,
licenses or other agreements relating to Intellectual Property (excluding
licenses pertaining to "off-the-shelf" commercially available software used
pursuant to shrink-wrap or click-through license agreements on reasonable terms
for a license fee of no more than $10,000); and (k) any other agreement under
which the consequences of a default or termination could reasonably be expected
to have a material adverse effect on the Company.
(2) The Company has made available to Pubco either an original or a correct
and complete copy of each written Material Agreement. Except as set forth on
Schedule 2.01(q), with respect to each Material Agreement to which the Company
is a party thereto: (a) the agreement is the legal, valid, binding, enforceable
obligation of the Company and is in full force and effect in all material
respects, subject to bankruptcy and equitable remedies exceptions; (b)(X) the
Company is not in material breach or default thereof, and (Y) no event has
occurred which, with notice or lapse of time, would constitute a material breach
or default of, or permit termination, modification, or acceleration under, the
Material Agreement; and (c) the Company has not repudiated any material
provision of the agreement.
r. Tax Returns and Payments. The Company has filed all tax returns
(federal, state and local) required to be filed by it. The Company has not been
advised (a) that any of its returns, federal, state or other, have been or are
being audited as of the date hereof, or (b) of any deficiency in assessment or
proposed judgment to its federal, state or other taxes. The Company has no
knowledge of any liability of any tax to be imposed upon its properties or
assets as of the date of this Agreement that is not adequately provided for.
s. Full Disclosure. All of the representations and warranties made by the
Company and the Selling Shareholder in this Agreement, and all statements set
forth in the certificates delivered by the Company at the Closing pursuant to
this Agreement, are true, correct and complete in all material respects and do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make such representations, warranties or
statements, in light of the circumstances under which they were made,
misleading. The copies of all documents furnished by the Company pursuant to the
terms of this Agreement are complete and accurate copies of the original
documents. The schedules, certificates, and any and all other statements and
information, whether furnished in written or electronic form, to Pubco or its
representatives by or on behalf of the Company or its affiliates in connection
with the negotiation of this Agreement and the transactions contemplated hereby
do not contain any material misstatement of fact or omit to state a material
fact or any fact necessary to make the statements contained therein not
misleading.
2.02 REPRESENTATIONS AND WARRANTIES OF PUBCO. Except as set forth in the
disclosure schedule delivered by Pubco to the Company at the time of execution
of this Agreement (the "PUBCO DISCLOSURE SCHEDULE"), Pubco represents and
warrants to the Company and the Selling Shareholder as follows:
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a. Organization, Standing and Corporate Power. Pubco is duly organized,
validly existing and in good standing under the laws of the State of Nevada and
has the requisite corporate power and authority and all government licenses,
authorizations, permits, consents and approvals required to own, lease and
operate its properties and carry on its business as now being conducted. Pubco
is duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) would not have a material adverse effect with
respect to Pubco. Shares of common stock of Pubco, par value $0.0001 ("PUBCO
COMMON STOCK"), are listed on the OTCQB under the symbol "GGBL."
b. Subsidiaries. Pubco has a 100% ownership interest in Guar Innovations
Ltd., a Washington corporation, its sole subsidiary. Other than Guar Innovations
Ltd., Pubco does not own directly or indirectly, any equity or other ownership
interest in any company, corporation, partnership, joint venture or otherwise.
c. Capital Structure of Pubco. As of the date of this Agreement, the
authorized capital stock of Pubco consists of 300,000,000 shares of Pubco Common
Stock, $0.0001 par value, of which 59,000,000 shares of Pubco Common Stock are
issued and outstanding, and 25,000,000 shares of preferred stock, par value
$0.0001 ("PUBCO PREFERRED STOCK"), of which no shares are outstanding, and
except as stated in Pubco SEC Documents, no shares of Pubco Common Stock or
Pubco Preferred Stock are issuable upon the exercise of warrants, convertible
notes, options or otherwise. Except as set forth above, no shares of capital
stock or other equity securities of Pubco are issued, reserved for issuance or
outstanding. All shares which may be issued pursuant to this Agreement will be,
when issued, duly authorized, validly issued, fully paid and nonassessable, not
subject to preemptive rights, and issued in compliance with all applicable state
and federal laws concerning the issuance of securities.
d. Corporate Authority; Noncontravention. Pubco has all requisite corporate
and other power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by Pubco and the consummation by Pubco of the transactions
contemplated hereby have been (or at Closing will have been) duly authorized by
all necessary corporate action on the part of Pubco. This Agreement has been
duly executed and when delivered by Pubco shall constitute a valid and binding
obligation of Pubco, enforceable against Pubco in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions hereof will not, conflict with, or result in any
breach or violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of or "put" right with respect to any obligation or to loss of a
material benefit under, or result in the creation of any lien upon any of the
properties or assets of Pubco under, (i) its articles of incorporation, bylaws,
or other charter documents of Pubco (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Pubco, its properties or assets,
or (iii) subject to the governmental filings and other matters referred to in
the following sentence, any judgment, order, decree, statute, law, ordinance,
rule, regulation or arbitration award applicable to Pubco, its properties or
assets, other than, in the case of clauses (ii) and (iii), any such conflicts,
breaches, violations, defaults, rights, losses or liens that individually or in
the aggregate could not have a material adverse effect with respect to Pubco or
could not prevent, hinder or materially delay the ability of Pubco to consummate
the transactions contemplated by this Agreement.
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e. Government Authorization. No consent, approval, order or authorization
of, or registration, declaration or filing with, or notice to, any Governmental
Entity, is required by or with respect to Pubco in connection with the execution
and delivery of this Agreement by Pubco, or the consummation by Pubco of the
transactions contemplated hereby, except, with respect to this Agreement, any
filings under the Nevada Statutes, the Securities Act or the Exchange Act.
f. Financial Statements. The consolidated financial statements of Pubco
included in the reports, schedules, forms, statements and other documents filed
by Pubco with the Securities and Exchange Commission ("SEC") (collectively, and
in each case including all exhibits and schedules thereto and documents
incorporated by reference therein, the "PUBCO SEC DOCUMENTS"), comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with U.S. generally accepted accounting principles
(except, in the case of unaudited consolidated quarterly statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and fairly
present the consolidated financial position of Pubco and its consolidated
subsidiaries as of the dates thereof and the consolidated results of operations
and changes in cash flows for the periods then ended (subject, in the case of
unaudited quarterly statements, to normal year-end audit adjustments as
determined by Pubco's independent accountants). Except as set forth in the Pubco
SEC Documents, at the date of the most recent audited financial statements of
Pubco included in the Pubco SEC Documents, Pubco has not incurred any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) which, individually or in the aggregate, could reasonably be
expected to have a material adverse effect with respect to Pubco.
g. Absence of Certain Changes or Events. Except as disclosed in the Pubco
SEC Documents or as set forth on Schedule 2.02(g), since the date of the most
recent financial statements included in the Pubco SEC Documents, Pubco has
conducted its business only in the ordinary course consistent with past practice
in light of its current business circumstances, and there is not and has not
been any:
(1) material adverse change with respect to Pubco;
(2) event which, if it had taken place following the execution of this
Agreement, would not have been permitted by Section 3.01 without prior consent
of the Company;
(3) condition, event or occurrence which could reasonably be expected to
prevent, hinder or materially delay the ability of Pubco to consummate the
transactions contemplated by this Agreement;
(4) incurrence, assumption or guarantee by Pubco of any indebtedness for
borrowed money other than in the ordinary course and in amounts and on terms
consistent with past practices or as disclosed to the Company in writing;
(5) creation or other incurrence by Pubco of any lien on any asset other
than in the ordinary course consistent with past practices;
(6) transaction or commitment made, or any contract or agreement entered
into, by Pubco relating to its assets or business (including the acquisition or
disposition of any assets) or any relinquishment by Pubco of any contract or
other right, in either case, material to Pubco, other than transactions and
commitments in the ordinary course consistent with past practices and those
contemplated by this Agreement;
(7) labor dispute, other than routine, individual grievances, or, to the
knowledge of Pubco, any activity or proceeding by a labor union or
representative thereof to organize any employees of Pubco or any lockouts,
strikes, slowdowns, work stoppages or threats by or with respect to such
employees;
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(8) payment, prepayment or discharge of liability other than in the
ordinary course of business or any failure to pay any liability when due;
(9) write-offs or write-downs of any assets of Pubco;
(10) creation, termination or amendment of, or waiver of any right under,
any material contract of Pubco;
(11) damage, destruction or loss having, or reasonably expected to have, a
material adverse effect on Pubco;
(12) other condition, event or occurrence which individually or in the
aggregate could reasonably be expected to have a material adverse effect or give
rise to a material adverse change with respect to Pubco; or
(13) agreement or commitment to do any of the foregoing.
h. Certain Fees. No brokerage or finder's fees or commissions are or will
be payable by Pubco to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other person with respect to the
transactions contemplated by this Agreement.
i. Litigation; Labor Matters; Compliance with Laws.
(1) There is no suit, action or proceeding or investigation pending or, to
the knowledge of Pubco, threatened against or affecting Pubco or any basis for
any such suit, action, proceeding or investigation that, individually or in the
aggregate, could reasonably be expected to have a material adverse effect with
respect to Pubco or prevent, hinder or materially delay the ability of Pubco to
consummate the transactions contemplated by this Agreement, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against Pubco having, or which, insofar as reasonably
could be foreseen by Pubco, in the future could have, any such effect.
(2) Pubco is not a party to, or bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of any proceeding asserting that it
has committed an unfair labor practice or seeking to compel it to bargain with
any labor organization as to wages or conditions of employment nor is there any
strike, work stoppage or other labor dispute involving it pending or, to its
knowledge, threatened, any of which could have a material adverse effect with
respect to Pubco.
(3) The conduct of the business of Pubco complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or arbitration awards
applicable thereto.
j. Benefit Plans. Pubco is not a party to any Benefit Plan under which
Pubco currently has an obligation to provide benefits to any current or former
employee, officer or director of Pubco.
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k. Certain Employee Payments. Pubco is not a party to any employment
agreement which could result in the payment to any current, former or future
director or employee of Pubco of any money or other property or rights or
accelerate or provide any other rights or benefits to any such employee or
director as a result of the transactions contemplated by this Agreement, whether
or not (i) such payment, acceleration or provision would constitute a "parachute
payment" (within the meaning of Section 280G of the Code), or (ii) some other
subsequent action or event would be required to cause such payment, acceleration
or provision to be triggered.
l. Material Agreement Defaults. Pubco is not, or has not, received any
notice or has any knowledge that any other party is, in default in any respect
under any Pubco Material Agreement; and there has not occurred any event that
with the lapse of time or the giving of notice or both would constitute such a
material default. For purposes of this Agreement, a "PUBCO MATERIAL AGREEMENT"
means any contract, agreement or commitment that is effective as of the Closing
Date to which Pubco is a party (i) with expected receipts or expenditures in
excess of $50,000, (ii) requiring Pubco to indemnify any person, (iii) granting
exclusive rights to any party, (iv) evidencing indebtedness for borrowed or
loaned money in excess of $50,000 or more, including guarantees of such
indebtedness, or (v) which, if breached by Pubco in such a manner would (A)
permit any other party to cancel or terminate the same (with or without notice
of passage of time) or (B) provide a basis for any other party to claim money
damages (either individually or in the aggregate with all other such claims
under that contract) from Pubco or (C) give rise to a right of acceleration of
any material obligation or loss of any material benefit under any such contract,
agreement or commitment.
m. Properties. Pubco has valid land use rights for all real property that
is material to its business and good, clear and marketable title to all the
tangible properties and tangible assets reflected in the latest balance sheet as
being owned by Pubco or acquired after the date thereof which are, individually
or in the aggregate, material to Pubco's business (except properties sold or
otherwise disposed of since the date thereof in the ordinary course of
business), free and clear of all material liens, encumbrances, claims, security
interest, options and restrictions of any nature whatsoever. Any real property
and facilities held under lease by Pubco are held by them under valid,
subsisting and enforceable leases of which Pubco is in compliance, except as
could not, individually or in the aggregate, have or reasonably be expected to
result in a material adverse effect.
n. Intellectual Property. Pubco owns or has valid rights to use the
Trademarks, trade names, domain names, copyrights, patents, logos, licenses and
computer software programs (including, without limitation, the source codes
thereto) that are necessary for the conduct of its business as now being
conducted. All of Pubco's licenses to use Software programs are current and have
been paid for the appropriate number of users. To the knowledge of Pubco, none
of Pubco's Intellectual Property or Pubco License Agreements infringe upon the
rights of any third party that may give rise to a cause of action or claim
against Pubco or its successors. The term "PUBCO LICENSE AGREEMENTS" means any
license agreements granting any right to use or practice any rights under any
Intellectual Property (except for such agreements for off-the-shelf products
that are generally available for less than $10,000), and any written settlements
relating to any Intellectual Property, to which the Company is a party or
otherwise bound.
o. Board Determination. The Board of Directors of Pubco has unanimously
determined that the terms of the Purchase are fair to and in the best interests
of Pubco and its shareholders.
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p. Undisclosed Liabilities. Pubco has no liabilities or obligations of any
nature (whether fixed or unfixed, secured or unsecured, known or unknown and
whether absolute, accrued, contingent, or otherwise) except for liabilities or
obligations reflected or reserved against in the Pubco SEC Documents incurred in
the ordinary course of business.
q. Full Disclosure. All of the representations and warranties made by Pubco
in this Agreement, and all statements set forth in the certificates delivered by
Pubco at the Closing pursuant to this Agreement, are true, correct and complete
in all material respects and do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make such
representations, warranties or statements, in light of the circumstances under
which they were made, misleading. The copies of all documents furnished by Pubco
pursuant to the terms of this Agreement are complete and accurate copies of the
original documents. The schedules, certificates, and any and all other
statements and information, whether furnished in written or electronic form, to
the Company or its representatives by or on behalf of Pubco and the Pubco
Stockholders in connection with the negotiation of this Agreement and the
transactions contemplated hereby do not contain any material misstatement of
fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.
2.03 REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER. The Selling
Shareholder represents and warrants to Pubco as follows:
a. Ownership of the Shares. The Selling Shareholder owns Ninety Nine and
99/100 percent (99.99%) of the issued and outstanding shares of capital stock of
the Company, free and clear of all liens, claims, rights, charges, encumbrances,
and security interests of whatsoever nature or type.
b. Power of Selling Shareholder to Execute Agreement. The Selling
Shareholder has the full right, power, and authority to execute, deliver, and
perform this Agreement, and this Agreement is the legal binding obligation of
the Selling Shareholder and is enforceable against the Selling Shareholder in
accordance with its terms, except that (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefore may be brought.
c. Agreement Not in Breach of Other Instruments Affecting Selling
Shareholder. The execution and delivery of this Agreement, the consummation of
the transactions hereby contemplated, and the fulfillment of the terms hereof
will not result in the breach of any term or provisions of, or constitute a
default under, or conflict with, or cause the acceleration of any obligation
under any agreement or other instrument of any description to which the Selling
Shareholder is a party or by which the Selling Shareholder is bound, or any
judgment, decree, order, or award of any court, governmental body, or arbitrator
or any applicable law, rule, or regulation.
d. Accuracy of Statements. Neither this Agreement nor any statement, list,
certificate, or any other agreement executed in connection with this Agreement
or other information furnished or to be furnished by the Selling Shareholder to
Pubco in connection with this Agreement or any of the transactions contemplated
hereby contains or will contain an untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements contained
herein or therein, in light of circumstances in which they are made, not
misleading.
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ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO EXCHANGE
3.01 CONDUCT OF THE COMPANY AND PUBCO. From the date of this Agreement and
until the Closing Date, or until the prior termination of this Agreement, the
Company and Pubco shall not, unless mutually agreed to in writing:
a. engage in any transaction, except in the normal and ordinary course of
business, or create or suffer to exist any lien or other encumbrance upon any of
their respective assets or which will not be discharged in full prior to the
Closing Date;
b. sell, assign or otherwise transfer any of their assets, or cancel or
compromise any debts or claims relating to their assets, other than for fair
value, in the ordinary course of business, and consistent with past practice;
c. fail to use reasonable efforts to preserve intact their present business
organizations, keep available the services of their employees and preserve its
material relationships with customers, suppliers, licensors, licensees,
distributors and others, to the end that its good will and ongoing business not
be impaired prior to the Closing Date;
d. except for matters related to complaints by former employees related to
wages, suffer or permit any material adverse change to occur with respect to the
Company and Pubco or their business or assets; or
e. make any material change with respect to their business in accounting or
bookkeeping methods, principles or practices, except as required by GAAP.
ARTICLE IV
ADDITIONAL AGREEMENTS AND COVENANTS
4.01 ACCESS TO INFORMATION; CONFIDENTIALITY.
a. The Company shall, and shall cause its officers, employees, counsel,
financial advisors and other representatives to, afford to Pubco and its
representatives reasonable access during normal business hours during the period
prior to the Closing Date to its and to the Company's properties, books,
contracts, commitments, personnel and records and, during such period, the
Company shall, and shall cause its officers, employees and representatives to,
furnish promptly to Pubco all information concerning its business, properties,
financial condition, operations and personnel as such other party may from time
to time reasonably request. For the purposes of determining the accuracy of the
representations and warranties of Pubco set forth herein and compliance by Pubco
of its obligations hereunder, during the period prior to the Closing Date, Pubco
shall provide the Company and its representatives with reasonable access during
normal business hours to its properties, books, contracts, commitments,
personnel and records as may be necessary to enable the Company to confirm the
accuracy of the representations and warranties of Pubco set forth herein and
compliance by Pubco of its obligations hereunder, and, during such period, Pubco
shall, and shall cause its officers, employees and representatives to, furnish
promptly to the Company upon its request (i) a copy of each report, schedule,
registration statement and other document filed by it during such period
pursuant to the requirements of federal or state securities laws and (ii) all
other information concerning its business, properties, financial condition,
operations and personnel as such other party may from time to time reasonably
request. Except as required by law, each of the Company and Pubco will hold, and
will cause its respective directors, officers, employees, accountants, counsel,
financial advisors and other representatives and affiliates to hold, any
nonpublic information in confidence.
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b. No investigation pursuant to this Section 4.01 shall affect any
representations or warranties of the parties herein or the conditions to the
obligations of the parties hereto.
4.02 BEST EFFORTS. Upon the terms and subject to the conditions set forth
in this Agreement, each of the parties agrees to use its best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Exchange and the other transactions contemplated by this
Agreement. Pubco and the Company shall mutually cooperate in order to facilitate
the achievement of the benefits reasonably anticipated from the Exchange.
4.03 PUBLIC ANNOUNCEMENTS. Pubco, on the one hand, and the Company, on the
other hand, will consult with each other before issuing, and provide each other
the opportunity to review and comment upon, any press release or other public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable law or court
process. The parties agree that the initial press release or releases to be
issued with respect to the transactions contemplated by this Agreement shall be
mutually agreed upon prior to the issuance thereof.
4.04 EXPENSES. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
4.05 NO SOLICITATION. Except as previously agreed to in writing by the
other party, neither the Company nor Pubco shall authorize or permit any of its
officers, directors, agents, representatives, or advisors to solicit, initiate
or encourage or take any action to facilitate the submission of inquiries,
proposals or offers from any person relating to any matter concerning any
exchange, merger, consolidation, business combination, recapitalization or
similar transaction involving the Company or Pubco, respectively, other than the
transaction contemplated by this Agreement or any other transaction the
consummation of which would or could reasonably be expected to impede, interfere
with, prevent or delay the Exchange or which would or could be expected to
dilute the benefits to either the Company or Pubco of the transactions
contemplated hereby. The Company or Pubco will immediately cease and cause to be
terminated any existing activities, discussions and negotiations with any
parties conducted heretofore with respect to any of the foregoing.
4.06 POST-CLOSING CAPITALIZATION. At the Closing, the authorized capital
stock of Pubco shall consist of 300,000,000 shares of Pubco Common Stock, of
which 59,000,000 shares of Pubco Common Stock will be issued and outstanding,
and 25,000,000 shares of Pubco Preferred Stock, of which no shares of Pubco
Preferred Stock will be outstanding.
ARTICLE V
CONDITIONS PRECEDENT
5.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE. The
obligation of each party to effect the Purchase and otherwise consummate the
transactions contemplated by this Agreement is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions:
a. No Restraints. No temporary restraining order, preliminary or permanent
injunction or other order preventing the consummation of the Exchange shall have
been issued by any court of competent jurisdiction or any other Governmental
Entity having jurisdiction and shall remain in effect, and there shall not be
any applicable legal requirement enacted, adopted or deemed applicable to the
Purchase that makes consummation of the Purchase illegal.
b. Governmental Approvals. All authorizations, consents, orders,
declarations or approvals of, or filings with, or terminations or expirations of
waiting periods imposed by, any Governmental Entity having jurisdiction which
the failure to obtain, make or occur would have a material adverse effect on
Pubco or the Company shall have been obtained, made or occurred.
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c. No Litigation. There shall not be pending or threatened any suit, action
or proceeding before any court, Governmental Entity or authority (i) pertaining
to the transactions contemplated by this Agreement or (ii) seeking to prohibit
or limit the ownership or operation by the Company, Pubco or any of its
subsidiaries, or to dispose of or hold separate any material portion of the
business or assets of the Company or Pubco.
d. Shareholder Approval. The shareholders of the Company shall have adopted
and approved this Agreement and the Purchase in accordance with applicable law.
e. Stock Transfer Form. The Selling Shareholder and Pubco shall have
executed and delivered a Share Transfer Form pursuant to section 108(1A) of the
Companies Xxx, 0000, which Share Transfer Form shall be executed in accordance
with all applicable law and shall effect the transfer of the Shares from the
Selling Shareholder to Pubco.
5.02 CONDITIONS PRECEDENT TO OBLIGATIONS OF PUBCO. The obligation of Pubco
to effect the Purchase and otherwise consummate the transactions contemplated by
this Agreement are subject to the satisfaction, at or prior to the Closing, of
each of the following conditions:
a. Representations, Warranties and Covenants. The representations and
warranties of the Company and the Selling Shareholder in this Agreement shall be
true and correct in all material respects (except for such representations and
warranties that are qualified by their terms by a reference to materiality or
material adverse effect, which representations and warranties as so qualified
shall be true and correct in all respects) both when made and on and as of the
Closing Date, and (ii) the Company and the Selling Shareholder shall have
performed and complied in all material respects with all covenants, obligations
and conditions of this Agreement required to be performed and complied with by
each of them prior to the Closing Date.
b. Consents. Pubco shall have received evidence, in form and substance
reasonably satisfactory to it, that such licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and other
third parties as necessary in connection with the transactions contemplated
hereby have been obtained.
c. Officer's Certificate of the Company. Pubco shall have received a
certificate executed on behalf of the Company by an executive officer of the
Company confirming that the conditions set forth in Sections 5.02(a) and 5.02(d)
have been satisfied.
d. No Material Adverse Change. There shall not have occurred any change in
the business, condition (financial or otherwise), results of operations or
assets (including intangible assets) and properties of the Company that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the Company.
e. Audited Financial Statements. The Company shall have completed and Pubco
shall have received from the Company audited financial statements (including a
balance sheet and income statements) and proforma financial statements as
required to be filed by Pubco pursuant to the Exchange Act.
f. Secretary's Certificate of the Company. Pubco shall have received a
certificate, dated as of the Closing Date, from the Secretary of the Company
(Secretary in whole-time practice) certifying (i) as to the incumbency and
signatures of the officers of the Company who shall execute this Agreement and
documents at the Closing and (ii) that attached thereto is a true and complete
copy of (A) the articles or certificate of organization of the Company and all
amendments thereto, (B) the bylaws, corporate governance or other charter
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document of the Company and all amendments thereto, and (C) resolutions of the
Board of Directors of the Company and the Selling Shareholder authorizing the
execution, delivery and performance of this Agreement by the Company.
g. Due Diligence Investigation. Pubco shall be reasonably satisfied with
the results of its due diligence investigation of the Company in its sole and
absolute discretion.
5.03 CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY. The obligation of
the Company to effect the Purchase and otherwise consummate the transactions
contemplated by this Agreement is subject to the satisfaction, at or prior to
the Closing, of each of the following conditions:
a. Representations, Warranties and Covenants. The representations and
warranties of Pubco in this Agreement shall be true and correct in all material
respects (except for such representations and warranties that are qualified by
their terms by a reference to materiality or material adverse effect, which
representations and warranties as so qualified shall be true and correct in all
respects) both when made and on and as of the Closing Date, and (ii) Pubco shall
have performed and complied in all material respects with all covenants,
obligations and conditions of this Agreement required to be performed and
complied with by it prior to the Closing Date.
b. Consents. The Company shall have received evidence, in form and
substance reasonably satisfactory to it, that such licenses, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and other third parties as necessary in connection with the transactions
contemplated hereby have been obtained.
c. Officer's Certificate of Pubco. The Company shall have received a
certificate executed on behalf of Pubco by an executive officer of Pubco,
confirming that the conditions set forth in Sections 5.03(a) and 5.03(d) have
been satisfied.
d. No Material Adverse Change. There shall not have occurred any change in
the business, condition (financial or otherwise), results of operations or
assets (including intangible assets) and properties of Pubco that, individually
or in the aggregate, could reasonably be expected to have a material adverse
effect on Pubco.
e. Board Resolutions. The Company shall have received resolutions duly
adopted by Pubco's Board of Directors approving the execution, delivery and
performance of the Agreement and the transactions contemplated by the Agreement.
f. Current Report. Pubco shall file a Form 8-K with the SEC within four
business days of the Closing Date containing information about the Purchase.
g. Due Diligence Investigation. The Company shall be reasonably satisfied
with the results of its due diligence investigation of Pubco in its sole and
absolute discretion.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.01 TERMINATION. This Agreement may be terminated and abandoned at any
time prior to the Closing Date of the Purchase:
a. by mutual written consent of Pubco and the Company;
b. by either Pubco or the Company if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Purchase and such order,
decree, ruling or other action shall have become final and nonappealable;
c. by either Pubco or the Company if the Purchase shall not have been
consummated on or before August 31, 2013 (other than as a result of the failure
of the party seeking to terminate this Agreement to perform its obligations
under this Agreement required to be performed at or prior to the Closing Date);
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d. by Pubco, if a material adverse change shall have occurred relative to
the Company (and not curable within thirty (30) days);
e. by the Company if a material adverse change shall have occurred relative
to Pubco (and not curable within thirty (30) days);
f. by Pubco, if the Company willfully fails to perform in any material
respect any of its material obligations under this Agreement; or
g. by the Company, if Pubco willfully fails to perform in any material
respect any of its obligations under this Agreement.
6.02 EFFECT OF TERMINATION. In the event of termination of this Agreement
by either the Company or Pubco as provided in Section 6.01, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of Pubco or the Company, other than the provisions of the last sentence
of Section 4.01(a) and this Section 6.02. Nothing contained in this Section
shall relieve any party for any breach of the representations, warranties,
covenants or agreements set forth in this Agreement.
6.03 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties upon approval by the party,
if such party is an individual, and upon approval of the Boards of Directors of
each of the parties that are corporate entities.
6.04 EXTENSION; WAIVER. Subject to Section 6.01(c), at any time prior to
the Closing Date, the parties may (a) extend the time for the performance of any
of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement, or (c) waive compliance
with any of the agreements or conditions contained in this Agreement. Any
agreement on the part of a party to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
The failure of any party to this Agreement to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of such rights.
6.05 RETURN OF DOCUMENTS. In the event of termination of this Agreement for
any reason, Pubco and the Company will return to the other party all of the
other party's documents, work papers, and other materials (including copies)
relating to the transactions contemplated in this Agreement, whether obtained
before or after execution of this Agreement. Pubco and the Company will not use
any information so obtained from the other party for any purpose and will take
all reasonable steps to have such other party's information kept confidential.
ARTICLE VII
INDEMNIFICATION AND RELATED MATTERS
7.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive until twelve (12) months after the Closing Date.
7.02 INDEMNIFICATION.
a. Pubco shall indemnify and hold the Selling Shareholder and the Company
harmless for, from and against any and all liabilities, obligations, damages,
losses, deficiencies, costs, penalties, interest and expenses (including, but
not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) (collectively, "LOSSES") to which Pubco may
become subject resulting from or arising out of any breach of a representation,
warranty or covenant made by Pubco as set forth herein.
b. The Company and the Selling Shareholder shall jointly indemnify and hold
Pubco and Pubco's officers and directors ("PUBCO'S REPRESENTATIVES") harmless
for, from and against any and all Losses to which Pubco or Pubco's
Representatives may become subject resulting from or arising out of (1) any
breach of a representation, warranty or covenant made by the Company or the
Selling Shareholder as set forth herein; or (2) any and all liabilities arising
out of or in connection with: (A) any of the assets of the Company prior to the
Closing; or (B) the operations of the Company prior to the Closing.
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7.03 NOTICE OF INDEMNIFICATION. Promptly after the receipt by any
indemnified party (the "INDEMNITEE") of notice of the commencement of any action
or proceeding against such Indemnitee, such Indemnitee shall, if a claim with
respect thereto is or may be made against any indemnifying party (the
"INDEMNIFYING PARTY") pursuant to this Article VII, give such Indemnifying Party
written notice of the commencement of such action or proceeding and give such
Indemnifying Party a copy of such claim and/or process and all legal pleadings
in connection therewith. The failure to give such notice shall not relieve any
Indemnifying Party of any of its indemnification obligations contained in this
Article VII, except where, and solely to the extent that, such failure actually
and materially prejudices the rights of such Indemnifying Party. Such
Indemnifying Party shall have, upon request within thirty (30) days after
receipt of such notice, but not in any event after the settlement or compromise
of such claim, the right to defend, at its own expense and by its own counsel
reasonably acceptable to the Indemnitee, any such matter involving the asserted
liability of the Indemnitee; provided, however, that if the Indemnitee
determines that there is a reasonable probability that a claim may materially
and adversely affect it, other than solely as a result of money payments
required to be reimbursed in full by such Indemnifying Party under this Article
VII or if a conflict of interest exists between Indemnitee and the Indemnifying
Party, the Indemnitee shall have the right to defend, compromise or settle such
claim or suit; and, provided, further, that such settlement or compromise shall
not, unless consented to in writing by such Indemnifying Party, which shall not
be unreasonably withheld, be conclusive as to the liability of such Indemnifying
Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party
and its counsel shall cooperate in the defense against, or compromise of, any
such asserted liability, and in cases where the Indemnifying Party shall have
assumed the defense, the Indemnitee shall have the right to participate in the
defense of such asserted liability at the Indemnitee's own expense. In the event
that such Indemnifying Party shall decline to participate in or assume the
defense of such action, prior to paying or settling any claim against which such
Indemnifying Party is, or may be, obligated under this Article VII to indemnify
an Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a
copy of a final court judgment or decree holding the Indemnitee liable on such
claim or, failing such judgment or decree, the terms and conditions of the
settlement or compromise of such claim. An Indemnitee's failure to supply such
final court judgment or decree or the terms and conditions of a settlement or
compromise to such Indemnifying Party shall not relieve such Indemnifying Party
of any of its indemnification obligations contained in this Article VII, except
where, and solely to the extent that, such failure actually and materially
prejudices the rights of such Indemnifying Party. If the Indemnifying Party is
defending the claim as set forth above, the Indemnifying Party shall have the
right to settle the claim only with the consent of the Indemnitee.
ARTICLE VIII
GENERAL PROVISIONS
8.01 NOTICES. Any and all notices and other communications hereunder shall
be in writing and shall be deemed duly given to the party to whom the same is so
delivered, sent or mailed at addresses and contact information set forth below
(or at such other address for a party as shall be specified by like notice.) Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be deemed given and effective on the earliest of:
(a) on the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number set forth on the signature pages attached
hereto prior to 5:30 p.m. (Pacific Standard Time) on a business day, (b) on the
next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto on a day that is not a business day or later
than 5:30 p.m. (Pacific Standard Time) on any business day, (c) on the second
business day following the date of mailing, if sent by a nationally recognized
overnight courier service, or (d) if by personal delivery, upon actual receipt
by the party to whom such notice is required to be given.
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If to Pubco:
Guar Global Ltd.
000 X. Xxxxxxxxx Xxxxxx
XxXxxxxx XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxxx Traurig, LLP
Attention: Xxxx X. Xxx, Esq.
0000 X Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
Pure Guar India Private Limited
x/x Xxxxxxxxx
X-0/00, Xxxxxxxx Happy School, Xxxxx Xxxx
Xxx Xxxxx - 000000
Xxxxx, Xxxxx
All Notices to the Selling Shareholder shall be sent "care of" the Company.
8.02 DEFINITIONS. For purposes of this Agreement:
a. an "affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person;
b. "material adverse change" or "material adverse effect" means, when used
in connection with the Company or Pubco, any change or effect that either
individually or in the aggregate with all other such changes or effects is
materially adverse to the business, assets, properties, condition (financial or
otherwise) or results of operations of such party and its subsidiaries taken as
a whole (after giving effect in the case of Pubco to the consummation of the
Purchase);
c. "ordinary course of business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency);
d. "person" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity;
e. "subsidiary" of any person means another person, an amount of the voting
securities, other voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its board of directors or other
governing body (or, if there are no such voting interests, fifty percent (50%)
or more of the equity interests of which) that is owned directly or indirectly
by such first person; and
f. "security interest" means any mortgage, pledge, lien, encumbrance, deed
of trust, lease, charge, right of first refusal, easement, servitude, proxy,
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voting trust or agreement, transfer restriction under any shareholder or similar
agreement or any other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) statutory liens for taxes not yet due and
payable, (c) purchase money liens and liens securing rental payments under
capital lease arrangements, (d) pledges or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment insurance or
other similar social security legislation; and (e) encumbrances, security
deposits or reserves required by law or by any Governmental Entity.
8.03 INTERPRETATION. When a reference is made in this Agreement to a
Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated. 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. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
8.04 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement and the
other agreements referred to herein constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement. This Agreement
is not intended to confer upon any person other than the parties any rights or
remedies.
8.05 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
8.06 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise by any of the parties without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
8.07 ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Nevada, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (a) agrees that it will not attempt to deny or defeat such personal
jurisdiction or venue by motion or other request for leave from any such court,
and (b) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any state court other
than such court.
8.08 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
8.09 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
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one party, but all such counterparts taken together will constitute one and the
same Agreement. This Agreement, to the extent delivered by means of a facsimile
machine or electronic mail (any such delivery, an "ELECTRONIC DELIVERY"), 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, each other party hereto shall re-execute original forms hereof and
deliver them in person to all other parties. No party hereto shall raise the use
of Electronic Delivery to deliver a signature or the fact that any signature or
agreement or instrument was transmitted or communicated through the use of
Electronic Delivery as a defense to the formation of a contract, and each such
party forever waives any such defense, except to the extent such defense related
to lack of authenticity.
8.10 ATTORNEYS FEES. In the event any suit or other legal proceeding is
brought for the enforcement of any of the provisions of this Agreement, the
parties hereto agree that the prevailing party or parties shall be entitled to
recover from the other party or parties upon final judgment on the merits
reasonable attorneys' fees, including attorneys' fees for any appeal, and costs
incurred in bringing such suit or proceeding.
8.11 CURRENCY. All references to currency in this Agreement shall refer to
the lawful currency of the United States of America.
IN WITNESS WHEREOF, the undersigned have executed, or have caused their
duly authorized officers to execute, this Agreement as of the date first above
written.
Pubco:
Guar Global Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Company:
Pure Guar India Private Limited
By: /s/ Amit Seth
-----------------------------------
Amit Seth
Director
Selling Shareholder:
/s/ Amit Seth
--------------------------------------
Amit Seth
[Signature Page to Stock Purchase Agreement]
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